The Mujallah

THE MUJALLAH THE MUJALLAH FOREWORD AND THE HUNDRED MAXIMS RENDERED INTO ENGLISH BY MR. JUSTICE A. R. CORNELIUS, Chief Justice, Supreme Court of Pakistan INTRODUCTORY NOTE This translation is the result of a few sittings last September and October, by my lamented friend, Mr. George Talia, and myself. We worked with the aid of an Arabic version of the Mujallah as current in Iraq at the turn of the century. This book was the gift to me of H. E. A1 Sayed Abdul Kadir Al Gaylani, Ambassador for the Republic of Iraq. It had been used by him and by his father before him. For my assistance, as I know no Arabic, there was a translation of the Mujallah in Urdu published in Hyderabad (Deccan), of which a copy was made available to me through the kindness of Mr. Tanzilur Rahman, Advocate of Karachi. Mr. George Talia was an Arab of Baghdad, who had gained a degree in law at the University there, and had studied the Mujallah as part of his courses. He was fully conversant with legal Arabic, and having also a good command of English, he was able to grasp and explain the exact meaning of the Arabic expressions, particularly those in the maxims, where the purport is put into the fewest possible words. My part in the work was to express the meaning in English legal terms, to the best of my ability. To my great regret, Mr. George Talia died suddenly of heart failure in Beirut, in December last year, and thus the work came to an end for the time being. I hope to continue it with another collaborator. These portions of the translation are presented, as a tribute to his memory, and in the hope that they may be of interest to the legal fraternity in Pakistan, THE MAXIMS FOREWORD Art. 1. Fiqah is the study of practical questions of law. In part, it is con cerned with things of the next world, and in that behalf is called 'Ibadat. Where it is concerned with material things, it is divided into three parts, namely, Munakehat, Muamilat and 'Aqubal. The order of worldly things is to last so long as Allah the Almighty has determined, and so long must the human race also endure. The perpetuation of mankind depends on the pairing of human males with human females. According to his nature, man needs to produce food, clothing and habitation. That requires mutual assistance and joint effort among individuals. And since man is sociable by nature, and cannot live in isolation, like the rest of the animals, for spread ing the carpet of orderly existence, he requires mutual assistance and joint effort. Each man has his peculiar needs and will compete strongly with others (to satisfy them). Therefore to secure and order and freedom from disturbance, men require rules of law. Those which deal with relations of men with women are called in Fiqah, munakehat. Those which deal with order in human affairs are called muamilat. So as to establish and maintain such order, rules of retribution, i.e., the law of penalties becomes necessary, which is called 'aqubat. The Mujallah is confined to Muamilat, and deals with those principles which are of most frequent application. These have been collected from accepted sources. It is divided into books, chapters and articles. The Chapters and Articles deal with detailed rules that are applied by the Courts, True jurists have reduced questions of fiqah to comprehensive maxims, each of which comprehends and governs a great many matters. These maxims are accepted and respected in the commentaries on Fiqah. They constitute relevant facts that have probative effect. They assist in the understanding of matters by providing a connection with basic principles, and they help to fix those principles in the memory. If an individual maxim should appear to leave some part of its subject‑matter not covered, that must not be thought to detract from its effect, within its terms. For the meaning of an individual maxim may be specialized, and in some cases limited, when it is read along with one or more of the other maxims. THE HUNDRED MAXIMS OF FIQAH Art. 2. The basis of every order is the intention thereof: a judgment base on an order should follow the intention and purpose of that order. Art. 3: Contracts are to be understood in relation to their intention an substance, not by the words and phrases used: so a bai‑bil‑wafa wil be held as a mortgage Art. 4. A belief amounting to conviction cannot be caused to disappear by doubt. Art. 5. It is a principle that a thing remains as it is. Art. 6. Let the ancient rest on its age. Art. 7. A wrong is a wrong even though it be ancient. Art. 8. The basic principle is that of freedom from obligation; so that if one destroys the property of another, and they differ as to the extent of the damage, the word of the person destroying may be taken, but the owner of the property may bring evidence to prove the excess. Art. 9. As to incorporeal matters that do not prove themselves, the basic principle (presumption) is that they do not exist; so that if between the active partner and the financier, there be a dispute as to profit, the word of the active partner will be taken, and the financier may lead evidence to prove the actual profit. Art. 10. Anything once proved remains proved, until the contrary is estab lished; so that if one is proved to have been the owner of anything, his ownership will be decreed unless something is found which has caused it to be