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CHAPTER 5  
DISCUSSION AND CONCLUSION 
5.1 Introduction 
This chapter summarises and discusses the findings, thus details the implications 
of study. Section 5.2 summarises all the findings according to their objectives followed 
by the discussions of findings from all the three objectives. This chapter also provides 
for the implication of the study in sections 5.3. The suggestion of study has been added 
for future research in section 5.4 followed by conclusion in section 5.5. 
5.2 Summary and Discussion of Findings 
5.2.1 Summary and Discussion (Research Objective 1) 
The first research question of this study is to identify the forms of document 
forgery that happened in Syariah courts based on decided cases. To answer this, the 
researcher has conducted analysis over the few selected cases involving the act of 
forgery relating to documents. The data were obtained from 14 cases from the following 
sources; Jurnal Hukum (1), Syariah Law Report (7), Malayan Law Journal (3), Current 
Law Journal (Sya)(2), Malayan Law Journal (Unreported)(1). These data were found 
through keyword search of the terms ‘forgery’, ‘document forgery’, ‘forgery in 
document’ and ‘forgery in Syariah case’. The results of this study reveal that the forms 
of forgery in Syariah court cases include cases relating to the process of marriage and 
polygamy and those involving distribution or division of property. 
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Figure 5.1:  Cases of Forgery in Documents in Syariah court cases 
In analyzing the data from these 14 cases, two themes emerged which will be 
discussed in this section. The themes are divided as follows. The first theme is the cases 
involving marriage or polygamy while the second theme is the cases involving the 
distribution of property. Based on the forms of forgeries identified in these cases, it can 
be observed that the courts in giving decision will decide the status of a questioned 
document as to whether it is genuine or not. These cases were decided according to the 
evidences presented in courts and the wisdom of the judges. Alternatively, the court 
may consider the opinions and evidence from the expert in deciding those cases in order 
to improve the judicial process in one way or another. For example, looking at the 
practice in civil courts, the judge in the case of Chu Choon Moi v Ngan Sew Tin [1986] 
1 MLJ 34 stated that it is not proper to attempt making any conclusion on the 
genuineness of a signature in a document by comparing two similar handwriting without 
resorting to the opinion of a handwriting expert who is specialized in this field. 
Jurnal Hukum (1) Malayan Law Journal (Unreported) (1) 
Current Law Journal 
(Syariah) (2) 
Malayan Law 
Journal (3) 
Syariah Law 
Report (7) 
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Based on the results, there are many circumstances and forms of forgery happened 
in Syariah court cases. For instance, in the case of Kholed bin Dinyati lwn. Ketua 
Pendakwa Syarie Melaka [2009] JH 29 BHG. 2 275, the appellant obtained a 
marriage certificate by making a false declaration using the identity card of another 
person. In the case of Syarie Prosecutor v Azlan Daniels bin Abdullah [2008] 2 
ShLR 158,  the accused had made a false declaration that he was still a bachelor and 
was not previously married when requesting permission to contract the second marriage. 
Pendakwa Syarie Kelantan lwn. Mat Rahim Saman dan satu lagi [2004] CLJ (Sya) 
2004 513 is another case involving questioned documents where the prosecution had 
failed to show that the nikah documents as produced by the accused were tainted with 
forgery or obtained through forgery or improper means.  
Among the forms of forgery include false declaration of identity, false declaration 
of being unmarried and forged marriage documents. The forms of document forgery 
identified in these cases suggested that it is crucial to have a decent mechanism to 
prevent fraudulent acts from happening. Notwithstanding the fact that in the modern 
office, the electronically mailed document is of growing importance, the traditional 
document in the form of paper still has its place, and thousands of different kinds are 
used for documentation purposes. In fact, the threat of illegal document forgery exists 
and will always exist (Pfefferli, 2000). The discovery of various forms of forgery in 
documents proves that forgery of documents could easily happen in many ways. Hence, 
the examination of questioned document can serve as a good tool to prevent the increase 
of document forgeries.  
The cases of Abd Halim bin Md Hashim v Azila bt Ramli @ Ismail [2017] 2 
ShLR 57, Rosniza bt Mustaffa v Abu Bakar bin Dawam [2013] 4 ShLR 28 and 
Norazimah bt Man v Mohd Hamdan bin Ismail [2013] 3 ShLR 45 showed how the non-
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fulfillment of conditions in marriage can render a marriage certificate fake and invalid. 
In these three cases, the fifth pillar of marriage which is the presence of wali has not 
been fulfilled and thus the marriages are deemed to be invalid. 
These results mirrored the previous research carried out by Mohd Zahiruddin 
Fahmi (2015) who examined the non-compliance of marriage application procedure 
among the Muslims in Wilayah Persekutuan Kuala Lumpur Syariah Court. Similarly, a 
study by Karim and Rauf (2020) stated that among the factors that lead to unauthorized 
marriage include polygamy and complicated marriage procedure. The findings of these 
two studies indicated that there is a high risk that documents are being fabricated 
especially within the marriage and polygamy application. 
The study conducted by W. A. F. W. Ismail et al. (2015) used survey to identify 
the concept of document forgery from fiqh perspective. Meanwhile, the current study 
views the forms of forgery from court’s perspective particularly based on decided 
Syariah cases. In accordance with the present results, previous studies have shown that 
signature forgeries and factual alteration of medical certificates are the most prevalent 
forms of document falsification (W. A. F. W. Ismail, 2017). Hence, the present study 
contributes more perspectives and insights into the issue of forgery involving document. 
