Summer Semester 2016 Independent Study

Dr. Zubair Abbasi

31st July 2016

Research Essay – Third Draft

Judicial Islamization in Pakistan:Development of Jurisprudence and Implementation of

Religious Law.

Syed Ahmad Omer Akif

2017-09-0009

TABLE OF CONTENTSAbstract...............................................................................4Introduction.........................................................................5Institutions..........................................................................6

Federal Shariat Court.................................................................6Shariat Appellate Bench.............................................................7The Council of Islamic Ideology..................................................8

Jurisdiction : Laws that can be challenged before the Shariat Courts.....................................................................8

Custom, Usage and Force of Law 11Self-Review 13Rules of Interpretation 15Muslim Personal Law 16

Subject wise classification of Shariat Court Judgments....18Property & Fiscal Law..............................................................18

Right of Alienation 19Procedural Issues with Property Matters 20Prize Bonds and Lottery 21State Requisition of Private property 21

Family Law................................................................................23Polygamy 23Primogeniture 24

Contracts and Employment......................................................26Fundamental Rights..................................................................28

Right of Due Process 28Belief Systems...........................................................................29

Right to Practice Religion : Ahmadi Issue 29

Methodology and Methodological Tools............................31Contextual Understanding........................................................32Zaroorat (Necessity).................................................................33Public Interest (Maslahah)........................................................36Taqlid and Precedents..............................................................38Reasoning, Ra’y (Opinion) and Zarrar (Inconvenience)...........39Ijtihad........................................................................................42

Conclusion.........................................................................43Recommendation...............................................................45Statistical Classification of Case Law................................47Works Cited.......................................................................55

Abstract

Since gaining independence from Colonial India, Pakistan came about as most historians believe as a result of an attempt to seek a separate homeland for Muslims of the subcontinent to protect their religious and other communal interests. It then adopted a quasi-theocratic model of state based on Islamic principles.1 The adoption of the Objectives Resolution and declaration of Islam as the religion of the state in the Constitution reinforced the centrality of the Islamic faith in governing the many structures and branches of the state. This subsequently led to the creation of various institutions such as the Federal Shariat Court, The Council of Islamic Ideology alongside Shariat Benches in the four provincial high courts and a Shariat Appellate Bench in the Supreme Court. These were essentially established to bring the law of the land in conformity with injunctions of the Holy Qur’an and Sunnah and to declare any laws repugnant to them as void and unconstitutional. The present essay explores the development and scope of two of these institutions, namely, the Federal Shariat Court and the Shariat Appellate Bench in terms of the extent of their jurisdiction, their expanding role in different legal domains and briefly highlighting the nature of their power and methodological tools they employ to reach the conclusions that they do.

1 "The Objectives Resolution." Islamic Studies 48.1 (2009): 89-118.

Introduction

The Constitution of Pakistan in its very first article states that Pakistan shall be a federal republic that will be named the Islamic Republic of Pakistan. In addition to the Islamic title, the Constitution also dictates that the country shall have Islam as the religion of the state.2 In 1948, The Prime minister of the time, Liaquat Ali Khan presented the Objectives Resolution to the Constituent Assembly of Pakistan that stated Pakistan’s ideology would be based on Islamic tenets and not governed through the European and western model.3 A few days later, the resolution was adopted by the assembly on March 12, 1949. Exactly 36 years later, Objectives resolution was formally made a substantive part of the Pakistan Constitution by President General Zia ul haq through Article 2A by enacting President’s Order No. 14 of 1985. What the Objectives Resolution essentially holds is that sovereignty in the state belongs to God and not individuals. Moreover, it posits that Muslims shall be facilitated to live their lives both individually and collectively in accordance with principles laid down in the Holy Qur’an and Sunnah of the Prophet Muhammad (PBUH). In order to implement these demands of the constitution laid down by the most important legal document of the state or the grundnorm of society, the state devised certain institutions and structures in order maintain the supremacy of Islamic

2  Article 2(A), Constitution of the Islamic Republic of Pakistan [Pakistan], 10 April 1973, 3 "The Objectives Resolution." Islamic Studies 48.1 (2009): 89-118.

commandments in Pakistan for the Muslim majority population. As a consequence of these measures, the state created a number of legal institutions and subsidiary bodies deemed responsible to enforce certain kinds of religious laws and practices in the country.

Institutions

Federal Shariat CourtThe Federal Shariat court (Here forth referred to as FSC) was one of the first creations due to the Islamization efforts. It was established by the President’s Order No.1 of 1980 as incorporated in the Constitution of Pakistan, 1973 under chapter 3A4. The primary aim of the Federal Shariart Court is to exercise its power to ensure that all laws in Pakistan comply with Shari’a law as provided in the Qur’an and Sunnah.5 The court is presided by a maximum of 8 judges who must be Muslim and at most three of them should be from the ulema class. For its purposes, FSC adopts a particular definition of law, one that is used by it to examine different laws, practices and acts. The definition as provided in the constitution states, "law" includes any custom or usage having the force of law but does not include the Constitution, Muslim Personal law, any law relating to the procedure of any Court or tribunal or, until the expiration of three years 4 Chapter 3A, Section 203C, Constitution of the Islamic Republic of Pakistan [Pakistan], 10 April 1973, 

Constitution (Amendment) Order, 1980 (President's Order No. 1 of 1980), Section 3 (with effect from May 26, 1980)5 Chapter 3A, Section 203D, Constitution of the Islamic Republic of Pakistan [Pakistan], 10 April 1973, 

from the commencement of this Chapter, any fiscal law, or any law relating to the collection of taxes and fees or banking insurance practice and procedure.”6

The FSC has the power to either by using suo moto action or on petition of any citizen of Pakistan or Government (Federal or Local), scrutinize and determine the legality of any law or provision of law with regard to its validity in accordance with Injunctions of Islam comprising of the Holy Qur’an and Sunnah.7 It also acts as appellate court under Hudood laws. Once the court declares any law to be repugnant to Islam, it usually notifies the government (Federal government for cases covered in the Federal Legislative List or the provincial Government for cases not covered in the Federal Legislative list). Once the relevant branch of government has been notified about an un-Islamic law, it is provided with an opportunity to argue for or against the declaration in front of the Court.

Once the Court completes examination of any law or provision and concludes it to be repugnant to the injunction of the Qur’an and Sunnah, it is under duty to clearly specify the reasons for its respective decision along with elaborating the extent to which a law is repugnant.8 Once the Court has specified the date from which its decision shall come into effect, the decision can appealed in the Supreme Court before the expiration of the period of appeal. To implement the Court’s Decision, The President or the Governor depending on jurisdiction, have to take steps to amend the law to bring it in accordance with Islamic injunctions and the previous law shall cease to have effect from the day of the court’s decision.9

6 Chapter 3A, Definitions, Section 203B( c), Constitution of the Islamic Republic of Pakistan [Pakistan], 10 April 1973, 7 Chapter 3A, Section 203D(1), Constitution of the Islamic Republic of Pakistan [Pakistan], 10 April 1973, 8 Chapter 3A, Section 203D(1A), Constitution of the Islamic Republic of Pakistan [Pakistan], 10 April 1973, 9 Chapter 3A, Section 203D(3), Constitution of the Islamic Republic of Pakistan [Pakistan], 10 April 1973, 

Shariat Appellate BenchWhile the Federal Shariat Court is the highest institutional judicial body empowered with analyzing the Islamic content of laws in the country, Chapter 3A under Article 203B also confers jurisdiction upon a High Court to entertain petitions regarding repugnancy of law with Islamic provisions. To fulfill this exercise, in each high court there is constituted a Bench of three Muslim judges that is called the Shariat Bench. Alongside these provincial superior courts, there is a Shariat Appellate bench at the Supreme Court.10 The bench’s jurisdiction is exclusively appellate in nature and it hears appeals against rulings enacted by the Federal Shariat Court. The decision of the Appellate bench is final and cannot be further appealed at a higher judicial forum in the state. What could be the higher judicial forum other than the SC?

The Council of Islamic IdeologyWhile FSC and SAB are both judicial bodies, The Council of Islamic Ideology is another constitutional albeit not judicial institution formed under Ayub Khan’s tenure in 1962. The Council of Islamic Ideology was established under Article 228 of the Constitution with the purpose of make recommendations to the parliament regarding means and methods of facilitating and encouraging Muslims in Pakistan to live their lives as practicing believers in accordance with the tenets and fundamentals of Islam as laid down in the Holy Qur’an and Sunnah.11 The primary function of the Council is to dispense legal advice to the government, particularly the legislature on the legitimacy of law in the country in terms of its Islamicity. In this respect, the Council advises on whether a proposed or existing law is 10 Chapter 3A, Section 203F, Constitution of the Islamic Republic of Pakistan [Pakistan], 10 April 1973, 11 Part IX Islamic Provisions, Section 228, Constitution of the Islamic Republic of Pakistan [Pakistan], 10 April 1973, 

repugnant to the injunctions of Islam or not. 12While the scope of work is similar to the aforementioned bodies, the Council is purely an advisory body whose recommendations are not legally binding on the legislature or the government to implement.

Jurisdiction : Laws that can be challenged before the Shariat Courts

A large majority of all cases dealt by Federal Shariat Court and the Shariat Appellate Bench are related to the question of establishing jurisdiction and competency of these bodies to deal with certain laws and customs. They operate on a very specific definition of law (under Section 203-B) as mentioned above that limits the application of the term to include, any custom or usage having the force of law but does not include the Constitution, Muslim Personal law, procedural law or any fiscal law.13 Since certain laws such as the Constitution and Muslim Personal Law cannot be challenged under the umbrella of these Islamic bodies, many petitions fall

12 Part IX Islamic Provisions, Section 230, Constitution of the Islamic Republic of Pakistan [Pakistan], 10 April 1973, 13 Chapter 3A, Definitions, Section 203B( c), Constitution of the Islamic Republic of Pakistan [Pakistan], 10 April 1973, 

short of the requirements that are necessary to fulfill the jurisdiction of the Court and of the bench and are rightfully dismissed.