removed. Art. 11. Every occurrence is presumed to be of recent date; so that, if there be dispute as to time, an occurrence will be related to the nearest date, unless it be proved to be of earlier date. Art. 12. The presumption is that what is said is true. Art. 13. No reliance is to be placed on inference, as against expression. Art. 14. In the face of the text, studied construction is not permissible‑. Art. 15. What is proved not to correspond to the (true) measure, cannot be a measure for other things. Art. 16. One considered construction is not avoided by another. Art. 17. To make easy that which is difficult to bear, that is to soften a hard ship and to relax that which is too strict,‑this proposition is the basis of many rules of Fiqah in relation to debt, to transfer of obligations, to restraint on competency, etc., by which lessening of burdens in accordance with the Sharia' (of muamilat) has been brought about by the jurists. Art. 18. Relax that which is too strict, i.e., anything that is difficult is to be softened and widened. Art. 19. No wrong, no wrong‑doing. Art. 20. Wrong is to be undone. Art. 21. Necessities justify that which may be unlawful. Art. 22. The extent of necessities limits action thereunder. Art. 23. What is lawful for a reason becomes invalid when such reason disappears. Art. 24. When a bar is removed, the thing that was barred is revived. Art 25. A wrong is not avoided by another of the same kind. Art. 26. To avoid public injury, a private injury may be suffered: hence the rule forbidding practice by ignorant doctors. Art. 27. A greater injury may be avoided by a lesser injury. Art. 28. In the face of two unlawful things, the lesser may be committed to avoid the greater. Art. 29. The lesser of two evils is to be chosen. Art. 30. Unlawful things are to be prevented, irrespective of benefit. Art. 31. Injury is to be resisted to the extent possible. Art. 32. A need `whether public or private' assumes the character of a necessity: this was why bai‑bil‑wafa was permitted in Bukhara, where the people's indebtedness had become excessive, and since then the rule has become general. Art. 33. Necessity does not destroy the rights of others; for example, one who is compelled to eat the food of another is still liable to pay the cost. Art. 34. What is haram to take is haram to give. Art. 35. What is haram to do is haram to demand. Art. 36. Custom is a source of judicial decisions; custom whether general or private is to be taken as a judicial decision to establish a rule of law. Art. 37. A general practice of the people acquires legal force, and must be acted upon. Art. 38. What is forbidden by custom is forbidden in truth. Art. 39. Change of conditions through passage of time will not alter a decision. Art. 40. Custom has force to make void a fact. Art. 41. The custom which is most widely prevalent and operative is to be relied on. Art. 42. Credence is to be given to that which is publicly and generally operative, and not to what is rare (little seen). Art. 43. What is a matter of common practice has the same effect as an express condition. Art. 44. Matters of common practice among merchants have the same effect as express conditions between them. Art. 45. Specification by common practice is equivalent to definition by text. Art. 46. If there be conflict between a bar to certain action and the necessity for such action, the bar will prevail; for example, a mortgagor may not sell the mortgaged property so long as it is in the mortgagee's possession. Art. 47. That which belongs goes with the thing to which it belongs; for instance, the foetus in a pregnant animal which is sold goes with the animal. Art. 48. For purposes of decision, a thing which belongs cannot be dealt with separately from the thing to which it belongs: for instance, a foetus may not be sold separately from the mother. Art. 49. The owner of the property owns also all rights necessary for its enjoyment; for instance, he who buys a house acquires also the means of access thereto. Art. 50. When the root ceases to exist, the branch also ceases to exist. Art. 51. A right which has been lost does not return; just as that whose existence is annihilated does not return. Art. 52. When a thing becomes void, everything encompassed within it also becomes void. Art. 53. When the root becomes void, a substitute is to be sought. Art. 54. You may remit in consequential or dependent actions what you may not remit in others. Thus, if a buyer gives authority to the seller to hold the thing sold, that is not permissible. But if the buyer asks the seller to measure the goods sold into a receptacle provided by' the buyer, and this is done, possession would then be deemed to be that of the buyer. Art. 55. In the final (decision) that may be excused which would be fatal (in law) if it had appeared at the commencement: for instance, if a piece of land be gifted, and it is later discovered that there was a co‑sharer in it (other than the donor) the gift is valid as to the remaining share (i.e., of the donor) even although it is a share in undivided property. Art. 56. The end is easier than the beginning. Art. 57. A free and voluntary gift is not complete without transfer of posses sion; thus a gift is not complete unless possession of the thing gifted is made over to the donee. Art. 58. Power in respect of the people's property