These days, there are many types of document being fabricated including business 
records, checks, financial instruments, property records, insurance claims passport and 
college transcripts. More precisely, all documents are subject to forgery. It is apparent 
from these findings that among the forms of document forgery which happened in 
Syariah courts are those relating to marriage and polygamy matters. The findings 
provided further proof that there are many marriage application which are not in 
compliance with the procedure and rules of the Syariah courts. Based on the past studies, 
a possible explanation of such might be due to the failure and refusal to comply with 
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procedural rules and law during marriage or polygamy process (Karim & Rauf, 2020; 
Mohd Zahiruddin Fahmi, 2015). 
Besides, the results showed that forgery of documents happened during the 
disposal of property and estate especially those involving faraid, waqf, hibah and 
division of matrimonial property. For example, in the case of AHMG v AGMG & Ors 
[2019] 3 ShLR 1, the validity of Form 14A in a gift or hibah transaction was challenged 
due to the alleged forgery of the deceased’s fingerprints in the document. This case 
showed that one of the ways in which forgery could happen is through the forged 
fingerprints on the document.  
In the case of Sulaiman bin Ahmad & Ors (beneficiaries for the estate of the 
deceased, Jemain bin Mohamed ½ portion and beneficiaries for the estate of the 
deceased, Kechot bin Mohamed ½ portion held by Zabidah bt Sembob as 
administratrix and trustee) v Jemain bin Mohamed & Ors [2020] 11 MLJ 616, the 
plaintiff applied to the court to declare that the transfer of the land to the third defendant 
is null and void on account that the title of the land was acquired through fraud or 
forgery and/or through a void instrument. 
The case of Mohd Salim bin Said & Ors v Tang Pheng Kee & Anor and 
another appeal [2014] 3 MLJ 504 involved the fraudulent transfer of three pieces of 
land owned due to the allegation that the power of attorney (PA) and the memorandums 
of transfer were forged. The forgery of PA and the memorandums of transfer is not a 
recent issue. These issues have been reported in many cases in Malaysia (Ainul Jaria, 
2008; Mat, Nazri, Fahmi, Ismail, & Smith, 2013). For instances, Letchumanan 
Chettiar Alagappan (as executor to Sl Alameloo Achi Alias Sona Lena Alamelo 
Acho, deceased) & Anor v Secure Plantation Sdn Bhd [2017] 4 MLJ 697, R. 
Thangaratnam d/o Vythilingam v Vinayagamoorthy a/l Rajaratnam and Others 
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[2008] 3 MLJ 61 and Tan Ying Hong v Tan Sian San & Ors [2010] 2 MLJ 1. The 
forgery of PA is mainly due to the fact that any PA ought to be registered at the High 
Court first before it could be registered at land office to become valid and enforceable 
(Harun et al., 2015). Moreover, the validity of PA will not be disputed as long as there 
is an official seal of the High Court affixed to it. The registering authority is not trained 
to detect any defects on the instrument and will simply register the dealing presented 
(M. Ismail, 2011). A possible explanation for this is associated with the limited power 
of the Registrar. His duties are limited to quality checking and auditing whether an 
instrument is fit for registration (Zakariah, Samsudin, & Ngadiman, 2020). 
The case of Zainuddin bin Annuar v. Khadijah bte A Hijazi [2012] MLJU 
101 showed how the validity of the faraid certificate is disputed due to the absence of 
seal from Syariah court. This shows how an official certificate produced by the court 
could be tampered and the authority would only questioned the authenticity of the 
document through its physical defect. In the case of Shariffa Zainab bt Syed Wadzid 
Ali v Ismail Fekri bin Ishak [2009] 2 ShLR 101, the contract offer document tendered 
by the respondent is found to have been forged after it was inspected by Jabatan 
Pentadbiran Bahagian Pengurusan Perolehan, Dewan Bandaraya Kuala Lumpur. The 
document was falsified since the said department has never issued such document in 
the first place. The document was not primarily existed and only created by the forger 
for personal gain.  
Besides, in the case of Ahmad bin Abd Majeed lwn. Habibah bte Abdul Majid 
dan satu lagi [2007] 3 MLJ 418, the court held that since defendant named the brother 
of the deceased as the heir instead of the plaintiff, this was fraud deliberately committed 
by the defendant over the rights of the plaintiff on the deceased estate. Based on the 
facts of this case, the documents contained false information and the Land 
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Administrator has given the order based on the false documents. This case implies the 
serious implication of fraud and forgery where the legal heir was denied his rights.  
In the case of Majlis Agama Islam Negeri Pulau Pinang v Abdul Latiff bin 
Hassan (as executor of the estate of Hj Mohammad bin Hj Abdul Rashid, deceased) 
& Anor [2018] 2 ShLR 15, the defendants have failed to satisfy the court that the deed 
poll and indenture granted for the waqf property were not genuine documents. The 
plaintiff on the other hand had successfully proved that the said documents were validly 
made and executed. The court held in favour of the plaintiff. In this case, the evidence 
presented plays significant role in the judge’s decision. It primarily affects the court 
decision. The examination conducted by forensic document examiners can help to 
determine whether the documents are valid and can be served as a form of evidence in 
court. 
 In the case of Mst Kulsoom Bibi and Anor. v. Muhammad Arif & Ors [2006] 
1 CLJ (Sya) 262, the Supreme Court held that the gift-deed executed by the deceased 
in favour of his brothers (the defendants) was forged and fictitious and the very 
transaction of gift in original has not been proved by the so-called donees. Therefore, 
the gift becomes non-existent and nullified, regardless of whether it is made during 
maradh al-maut. This case indicates that the instrument of transfer such as a gift-deed 
is also vulnerable and open to fabrication. While this is true, the researcher believes that 
it is pertinent to call upon a forensic document examiner to determine the real maker of 
the document and to resolve the issue through scientific analysis. In today's digital age, 
forensic document examiners can delve into the apparent and invisible traces on a 
document to extract details that can help confirm its validity and give critical 
information for the investigation. 
