Reason #44: Flawed Conclusion- A Lawyer’s perspective
(A Lawyer’s perspective)
I read with interest, the newspaper article in Hindustan Times where former Chief Justice of India, Justice Ahmadi states that he believes that Khuzaima Qutbuddin’s claim of 53 dai is principled. According to Mr. Ahmadi, he himself has examined some historical documents “in which historical facts about the community and the events since the nass (choosing the successor) conferred by Syedna Burhanuddin on Syedna Qutbuddin in 1965 have been recorded“.
Based on his examination he concluded that Khuzaima Qutbuddin’s stand of 53rd Dai is principled. Mr. Ahmadi while drawing his conclusion has overlooked some of the very basic principles of laws which I list below.
The analysis below is from logical and legal standpoint. Out of fairness, I find it right to state that I have not seen historical documents shared by Khuzaima Qutbuddin to Mr. Ahmadi.
1. Audi alteram partem (Latin phrase)
It means “hear the other side too”, or “hear the alternative party too”. “Audi alteram partem” is the basic principle of justice or equity. The principle includes the rights of a party to have a fair opportunity to challenge the evidence presented by the other party, to summon one’s own witnesses and to present evidence.
It is apparent from the language of the news article that Mr. Ahmadi has not attempted to share the historical documents with the representatives of Mufaddal Moula TUS and sought their response on the same. It is a common wisdom in law that no opinion should be formed without having the response from the other party.
Moreover, the so called historical documents which is examined by Mr. Ahmadi is not even the evidence of nass. It is (in his own words) “historical facts about the community and the events since the nass” (emphasis added on the underlined words). In any case it is common knowledge now that there is no evidence or witness to so called nass on Khuzaima Qutbuddin as it is done in private as claimed by him.
2. Testimony of Eye Witness
I cannot emphasise enough the importance of eyewitness in the law, particularly in Sharia. More so, when number of eyewitnesses are testifying the same thing, the authenticity of the same is beyond any doubt. There were at least 5 male witness (3 Shahzada Sahebs, Dr. Moiz Bhaisaheb and his son Abdul Qader Bhaisaheb). Even the highest burden of proof is satisfied if 5 male witness testify the same thing which they have witnessed with their eyes and heard from their ears.
Mr. Ahmadi while drawing his conclusion has clearly undermined the testimony of each and every Shahzada Saheb, Dr. Moiz Bhaisaheb and his son Abdul Qader Bhaisaheb who was present in the London Hospital while Burhanuddin Moula R.A. conferred nass upon Mufaddal Moula TUS. All of them have unequivocally testified that Burhanuddin Moula RA. had in their presence conferred nass on Mufaddal Moula TUS which they heard very clearly.
Moreover, it seems that Mr. Ahmadi also have a reason to believe that Shahzada Qaid Johar Bhaisaheb and Shahzada Malik ul ashtar Bhaisaheb is not telling the truth when they also affirm that Burhanuddin Moula RA. has done nass on Mufaddal Moula TUS few years back and kept them shahid (witness) to the Nass specifically advising to keep the nass secret.
3. Documentary Evidence:
The events of the nass are recorded on three folios carefully protected and conserved, written by Miyasaheb Shaikh Ibrahim al-Yamani. At the end, Burhanuddin Moula RA has himself signed the folio attesting what is written is true and accurate.
Mr. Ahmadi while drawing his conclusion has certainly overlooked this documentary evidence or believed that this documentary evidence is fraudulent (as claimed by Khuzaima Qutbuddin). The authenticity and genuineness of this document can be very easily confirmed beyond any doubt by the use of technology.
It baffles the mind, how Mr. Ahmadi, who is a former chief justice of India, can overlook these vital principles of law in forming his conclusion. Moreover, the conclusion formed by him is based on historical documents containing historical facts about the community and the events since the nass (note that there is no evidence of nass on Khuzaima Qutbuddin as it is done in private as claimed by him). On the basis of these so called historical documents and to the exclusion of clear affirmative evidences and disregarding some of the basic principles of equity and justice, Mr. Ahmadi has formed his flawed opinion.
All of the above together with other evidence points only in one direction i.e., Burhanuddin Moula RA has appointed Mufaddal Moula TUS as his mansoos and the 53rd Dai.