must be exercised for the public benefit. Art. 59. Special authority is stronger than general authority; thus the autho rity of the Mutawalli of a Wakf has precedence over the authority of the Qadi. Art. 60. Words are to be given effect to, rather than to be rejected, so long as any meaning can be given to them. Art. 61. If a factual meaning cannot be given, a figurative meaning may be applied. Art. 62. When no meaning can be given to words, they are to be rejected; that is, neither factual nor figurative meaning. Art. 63. Where a thing is not divisible, mention of it by part is equivalent to mention of the whole. Art. 64. What is absolute remains absolute unless limited by text or by proof. Art. 65. Description of a thing which is visibly present is otiose, but the description of a thing not there is binding: thus if A, when selling his horse which is on the spot, pointing to it describes it as black when it is in fact grey, and the buyer accepts it, the sale is valid, and the description is otiose, but if the horse sold be not there, and A says that it is grey, whereas in fact it is black, the sale will not be valid. Art. 66. A question is reflected in the answer thereto: that is, the content of an honest question has the quality of an honest admission in reply. Art. 67. Silence is not to be construed as speech, except silence when there is occasion for speech; that is no statement can be attributed to a person who remains silent, but to keep silent where speech is called for amounts to a spoken admission. Art. 68. In matters not visible an inference of a thing has validity that is you judge by the appearance where it is difficult to ascertain the facts. Art. 69. Writing is equivalent to speaking. Art. 70. Recognised dumb‑signs are equivalent to speech by tongue. Art. 71. The word of the translator is to be accepted implicitly. Art. 72. No reliance on any supposition which is apparently defective. Art. 73. A possibility which is based on mere inference has no force; for example, if a person admits a debt to one of his heirs, when in a state of marz‑ul‑mout, the admission is of no effect, unless the remaining heirs support it, because the possibility that the man intended to deprive the other heirs is supported by the fact of his illness ; whereas such an admission. is acceptable if made in a state of health, for any intention thereby to deprive the other heirs becomes a bare possibility, a sort of imagination, which has no force as against the admission. Art. 74. No reliance on mere imagination. Art. 75. A thing which is established by proof is equivalent to a thing actually seen. Art. 76. Proof is on the claimant; oath on him who denies. Art. 77. Proof to establish the contrary of appearances; oath to maintain the basis. Art. 78. Proof has positive force; (by comparison) admission is deficient in force. Art. 79. Admission binds the person who makes it. Art. 80. No force is left when two things contradict each other, but such contradiction will not avoid a judicial decision: for example, if two eye‑witnesses should resile from their statements, those statements will lose their legal force, but should a judge have made a judgment in accordance with their statements, that judgment will not be void; moreover, the two witnesses will be bound to satisfy the judgment. Art. 81. Although the base may not be established, something arising therefrom may be established ; for example, if a person should say "A owes B so much as a debt, and I am surety for it", and A denies the debt, whereupon B sues the surety, the latter is bound to make good the debt. Art. 82. That whose existence is dependent on a condition is established when the condition is established. Art. 83. A condition must be observed so far as possible. Art. 84. A promise subject to a condition is binding, for example, if A were to say to B "sell this thing to C, and if C does not pay the price, I will pay it", then if C should fail to pay the price, A is bound to pay it m performance of his conditional promise. Art. 85. Payment for user goes with user, that is, when the thing used is destroyed in the possession of the user thereof, compensation for use will be included in the compensation for its value; for example, if the buyer of an animal returns it because of a defect, after using it for a period, he is not liable to pay for the use of the animal, since if it had died before being so returned, it would have died as his property. Art. 86. Payment for the use of a thing cannot be combined with compensation for the thing itself. Art. 87. Damage and benefit go together; for example, he who derives benefit from a thing must also bear any damage from it. Art. 88. The blessings of a thing are in proportion to the evils thereof, and vice versa. Art. 89. The agent is responsible for his action, and not the person under whose orders he acts, unless there be compulsion. Art. 90. As between a proximate agent and a remote agent, the decision will go against the proximate agent; for example, should a person dig a well in a public highway, and another person throw an animal not belonging to him into the well, the responsibility will be that of the person who threw the animal in, and not that of the person who dug the well. Art. 91. What is permissible in law cannot be a cause for liability; for example, should a man dig a well in his own