One of the exemptions under Section 203-B is that of procedural law. In S.M Junaid v the President of Pakistan, PLD 1981 SC 12, where an appeal was filed against the decision of Sindh High Court for its refusal to declare Section 3 of the Limitations Act, 1908 repugnant to the injunctions of Islam.14 This section of the Act pertains to the filing of a legal suit within a fixed period of time through the given method, without which the suit will be dismissed. The majority decision by the Bench ruled that since this section does not itself create a right to file a suit, appeal or application, it cannot be considered substantive law and hence falls in the category of procedural law. And since procedural law is exempted from examination of the Shariat Bench, The Court did not have jurisdiction to hear the petition under Article 203 and thus it was dismissed.Error: Reference source notfound Similarly, Article 203-B also excludes customs or practices from the Court’s jurisdiction that do not enjoy the force of law. This exemption was demonstrated in Habib-ur-Rehman Siddique V Govt. of Pakistan, PLD 1981 SC 17, where the petitioner called for a ban on any rules and regulations facilitating female sporting events in Pakistan contending the manner and attire in which these sports were conducted were un-Islamic. The regulation in question, Section 3 of Sports (Development and control) Ordinance 196215, however only provides for the development and promotion of Sports in general and is silent on matters relating to clothing and female sporting events. While, the bench accepted the legitimacy of the petitioners complaint, to the extent of encouraging modest attire and purdah for female Muslim athletes in the country, it dismissed the plaint of the petitioner on his failure to produce a law that mandates the practices alluded by him. It further added, that the petitioner’s prayer to strike down Section 3 of the 14 Section 3, The Limitation Act, 1908. ACT NO. IX OF 1908. [7th August, 1908].

15 THE SPORTS (DEVELOPMENT AND CONTROL) ORDINANCE, 1962. (XVI OF 1962)

Sports ordinance is ill-founded as it is merely an enabling law that mandates the formulation of rules for regulation of sporting activities.

In another case, Ali Hajj Sheikh v Mahmood Haroon, PLD 1981 SC 334, the court considered its own competency before finally dismissing the petition for the lack of rightful jurisdiction. Herein the petitioner took exception and offense to the practice and policy of the Government in selecting persons for performing Hajj by a system of "ballot" and also to the requirement of that policy whereby every applicant had to deposit a non-refundable amount of Rs. 50 as handling charges of his application and for other similar services, as practices in contravention to the injunctions of Islam. However, the court ruled that Hajj being religious pilgrimage of Muslims specifically pertains to branch of law known as Muslim Personal law, applied to community of Muslims alone as distinct from general law applied to all citizens of Pakistan. Hence, the scrutiny of such law, namely, Muslim Personal law is beyond jurisdiction of Shariat Benches (Courts as well as Appellate Bench of Supreme Court). In addition to issue of exemption under Sec 203-B, the court also highlighted the practical consideration of implementing such a policy since some policy of selection in the very nature of things is necessary in order to facilitate such a large number of applicants. This added with the limited extent of foreign exchange at the disposal of the Government for this purpose, coupled with the inability of Saudi Arabia to accommodate unlimited number of pilgrims severely weaken the petitioner’s claim and thus it stands dismissed on both grounds of jurisdiction and practical constraints. A similar principle was applied in Mansoor Ali Akhtar v Federation of Pakistan, PLD 1981 SC 331 where certain members of the Bohra Muslims filed a petition under Article 203-B of the Constitution seeking declaration of certain institutions and practices of the Bohra Sect, namely (1) Imam, (2) Dai, (3) Amil, (4) Misaq, (5) Barrat and (6) Raza as repugnant to Islam. The Federal Shariat Court, however, dismissed the suit on the brief ground that these institutions

belonging to a sect, do not come within the purview of the term “law” as envisioned by the very same Article the petitioner’s referenced. The reasoning adopted by the Court was simple; matters relating to the practices of a particular Muslim sect undoubtedly come within the category of "Muslim personal Law" which, as held by this Court, was that law which was applicable to Muslims alone as distinguished from the general law which was applicable to all citizens of Pakistan. And since the FSC is not empowered to deal with personal law of Muslims which according to Article 227 of the Constitution could be practiced by each sect according to its own belief and creed.16 Again in Saeedullah Kazmi v. Government of Pakistan, PLD 1981 SC 42 it was held that by the term "law" was meant such "law", usage and custom which has the force of law, which was enforceable by a Court. It is obvious that the items above mentioned pertain to the faith and belief of the sect of Muslim Bohras and are not enforceable by the religious courts in Pakistan.

Custom, Usage and Force of LawThe issue of jurisdiction was again raised in Saeedullah Kazmi v Govt. of Pakistan, PLD 1981 SC 42, where the petitioners claim to declare acts of individual mosques and imams regarding the times of Sehri in Ramadan and azan for Fajr prayers was turned down by the bench since the former cited no law or custom having the force of law as required by Article 203-b to validate their claims. Here again the court emphasized greatly that there is a distinction to be made between ordinary practices of people and customs or usages that have the force of law. While the latter can be challenged before a Shariat Bench, the former are without real jurisdiction.

CustomOn this front, the court went in the details of explaining what comes

under the domain of custom. It elaborated the legal definition custom as

16 PART IX – Islamic Provisions, Section 227, Constitution of the Islamic Republic of Pakistan [Pakistan], 10 April 1973, 

stated in Abdul Hussein Khan v. Sona Dero 45 LA 10 1917 as a rule which through its repeated and continued usage in families, tribes and districts has managed to gain the force of law. The same was reiterated in Mahomed Ibrahim Rowther v. Shaik Ibrahim Rowther and others, 1916 ILR 39 Mad 664. Hamerton v. Honey Jessel (Master of the Roils (Chancery Division) 24 WR 603 1876, further expounded the nature of custom and laid down the requirements for evidence for its existence. It also mentioned that custom is a usage by virtue, where members of specific class and residence are entitled to exercise particular rights against other members belong to the same community. To sum up, it is classified as local common law because it is neither a statutory law nor is it general law as it applies to persons living in particular place. Positive theorist John Austin defines custom as a rule of conduct which governs to be observed spontaneously or note in pursuance of a law set by a political superior (Austin's Jurisprudence, Vol. 1, p. 23). Whereas, Wharton’s Law Lexicon considers it be a type of unwritten law that is established by continuous usage and will of ancestors. The main principles derived from pertinent cases and opinions of different jurists are that custom: (i) must be adopted over a long passage of time; (ii) should be continuous unaltered, uninterrupted, uniform and constant, (iii) peaceful and acquiesced in; (iv) reasonable; (v) certain and definite ; (vi) compulsory, (vii) consistent with other customs for one custom be set up in opposition to another ; (viii) springing from conscious acts of legal necessity, (ix) must not be opposed to morality or public policy and (x) must not be expressly forbidden by the Legislature.

UsageThe Court also defined usage in order to differentiate it from custom

and those practices that do not come within its appellate jurisdiction. As regards "usage" it differs from custom in the sense that it does not have to be as old and it doesn’t require to be as uniform either. It is based on what people are currently or habitually doing in a particular place. Time is not as important of a factor as it is in custom, the habit can be new or very old.

Usage which regularly and usually practices can be of many types (a) usages of trade, (b) usages of agriculture, (c) mercantile usages, (d) usages of a family; and (e) tenets of any body of men. It also differs from mere practice of a particular individual or institution inasmuch as "usage" may have the force of law but this is not the status of a mere practice. It goes without saying that in most extensive meanings "usage" sometimes may include both custom and prescription, but when interpreted narrowly, it is restricted a general habit, mode or course of procedure. Usage when proved or admitted has the force of law.

Force of Law And finally, the Court clarified what constitutes as force of law.

Austin declares that "'law is a general rule of external human conduct enforced by a sovereign political authority." The enforcement by a sovereign political authority in a modern nation state basically signifies enforcement by courts of justice. As Salmond puts it, "law is the body of principles recognized and enforced by the State in the administration of justice".Therefore, we extrapolate that the implications of the term ‘force of law’ can only be understood by studying whether a rule or provision can be enforced by the courts of law. Again the words "having the force of law" make it clear, that it is not all executive orders that come within the Explanation attached to Article 203-BError: Reference source not found. But rather, it is those orders which have the force of law that are so included. Viz. Statutory Rules, Acts, Orders, By-laws, Regulation, etc. The assumption follows that courts are not obliged to enforce an executive order which interferes with the rights of an individual unless there is some authority of law backing it up. For further elaboration of the term “law”, one can refer to numerous case law such as ; Government of West Pakistan v. Begum Agha Abdul Karim Shorish Kashmiri (3) (at page 31), Miss Asma Jilani v. Government of the Punjab and another (4), Ch. Manzoor Elahi v. Federation of Pakistan etc. k5) modified in Brig. F. B. Ali v. The State (6) (at 528 etc) and held as reversed in. Federation of Pakistan v. Hyesons Sugar

Mills Ltd. Karachi (7). All of these converge on a single conclusion i.e. law is simply that which can be enforced by courts of law.

 Self-Review

Since the Shariat Appellate Bench has been empowered by the Constitution to decide appeals that lie within its jurisdiction on fundamentals of the Holy Qur’an and Sunnah, it can basically make use of any and all recognized principles within Islamic Jurisprudence. The condition is that any of these principles or methodologies should not be in contradiction with the injunctions of the Holy Qur’an and Sunnah. Shariat Appellate Bench has two kinds of appellate jurisdiction, namely, firstly, to examine the judgments/orders of the FSC. wherein the latter decides the question, whether any law or a provision thereof is repugnant to injunctions of Islam as laid down in the Holy Qur'an and the Sunnah of the Holy Prophet by virtue of Clause (2) of Article 203-D read with Article 203-F and, secondly, it is to act as an appellate Court against the judgments/orders passed by the FSC in exercise of criminal jurisdiction under Article 203-DD.17 One can also observe that by virtue of Article 203-G, the above jurisdiction is exclusive, as it provides that "Save as provided in Article 203-F, no Court or tribunal, including the Supreme Court and a High Court, shall entertain any proceedings or exercise any power or jurisdiction in respect of any matter within the power or jurisdiction of the Court".18

Alongside these appellate powers, the bench is also entitled to review its own decision and rectify them later on if need be. It is a widely recognized principle of Islamic Jurisprudence that an Islamic Court can reexamine its own decision and correct it if necessary in order to get rid of any errors and discrepancies. The primary aim of the Court is to make sure that it upholds the spirit of the law and does not go against the tenets of Qur’an and

17 Chapter 3A, Section 203, Constitution of the Islamic Republic of Pakistan [Pakistan], 10 April 1973, 18 Chapter 3A, Definitions, Section 203G,203F, Constitution of the Islamic Republic of Pakistan [Pakistan], 10 April 1973, 

Sunnah. This power to review its own judgment was reaffirmed in Suo Motu Shariat Review Petition No. 1-R of 1989 in Shariat Appeals Nos. 4 and 5 of 1979 and No. 2, 5, 7 and 15 of 1981, decided on 26th May, 1990. The court maintained that since under Article 203-F of the Constitution an appeal is provided to the Supreme Court, and as the Shariat Appellate Bench is a part of the Supreme Court, it can press into service Article 188 of the Constitution, which provides that the Supreme Court has the power and authority subject to the provisions of any Act and of any Rules made by the Supreme Court to review any judgment pronounced or any order made by it.