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In sum, it can be observed from the facts of these cases that the use of expert 
opinion are yet to be widely applied. There has been inadequate attention given to the 
issue of forgery in document despite of serious consequences it entails. This finding 
affirms the study conducted by Nasri and Md Noor (2020b) where the application of 
evidences in the form of expert opinion particularly in Syariah courts is considered as 
restricted and inadequate. A study carried out by Guerreiro and Santos (2017) claimed 
that the courts are currently dealing with a great number of forgery cases involving 
documents. The study also emphasized the need to combat this issue with the help of 
expert in document analysis i.e. forensic document examiner. 
It is rather inappropriate to make a strong generalization from the analysis of the 
data here since the sample size implemented in this study was small and limited. 
Nevertheless, the general finding of this study imply that forgery in document is one 
serious issue that requires appropriate solution. It is not just an issue of non-compliance 
with the procedural rules but also a form of deprivation against the rights of others. The 
implications of forgery are far-reaching than the way it was addressed and should not 
be taken lightly. The lack of use of scientific-based or forensic evidence especially the 
underutilized of forensic document examination may impair the judgment in courts. 
These findings proved that there is necessity to develop a clear guideline and 
mechanism to deal with the forgery issue especially forgery of documents. The findings 
have answered the first research question regarding the forms of document forgery in 
Syariah courts’ cases. 
5.2.2 Summary and Discussion (Research Objective 2) 
This section of the discussion revolves around the principles involved and applied 
by forensic document examiners in forensic document examination. Previously, 
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background of the field of forensic document examination has been described in the 
literature review section in Chapter 2. The second objective of this study and basically 
the main topic discussed in this section is the main principles applied in forensic 
document examination. This section present the important findings of analysis 
conducted over handwriting and signature examination, followed by identification of 
printing process, analysis of ink, analysis of paper and other examinations performed 
by the forensic document examiners. 
The findings from this study suggest that the principles used in forensic document 
examination are various in nature and different according to the types of analysis and 
examinations conducted by the examiner. Questioned document examination is a well-
known and crucial field in forensic science. Basically, it is an important analysis or 
examination conducted by the expert in order to identify the genuineness of questioned 
document. 
There are various classification or types of examination addressed by the scholars 
including examination of handwriting, signature, alteration, typewriting, identification 
of printing process, examination of indentation, examination of charred documents, 
analysis of ink, analysis of paper and consultancy services related to document 
examination. However, for the purpose of this study, several types of examination are 
chosen as the center of discussion namely handwriting and signature examination, 
identification of printing process, ink analysis and paper analysis. Other examinations 
performed by the forensic document examiners were also discussed but only the surface 
and not in depth.  
The results showed that the most common examination of document in the field 
of forensic document examination is handwriting and signature examination. This is 
mainly due to the fact that the key element of forensic document examination focuses 
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on handwriting. In handwriting examination, there are several major principles 
established by practitioners and forensic document examiners. Different scholars have 
different approaches in describing those principles. For instance, in the study carried 
out by Thompson et al. (2018), the authors explained that “everyone's handwriting was 
considered to be unique, and hence, a sample of a given individual's handwriting (if 
sufficiently extensive) was presumed to be distinguishable from the handwriting of any 
other individual.” The explanation of the principle is centered on the individuality and 
uniqueness of handwriting of an individual which becomes the ground for the examiner 
to conduct analysis and comparison. 
Other than that, Baxter (1980) in his study stated that “in the examination of 
handwriting, one must be ever aware of two essential axioms, (i) that no writer ever 
exactly replicates a previous writing, thus, each writing is unique, and (ii) that each 
writing is produced by one person at one time and thus, is again unique”. Baxter’s 
explanation described not only the individuality and uniqueness of writing but also 
included the principle that there exists variation in each writing even if it is produced 
by the same person. The principle of variation is that no two writings by the same person 
are identical. 
The fundamental principles of forensic document examination stated by J. A. 
Lewis (2014) is more comprehensive where it includes not only the fact that 
handwriting is individual and each person has natural variation in his or her handwriting, 
but also mentioned that each person has a skill level that he or she generally cannot 
surpass. 
The principles identified from a number of past studies including the 
abovementioned excerpts can be encapsulated into three fundamental principles (Desai 
& Kalyan, 2013; Ellen et al., 2018; Koppenhaver, 2007). First, no two people write 
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exactly alike. This means that there is no two people share the same combination of 
handwriting characteristics and there is element of individuality in every handwriting. 
Second, all writing contains natural variation. Even if two handwritings are produced 
by the same person, the handwritings would not be identical and contain variation. Third, 
no writer can immediately exceed his or her skill level of writing. 
The next part of the result is the general procedure of handwriting examination 
which begins with analysis of document, followed by comparison of the disputed 
document with standard sample, evaluation and finally end with verification. The 
analysis is performed by the qualified examiner adhering to the policy to achieve quality 
control and the result is subject evaluation by another qualified examiner for quality 
assurance. 