land, and an animal belonging to another falls in and dies, the person who dug the well is free of liability. Art. 92. The proximate agent is responsible, even in the absence of pre. meditation. Art. 93. The remote agent is not responsible, unless there be premeditation on his part. Art. 94. Injury by a dumb animal is not a crime. Art. 95. An order by one person to dispose of the property of another is null and void. Art. 96. No one may dispose of the property of another, without the latter's permission. Art. 97. No one may take the property of another, except for a lawful reason. Art. 98. A change in the nature of proprietorship of a thing is equivalent to a change in the thing itself. Art. 99. He who hastens an event in order to acquire a thing before its due time will be punished by being denied that thing. Art. 100. The attempt of a person to undo what has been finalised by his own act will recoil on him. SIR SHAH MUHAMMAD SULAIMAN'S CONTRIBUTIONS TO LAW AND SCIENTIFIC KNOWLEDGE PRESIDENTIAL ADDRESS OF MR. JUSTICE A. R. CORNELIUS, Chief Justice, Supreme Court of Pakistan AT "DR. SIR SHAH MUHAMMAD SULAIMAN'S DAY MEETING" AT KARACHI ON THE 18TH MARCH, 1966 I am deeply honoured by being asked to preside at this distinguished gathering and greatly obliged to the Pakistan Urdu Academy for this oppor tunity to join in giving expression to the feelings of whole‑hearted admiration that I have long cherished for the late Dr. Sir Shah Muhammad Sulaiman. I have known about him for a very long time, that is to say since my days at the Allahabad University of which he was one of the most distinguished alumni. The reason is that I was fortunate enough to follow him in one respect in my University days, and that is that some fourteen years after him 1 was the winner of the Homersham Cox medal for mathematics at the degree examination. That made me curious about his later career. Although I was never fortunate enough to meet him, you can be sure that I followed his career with a great deal of interest even though from a distance. CAREER OF GREAT BRILLIANCE As you have all heard from the other distinguished speakers it was a career of the greatest brilliance on the legal and judicial side. One of the youngest persons ever to be appointed Judge of a High Court, he came to the Chief Justice ship of that very famous seat of justice, namely, the great High Court of Allahabad in a very few years. It is doubtful whether either the Bench or the bar at Allahabad has ever been so generously equipped with the highest talent as it was in the time of Sir Shah Muhammad Sulaiman. So that it was entirely in the fitness of things that when the Federal Court of India was set up, he should have been one of the two Indian Judges appointed to its Bench. It was first step and indeed a step which should have been taken many years earlier, towards the total independence of the judicial administra tion in the great Empire of India from foreign control. 'Those who have studied the numerous published judgments that were delivered by Sir Shah Muhammad Sulaiman in the Federal Court will know that in every thing that fell from his pen, there is apparent the depth of his anxiety to set and maintain the very highest judicial standards. Each judgment is distinguished by extreme thoroughness in examination of every proper aspect of the questions arising in the case. On every question the argument is set out with the greatest clarity and the law is examined and precedents brought under scrutiny with infinite care and perspicacity One can feel that the writer was aware that the Court was destined for an even higher status than that allowed to it under the Government of India Act, 1935. In his time, its jurisdiction was confined to constitutional questions arising out of the new Constitution provided by that Act with its division of powers between the Federa tion and the Provinces. Appeals lay from it to the Privy Council, thus maintaining the element of subordination. The general jurisdiction of the Sovereign as the seat of justice was still enjoyed by the Judicial Committee. It was a position that no judicial mind of the majestic quality that Sir Shah Muhammad Sulaiman possessed, could have faced without some feelings of frustration. But all rights and freedoms were matters of grant at the hands of the ruling power from Whitehall in those days. The only ray of hope lay in the fact that provision was made in the Government of India Act for extension by the Indian Parliament of the Court's jurisdiction so that a time could be foreseen when in the extended field at least, the power of final decision would find its way into the hands of Judges in India. In a few years, extension did come about, and a few years later, Indepen dence was gained and with it the opportunity was grasped to gain total freedom from the judicial control that had been exercised by the Privy Council sitting in Whitehall for something like a hundred years. Sir Shah Muhammad Sulaiman did not survive to see the day when these blessings came to the people. But all that he did in the too short period that he graced the Federal Court of India before his lamented death at the very early age of 52 can be clearly seen as work done in preparation for the final culmination. His work, thanks to the established system by which judgments are recorded in perpetuity and many of