Rules of Interpretation

It is common knowledge that the Islamic judicial bodies instituted in Pakistan are entitled to examine laws within the country to test their validity by measuring them against the yardstick of Qur’an and Sunnah, collectively known as the ‘Injunctions of Islam’.Error: Reference source notfound However, it is equally important to note that these bodies are not endowed with whimsical power and unbridled authority to determine Injunctions of Islam as they desire but rather have to go about their business in a transparent and systematic manner. As also explained in the judgment of Pakistan v. Public at Large PLD 1986 SC 240, the Court not only has been invested with the power to state ‘Injunctions of Islam’ that it uses to determine the repugnancy of a law but rather is under an obligation to do the same. To his end, the Court makes good use of the well-established and popularized rules of interpretation in Islamic Jurisprudence, interpret and apply them. A further support for such a methodical approach can be evidenced by Article 203-E (6) of the Constitution; which enjoins upon even the legal practitioners and Juris-consults to also explicate this rules of interpretation when assisting the Court.19 It goes without saying

19 Chapter 3A, Definitions, Section 203E, Constitution of the Islamic Republic of Pakistan [Pakistan], 10 April 1973, 

that when Injunctions of Islam are being stated by anyone, it warrants a direct reference to the Holy Qur’an or the Sunnah to establish its worth and legitimacy. And as far as interpretation and its rules are concerned, it is unarguable that these sources hold the highest esteem and significance and any interpretation or approach that deviates us from these or creates a gap in the nexus of these two holy sources is not permissible. That being said, there are verses in the Qur’an that emphasize its organic capabilities of accommodating changing circumstances and tackling novel issues with the passage of time. The following verses buttress that proposition that the Holy Qur’an has the capacity of meeting the growing and evolving needs of the modern age:

S. 3, V. 7; S. 11, V. 7; S. 13, V. 38-40; S. 14, V. 24-27, 52; S. 25. V. 30; S. 29, V. 49; S. 38, V. 87-88; S. 39, V. 23 ; S. 41, V. 53 and S. 54, V. 17.

Muslim Personal Law

Muslim Personal Law is perhaps the most prominent exemption in Section 203-B of the Constitution, upon which the Federal Shariat Court (FSC) and subsequently Shariat Appellate Bench (SAB) lack jurisdiction to entertain cases. However, for the exemption to remain effective and be strictly enforced, one needs to understand the implications of what Muslim Personal Law is really are. This question was first considered in great detail in the landmark judgment of Federation of Pakistan v Mst. Farishta, PLD 1981 SC 120 where the Shariat Bench of the Supreme Court concluded that Section 4 of the Muslim Family Law Ordinance is a special statutory provision that caters to Muslims of Pakistan exclusively and in general declared Muslim Personal Law as a whole, beyond the jurisdiction of the Court.20 The judgment elaborated that Muslim Personal Law can have

20 Muslim Family Laws Ordinance, 1961 (Ordinance No. VIII of 1961).

broadly speaking two meanings contingent upon the particular context. In the more popular sense in may mean religious or divine law of Muslims that governs their affairs as a matter of their religious faith. This type of law is one that a practicing Muslim possesses no matter where he may be since for him Islam constitutes much more than a religion, it is in fact a complete way of life or Din (imparting the sense of obedience to Allah's commandments) and covers a man's life from cradle to the grave. From this common perspective Islam is a pure personal law of every Muslim. However, Muslim Personal Law may refer to all such laws that apply to the Muslim community residing in Pakistan specifically and exclusively. This is differentiated from general law of the land that applies to all citizens and classes of people regardless of their religious faith. Long story short, Muslim Personal Law through this understanding means that part of the Civil Law of Pakistan that mandates enforcement of certain specified law for Muslim Residents of the state as a special and personal law for them. After the comparing the two definitions, the court opined according to its interpretation, the term Muslim Personal Law as used in Article 203-B of the Constitution is used in the latter of the two meanings. It needs to be clarified that Islamic Law extracts its main authority and legitimacy from the Holy Qur'an and the Sunnah of the Holy Prophet and to that end it is considered a Divine Law. The divinity of the law comes from its binding nature that Muslims admit willingly. Therefore, it follows that such laws can be included in the category of personal laws or ‘”Muslim Personal Law”. However, if these divine laws are taken to be Muslim Personal Law which act as a yardstick from which the religious validity of other laws is to be measured, the exemption of Muslim Personal Law under Section 203-B would be quite pointless. Therefore, it can be concluded that Muslim Personal Law used in the context of this Article does not equate to divine laws of Muslim but to some other special provisions that apply exclusively to Muslims distinctively. In light of this discussion, the ambiguity regarding

section 4 of the Muslim Family Laws Ordinance VIII of 1961 in the Farishta case is settled.21 This section is simply special statutory provision which is intended to be applied only to Muslim of Pakistan as a class by itself, and from that point of view, constitutes personal law for the Muslims, i.e. Muslim Personal Law in the sense above explained, with the result, that its scrutiny was outside the jurisdiction of the High Court and the judgment and order of that Court, holding the contrary, is not correct and is liable to be set aside. By clarifying this confusion, the Court in Farisha case reached its verdict that it was incompetent to question the merits of the validity or invalidity of the impugned provision, as its jurisdiction is strictly limited to the extent authorized by Article 203-B of the Constitution which lays down that such types of laws are not to be scrutinized under its constitutionally given authority.

However, this understanding was reviewed and revised by the Shariat Appellate Bench in a later case Dr. Mahmood ur Rehman Faisal v. Government of Pakistan PLD 1994 SC 607 where it greatly differed with earlier view set in the Farishta case. This revised understanding holds that only by reasons of being a codified or statute law and applicable exclusively to the Muslim population of the country, a law would not fall in the domain of ‘Muslim Personal Law’ unless it is also proven to be the personal law of a particular sect of Muslims based on the interpretation of Holy Qur’an and Sunnah by that sect and therefore, the Zakat and Ushr Ordinance was not outside the scope of scrutiny of the Federal Shariat Court under Article 203 D of the Constitution. In consequence, this leads us to the conclusion that currently the Shariat Appellate Bench of the Supreme Court of Pakistan maintains the position that codified/statute laws applicable to the general population of the Muslims are open to question before the Federal Shariat Court and subsequently itself for examination to determine as to whether the said law is violating the Injunctions of Islam or not.

21 Section 4, Muslim Family Laws Ordinance, 1961 (Ordinance No. VIII of 1961).

Subject wise classification of Shariat Court Judgments

Property & Fiscal Law

Right of AlienationIn one of the more prominent cases relating to property matters, Federation of Pakistan through Secretary, law & Parliamentary Affairs vs. Muhammad Ishaque, PLD 1983 SC 273 the Federal Shariat Court Categorically ruled that in Islam, the state or any individual cannot place restrictions on the right of alienate, transfer or sell property on inherited land or otherwise. In its judgment, FSC clearly specified that an Islamic estate is separate from a customary estate, one which was historically adopted by Hindus in the sub-continent. The customary estate which was based on the principle of agnatic succession was also ingrained in Section 5 of the Punjab Laws Act, 1972, which therefore was declared void by the FSC for not being compatible with Islamic injunctions on property matters.22 To support this view, the Court relied on verses from the Holy Qur’an, specifically Chapter 4, Verses 11, 12 , 176 which place burden on absolute vesting of rights to disposal of property in the owner without placing any restrictions on alienation.23 The court further relied on the following excerpt from Syed Amir Ali’s book titled Muslim Law to support the view that they took:

"There is no distinction between the ancestral and self-acquired property. The owner for the time being has absolute dominion over all property in his possession whether he has acquired it himself, or whether it has devolved upon him by inheritance. He can - sell or dispose of it in any way he likes, provided operation is given to it during his lifetime. It is only with regard to dispositions intended to take effect after the donor's death or made in extremis that his power of disposition is limited by the right of his heirs. He cannot by a testamentary disposition reduce or enlarge the shares of those, who by law are entitled to inherit."

22 Section 5, Punjab Laws Act, 197223 Abdel, Trans. Haleem M.A.S. "The Quran." Al-Quran.info

As a result, it was held by the Federal Shariat Court that the custom impugned in the petition and continued in force by section 5 of the Punjab Laws Act in the Punjab, was included in the definition of law, given in Article 203-B of the Constitution and that it was repugnant to the Holy Qur'an and Sunnah. A declaration was, therefore, given that the custom allowing challenge by collaterals to the alienation of the property inherited under Custom by a full owner is repugnant to the injunctions of Islam and a direction was issued that the necessary amendment in the West Pakistan Muslim Personal Law (Shariat) Application Act, 1962, be made by the 30th of June, 1981.24

Procedural Issues with Property Matters

A couple of property cases have dealt with procedural issues which emphasize the need to follow proper methods to ensure effective dispute resolution. Among these is Mumtaz Ahmad and another v. Assistant Commissioner and another, PLD 1990 SC 1186 Where the SAB dismissed a petition on appeal from high court because the petitioner did not exhaust all available remedies before filing the appeal. In this particular case, the petitioners (tenants) filed a suit against eviction by landlords under Paragraph 25(1) of the Martial Law Regulation 115 of 1972 which was subsequently declared repugnant to Islamic Injunctions by the Court in its judgment of Qazilbash Waqf v. Chief Land Commissioner PLD 1990 SC 99.25 As a result of this, the petitioners filed a writ petition invoking fundamental rights in the High Court without first resorting to existing remedies already provided by the law. Therefore when in the present scenario the petitioners instead of following proper remedies and going before the next higher forums where all this exercise, it could be hoped and expected, would have been thoroughly done, hurriedly approached

24 West Pakistan Muslim Personal Law (Shariat) Application Act, 1962.25 THE LAND REFORMS REGULATION, 1972

the High Court in its Writ jurisdiction. They were wrongly advised to do so. When the case came to the Supreme Court in appeal, the latter opined that petitioners should not have approach the High Court without exhausting other remedies provided in law in the hierarchy of the Revenue Forums and termed the Writ petition being premature and therefore dismissed it.