The results shows that there are many factors that may influence the development 
of one’s handwriting including physical and emotional conditions. Depression, drug 
abuse, physical illness can all affect one’s handwriting (Houck & Siegel, 2015). People 
develop individual styles of writing as a result of differences in education, culture, 
and/or personal preference. However, a general statement about overall style is usually 
not enough to discriminate between the writing of different people. Account must 
usually be taken of the details of construction of individual letters (Ansell, 1979).  
Turning now to the next type of examination which is identification of printing 
process, forensic document examiner needs to understand how the document may have 
been produced. It is true that the original document is always the best evidence for 
examination to provide a meaningful conclusion (Leaver, 2006). Nevertheless, 
examination can still be conducted on photocopies of document through identification 
of the printing process. The finding reveals that different printing processes applied 
different principles. It is based on the general principles that the existence of an adequate 
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combination of class and individual characteristics exceeding the limits of an accidental 
coincidence (Gupta, 1966). 
Corzo (2018) in his work stated among the printing processes available include 
inkjet printing, toner printing and intaglio printing. Meanwhile, Ellen et al. (2018) 
described the identification of printing methods for letterpress, lithography, gravure and 
matrix methods of printing. In another study, Blayo and Pineaux (2005) explained the 
basics of a number of printing processes namely offset lithography, flexography, 
gravure, screen printing, ink jet printing and electrophotography.  
From the findings, the types of printing process identified can be divided into two 
groups based on the methods of image transfer that is either directly or indirectly. The 
picture is transferred directly from the image carrier to the substrate in direct printing. 
Gravure, flexography, screen printing, and letterpress printing are all types of direct 
printing. The image is transferred from the image carrier to the blanket cylinder and 
then to the substrate in indirect or offset printing. Lithography is an example of indirect 
or offset printing which is currently the dominant printing technology (Jacobson, 2019). 
Another type of examination carried out by forensic document examiner is ink 
analysis. Generally, people with normal vision can certainly match the color of an ink. 
In the world of inks, however, having the same color does not always entail having the 
same ink. Ink analysis involves determining the composition of an ink sample as well 
as the chemical changes that occur as it dries. Almost all inks are made by combining 
several dyes and pigments to achieve the desired hue. Many differently coloured dyes 
and pigments can be combined to obtain essentially the same colour (Gaensslen et al., 
2008). 
Chemical analysis can be used by forensic scientists to examine the dyes or 
pigments in a specific ink sample. In this method of analysis, inks that appear to be the 
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same yet have different compositions must be from different writing instruments (Harris 
& Lee, 2019). The production dates, geographic distribution, and predominance of an 
ink can all be ascertained after the formulation has been verified. (Jones & McClelland, 
2013). As stated in the findings, there are considerable differences between the ink used 
in printing and those employed for writing. Thus, the types of ink used are different 
according to the types of writing or printing instruments. For instance, fountain pen inks 
contain a complex mixture of chemical compounds including colorants and various 
additives. Ballpoint pen inks consist of a very complex mixture of dyes, pigments, 
solvents, resins, viscosity adjustors and ball lubricants. For printing inks, they are 
generally oil-based and have a high inorganic content (Ellen et al., 2018). 
By understanding the composition of the inks, it is easier for forensic document 
examiners to characterize and compare the inks. Although it is impossible to match an 
ink sample to a specific writing instrument, it is conceivable to demonstrate that a 
suspect pen, for example, might be part of a population of pens that could have produced 
a document, or that it could not have written a document at all. (Houck & Siegel, 2015).  
Since most documents are based on paper, it is important for the forensic 
document examiners to understand the components and characteristics of paper for its 
analysis and identification. The methods of paper manufacturing give rise to differences 
in end product that can be tested in laboratory. This study found that there are several 
techniques adopted by the forensic document examiners in conducting paper analysis. 
Among the techniques include energy-dispersive X-ray fluorescence (EDXRF) 
spectrometry, mass spectroscopy, Raman spectroscopy, fourier transform infrared 
(FTIR) analysis, and inductively coupled plasma mass spectrometry (ICP-MS). Besides, 
forensic experts also carried out examination of the security features of the paper is by 
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looking for the watermark, sensitizing, visible colored fibers, invisible fluorescent 
fibers and security threads.  
The current study indicates that forensic document examination has its own role 
in combating the issue of document forgery in Syariah courts. The finding shows that 
the principles established in the field of questioned document or forensic document 
examination and relied upon by the forensic document examiners play significant roles 
in uncovering forged documents. It is important to note that the work of the forensic 
document examiners is established on sound principles (Nickell, 1996). In forensic 
science, the primary idea is to compare whatever is unknown or questioned with known 
standards in order to make an identification. In fingerprinting, for example, a latent print 
discovered at the scene of a crime is matched to fingerprints on file or recently acquired 
from suspects. The same is obvious when it comes to handwriting analysis. To 
determine a suspect's guilt or innocence, any questioned writing is compared to known 
examples of his or her handwriting or printing. 
Some document examinations can be performed without causing harm to the 
specimen under test, while others require the removal and destruction of a small portion 
of the specimen. Thus, non-destructive techniques are preferred over chemical analysis 
or destructive tests. Each analysis of a questioned document begins with simple optical 
methods that allow observations in the ultraviolet (UV), visible (natural daylight, 
filtered or unfiltered artificial light), or near infrared (IR) parts of the electromagnetic 
spectrum. These methods examine the color and brightness of ink on paper, as well as 
security fibres in paper, and aid in the identification of obliterated wrings, exposing 
alterations, erasures, and substitutions, and distinguishing between inks that appear to 
be of the same color (Aginsky, 2000). 
