Islamic Judicial System In Azad Jammu And Kashmir

ISLAMIC JUDICIAL SYSTEM IN AZAD JAMMU AND KASHMIR ISLAMIC JUDICIAL SYSTEM IN AZAD JAMMU AND KASHMIR By Kh. Iftikhar Hussain Butt, District & Sessions Judge, Muzaffarabad According to Muhammadan Jurisprudence, Law means a communication from Allah with reference to Men's conscious actions, expressive either of demand or indifference or a mere declaration of its nature on his part. 2. Islamic Law was introduced in India soon after the conquest of Sindh by Muhammad‑bin‑Qasim in A.D. 712, but it was firmly established only after Sultan Qutub‑ud‑Din Aybok early in the thirteenth century. Although the British took over in 1857, their judicial influence really began in Seventeenth century. In 1861, three High Courts were established and new chapter of legal system commenced, and British Law, including the principles of equity became a part of the law of the land and continues so to some extent even to this day in the Sub‑continent. During this time, Muhammadan Law was applied to Muslims as a matter of policy. To implement this policy effectively, it was laid down in 1772 that `Muftis' were to attend Courts of Justice as Jurisconsults, to assist the Courts in discovering the specific rule of law applicable. The policy of applying the personal law in accordance with the religion of the party is not a British innovation. It has its origin in earlier times when the Muslim Rulers of India came to realize that each religious community was entitled to profess its own religion and to obey its own Laws. 3. In Azad Jammu and Kashmir, Islamic Penal Laws were promulgated in the year 1974 for the first time in the history of Sub‑Continent. Because of this reason, a new judicial system was evolved. The judicial system of Azad Jammu and Kashmir is novel one. It is nowhere found in the world. We are having two men Court at the lowest level. The legal and judicial system in our State has its own nature, character and scope. It is essentially different from the English contemporary legal and judicial system. It is our conviction that Islam is a complete Code of life which embraces all spheres of life, ethical, religious, political as well as legal. Before entering into the discussion about Islamic judicial system, it will be better to understand, what is Islam? The word `Islam', derived from the word `Aslama', literally means "complete surrender" to the will of God. The "Din" or religion which means "Submissions", being a divine institution for the guidance of rational beings, by choosing it for salvation here and hereafter inclusive of belief and action, is Islam which is external and internal submission to the will of the Almighty. (Ibn Manzur, lisan‑al‑Arb XV, 184). It is crystal clear as both the legal systems have been founded on the different grounds. C.K. Allan (in his famous Book, "Law in the Making"), has thoroughly drawn the comparison between the various sources of law. According to him, there are two conflicting views about Law. In the one, the essence of Law is that it is imposed upon society by a sovereign will. In the other, the essence of Law is that it develops within society of its own vitality. But after discussing the doctrine of Austin, Hobbes, Maine, Rudolf Stammler, Kant Jusef Kolber, he reached the conclusion that all of them failed and theory of V. Cathrein and G. Renard, is a reassertion of, the theological conception of Law of God which is ultimate governor of all the Laws of men. Thus all famous and known philosophers and Law legends submitted themselves before Law of God. 4. The Islamic Law truly is a majestic edifice, sheltering all of us. Says Ibn‑al‑Qaiyim: "The Divine Law, the whole of it, is Justice absolute mercy and wisdom. Any, rule, therefore, which leads to oppression rather than advancement of Justice, is a curse and not a blessing, is a source of loss and not of profit, is stupid and does not appear to impress the wisdom, cannot flow from a fundamental truth, no matter even though it has been merged in the Legal Code by strange interpretation". The Divine Law as enunciated in the Holy Book, is supreme. Almighty Allah ordained: "Once a fundamental law is stated, that will hold" (18.55). 5. A wrong impression has been given by critics that the Law of Sharia is too harsh but this is absolutely wrong because Islamic Judicial system does not require that the people should be imputed freely, or they should be stoned to death thus where the severe punishment has been provided, there Islam demands a conclusive proof instead of proof beyond reasonable doubt which is required under Anglo‑Sexon Law; moreover standard of the evidence in Islam is very strong. A witness ("Shahid") must possess all those qualities which were required for the appointment of a Qadi or Judge. 6. Nowadays, society does not bother to speak the truth and witnesses frankly come forward to tell a lie in the Courts and they hesitate to state the truth. At this moment, it becomes very difficult for a Judge to dig out the truth and to reach a just decision of the case. Our Holy Book has clearly laid down the importance of evidence in eight following `Sums':‑‑‑ (i) Sura (ii) Baqara (140, 282, 283). (ii) Sura (iv) Nisaa (5, 15, 72 and 135). (iii) Sura (v) Maida (8, 106 and 108). (iv) Sura (vii) Yusuf (26). (v) Sura (xxiv) Noor (4, 6, 8 and 13). (vi) Sura (xxv) Furqan (72). (vii) Sura (lxv) Talaq (2). (viii) Sura (lxx) Maarij (33). 7. In this respect, Allah Almighty clearly ordained (in Sura (lxx) Maarij (33) that if we know any truth of any kind, to that we must bear witness, as affecting the lives or interests of our fellow‑beings firmly, not half‑heartedly, without fear or favour even if it causes loss or trouble to us, or it loses us friends or associates. 