Prize Bonds and Lottery

In the case of FEDERATON OF PAKISTAN versus MUSHTAQ ALI ADVOCATE PLD 1992 SC 153, the Shariat Appellate bench upheld the decision of FSC by declaring certain parts of section 294-A and 294-B of the Pakistan Penal Code repugnant to injunctions of Islam.26 This provision in the PPC exactly states, "Whoever keeps any office, or place for the purpose of drawing any lottery (not being a state lottery or a lottery authorized by the provincial government) shall be punished with imprisonment of either description for a term which may extend to six months, or with fine, or with both". For its purposes, the FSC adopted the ordinary dictionary meaning of Lottery and judged them to be against Islamic principles after much debate between the lawful and unlawful types of lotteries. The Supreme court finally opined that (A) Section 294-A of the Pakistan Penal Code in so far as it makes an exemption for "State lottery or a lottery authorized by the Provincial Government" is repugnant to the injunctions of Islam; and (B) Section 294-B of the PPC to that extent that generality prohibits free trade in commodities on fair market price also, is repugnant to the injunctions of Islam. On another matter of National Prize Bonds Scheme being contrary to Islamic principles as judged by the FSC, the Shariat Appellate Bench

26 Section 294

A, 294B, Pakistan Penal Code (Act XLV of 1860)

accepted the appeal and over turned FSC’s decision since the latter did not have jurisdictional authority to hear the matter due a bar placed on it by Article 203-b ( c) on the constitution.

State Requisition of Private property

In the landmark judgment of Province of Punjab v. Amin Jan Naeem, PLD 1994 SC 141, the FSC openly ruled against the practice of government temporarily forcing citizens to lease their private property to the former and declared certain sections of the West Pakistan Requisitioning of Immovable Property (Temporary Powers) Act, 1956 (hereinafter referred to in this judgment as the "Act 1956") as repugnant to the Injunctions of Islam as laid down in the Holy Qur'an and the Sunnah of the Holy Prophet (S.A.W).27 Citing another landmark judgment of Qazilbash Waqf case that court reiterated that no private property can be compulsorily taken on lease without the presence of extreme necessity or imminent need. Buttressing the sanctity of contracts between two independent parties, it emphasized on empowering individuals to maintain ownership of their possessions including land at all times by referring to the verses of the Qur’an that state, “O those who believe, fulfil the contracts (5:1), And fulfil the covenant (342:17)”. And also this hadith of the Prophet (S.A.W), "None of you is allowed to contract a sale over the sale" (Sahih-al Bukhari, Buyoo, Ch.58, and Hadith 2139).28 Both of these examples, demonstrate the emphasis of Islam of providing protection to persons from intervention by the state in their contractual and property matters. As far as

27 West Pakistan Requisitioning of Immovable Property (Temporary Powers) Act, 1956

28 The Hadith, (pp. Sahih-al Bukhari, Buyoo, Ch.58, and Hadith Number 2139.

Abdel, Trans. Haleem M.A.S. "The Quran." Al-Quran.info

the impugned sections of the Act 1956 is concerned, the FSC raised two main objections which led them to their final decision. The first issue it that these sections fail to account for a fair compensation at market rates to the individual whose property is requisitioned. Secondly, the judges’ major contention was that the act actually facilitated the provision of interest by the government to the individual if compensation is not made within 3 months of acquiring his property. This provision in its very essence is problematic since the very concept of interest or Riba is deemed strictly forbidden in Islam and therefore any such allowance is consequently prohibited by the Qur’an and Sunnah. Along with these two principled objection, the Holy Qur’an outlines some general guidelines that directed the Court’s decision. This includes the following verse, "Deal not unjustly and ye shall not be dealt with unjustly." (2:279).Error: Reference source notfound Therefore, on the basis of the aforementioned principle and verses, the learned Federal Shariat Court concluded that a building cannot be requisitioned for the use of an officer as contemplated in section 3 of the Act 1956 and ruled against the Province of Punjab.

Family Law

Polygamy

The issue of Polygamy or multiple marriages in Islam has always been a contentious matter that has sparked a lot of debates among scholars and people. Interestingly enough, the Supreme Court of Pakistan through the Shariat Appellate Bench has recognized the right of Muslim man to take multiple wives at a time through its judgment in Ch. Irshad Ahmad v Federation of Pakistan, PLD 1993 SC 464. In this case, initially the FSC rejected the petitioner’s claim to receive medical coverage for more than one wife under The Federal Services Medical Attendance Rules, 1990 that allowed treatment for only one wife of a government servant, one that was nominated by him. In appeal of FSC judgment, the Shariat Bench argued

that restricting medical facility to only one nominated wife of a Government servant is not consistent with the scope of definition of family and dependents as mentioned in the Federal Services Medical Attendance Rules Act.29 While the enumerated list of family within the act includes brothers, sisters, step-sons and step-daughters which implies that a Government servant who has more than a dozen brothers, sisters, sons etc. all of them shall enjoy medical facilities, but it is only the second wife that has been singled out for being deprived of these benefits and has been expressly excluded from the definition of the 'family'. This exclusion clearly signifies that the second wife has not been excluded for purely economic reasons. If this had been the case then siblings of the employee would not be given priority over his second wife. While the maintenance of a legal wife is the exclusive liability of her husband, no matter whether she is the first or second wife that of siblings may not be the exclusive liability of a Government servant. According to the Qur’an, such responsibility may be shared by a man’s other brothers and (Chapter 23: Verse 3).Error:Reference source not found Therefore, this limitation on medical coverage cannot be possibly justified for economic reasons or any other reason such as equal treatment between Muslim and non-Muslim Government employees. Apart from this technical aspect, the court relied on the Qur’anic point of view on polygamy for conceptual clarification on the subject. It referenced the following verse : "Marry women of your choice, two or three or four, but if you fear that you shall not be able to maintain equity between them, then only one". (4:3).Error: Reference source notfound

While the court argued that under Shariah, it is not mandatory for an employer to provide medical coverage to an employee if they contract not to do so, but once the terms of agreement provide for medical benefits to all family members of the employee, who are dependent on him, then all his

29 Federal Services Medical Attendance Rules, 1990

legal wives, no matter how many, will be entitled to these benefits. While recognizing this right, the court naturally also yielded that the Qur’an allows a Muslim man to have four wives given he treats them equally and justly. Therefore, it argued that any rule or law that does not allow this Qur’anic permission to materialize, would stand in violation of injunctions of Islam. Hence, the court concluded that explanation No. 4 of rule 2(d) of the Federal Services Medical Attendant Rules, 1990 is repugnant to the Injunctions of Islam as laid down in the Holy Qur'an and Sunnah.

Primogeniture

There often has been much debate whether Islam recognizes the rule of primogeniture where the eldest child (usually son) receives preferential treatment over other people in terms of inheritance and especially in appointment to positions. The Supreme Court of Pakistan has made it quite clear over the years the merit remains the most important criteria when it comes to appointment of posts as mandated by injunctions in Islam. In the case Maqbool Ahmad Qureshi v. Islamic Republic of Pakistan, PLD 1999 SC 484, the apex court through its SAB made it official that all wisdom found Qur'an and the Sunnah of the Holy Prophet (SAW) seems to warrant that the appointments to an office of the Government are to be made on the basis of merits. As far the Qur’an is concerned, in (Chapter 2: Verse 124), it does not sanction the concept of hereditary claim as the exclusive criterion for appointment to an office.Error: Reference source not found The principle derived is that offices that are regarded as a sacred trust should be transferred to those who truly deserve it i.e. people who are fully qualified, competent and trustworthy to fulfill the duties of office with honestly. Therefore, the judges opined that merit seems to be a more essential criteria for a job than anything else. The qualifications of the person to be appointed would naturally depend on the nature of the employment, service or the job keeping, however, the maintenance the distinction between employment against a job or service and holding a

public office which requires discharge of obligations of State or functions of sovereign nature.

Long story short, the crux of principle that is extracted from the Injunctions of Islam as hinted above in the discussion is that appointment for an office, official post, assignment or employment must be executed on merit of the candidate who possesses the qualities of competency, integrity, and physical/mental capacity. In addition to this, blood lines and relationships cannot be made the main basis for prioritizing selection. Thus the provisions contained, especially in sub-rule (1) of Rule 19 of the impugned Rules (Punjab Land Revenue Rules 1968) providing for rule of primogeniture as the sole basis of appointment successor, though interpreted as a directory rule was deemed repugnant to the established Injunctions of Islam since it operated on the principle of exclusion.30 The Court ruled that any individual regardless of gender, minority status cannot simply be rejected even if they show good potential for the job. On the other hand, the objection against rule 17 with regard to provision of hereditary claim amongst other factors in the matter of appointment is to be considered generally without merit as this rule provides does not restrict the administration’s decision to one factor only. However, what it does is that it includes hereditary claim is one of the many factors that can be thoroughly considered before making an appointment. And such an approach might actually be recommended in the present case of selecting a Lambardar since it takes into account the considerations of area, tribal community relations and establishing a liaison between the administration, landowners and the heirs of the previous Lambardar. Such an approach also allows to build continuity in the work and further strengthen the network between landowners and the administration. For this, and in the liaison created between the land owners and the administration is intended to be achieved. Rule 17 is, therefore, not repugnant to any Injunction of Islam.

30 Punjab Land Revenue Rules 1968

Contracts and Employment

Apart from deciding matters relating to family law, property law and issues of jurisdiction, The Shariat Appellate Bench of the Supreme Court has also delved into issues relating to the terms of employment and contracts. Govt. of NWFP v I.A. Sherwani, PLD 1994 SC 72 is one such case where the Court deals with a contractual dispute between the government and government employees. Herein, the Court in appeal of a FSC decision, struck down Rule 53 of Fundamental rules related to Government Servants and all its parallel rules on the grounds of being repugnant to the injunctions of Islam. Rule 53 of the mentioned act, basically provides that a government officer under suspension is not allowed to receive his full salary and benefits while he is being investigated. In this particular case, a Government employee who was suspended without full pay and benefits was not allowed to take leave ,or vacate the station of service, and neither was he provided the opportunity to take service else were. The court opined that Rule 53 is an unjust provision and disregarded FSC’s decision. It held that once a Government servant enters into his employment he should allowed avail all the benefits as per the terms of the contract of service including full salary and other facilities. Even the FSC while decided against the respondent, it yielded that while the Government may suspend an employee during an ongoing enquiry against him, he may however, cannot be deprived of his salary during suspension as the contract of service remains effective. The Federal Shariat Court relied upon verse number 1 of Surah Al-Maidah which reads as under: O you who believe, fulfil your contracts" (5:1).Error: Referencesource not found Hence, the FSC concluded that a unilateral withholding of the employee’s salary is repugnant to the terms of the contract and the quoted Qur’an verse.