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These results are seem to be consistent with those of Baharuddin (2017) who 
found that the application of forensic science is appropriate to be applied in evidencing 
the cases, both criminal and mal. It is beyond the scope of this study to further discuss 
the other topics in forensic science field such as DNA profiling, ballistics and 
anthropology. These findings may be somewhat limited to the topic of forensic 
document examination only. Hence, future studies should be conducted in other 
branches of forensic science to have a comprehensive understanding on forensic 
evidences.  
5.2.3 Summary and Discussion (Research Objective 3) 
As mentioned earlier, the key objective of the present study is to examine the 
application of forensic document examination in Syariah courts. The findings of the 
third research question can be summed up into several points. First and foremost, the 
findings showed that the application of forensic document examination can be seen in 
light of the admissibility of expert opinion in Syariah courts. This means that forensic 
document examination is applicable and admissible in Syariah court since it falls under 
the category of expert opinion. Islamic law recognized expert opinion as one of the 
means of proof based on the arguments that will be discussed below. Secondly, this 
study found that expert opinion is admissible as qarīnah according to section 33 of 
Syariah Court Evidence (Federal Territories) Act 1997 [Act 561], hence, forensic 
evidence falls under the scope of qarīnah or circumstantial evidence. 
Other than that, what constitute as expert opinions may include various definitions 
and meaning based on Syariah cases analysed in this study. Besides, the results 
indicated that the application of expert opinion from civil court is broader in term of its 
application compared to Syariah cases. There is also specific duties and responsibilities 
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that must be undertaken by the expert witnesses for them to provide independent, 
impartial, and unbiased evidence to the court. 
The present study demonstrates a correlation between the use of forensic or 
scientific examination and their contribution in the court of justice. Undoubtedly, the 
principles identified in forensic document examination are applicable in Syariah court. 
This is in line with the finding of the study investigated by Baharuddin (2017) where 
the application of forensic evidence in accordance to the division of fiqh indicated that 
the role of forensic science in cases is not limited to criminal offences only, but also 
extends to the non-criminal cases. In other words, the application of forensic science is 
appropriate and practical to be applied in evidencing the cases, both criminal and civil. 
Thus, the use of forensic examination to inspect questioned documents particularly in 
Syariah courts is not impractical. 
Forensic evidence in general is admissible in Islamic law of evidence within the 
ambit of expert opinion. The main argument of the ulama’ for the acceptance of expert 
opinion in Islam is based on verse 43 in Surah Al-Nahl which indicated the need to 
inquire from a person who is skillful in a field or issue which we have no knowledge in. 
Since judges do not and are not expected to have the knowledge in every matter, it is 
only right for them to take help of experts in the matters outside of their expertise.  
The validity of expert opinion is also derived from the story of Prophet Yusuf AS 
where he struggled to escape from the grip of the wife of al-Aziz resulting in his shirt 
got torn from the back. In such a case, a wise man from the woman's family claimed 
that the shirt being torn from the back was a sign of Prophet Yusuf's assertion being true 
(Haneef, 2007; Othman & Hisam, 1996). The man’s skill is similar to that of a forensic 
expert today. This story constituted an authority of opinion from skilled person which 
is similar to forensic expert in our age. Furthermore, the Prophet SAW's practice of 
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determining paternity of a boy based on bedding (firash) between his parents 
exemplifies the application of expert opinion (Othman & Hisam, 1996). 
The recognition of expert opinion has been adopted by the four Caliphs (Khulafa’ 
Ar-Rasyidin). For instance, during Umar’s time, there was a woman who accused a man 
for committing fornication with her. ‘Umar had consulted ‘Ali to see if the fabric was 
smeared with semen, as alleged by the woman. ‘Ali then soaked the remnants of the 
stains in boiling hot water, which turned them solid white. It has been proven that the 
stain is egg white and not semen (Haneef, 2007; Nawi, 2002). This decision serves as a 
strong basis for the admissibility of expert opinion and forensic evidence into the 
Islamic judicial system. 
From the findings and previous discussion, there is no doubt that forensic 
document examination is beneficial to the justice system. Issue of document forgery in 
Syariah court can be resolved by forensic means. To bring perspectives, under the 
common law, evidence by the expert are considered as circumstantial in nature. The 
circumstantial element, on the other hand, is accepted as credible proof. In other words, 
evidence derived from conclusions drawn from scientific examination results is referred 
to as circumstantial inference and is discussed under the heading of circumstantial 
evidence. 
Evidence gathered from the experts would likewise come under the category of 
circumstantial evidence, or al-qarīnah, according to Islamic evidence law. This is 
because a court can only infer the presence of the fact in question, such as the 
identification of the perpetrator's signature or handwriting, but this does not prove the 
fact explicitly, as in the case of DNA profiling data. In fact, most authorities, 
particularly modern legal scholars, consider forensic evidence to be a form of qarīnah 
(Haneef, 2006, 2007). This is in line with the provision provided under section under 
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section 33 of Syariah Court Evidence (Federal Territories) Act 1997 [Act 561] which 
deals with expert opinion in regard to matters of foreign law or of science or art, or as 
to identity or genuineness of handwriting or finger impressions or relating to 
determination of nasab. The courts may rely and infer the existence of fact in issue based 
on the results of analysis conducted by the document examiner which are expressed 
through reports and oral testimony.  
