Tafseer Ibn Kathir of AL MAA-IDAH [106]

  (O you who believe! When death approaches any of you, and you make a bequest, then take the testimony of two...) meaning that there should be two witnesses in such cases,  

  (just men...) thus, describing them as just,  

  (of your own folk) Muslims.  

  (or two others from outside) non-Muslims, meaning the People of the Book, according to Ibn `Abbas as Ibn Abi Hatim recorded. Allah said next,  

  (if you are traveling through the land) on a journey,  

  (and the calamity of death befalls you.) These are two conditions that permit using non-Muslims from among the Dhimmis for witnesses when there are no Muslims present: When one is traveling and needs to write a will, as Sharih Al-Qadi said. Ibn Jarir recorded that Sharih said, ”The witness of the Jews and Christians is not allowed except while traveling, and even then only to witness the dictation of the will.'' Allah's statement,  

  (Detain them both after the Salah (the prayer),) refers to the `Asr prayer, according to Al-`Awfi who reported it from Ibn `Abbas. This is the same explanation reported from Sa`id bin Jubayr, Ibrahim An-Nakha`i, Qatadah, `Ikrimah and Muhammad bin Sirin. As for Az-Zuhri, he said that they are detained after Muslim prayer (i.e., in congregation). Therefore, these two witnesses will be detained after a congregational prayer,  

  (let them both swear by Allah if you are in doubt.) meaning, if you are in doubt that they might have committed treachery or theft, then they should swear by Allah,  

  (We wish not in this) in our vows, according to Muqatil bin Hayyan,  

  (for any worldly gain) of this soon to end life,  

  (even though he be our near relative.) meaning, if the beneficiary be our near relative, we will still not compromise on the truth.  

  (We shall not hide the testimony of Allah,) thus stating that the testimony is Allah's, as a way of respecting it and valuing its significance,  

  (for then indeed we should be of the sinful.) if we distort the testimony, change, alter or hide it entirely. Allah said next,  

  (If it then becomes known that these two had been guilty of sin...) if the two witnesses were found to have cheated or stolen from the money that the will is being written about,  

  (let two others stand forth in their places, nearest in kin from among those who claim a lawful right.) This Ayah indicates that if the two witnesses were found to have committed treachery, then two of the nearest rightful inheritors should stand for witness in their place,  

  (Let them swear by Allah (saying): ”We affirm that our testimony is truer than that of both of them...'') Meaning, our testimony that they have cheated is more truthful than the testimony that they have offered,  

  (and that we have not trespassed (the truth),) when we accused them of treachery,  

  (for then indeed we should be of the wrongdoers.) if we had lied about them. This is the oath of the heirs, and preference is to be given to their saying. Just as in the case with the oath of relative of a murdered person if he attempts to tarnish the case of the murdered person. So his family takes an oath in defense of his honor. This is discussed in the studies of the oaths in the books of Ahkam. Allah's statement,  

  (That should make it closer (to the fact) that their testimony would be in its true nature and shape (and thus accepted),) means, the ruling requiring the two Dhimmi witnesses to swear, if there is a doubt that they were not truthful, might compel them to admit to the testimony in its true form. Allah's statement,  

  (or else they would fear that (other) oaths would be admitted after their oaths.) means, requiring them to swear by Allah might encourage them to admit to the true testimony because they respect swearing by Allah and they glorify and revere Him. They also fear exposure if the heirs of the deceased are required to swear instead of them. In this case, the heirs would swear and earn the rightful inheritance that the two witnesses failed to declare. This is why Allah said,  

  (or else they would fear that (other) oaths would be admitted after their oaths.), then,  

  (And have Taqwa of Allah) in all of your affairs,  

  (and listen.) and obey,  

  (And Allah guides not the rebellious people.) who do not obey Him or follow His Law.