However, the Shariat Appellate Bench in reviewing the FSC’s decision went further on to state that a contract allowing unilateral and arbitrary reduction of salary without any fault having been proved against the employee is itself repugnant to the injunctions of Islam. Shariah requires a contract to be clear, unequivocal and free from exploitation for it to be considered valid. An unqualified amount power in the hands of the employer to convert the salary into a "subsistence grant" amounts to an exploitation, which is termed by the Holy Prophet (S.A.W) as "Gharar". Hazrat Ali is reported to have said, “The Holy Prophet (p.b.u.h.) has prohibited the sale under coercion and the sale based on "Gharar". 31 The term "Gharar" refers to any transaction where the consideration for the transaction is uncertain or indeterminable. Although the Hadith referred to above pertains to the context of a contract of sale, but the principle it advocates covers all forms of monetary contracts including an employment contract. Thus, if a contract of employment vests unbridled power to the employer where the he can arbitrarily reduce the salary amount for a specific time period, it will be covered under the term "Gharar" that is forbidden in Islam. The Holy Qur'an states, “Woe to those who give short measure, those who, when they have to receive by measure from men, exact full measure; but when they have to give by measure or weight to men, give less than due." (83: 1-3).Error: Reference source not foundEven though the word "Tatfif” employed here signifies the literal definition of providing short measure yet, in the normal usage it covers all the circumstances where a person demands a lot and contributes negligibly.

Based on the reasons discussed above, the court reached the conclusion a suspended government servant has be provided full compensation for his work along with any and all benefits as stipulated under the contract of service. Therefore, the Shariat Appellate Bench set aside the judgment of FSC and held Rule 53 of the Fundamental Rules and 31 Mishkat Sharif on the authority of Abu Dawood, Vol. II, and page 20 with Urdu translation published at Lahore

the rule mentioned in Sl. No.106 and all the parallel rules of the Provinces are repugnant to the Injunctions of Islam as found in the Holy Qur'an and the Sunnah of the Holy Prophet (S.A.W) to the extent that they deprive Government servants of their entire salary and other perks and benefits during the period of their suspension. A suspended Government servant should be allowed full amount of his salary and all other benefits and facilities provided to him under the contract of service. The Bench advanced immediate amendment in the rules shall be carried and fixed a deadline for the expiration for the existing rules. With this modification in the order of the Federal Shariat Court these appeals are hereby dismissed.

Fundamental Rights

Right of Due ProcessThe FSC and SAB have heard numerous cases dealing with the issue of fundamental rights, basic human rights and rights of citizens in their decades of functioning. One of such rights is the right of due process and fair trial. This right was dealt with in Federal Government of Pakistan through Secretary, Ministry of Interior, Islamabad v. Government of Punjab through Chief Secretary, Lahore and another., PLD 1991 SC 505 where the federal government made an appeal against a FSC decision that declared Section (8)2 of the Passports Act 1974 as repugnant to injunctions of Islam as it failed to give the applicant a chance to respond to show-cause notice before his passport status was modified.32 In this case, the Shariat Bench reinforced the decision of the FSC on the grounds that in Islam whenever the right of a person is negatively affected, he has to be provided the opportunity to present his clarification before his right can be curtailed. Similarly, in this particular case, the right of a person to travel abroad freely is being infringed arbitrarily which is unequivocally against the 32 Passports (Rules) Act 1974

injunctions of Islam as ingrained in the Holy Qur’an and Sunnah. While the court yielded that in emergency situations, the state has the authority to confiscate the passport of a person without presenting prior show-cause notice but it will be under an obligation to issue the notice within 24 hours of the impounding of the passport. The court referred Province of Sindh v. Public-at-large, PLD 1988 SC 138 where the court opined that taking of instant emergency measures of impounding passports necessitate to give a prior opportunity of hearing to the applicant in order to expedite the process. If such a hearing cannot be dispensed with then the opportunity to a hearing should be afforded within 14 days of confiscating the passport. In the present case, the Shariat Bench advanced a similar rule. It decided that "Provided that no such notice be given in the case of an order impounding a passport where immediate taking of action is necessary but such opportunity shall be afforded to the person whose passport has been impounded as soon as is possible thereafter but this period will not exceed more than two weeks, in any case."

Belief Systems

Right to Practice Religion : Ahmadi Issue

FSC and Shariat Benches often deal with more controversial issues involving questions of Muslim identity, blasphemy, sectarian differences and other intricacies related to matters of creed. One of the most controversial issues among these has been the official declaration of the Ahmadi community as non-Muslims by the state under the second amendment to the constitution passed by a duly-elected parliament on September 7, 1974. With this background let’s consider the case of Capt (Retd) Abdul Wajid and 4 others v Federal Government of Pakistan, PLD 1988 SC 167. Here, the appellants filed two appeals against a FSC judgment that did not accept the petitioners (now appellants) argument that Anti-Islamic Activities of the

Quadiani Group, Lahori Group and Ahmadi (Prohibition and Punishment Ordinance) 1984 was repugnant to the injunctions of Islam and contravening Article 203-D of the Constitution.Error: Reference source notfound In both of the appeals, the appellants demanded unnecessarily long adjournments, first on the grounds of illness and second for not fully recovering memory after recovering from illness. On some investigation, the second attempt was adjournment was found out as a delaying tactic without any genuine medical problem. However, when the second appeal was considered by the court, the appellant refused to argue the case. The appellant imposed a conditionality upon the judges that before beginning the appeal process, the bench needed to summon the tape-recording of the proceedings before the Federal Shariat Court in order to highlight the partiality of the latter. The appellant further stated that Court should determine this issue first before considering the appeal; otherwise, the appellants will not have any interest left in filing the appeal. The court interpreted this as another clever tactic to get adjournment and delay the proceedings of the hearing. Hence, the court refused the request to pre-examine the tape-recordings before the case proceedings were initiated and ordered the appellants to argue their case first and remarked that if the court deemed it necessary to examine the tape-recordings from the FSC proceedings it will do so respectively. The appellants then filled another application before the court that requested the court to disregard 2/3rds of the FSC judgment before considering the appeal any further. Finding no legitimate grounds to entertain their unreasonable request, the bench again refused to comply. The appellants then went to file a third application, seeking the exclusion of two Ulema judges from the bench for their alleged bias for remarking favorably about the law that the appellants sought to get struck down. It was however observed that these judges simply expressed their opinion on the matter in the initial part of the proceedings as they often do after hearing preliminary arguments and this should be considered a form of bias or prejudice. The court further stated that the Ulema Judges

are known for relying on Qur’anic verses and Sunnah for their supporting their decisions rather than using their personal inclinations about a subject. They are observed to rely particularly on Verse No. 135 of Chapter 4 (Surah Nisa) which reads, “"O, ye who believe, be maintainers of justice, bearers of witness for Allah's sake though it may be against your own selves or your parents or near relations, be the rich or poor. Allah is most competent to deal with them both, therefore, do not follow your low desires lest you deviate, and if you swerve or turn aside then surely Allah is aware of what you do."Error: Reference source not found (4:135) The grievance of the appellants, however, was partly based on the Ulema’s decision to practice Rujoo or consulting opinions of scholars and Ulema of the past such as Imam Abu Hanifa. On the third application, the Court clarified that a party in a litigation cannot claim a right to be tried by a particular judge or choose a judge of its choice but it is the decision of the judges themselves if they desire to sit on the bench or not. In this case, the Ulema had no issues with being on the bench. After all three requests of the appellants were duly declined by the Shariat Bench, they decided to abruptly withdraw the appeal and the bench subsequently confirmed its dismissal.

This case does not fit under the above heading. In another case Federation of Pakistan v. Zafar Awan Advocate, PLD 1992 SC 72, the Supreme Court handled the issue of justice and discrimination between citizens head on. In this context, the apex court through the Shariat Appellate bench dismissed two separate appeals of FSC decisions from the petitioners i.e. the Federal government of Pakistan. The matter specifically related to certain law provisions that did not allow citizens or even the judiciary to remove or prosecute civil servants who commit an offence without acquiring appropriate sanction from relevant government authorities. This restriction on petitioners to prosecute public officials that have possibly cheated them of their rights was deemed to be un-Islamic by the judges. The court cited the following verse of the Qur’an, "O ye who

believe obey Allah, and obey the Messenger and those of you who are in authority; and if ye have a dispute concerning any matter refer it to Allah and the Messenger if ye are (in truth) believers in Allah and the Last Day."(4:59)Error: Reference source not found, to emphasize the fact that a vested right of an aggrieved person cannot be deprived to him by any such laws. It further stated under an ideal Islamic constitution that upholds the sovereignty of God and follows the example of the Holy Prophet (S.A.W) any citizen should be entitled to go to courts freely to challenge the laws, commands or orders of men in authority. The above mentioned verse clearly makes a case for judicial review of administrative actions of the executive where ordinary people can get their grievances against the state heard and have their disputes resolved without hurdles. In addition to that, the following hadith reinforces the same idea and makes a very strong case for the repugnancy of any such restricting provision, "It is narrated from the Holy Prophet that the previous nations were destroyed because they had different laws for high ups and the influential and others for the masses”33

Methodology and Methodological Tools Perhaps the most important aspect of analyzing judgments by courts

in Pakistan on laws and their Islamic content is the tools, methodologies and the sources used by them to reach their respective decisions. While the courts are restricted in their jurisdiction by certain provisions of the Constitution, namely Article 203, there also a great room for interpreting Holy sources in the form of Qur’an and Sunnah but also the works of prominent jurists and scholars. To this end, it is highly pertinent to discuss the various intellectual instruments, tools, sources and methods used by judges of FSC and SAB alike to interpret important texts and subsequently rule whether a particular law or regulation is repugnant to the injunctions

33 Sunan Abu Daud Vol. II, page 223 Print Beirut

of Islam. For this purpose, let us survey some of the most widely used methodological tools and techniques that have been adopted by judges over the course of time in numerous cases that has helped developed a growing body of Islamic Jurisprudence that has its roots in classical understanding of Holy scriptures and knowledge derived thereof.