The admissibility of al-qarīnah can be gleaned by references to several Quranic 
verses and the practice of the Prophet SAW and the companions. An example of the 
acknowledgement of qarīnah in the Qur’an can be traced in Surah Yusuf, verse 18 
whereby Allah says “And they brought his shirt, stained with false blood. He responded, 
“No! Your souls must have tempted you to do something ˹evil˺. So ˹I can only endure 
with˺ beautiful patience! It is Allah’s help that I seek to bear your claims”. The 
association of this verse with the issue of qarīnah can be understood by the fact that 
regardless the shirt was stained with blood, it was not torn to the extent that it should 
have been. If Prophet Yusuf AS has really been devoured by wolves, as his brothers 
wrongly claimed, tooth or claw marks should have been left on his clothes. The fact that 
the shirt was still in good shape was a qarīnah, indicating that Prophet Yusuf AS was 
still alive at the time (Zaydān, 2007).   
The Prophet SAW had once decided the paternity of someone on the basis of 
qiyāfah. He is also said to have sentenced a woman to be publicly flogged after 
discovering she was pregnant while still unmarried. The companions of Prophet 
Muhammad SAW had followed the same path. For instance, Caliph ‘Umar convicted a 
person based on the odour of wine exuded from his mouth. (Haneef, 2006). Apparently, 
this situation is similar to the use of breathalyzer in today’s examination conducted by 
police officer. 
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Another important finding was that the interpretation of expert opinion may 
include various meanings. For example, in the case of Mohd Alias bin Ibrahim v RHB 
Bank Bhd &Anor [2012] 1 ShLR 23, the High Court ruled that the ruling issued by 
Syariah Advisory Council (SAC) constitutes as an expert opinion in respect of Islamic 
finance matters and it derives its binding legal effect from the impugned provisions 
enacted pursuant to the jurisdiction provided under the Federal Constitution. 
In the case of Sulaiman bin Takrib v Kerajaan Negeri Terengganu (Kerajaan 
Malaysia, intervener) and other applications [2010] 2 ShLR, the three expert 
witnesses involved are the Director General of the Syariah Judicial Department 
Malaysia, the Rector of the International Islamic University of Malaysia and the Dean 
of the International Institute of Islamic Thought and Civilisation. In the case of Fathul 
Bari Mat Jahya & Anor v. Majlis Agama Islam Negeri Sembilan & Ors [2012] 4 
CLJ 717, among the expert witnesses include the Syariah Legal Adviser at the Attorney 
General’s Chambers, the Mufti of Negeri Sembilan and the Chairman for ‘Aqidah 
(Belief), Islamic Religious Council of Negeri Sembilan. The court agreed that all of 
them are all worthy expert witnesses on Islam. In these cases, the court looked at the 
expert witness's education, training, experience, memberships, connections, 
publications, and reputation to determine his reliability. 
The role of expert witness and its importance can be seen in several decided cases. 
For example, in the case of Shahnaz bt Majid v Dato’ Seri Mahmud Abu Bekir Taib 
[2018] 3 ShLR, the court satisfied that the expert witness, a registered chartered 
accountant in this case was competent and the statements given are acceptable and 
relevant since the witness was expertise on the related field. The case of Pendakwa 
Syarie Negeri Sabah lwn. Rosli bin Abdul Japar [2007] JH 23/2 237 is an important 
land mark case where the court convicted the accused based on the evidences in the 
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form of DNA evidence that has been tendered by the prosecution in proving the offence. 
Looking at the case of Indastri bin Saion v Sharifalaili bt Hussin @ Mukhtar [2018] 
2 ShLR 70, the court could not accept medical report as documentary evidence which 
supported the defendant’s claim because the defendant did not call the document maker 
and/or the expert in the field to verify it. It can be inferred from the above decided cases 
that even though the opinion of an expert is not binding on the court, the role of expert 
witness is crucial in giving relevant opinions in court which eventually affect the 
decision given by the judges. 
Besides, the results indicated that the application of expert opinion from civil 
court is broader in term of its application compared to Syariah cases. This is in line with 
the previous study evaluating expert opinion whereby it has been observed that the use 
of evidences in the form of expert opinion in Syariah court cases is limited (Nasri & Md 
Noor, 2020b). 
The admissibility of expert opinion evidence is provided under section 45 of the 
Evidence Act 1950. Third-party opinions, while normally inadmissible, become 
significant when there are issues that require the expertise of an expert for observation, 
analysis, or description. Expert testimony is only allowed in court to provide scientific 
information that is likely to be outside of a judge's expertise and knowledge (S 
Augustine Paul, 2010). In certain cases, the court has the authority to exclude expert 
testimony, such as when dealing with matters that are for the judge to decide or when 
the judge can reach his or her own judgment based on the facts of the case without the 
assistance of an expert. There is also specific duties and responsibilities that must be 
undertaken by the expert witnesses for them to provide independent, impartial, and 
unbiased evidence to the court (Sutherland, 2009). If an expert has not proved his 
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independence or has not met his overriding duty to the court, the court may dismiss the 
testimony. 
The actual role of the expert is to present all of the documents to the court, together 
with the reasoning that led him to that conclusion, so that the court, which is not an 
expert, can reach its own judgment based on its own observations of those materials. 
An expert witness is subject to examination and cross examination in court. No reliance 
can be placed on the opinion without examining the expert as a witness (Parakh, 2011). 
The civil court cases are analysed in this study to understand the application of 
expert evidence from civil court perspective. The association of law and science in the 
evidentiary context can be seen from the case of Daubert v Merrell Dow 
Pharmaceuticals, Inc. [1993] 509 US 579. In this case, the court held that the judges 
are gatekeepers who must evaluate the methodological bases of proffered scientific 
evidence. In other words, it is incumbent upon the judges to understand the basic 
scientific methods and statistics (Faigman, 2006). The case of National Justice 
Compania Naviera SA v Prudential Assurance Company Limited (No.1) [1993] 
F.S.R. 563 or “Ikarian Reefer” case outlined the duties and responsibilities of expert 
witnesses in civil cases. One of the duties is to provide independent assistance to the 
court by way of objective unbiased opinion in relation to matters within his expertise.  
