x Abu Dhabi, UAETuesday 23 January 2018

Ancient Sharia may decide murder trial

Judges call upon ancient justice mechanism that is rarely used in UAE courts.

ABU DHABI // The family of a man who was murdered after allegedly raping his sister-in-law may adopt an ancient Sharia justice mechanism to secure the conviction of the woman they believe is the killer.

Qasamah, or a "wager of law" that links innocence or guilt to an oath, was used by Arabs in pre-Islamic times but endorsed by The Prophet Mohammed in a murder case.

It is meant for convicting a person who has killed another, but there is no evidence - not even a witness - to support the allegations.

In such cases, a person or people would be asked to swear on the Quran to the truth of something they knew, but did not see.

The family of the Emirati man are considering the oath against the woman, ARM, who initially confessed to shooting him twice in the head point-blank with a handgun in Al Gharbia after he raped her.

Later she rescinded the confession, which she said was made under duress. The Court of Cassation agreed with the woman, which has led to qasamah being tested.

According to the qasamah system, 50 members of a victim's family must swear that the accused is guilty. Their oath is annulled if the family of the accused swears the accused is innocent.

But the family of ARM, unsure of her innocence, have already refused to take the oath. The victim's family are also showing uncertainty, and have failed twice to attend and swear ARM killed their relative. A source close to the case, who had spoken with the family, said they were now reluctant to take an oath.

Because it is difficult to find 50 family members who meet the requirements - adults and accountable - the justices may ask available family members to swear several times. The family is scheduled to take the oath on March 25.

The murder case dates back to January 2004. Qasamah was invoked after ARM's lawyer presented arguments dismantling the evidence used previously for the conviction. Nashwa al Qubaisi, ARM's lawyer, asked the court for acquittal, or if issuing a conviction, to sentence her to time served.

The Al Dhafra Criminal Court of First Instance ruled that even though ARM retracted her confession, it was clear and convincing evidence, and sentenced her to death.

The Abu Dhabi Court of Appeal upheld the sentence, but the Court of Cassation rejected the verdict, saying her confession was made under duress, and sent the case back to the appeals court.

Mrs al Qubaisi told the Court of Cassation that the lower courts erred in ignoring ARM's retraction. The courts also ignored inconsistencies in the confession, and the fact that it did not match forensic evidence, she said.

Mrs al Qubaisi said the man must have been killed by another person who had a grudge against him, citing the rage of the defendant's husband after he found out she had been raped, and maids who testified that the man had raped ARM's sister and threatened to rape her sister's daughter as well.

The lawyer argued that many people would therefore be interested in killing the man, and given the lack of evidence against ARM there was no reason she could be convicted.

The lawyer's arguments were accepted, leaving the court with no evidence to weigh. However, the family of the victim insisted she killed him, and the justices ruled qasamah was required for a conviction.