them are published for the common. benefit, will stand as an example of earnestness, industry, vigorous thought and extreme judicial balance for the generations that have followed. How great is the keenness of the regret which we in Pakistan must feel that this greatly talented, this very highly accomplished judicial authority of vast experience, did not survive long enough to lend the distinction of his person ality to the establishment and development of our own system of justice! We can be certain that when the day of Partition came in 1947, he would certainly not have hesitated had he been alive to place all of his vast faculties at the disposal of the Government and people of Pakistan. SCHOLAR OF MUSLIM CLASSICS There is no doubt whatsoever that his faculties were on a scale belonging to the very limited class of geniuses at the very highest level that the world has seen. We have heard today a brief account of the depth as well as the breadth of his remarkable mind. Had he survived to the normal span, there would undoubtedly have been before the world proofs of his contributions to the advancement of thought in many other fields besides those of justice and of the mathematical science of matter, and of which we have heard. For instance, I feel no doubt that he would have made it a principal concern to secure that the Urdu language should become in West Pakistan at least, the principal vehicle of intellectual thought and expression. A scholar of the Muslim classics, he could not but have been aware that language is the main limb of the intellect, and that the intellect of the people of Pakistan deserved to be freed from the necessity of moving with the aid of artificial limbs from abroad, such as the English language. His contributions in the field of University education were already of sufficient note when his brief life came to a sudden end. How greatly would he have appreciated the opportunity to make his experience available for the further spread of University education in Pakistan, and to establish its foundations, so that our people should not be content merely to receive knowledge achieved in other lands at second‑hand, but to prepare for the day when our learned men should be again, as they were in the centuries gone by, torch‑bearers in the advancement of knowledge. The operations of his fine intellect in the judicial field serving today as they do to light the way for lesser men like myself to follow in his foot‑steps, may well have set alight in Pakistan a flame to attract the finest intellects into the channels of legal research and refine ment. I feel no doubt that one of his interests would have been to see that the finest achievements of law and justice in the period of the great Muslim Empires of old should be collected and made the basis of a formulated system of Muslim Common Law, within the context of which, our legal and judicial systems should henceforth advance into the modern age. CONTRIBUTIONS TO HIGHER MATHEMATICS I cannot speak with any direct knowledge of his contributions to the higher mathematics even though mathematics was one of the subjects in which I graduated. Despite his having taken to the law so seriously, he could find time to devote independent thought to that difficult subject, in its very highest reaches. I have with me a letter from Dr. Zahur Hussain, now living in Jhelum, who worked with Sir Shah Muhammad Sulaiman during the last years of his life. He reports that Sir Shah Muhammad Sulaiman's thinking on the subject, and the new methods of approach which he was pursuing have been taken up by great scholars and scientists in Europe, and are being made the foundation for further advances. Some of the terms which Sir Shah Muhammad Sulaiman invented have already gained a prominent place in the symbolic language of mathematics. A great genius and philosopher was removed from the world with the death of Sir Shah Muhammad Sulaiman. It is I think an act of real piety that the Pakistan Urdu Academy has performed today, in commemorating the anniversary of his death. But it is evident that more is required than mere occasional meetings of this kind, to give a just measure of honour to his greatness. PAKISTANIS' CLAIM When persons abroad are found who appreciate his contributions to human knowledge and are prepared to pursue them further it; the search of the ultimate realities, surely we in Pakistan who live in direct continuation of the life he lived, can undertake something of the same kind. Indeed, it is a task which we should claim as peculiarly our own. There is work here for our rising generation of young mathematicians and physicists, which They will look upon in their later years with a feeling of true national and even religious pride. There is work also for our lawyers, that is such of them as have a love of the law and not merely a love of litigation or litigants. It is time that the vast numbers of Sir Shah Muhammad Sulaiman's published judgments were studied and analysed, and expression was given to the trends of his legal and judicial thinking and the contributions that he made towards the clarification of law and the advancement of legal principles. The intellec tuals of Pakistan are entitled to claim that this great genius belonged to them, but they must exert themselves to provide proofs that they are worthy of that proprietorship.