In this study, references have been made to court cases in order to understand 
further the category of expert evidence on handwriting under section 45 of the Evidence 
Act 1950. The case of State (Delhi Administration) v Pali Ram AIR 1979 SC 14 
showed that the judge should not decide in the matter of handwriting comparison. A 
prudent course is to obtain the opinion and assistance of an expert. In the case of Syed 
Abu Bakar Bin Ahmad v PP [1948] 2 MLJ 19, it was held that the case would only 
be properly concluded with the aid of expert evidence. The evidentiary value of the 
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evidence of a handwriting expert can be seen in the case of Public Prosecutor v 
Mohamed Kasim bin Yatim [1997] 1 MLJ 64. The court held that it is settled law that 
evidence by a handwriting expert can never be conclusive. In the case of Dr 
Shanmuganathan v Periasamy s/o Sithambaram Pillai [1997] 3 MLJ 61, the court 
held that the opinion evidence of a handwriting expert must never be acted upon, unless 
substantially corroborated. In the case of United Asian Bank Bhd v Tai Soon Heng 
Construction Sdn Bhd [1993] 1 MLJ 182, the court held that the evidence of an expert 
on handwriting unsupported by cogent data showing the process by which he came to 
his conclusion is not worth the paper on which it is written and cannot be relied upon. 
Therefore, these cases implied that the expert evidence on handwriting opinion requires 
corroboration and is unsafe to be relied upon independently. 
The next part of findings is in regards to the qualifications of an expert. In the 
case of Junaidi bin Abdullah v PP [1993] 3 MLJ 217, the specialty of the skill 
required of an expert under section 45 would depend on the scientific nature and the 
complexity of the evidence sought to be proved. The more scientific and complex the 
subject matter, the more extensive and deeper will the court be required to enquire into 
the ascertainment of his qualification or experience in the particular field of art, trade 
or profession. In the case of PP v Muhamed bin Sulaiman [1982] 2 MLJ 320, it was 
held that while the expert must be ‘skilled’, he need not be so by special study, he may 
be so by experience. The case of Dato Mokhtar bin Hashim v PP [1983] 2 MLJ held 
that one can acquire expert knowledge in a particular sphere through repeated contact 
with it in the course of one’s work notwithstanding that the expertise is derived from 
experience but not from a formal training. The court also held that the competency of 
an expert is a preliminary question and is one upon which, in practice, considerable 
laxity prevails. Though the expert must be “skilled”, by special study or experience, the 
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fact that he has not acquired his knowledge professionally goes merely to weight and 
not to admissibility. 
As evidenced by the aforementioned cases, it is imperative that the individual 
providing the opinion be "specially skilled" in the relevant field. To be appointed as an 
expert, one must have a professional certification, professional experience, particular 
study in the subject, special understanding of the field, or some observation in the field. 
Nonetheless, the expert may be qualified either by formal education or through 
experience. The person who introduces an expert witness bears the burden of proof. 
The application of expert opinion can be seen in the recent case of PP v Dato’ Sri 
Mohd Najib Hj Abd Razak [2020] 8 CLJ 319. In this case, initially, the defence 
brought in the expert document examiner to demonstrate the alleged several disputed 
documents. Nevertheless, the expert report was never adduced before the court. 
Therefore, the documents tendered were ruled as genuine since the report from the 
expert was never adduced before the court. It is apparent from this case that an expert 
evidence plays important role in determining the authenticity of document. 
In the case of Mohamed Nor v PP [1949] MLJ 231, the court conceded that the 
Director of Chemistry could be considered a handwriting expert within the meaning of 
section 45 of the Evidence Ordinance. This case implied that when the opinion of an 
expert is sought under section 45 of the Evidence Act, the expert should give direct oral 
evidence. Mere submission of a report expressing himself cannot be admitted (Zafrullah, 
2018).  
Indeed, evidence by the expert has no binding effect on the judges. In other words, 
the judges are not required or conditioned to follow the opinion given by the experts. 
The expert simply provides an opinion, not a conclusion, because it is the role of the 
judge to do so. This is affirmed in the case of Ong Chan Tow v R [1963] MLJ 160, 
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where the court held that the experts cannot give evidence on matters which the court 
can decide by itself as otherwise they would tend to usurp the function of the court.  
To clarify, it is not the intention of this research to merely claim that the 
application of forensic document examination would be the best methods or bring the 
best evidence in court. It is rather to highlight the fact that scientific examination is able 
to serve as a useful and beneficial methods of proving. In fact, it is undeniable that there 
are some shortcomings in term of its practice. Some of the opinions derived from 
techniques conducted by forensic document examiners are yet to be validated (Edmond, 
2013). Nevertheless, the expertise of forensic analysis are always relevant since legal 
practitioners and judges tend to have lack technical and scientific proficiency. David L 
Faigman in his work claimed that judges who are scientifically illiterate pose a serious 
threat to the judiciary's power and legitimacy (Faigman, 2006). 
The current study highlights and emphasized this issue by focusing on the 
application of forensic document examination in Syariah court. Hence, this finding 
suggests that one of the possible ways to cope the issue of forgery is by promoting and 
improving the practice of using expert witness in Syariah court cases.  
When a judge is faced with a perplexing issue, he or she should seek advice 
from someone who is knowledgeable about the subject (Othman & Hisam, 1996). 