8. Although the Islamic Penal Laws and the Laws of Hudood and Qisas have been translated in Urdu but the Evidence Act which is nowadays known as "Qanun‑e‑Shahadat", has been drafted in English. I have already stated the importance of the evidence on which the whole decision is based, but the majority of our colleagues is not well conversant with the English language. Moreover, the guiding judgments of the superior Courts are also written and published in English language. All the Sharia Laws have not been translated from Arabic into Urdu or English and the majority of my fellow‑colleagues do not know Arabic language. Thus, practical difficulties keep on arising when ticklish and intricate points come before the Court. At this stage, I want to narrate an incident when, in a case of difference of opinion, my fellow -colleague wrote a paragraph of his judgment in Arabic and when I told him to write down the Urdu translation of it, he replied that "when the superior Courts do write in English which he cannot understand, let them do not understand the Arabic". This is not one day incident but the experience of 20 years at the Bench. The need of hour is that at the time of the appointment of new Judges and Qadis, those persons may be appointed who are well conversant with both the systems. We, the already serving in the system, may be given appropriate training here and abroad and refresher courses may be managed from time to time because the theory and practice of justice are not acquired solely by the light of nature. But a Judge must possess sufficient knowledge in the Laws because ignorance cannot remove the difficulties. Fortescue says, "But how can you love justice" unless you first have a sufficient knowledge in the Laws. If truth lies at the bottom of a well, so does justice, and it will be found only by those who know how to swim, not by those who throw themselves in at a venture. 9. It will not be sufficient that well read and skilled Judge can alone dispose of the cases, rather it is a collective responsibility of the society. The important organ of the present judicial system is our Police which has to play a vital role. It is well known secret that how the public‑at‑large faces problems when they approach the relevant police authorities for registration of the case. If the Incharge of Police Station does not himself know that under which section of the relevant Laws the case is to be registered and at the time of investigation if the concerned Police Officer does not know how to investigate and collect the evidence and how the Nisab‑e‑Shahadat is to be maintained, then how a strong case can be presented before the Court. Thus, the criminals will be set free and the purpose of the promulgation of Islamic` Laws, that is to purify the sinners, will not be achieved. So, special training programme in Islamic Laws may be started for the training of the police officials. 10. In Shariat, Tazkiyya‑tul‑Shahood (Investigation about the character and reputation of the witnesses) has got immense importance but the appointments of `Muzakkies' have not been made so far. A full‑fledged separate department of `Tazkia' may be established who could be able to report about the character of the witnesses. Another aspect of the system which needs our emergent attention is that so many convicts are still awaiting the implementation of their sentences. Where Islam wants to purify the sinners, its punishments are also deterrent which bring so many reforms in the social structure of the society. Nowadays, we are deciding the cases according to the codified laws. At this moment, I do not want to open the discussion whether the codification of Laws is in the benefit of the society or all the Islamic Laws may be promulgated at once according to `Sharia'. As we know, no Law can be made against the spirit of Divine Law and Sunna (the acts, the sayings and confirmations of the Holy Prophet (may peace be upon him). But I leave up to the jurists to resolve this controversy. At this stage, I want to put forward a proposal for the decision of the murder casts. In 1960 up to 1970, the investigating officer was responsible to bring with him the witnesses of the case at the time of the institution of the `Challan' before the Court and in a very short period the judgments of the murder cases were delivered. But, today, this practice has disappeared and the ‑cases are adjourned time and again even for the evidence of the investigating officers. If we revert back towards the very useful practice of daily hearing of the murder cases, I hope the deceased's heirs will not keep on waiting for justice for very long time. In this respect, the detailed procedure for hearing of the cases can be evolved. 11. I also propose that a permanent Law Commission may be constituted who may be able to review the existing Laws according to the compelling need of the society in the light of the two admitted and valid sources of law, `Ijtihad' (consensus) and `Qiyas' (analogy). In this respect, our higher judiciary has attained a high reputation for integrity, ability and impartiality and they can immensely effect the future course of Islamic Judicial system, with their able guidance. 12. It is also important to note that our learned Bar has also played a vital role for the development of the system, no doubt that legal profession and their able assistance, is very much necessary for the dispensation of justice. Islam also recognizes the role of Bar. It is not, at all, repugnant to the tenets of Islam. Reference may be made to the well‑known Book (Badai alzai) Vol. VI, p.22. I would like to conclude by saying in the words of Imam Shafi's "RISALA, 59" I lost some of my Books but I have verified what I remembered from what is known to Scholars; I have aimed at conciseness, so as not to make my work too long, and have given only what will be sufficient, without exhausting all that can be known on the subject.