Contextual Understanding

It is an established modus operandi of jurists from the past and of judges of today, to rigorously study Holy Scriptures in full letter and spirit to comprehensively grasp the crux and peripheral intricacies of each commandment. This scrupulous exercise undoubtedly requires them to pay heed and respect to understand each stipulation with reference to its historical, cultural, political, legal, and religious and all other contexts. While some stipulations are of universal standing that hold true regardless of time and space, there are also those that require a more nuanced approach as they may apply differently in varying circumstances. A similar query arose in the landmark judgment of Qazilbash Waqf v Federation of Pakistan where the court dealt with the issue of the nature and extent of a Muslim’s duty to do charity and be generous in God’s way. The following verse of the Qur’an was cited for this purpose, "And they ask thee as to what they should spend. Say the surplus. Thus Allah makes clear his signs to you that you may ponder, over this world and hereafter." (2:219)Error:Reference source not found According to two well-known exegetes, namely Muhammad Asad and Maududi, this verse basically implies that one should only spend that he can spare after managing his own subsistence.34 The contextual idea behind this simple translation is that believers or followers of the Prophet (P.B.U.H) were discouraged to overly spend out of what they had to fulfill their basic needs but rather to spend only that for Allah’s sake

34 Asad, Muhammad. The Message of the Qur'a ̄n. Maududi, Abu Ala. Tafhim-ul-Qur'an. 

that could be considered a surplus amount. Contextual understanding and interpretation of Qur’anic verses specifically, require to be understood along with Sunnah or the life of the Prophet. The Qur’an itself lays emphasis on following the Holy Prophet and his actions. Some also comment that the abovementioned verse was revealed during the period of famine while others, including the majority judgment in the Qazilbash Wafq case posit that it is rather a broader and universal commandment that supplements other commands made to the companions at the time. While spending in God’s path was considered to be very noble and pious act, it led to some believers over spending without paying regard to their own needs. For this reason, a rule of thumb was devised that spending for a charitable or religious cause was directly determined by one’s needs. When that need was determined, the surplus that is left can be spent for Allah’s way. It is interesting to note here as the court did that this particular verse was a response to questions from the believers about the extent of ‘spending’ in Allah’s path. Its language communicates a clear message that while this spending has to be made from the surplus and not from the resources for basic requirements, one cannot possibly be allowed to keep all the surplus to himself. Out of this emerges a right of the poor and needy to a special right of maintenance from the wealth of others in society. And such a right can be enforced in a court of law when considering the broader and overall understanding of the given subject. Applying it to the right to hold property, we can observe that while property cannot be forcefully be taken away from a person but certain measures can still be put in place to circulate wealth and provide benefit from that property to others as well. Therefore without dividing or appropriating the property or extracting entire surplus, higher amount of wealth can be created in the community for the benefit for the maximum number of people.

Zaroorat (Necessity)

The Jurisprudence of the FSC and the Shariat Benches has evolved over the many decades since their formation that has seen them employ methodological tools to interpret laws and acts and judge their repugnancy to tenets of the Holy Qur’an and Sunnah. One such methodological tool is that of Zaroorat or necessity. While the Court does not explicitly define the definition of the term necessity or Zaroorat, it deems it suitable to leave that to the wisdom and judgment of the legislature in accordance with facts and circumstances of each case. The same principle was applied in NWFP through Chief Secretary and another vs Mst.Hussan Pari and others, PLD 1988 SC 144 where the court ruled that the government can make valid exemptions to a law on the basis of Zaroorat but that shall be determined by the Legislature and not the executive. The use of the word Aarzi signifies a further power to the legislature in this behalf to add or subtract from the list of exemptions granted from time to time. As to what is Shadid, it has to be left to the judgment and wisdom of the legislature depending upon the facts and circumstances relating to each subject of exemption. However, all this would be subject to the condition that the word Shadid would have to be construed in accordance with the injunctions of Islam. The use of word Shadid is only emphasize this aspect of Zaroorat that, it has to be established in true Islamic sense. It would not be enough, merely to mention the word Zaroorat to justify an exemption. The Court would have the power to strike it down if Zaroorat is not established. All exemptions so made, of course, would be in addition to the well-known accepted exceptions which the legislature can specify without resort to Zaroorat; for example: the waqf properties, or the properties owned by the Government has already indicated (para 82 of the original judgment). This particular case concerns the application law of limitations act and specifically the right of preemption that herein arose out of two review petitions that were time barred. The judgment deals with the right of preemption in great detail despite it being

time barred. We have intentionally refrained from visualizing all the possible occasions for exemptions based on Zaroorat in the true Islamic sense and the subject for obvious reasons, has been left open. With the foregoing observations and clarifications, these time-barred petitions for review accordingly, are dismissed. There is enough scope for making exemptions with the limitations: firstly, they should be on the basis of the principle of Zaroorat; and secondly, they should not be left to the discretion of the executive Government but would have to be included in the legislation itself.

The court considered the importance of Zaroorat or Public necessity in greater detail in the Qazilbash Waqf case. The discussion in this instance was brought up in the background of implementing possible land reforms to reduce the size of property ownership or take it from large landowners and divide it into smaller pieces of land in an equitable distribution. Citing the Qur’an (53:39), “Allah helps those who help themselves among others”, the court hinted at the fact that Islam and God encourage people to work hard and constantly improve themselves to become more successful. This naturally also involves the possibility of potential upward social mobility. The court tackled the question of Zaroorat on the matter of utilizing that portion of the wealth of a person for the benefit of the state, community and the Ummah that is not involved for the person’s own needs. Such appropriation of one’s wealth whether it be in the form of Zakat, alienation, business transactions, gift, Mehr, or Shufa would be meaningless if the individuals are not endowed with the permission to acquire and retain wealth in the first place. Similarly, the reasoning follows that certain limits are prescribed upon people for dealing with their material wealth, then the commands on how to spend the surplus of wealth also do not make much sense. In elaborating the greater purpose of political economy in Islam, the court further discussed the concept of Falah or success that is enjoined upon believers as a desirable objective to pursue in

both worlds through constant self-improvement. Falah provides that one should constantly try to reflect, improve and implement the basic right of seeking and applying justice in all affairs of life. Even unwilling citizens should be compelled to seek Falah so that corresponding liabilities in every sphere of life are fulfilled on a routine basis. The pursuit of Falah requires minimum intervention from the state in the lives of individuals except to provide education, basic rights/duties etc. Falah is also incompatible with nationalization and compulsory appropriations (such as land reforms), as a philosophy. As a rule Islam prohibits these methods. That being said, however, an exception to this rule is of Zaroorat or Public necessity that is permitted in Islam albeit not recommended as a general procedure. The state may appropriate wealth of individuals in strict matters of Zaroorat such as a public emergency but such appropriation is also qualified. This qualification entails that individuals whose wealth or property is acquired or appropriated must be either be compensated for such an acquisition or more suitably be returned their property after its utilization for the given Zaroorat with due compensation for use and occupation. Another option is to provide the owner with a similar property or reach some other appropriate settlement with him through his consent. Where need requires imminent appropriation of some property as a result of some public emergency such as war, compensation can be postponed until the severity of the emergency dies down. For reasons of Zaroorat, it goes without saying that Public purposes for which the state interferes with private ownership have to be well-defined remaining within the bounds of public necessity.

Public Interest (Maslahah)

Another methodological tool extracted from Islamic Jurisprudence that is often used by FSC and the Shariat Benches is that of Public Interest or Maslahah to reach certain conclusions in their judgments. The doctrine

of public interest was thoroughly made use of in Pakistan & Others v. Public at large PLD 1987 SC 304 where the court employed Maslalah in light of Islamic injunctions from Qur’an and Sunnah to argue that the government cannot arbitrarily retire a civil servant prematurely without the latter’s consent on the grounds of supposed ‘public interest’ that does not even provide the employee the right of due process i.e. right to hearing and a prior notice of forced retirement. The court argued that the normal procedure for premature retirement is done through an inquiry and giving opportunity of showing cause to the employee. Since retirement through a summary procedure on grounds of public interest is always as a result of fault or deficiency on the employee’s part, it adversely affects the reputation, self-respect and dignity of the latter. For this reason, any such abrupt termination of services, naturally violates the injunctions of Qur’an and Sunnah when it does not provide safeguards of prior notice and the opportunity of hearing. The FSC further argued that where the government is exercising disciplinary powers over an employee, it is actually acting as a representative of God by using public power for public interest. At this end, it engaged the doctrine of Maslahah to state that the sanctity and liberty of an individual cannot possibly be sacrificed for the sake of public interest as Allah declares in the Qur’an Himself that "If anyone slew a person it would be as if he slew the whole people. And if anyone saved a life it would as if he saved the life of the whole people." (5:32)Error: Reference source not found Therefore, broadly speaking, excluding certain exceptions forwarded by the Qur'an and Sunnah, the rights of any individual cannot be, sacrificed on the mere assumption that it is in public interest. On the contrary it is also in public interest as propagated by the Islamic Injunctions that justice in the Islamic sense be meted out to the individual. That will serve the public interest in more than one way and in addition the observance of the Islamic Injunctions, in this behalf, would attract the benefactions of God.

 The essence of actions generally carried out on the pretense of public interest or Maslahah was elaborated by the Court in the landmark case of Miss Asma Jilani v. The Government of the Punjab and another, PLD 1972 S C 139 where it posited the following, "P. 182. The basic concept underlying this unalterable principle of sovereignty is that the entire body politic becomes a trustee for the discharge of sovereign functions. Since in a complex society every citizen cannot personally participate in the performance of the trust, the body politic appoints State functionaries to discharge these functions on its behalf and for its benefit, and has the right to remove the functionary so appointed by it if he goes against the law of the legal sovereign, or commits any other breach of trust or fails to discharge his obligations under a trust. The functional Head of the State is chosen by the community and has to be assisted by a Council which must hold its meetings in public view and remain accountable to public. It is under this system that the Government becomes a Government of laws and not of men, for, no one is above the law. It is this that led Von Hammer, a renowned orientalist, to remark that under the Islamic system "the law rules through the utterance of justice, and the power of the Governor carries out the utterance of it."35

Among other places, judges have approved the use of Maslahah and Urf along with other methods. Having done this, the judges have still predominantly still maintain that while these tools should be adopted widely to examine different cases, it is not necessary to invoke them where any dispute can be resolved by direct resort to the Qur'an and Sunnah. In the light of the present discussion the conclusion that is majorly drawn by judges in the higher judiciary is that the provision of law, namely, section 13(i) and (ii) of The Civil Servants Act (No. LXXI) of 1973 are against the Injunctions of Islam contained in the Qur'an and Sunnah The next question is whether the only way out to remove the repugnancy is the total repeal of