However, this comes with a condition that a judge should always exercise caution 
before accepting any opinion or advice. It is crucial to note that the proof in the form of 
qarīnah can be convincing at times and weak at others. To put it another way, not all 
qarīnah will be accepted by the court. 
In the midst of Covid-19 pandemic and while the current study was conducted, 
interestingly, Department of Syariah Judiciary Malaysia has issued a practice direction 
regarding the acceptance of forensic evidence in Syariah courts’ proceeding namely 
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Arahan Amalan No. 4 Tahun 2020 (Pengemukaan Bukti Forensik Dalam Prosiding di 
Mahkamah Syariah). Under this protocol, it has been agreed and confirmed that forensic 
evidences can be heard, considered, evaluated and accepted as one of the methods of 
proving in Syariah courts’ proceeding.  
Undeniably, this new rule will act as a cornerstone for Syariah courts to improve 
and enhance the application of forensic evidence. Nevertheless, detail explanation and 
clearer guideline are required to understand the extent of the use of forensic evidence 
in Syariah courts and eventually implementing them successfully. Having a clear 
procedure and guidelines are essential to bring uniformity to judicial operations in 
courts. For instance, when there is a detailed guideline provided in handling questioned 
document cases in Syariah court, it is easier for the legal practitioners to apply and 
follow and thus, reduce the risk of an unwanted event. Besides, training courses on the 
practical aspect of the procedure can increase understanding of the legal practitioners 
on technical aspects of forensic field. To achieve this, collaboration from Syariah 
practitioners and forensic experts are required to develop suitable procedure and 
ultimately execute such procedure successfully. 
5.3 Implications of Study 
The findings of the current study has significant implications towards society in 
general and Syariah judicial institution in particular. There are many adverse 
consequences if a fraudulent document is allowed to enter the court without question 
only because it is not the major issue in the case. Lacy (1953) in his work claimed that 
any document worth introducing deserves a thorough examination to confirm its 
authenticity. In fact, documentary evidence is often introduced to substantiate the main 
issue in trials. Hence, a thorough study on this field from Syariah perspective is essential 
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to have some insights into the process and procedure involving disputed or questioned 
document.  
The results of this study show that one of the best ways to deal with the issue of 
document forgery is by ensuring that forensic document examination is ideally applied 
and utilized in Syariah legal system to authenticate any documentary evidence which 
are classified as questioned document. The idea is to solve any issue relating to the 
genuineness of documents by conducting scientific examination to verify the questioned 
document. The field of questioned document examination has developed over time due 
to the courts’ needs to correctly interpret and resolve the questions relating to documents’ 
genuineness, authorship and sources. Hence, the present study affirms the need to 
improve the application of forensic document examination in the light of expert opinion 
as one of the significant methods of proving. 
From academic point of view, this study has added to the literature of academic 
discussion on the admissibility of documentary evidence and may act as a reference for 
future researchers, academicians and students. More importantly, this research has a 
great implications towards Syariah judicial institutions in the sense that it will assist 
Syarie judges and lawyers in dealing with forgery of documents through the application 
of forensic document examination and eventually reduces gaps between Islamic 
judiciary and forensic science field. 
5.4 Suggestion for Future Research 
With the advent of revolution in the field of information technology, opinions 
from the expert can be regarded as necessary to aid the courts in administration of justice. 
Therefore, realizing the importance of strengthening science to improve justice, the 
following solutions are suggested by this study in order to cater for the relevancy and 
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admissibility of expert evidence from forensic document examiners in trials at Syariah 
courts. This research suggests that comprehensive guidelines is provided to deal with 
the issue of document forgery using the proper equipment and eventually improve the 
reliability of documents as the most common form of evidence tendered in court. There 
should be an appropriate standard operating procedure (SOP) on the process and 
procedure of gathering and handling questioned document to conduct forensic 
document examination. Other than that, training courses can be held to expand the 
understanding of Syariah practitioners on the application of forensic evidence in Syariah 
courts. Since Syariah law enforcement officers as well as scientists and technicians in 
forensic labs, must rely on new technology and scientific advancements to efficiently 
identify, gather, and process evidence related to forgery activity, these 
recommendations must be taken into account seriously. 
5.5 Conclusions 
Forensic document examination is an evolving field of study where forensic 
scientists conduct researches continuously to develop the best techniques and methods 
in examining documents.  In concise, this chapter has summarised and discussed the 
findings according to the objectives of this study. It can be deduced that the issue of 
forgery in documents is not a mere trivial but a significant one that needs to be addressed 
and prevented accordingly. This study has found the existence of various forms of 
document forgery which happened in Syariah court cases. This study respectfully 
argues that the principles in forensic document examination particularly and forensic 
science in general is indeed in sync with Syariah evidential principles. The relevancy 
and admissibility of forensic document examination in the eyes of Syariah principles 
have been proven and verified. It is also submitted that the application of forensic 
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document examination will become a handy tool for the Syariah court in arriving at an 
impartial decision. This is so as the report by the forensic document examiners could be 
used by the court to combat the issue of forgery in document. 
By addressing this issue, this study suggests a practical solution by appraising the 
importance of consulting expert witness to obtain an opinion which the judges have no 
or less knowledge in it. From the findings, it appears that the time has come for the 
courts to value more and normalize seeking opinions from the expert in reaching a 
decision. In conclusion, the application of forensic document examination in Syariah 
courts is truly significant especially during the age where science is used in a wide 
variety of legal contexts. This study suggests more comprehensive researches are 
conducted in other fields of forensic science besides forensic document examination.