البصمات وحجينها في الإثبات الجنائي في الشريعة واجتهاد القضاة في ليبيا دراسة تحليلية مقارنة
Due to growing phenomenon of criminal offenses , especially during the present era in which the criminal patterns have been changed. New types of crimes emerged the present era in which the criminal patterns have been changed. New types of crimes emerged which were unknown before and emerging kind o...
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| Summary: | Due to growing phenomenon of criminal offenses , especially during the present era in which the criminal patterns have been changed. New types of crimes emerged the present era in which the criminal patterns have been changed. New types of crimes emerged which were unknown before and emerging kind of criminals have appeared who depend on scientific technologies as means is committing their crimes. Many Fiqh scholars restrict criminal evidence means of al-Hudoud and al-Qisas in confession and witness. Additionally, there is absence of necessary and clear frameworks in Libyan Law and most Islamic and Arabic Laws to chase this kind of crimes. This study comes to find out authenticity of fingerprints as a criminal evidence in Shariah and Libyan Law. The researcher used the descriptive method in his study by describing essence of fingerprints, its scientific background and the used modern technologies to investigate them and the comparative analytical method. This is achieved by critical display of fiqh scholars opinions in role of presumptions in field of criminal evidence to reach the predominant opinion. Among the results the researcher obtained that Fiqh scholars agreed about considering presumptions in judgement and judiciary system generally. The most widely use of this principle is Maliki and Hanbali Mazhab , then Shafi’e , and then Hanafi Mazhab. The researcher also concluded that fingerprints have affirmative conclusive value because of its strong scientific background, consequently , its value has to be considered , and i.e., proof of presence of the person where the fingerprint was found , and this person should justify this presence. If he/she failed to justify , and nothing in the investigation would accuse him/her, and nothing in the incident opposes this evidence logically, As a result, the fingerprint evidence becomes affirmative conclusive evidence, meets all terms and conditions of criminal evidence, and we can depend on it proving all crimes, including crimes of al-Hudoud and al-Qisas. The researcher makes one exception which is “smell fingerprint”. We can’t depend on it alone as it is neither and affirmative evidence nor a strong presumption. It needs other presumptions to strengthen it until the judge or the investigator think most likely the accused is the criminal. Concerning Libyan Law, although the Libyan legislator did not stated expressly in Evidence Act or Criminal Procedures Act that Fingerprints are dependable and conclusive criminal evidence , unlike the other Islamic and the other Islamic and Arab countries, but the criminal judge may useit and judge depending on it according to the principle of “Free Evidence” on which the Libyan Legislator depends. In Al-Hudoud cases, The Libyan legislator followed the easiest Fiqh Mazhabs which are satisfied by witness and confession only, except instealing, banditry (Harabah), and adultery (Zina) crimes , where the Libyan Legislator gave the criminal judge freedom to make judgemnet based on any scientific means including fingerprints, The Libyan legislator considered alcohol drink crime as misdemeanor. Consequently, the judge has all the freedom to make the judgement, including use of fingerprints as a conclusive evidence. |
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