35 Miss Asma Jilani v. The Government of the Punjab and another, PLD 1972 S C 139

those provisions or their amendment or repeal and re-enactment, would serve the purpose. The latter course would also be possible by introducing the minimum safeguards providing, of course, also the exceptions permissible under the Islamic Injunctions. Another possibility can also be visualized that the procedure of retirement after due notice under the impugned provisions be prescribed in the rules.36

Taqlid and Precedents

The principle of Taqlid is notoriously criticized for blind application and following of precedents and opinions set by respected jurists and scholars in history who helped develop Islamic Jurisprudence in its present state. The perspective of Courts applying Islamic law on this matter is quite clear. Giving due respect of previous Jurists and scholars including but not limited to the four founders of the leading Sunni schools of thought, the Courts accept the significance of the works of these jurists and often limit their interpretations of Islamic injunctions to one or two jurists such as Imam Abu Hanifa. That being said, the Courts have emphasized strongly that well-known authentic works are often sought as guide lines to assist in decision making but it is pertinent to recognize the fact that Pakistani Courts only recognize those precedents binding that are binding by law. To this end, help is even sought from non binding precedents and assistance is greatly sought from prominent judgments and opinions of foreign judges and jurists. These are all considered legitimate sources of support for resolution of disputes and controversies. The Courts find little to hesitation in examining decisions and precedents set by masters of their time including Sahaba, Aimma and Ulema. When deliberating upon, views of predecessors, a special status is reserved for Khulafa-e-Rashideen or the first four caliphs along with the Companions and Tabaeens (after Companions). The Court also recognize the dire need to address growing challenges of sectarian nature, it is important to include the perspectives of both classical and 36 The Civil Servants Act (No. LXXI) of 1973

contemporary scholars to gradually mitigate the growing taboos and critique against Taqlid, when determining and setting precedents. Similarly, it also necessitates that interests of Islam as a whole and the collective conscience of the muslim community or Ummah should be prioritized when seeking an answer to any query while remaining within the bounds of Holy Qu’ran and Sunnah.

Reasoning, Ra’y (Opinion) and Zarrar (Inconvenience)

For judges, it often becomes a scrupulous task to determine whether a commandment on a given matter can be traced back to the Holy Qur’an and Sunnah. The difficulty here arises due to a lack of substantial evidence required to reach a conclusive verdict on the nature of a law or provision. The issue of the right of pre-emption in Islam (whether permissible or not) is one such matter that has sparked a lot of debate in recent times, it was specifically dealt with in the case of Said Kamal Shah. In Islamic Jurisprudence, historically speaking, the most commonly understood purpose of Islamic law of pre-emption was to prevent intrusion of strangers in the property or the vicinity to preserve the homogeneity of the tribe or the community. It can be thought of as a right that allows convenience and peaceful enjoyment of one's own property. It follows naturally, that any extension or curtailment of this right must necessarily be related to the purpose it serves. The Holy Qur’an does not expressly deal with pre-emption. Pre-emption itself, does not fall into the category of Ibadaat that is prayers, rituals or acts of devotion but rather comes under the domain of Maamlat that involves social dealings, transactions and orderly arrangements among individuals. For the latter, it is usually common to find a rationale or purpose behind an action and its given remedy by considering the Sunnah of the Prophet (S.A.W). An interesting aspect of the right to pre-emption is that it similarly applies both to Muslim and non-Muslim citizens. This points to the universality of the right which was historically not finalized at a given point in time but developed gradually. Further

investigation has revealed that the category of pre-emptors ascertainable from the Sunnah of the Holy Prophet is neither conclusive nor exhaustive. The natural consequence of such a finding, led the Court to construe this that further additions and deductions can be made to the right of pre-emption. Further more, it pondered over the implications of the pre-emption, particularly inconvenience and damage or Zurrur could possibly be avoided by implementing it. Zurrur is often used as yardstick to define the scope and extent of pre-emption.

Among other considerations, in this case, the Court also placed importance on using reasonable interpretations of pre-emption that allowed contextual and logical aspects to give some more perspective on the matter. For this purpose, it considered the view of Mr. Abdur Rahim in his book "Muslim Jurisprudence." (p. 51, 1958 Edition) where he remarked that the ultimate basis of and justification for law must be sought in human reason'. Similarly, another scholar Mr. Ahmed Hasan (The Earl Development of Islamic Jurisprudence) observes, "The Qur'an and the Sunnah no doubt provide us with same legal rules with regard to the individual and social life of Muslims. But human life being dynamic, requires laws that should change with the changing circumstances. Ra’y or Juristic opinion is an instrument that enables the coverage of diverse situations and enables Muslims to make new laws according to their requirement.”

The actual contention in the Said Kamal Shah case, through the appeals was determining the extent to which the provisions of the Pre-emption laws statutorily enforceable in Pakistan, were repugnant to the injunctions of Islam. To this end, the court considered the merits of the claim. The test of repugnancy is a strong but quite restricted test; Repugnancy would materialize only if the Islamic Law of Pre-emption as understood by the Hanafi Jurists was deemed to be exhaustive, final and immutable at the exclusion of all others, both as regards the category and as regards the order of priority of the pre-emptor's right. The test provided

within the Constitution is of Holy Qur'an and the Sunnah of the Holy Prophet alone. The opinion of the jurists cannot be considered a test in and of itself but rather as a tool of assistance. Besides, the task of the jurists was of deriving the law from the Holy Qur’an and Sunnah only and not to test existing law by its repugnancy to Islamic Injunctions or devising new laws providing new remedies. The difference between the juristic opinion of a scholar and a direct commandment from the Holy Scriptures, can be understood in very crude terms as the difference between a judicial precedent or Stare decisis which is authoritative and binding and a persuasive authority that a court may consider while making its decision but it is not mandatory to do so.

While, the law of pre-emption cannot shown to be comprehensive, there are still certain pieces of evidence that qualify it. For instance, from a study of Sunnah, we do not find any incidents where a right of pre-emption was allowed for properties like shops, mosques and such buildings. Therefore it is easy to exempt such properties from pre-emption. It is important to always remember that the purpose of the right influences repugnancy since the guidelines are not well defined. As mentioned earlier that pre-emption is not found in the Holy Qur’an but its practice during the Holy Prophet’s life was in fact mundane, situational that did not attain a status of finality and immutability. Hence, the room for making adjustments and tweaking the right still exists. For this reason, the exercise of authority on this matter by the state cannot be challenged except on the ground that it violates the purpose and objective of Islamic Law of Pre-emption as exercised traditionally.

The Federal Shariat Court, in its judgment in the same case emphasized strongly on the point that the object of pre-emption in Islam is to remove Zarrar or damage, that it cannot be absolutely determined at one point time as to what is Zarrar or harmful to society. The definition and context of harm may change in different times and even the method of repelling Zarrar may change with the passage of time. With this, it further

remarked that "in any case where the exigencies of the State so require and the harm to the interest of the public may be minimized only by not caring for the harm to the interest of individuals, preference will be given to the elimination of public harm on the following rule laid down in the Mejelle, page 6: 'To repel a public damage (Zarrar), a private damage is preferred. The prohibition of an unskillful doctor is a branch from this rule.' Therefore the FSC concluded that in the greater interests of the public, the state cannot only create new categories within the right of pre-emption but also curtail or even suspend the right to minimize public Zarrar or inconvience. It also conceded that a pre-emptor must be a co-sharer or part owner in order claim the right but at the same time held that, "once right is conceded to the state to add to these categories in the interest of public welfare the ownership of property cannot be considered to be a basic requirement of the right of pre-emption".   In order to fully grasp the reasoning used by the Courts in this case and all other cases mentioned above, we need to study Islamic Jurisprudence as the Courts understood it by relying on juristic principles or Fiqh as explicated by the legal scholars in Islam. Studying these issues under Article 203-D of the Constitution, the judges are more concerned with the aspect of repugnancy to Scriptures than anything else. To this end, in their decision making process, they judges may not declare a law to be repugnant just because it is not in conformity with the juristic opinion of one or the other of the Schools but would require that the repugnancy is clearly established as against some specific Injunction either in the Qura'n or the Sunnah. In order to establish repugnancy, it is a requirement to prove that a stipulation within these Holy traditions is expressly or impliedly contradicting or with the impugned statutory provisions. Both cannot stand together and the acceptance of one must amount to the abrogation or abandonment of the other. In construing the Sunnah, the Court noticed that there is hardly a consensus of all schools on the interpretation of pre-emptive rights except perhaps regarding a co-sharer's right of pre-emption.

The Shia tradition, does not tread further than the right of the co-sharer of undivided property or of a person having an existing interest of a substantial nature such as common pathway or water-course and "a (son who has only an easement over another's Property, or a mere neighbour has no right to claim the property in question in preference to a third person," Again, although according to Shia law, a partner in the property sold has the right of pre-emption, there is no such right if when there are several sharers and one of them only sells his share, though some legists hold otherwise. Similarly, both Sunni and Shia traditions also differ on the question of heritability of the right to pre-empt. According to Sunni Hanafi School, the right is rendered void if the preemptor dies before taking possession of the property or before obtaining a decree therefor from Court. According to Shafis and most Shia scholars, however, the right is heritable and devolves upon the heirs of the pre-emptor. There thus being no unanimity of view among the various Schools of thought in Islam in regard to the extent and nature of the right off; pre-emption, the Hanafi view alone cannot properly be made the sole test of repugnancy.

Ijtihad

Scholars and Judges alike have developed a consensus on the fact that emerging circumstances demand enactment of new kind of laws and regulations given it is governed with the ethos and spirit (Khamir and Zamir) of Islam. That being said, any change any change, direct or indirect, in the "Injunctions of Islam" is simply unthinkable. This requirement is put in place to maintain the supremacy of the Holy Qur’an and the Sunnah as the most important pillars in Islam. Interpretation of this injunctions always creates room for so called divergences or a plurality of approaches but the essentials cannot possible by derogated from while explicating new methods or frameworks. Inteligencia within the legal and scholarly fraternity of Islamic jurisprudence have repeatedly emphasized on the

significance of exercising Ijtihad especially in matters related to modernism (especially in positive sense of accomplishment and progress). Even the Federal Shariat Court and the Shariat Benches have contemplated the importance of Ijtihad on some occasions. They purport that before opting the path of Ijtihad, one should ponder whether similar objectives can be pursued without exercising it; and what utility can be availed by doing Ijtihad or while slightly deviating from the demands of modernism. The major dilemma that exists among scholars and Ulema while contemplating Ijtihad, is the difficulty in maintaining a balance between the rapid pace of modern growth and the traditional values of Islam.

Conclusion The evolution of the Jurisprudence and development of the judgments

of the Federal Shariat Court and the Shariat Appellate Bench of the Supreme Court has witnessed numerous changes, convergence and divergence of disparate viewpoints and different schools of thought. This long series of complex decision making and repeated examination of various laws in the country while comparing them to Holy sources has led to the emergence of a unique corpus of knowledge and precedents. While this exercise of examining laws in the country and putting them to the test of Islamic validation is one that will persist for years to come, it has become quite necessary to understand the progress of these institutions through a historical, political, social and obviously religious lens. The tens of cases reviewed for the purposes of this essay, highlight a number of trends that have dominated the discourse of examining laws in Pakistan through an Islamic lens. It is interesting to observe that the most number of cases for a single category were related to the matter of jurisdiction of Courts, either directly and indirectly. The simple reason for such a finding is the limited authority of the Federal Shariat Court and the Supreme Court Shariat

Appellate Bench as defined by Article 203 of the Pakistan Constitution. The well defined authority of these courts, led to numerous petitions being rejects on the grounds of lack of jurisdiction. It is understood that for a petition to be entertained by the court, it has to cite a law, provision of a statute, practice or a custom that has the force of law as recognized by the Constitution. A further study of jurisdiction of the courts, sheds lights on a number of other type of laws that fall beyond the scope of courts. These include foremost the Constitution itself, Muslim Personal Law, Fiscal Law, procedural law etc. Despite restrictions on the power of religious courts in the country, there still exists great autonomy, independence and agency within their existing roles. Such measures include the power of reviewing its own decision provided to the Shariat Appellate Bench after it passes a verdict.

FSC and SAB have had enjoyed the luxury of dealing with a wide range of cases that have catered to a diverse set of issues and aspects. The variety ranges from property matters to cases dealing with family law to issues in contract enforcement in employments to protection of fundamental human rights and also controversial issues such as practices of the Ahmadi community. In the process of handling critical issues in these cases, the courts are bound by the stipulations of jurisdiction and procedure laid down in the Constitution. However, despite overarching administrative direction, it is observed that courts overwhelming rely on the Holy Qur’an and Sunnah for coming to their conclusions and decisions as they examine various laws and evaluate their conformity with the injunctions of Islam. In order to effective discharge their duties, judges predominantly rely on a set of methodological tools, different types of reasoning and established rules of interpretations to study Injunctions of Islam as they are supposed to be critically scrutinized. While, the courts are not compelled to prefer one type of tool or method of reasoning over another, they evaluate each case on its merit by carefully considering what the Qur’an and Sunnah have to say on

the matter and how prominent jurists have understood different matters in light of their training and experience.

RecommendationIt is equally important to realize that in an attempt to move forward

and to construct an efficient judicial system which ensures that laws in the country are consistent with Islamic injunctions as given by the Holy Qur’an and Sunnah, and reject those that contradict it, the society as a whole must work together to strengthen the foundations of these institutions from the bottom up in an organic way. This hardly a simply and small undertaking, rather one that requires an exponential growth in intellectual and religious thought among citizens that directs to truly value an system based on Islamic values. An enlightened interest in such a vision would naturally guarantee the security and sustenance of this undertaking. With the growing passage of time, it has become absolutely essential for scholars, teachers, jurists, Ulema, lawyers, judges and the citizens at large to develop a more sophisticated interest and understanding of the Islamisation process. The efforts of ordinary individuals is as important as those of experts because an organic transition to an intellectual tradition based on public knowledge of important religious affairs requires an amalgamation of civil society and legal personnel, and them becoming torch bearers and custodians of Islamic thought. Regardless of the work existing institutions and bodies such as the Council of Islamic Ideology, Federal Shariat Court, Shariat Benches of High Courts, Shariat Appellate Bench and religious parties are doing, the resolution of personal and communal disputes, needs

to be incorporated in the domain of Islamic Injunctions. This is not to disregard the contributions of the already established and functioning institutions but rather to initiate a process of streamlining in the role of the Legislative Bodies, the Pakistan Law Commission, the Council of Islamic Ideology, the Federal Shariat Court, Shariat Appellate Bench of the Supreme Court and the Religious Ministry. The task of some of these bodies is not clearly defined which results in overlapping and repetition of the same undertaking. The desired outcome naturally is that he mass of laws should be allowed, subject to the constitution to be examined, modified and implemented by the Court according to Islamic Injunctions and principles laid down in the Holy Qur’an and Sunnah, in a structured program. To illustrate this process, it is possible to have a certain number of laws to be considered by the federal and provincial judicial bodies respectively every year, with a potential increase each year. A somewhat similar approach is suggested in Article 268 (6) of the Constitution which envisions an incremental and progressive system where the Courts, lawyers, State functionaries, the litigants, the tribunals, and the public at large when protecting their rights and observing obligations would be involved in a gradual Islamisation process. 37Since the basic idea is to bring public awareness about Islamic laws and corpus of knowledge while involving all parties in the process, it will not exert heavy burden on state resources and only bring change over a long period of time. These, however, are only suggestions for the higher state institutions in form of Legislation, Executive and Judiciary to ponder over. If any of these suggestions is, after examination, found fit for State and/or legislative action, the same may be pursued.

37 Section 268, Constitution of the Islamic Republic of Pakistan [Pakistan], 10 April 1973, 

Statistical Classification of Case Law

SUBJECT CLASSIFICATION JUDGEMENTS NUMBER OF JUDGEMENTS ON SUBJECT

JURISDICTION Procedural Law

Purdah in Female Sports

S.M Junaid v President of Pakistan PLD 1981 SC 12

Habibur Rehman Siddique v Govt. of Pakistan PLD 1981 SC 17

Saeedullah

Timings of Fajr Azan and Sehri

Muslim Personal Law

Institutions and Practices being mere beliefs

Suo Moto Jurisdiction

Kazmi v Govt. of Pakistan PLD 1981 SC 42

Federation of Pakistan v Mst Farishta PLD 1981 SC 120;

Dr. Mahmood ur Rehman Faisal v. Government of Pakistan PLD 1994 SC 607;

H.I Sheikh v Mahmood A Haroon PLD 1981 SC 334;

Mansoor Ali v. Federation of Pakistan PLD 1981 SC 331;

Saeedullah Kazmi v Govt. of Pakistan PLD 1981 SC 627

Pakistan v Pubic at Large PLD 1986 SC

Fiscal Law

Laws sanctioned under the Constitution

240;

Suo Motu Shariat Review Petition No. 1-R of 1989 in Shariat Appeals Nos. 4 and 5 of 1979 and No. 2, 5, 7 and 15 of 1981, PLD 1990 SC 865

Province of Sindh and another v. Public at Large PLD 1988 SC 142

Mian Khalid Abur Rauf PLD 1987 SC 228

Nusrat Baig Mirza V. Government of Pakistan PLD 1991 SC 509

13

PROPERTY Land Requisition BZ. Kaikus v Federation of Pakistan PLD 1982 SC 409 ;

Province of Punjab v Amin Jan Naeem PLD

Restriction on Alienation

Pre-emption

Offences against Property : Hirz

Tenancy Rules

Punjab Land Revenue Rules

Land Reforms

1994 SC 141

Federation of Pakistan v Muhammad Ishaque PLD 1983 SC 273

Govt. of NWFP v. Said Kamal Shah PLD 1986 SC 360 ;

NWFP v. Mst. Hussan Pari PLD 1988 SC 144;

Haji Rana Muhammad v Government of Punjab PLD 1994 SC1

Zahid Iqbal v the State PLD 1991 SC 575

Sardar M. Yousuf v The Government of Pakistan PLD 1991 SC 760

Maqbool Ahmed Qureshi v Islamic Republic of Pakistan PLD 1999 SC 484

Mumtaz

11

Ahmad v Assistant Commissioner and another PLD 1990 SC 1186

Qazilbash Waqf v. Chief Land Commissioner PLD 1990 SC 99

OTHERS Time Barred Petitions

Reviewing FSC made amendments through Islamic Injunctions

Right to Appeal

Abdul Hameed v The State PLD 1983 SC 130;

Federation of Pakistan v Public at Large PLD 1988 SC 153

Federation of Pakistan v Public PLD 1988 SC 202;

Federation of Pakistan through Secretary Ministry of Interior v General Public PLD 1988 SC 645

against orders passed by Court Martial

Proceedings of National Assembly

Pakistan through Secretary of Defence v Public at Large PLD 1989 SC 6

Federation of Pakistan v the Public at large PLD 1991 SC 459

7BELIEF SYSTEMS

Photographs for Identity

Ahmadi Practices

Maulana Abu Dawood Muhammad Sadiq v Regisration offcer Registration Office PLD 1986 SC 564

Capt. (Retd) Abdul Wajid and 4 others v Federal Government of Pakistan PLD 1988 SC 167

2

CONTRACTS & EMPLOYMENT

Right to Tenure for Civil Servants

Definition of Family for Benevolent Fund and Insurance

Suspension of Civil Servants

Pakistan & Others v Public at Large & others PLD 1987 SC 304

Waqafi Hakoomat-e- Pakistan v Awam-e-Pakistan PLD1991 SC 731

Govt. of NWFP v. I.A Sherwani PLD 1994 SC 72

3

FUNDAMENTAL RIGHTS

Due process

Opportunity to Show Cause

Right to Life and Protection

Equality before Law

Province of Sindh v Public at Large PLD 1988 SC 138

Federal Government of Pakistan v Government Punjab PLD 1991 SC 505

Abdul Majid v. Govt of Pakistan PLD 2009 SC 861

Federation of Pakisan v Zafar

4

Awan Advocate PLD 1992 SC 72

FINANCE Riba

Interest

Prize Bonds and Lottery

Muhammad Aslam Khaki v Syed Muhammad Hashim PLD 2000 SC 225;

House Building Finance Corporation v Rana Muhammad Sharif PLD 2000 SC 760

Federation of Pakistan v Dr. Mahmood ur Rehman Faisal PLD 2000 SC 770

Federation of Pakistan v. Shaikh Mushtaq Ali Advocate PLD 1992 SC 153

4

FAMILY LAW Zina

Medical coverage for multiple wives

Ghulam Muhammad v The State PLD 1994 SC 236

Ch. Irshad Ahmed v Federation of Pakistan PLD 1993 SC 464

2

CRIMINAL LAW Smuggling Muhammad Sharif v The State; Mian Aftab Saigal v the State, PLD 1999 SC 1063 1

TOTAL CASES REVIEWED : 47

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