PROMULGATION OF AN APPROPRIATE ISLAMIC CRIMINAL JUSTICE SYSTEM IN A MULTI-RELIGIOUS ISLAMIC COUNTRY*

LIST OF NOTIFICATIONS REPRODUCED IN THE <!--[if gte mso 9]> PROMULGATION OF AN APPROPRIATE ISLAMIC CRIMINAL JUSTICE SYSTEM IN A MULTI-RELIGIOUS ISLAMIC COUNTRY* [Problems and Challenges in Pakistan] By Mr. Justice Chaudhary Ejaz Yousaf, Chief Justice, Federal Shariat Court of Pakistan * This Article was read in the International Seminar on the Islamic Criminal Justice System held on 25th to 27th September, 2003 at Johor Bahru, Malaysia. Pakistan came into existence on 14th August, 1947 as a result of the partition of the Indian Subcontinent. Prior thereto India was ruled both by Hindu and Muslim rulers and lastly by British. Since Pakistan emerged as a result of the struggle of the Muslims of Indian Sub-continent who, being a separate nation having their own culture, civilization, customs, literature, religion and philosophy, were determined to have a separate and independent homeland of their own wherein they could have ordained their lives in accordance with Qur'an and Sunnah, therefore, ever since the inception of Freedom the people of Pakistan were endeavouring hard to promote the letter and spirit of Islam in all spheres of their lives. Keeping in view the very object in mind, founding father of Pakistan, while sitting in the Constituent Assembly, which under the Indian Independence Act of 1947 was authorized to make provision for the constitution of the new dominion, passed the Objectives Resolution, the ground norm of its constitution, thereby declaring and resolving, inter alia, that since the sovereignty over the entire universe belongs to "Allah Almighty" alone and the authority which he has delegated to the State of Pakistan, through its people for being exercised within the limits prescribed by him is a sacred trust, therefore, the Assembly would frame constitution for Pakistan wherein the principles of democracy, freedom, equality, tolerance and social justice as enunciated by Islam shall be fully observed and Muslims shall be enabled to order their lives in the individual and collective spheres in accordance with the teachings and requirements of Islam as set out in the Holy Qur'an and the Sunnah. Besides, providing adequate provision for the minorities thereby enabling them to profess and practise their religions and develop their cultures and that provision shall also be made to safeguard the legitimate interests of minorities and backward and depressed classes so that the people of Pakistan may prosper and attain their rightful and honoured place amongst the nations of the world and make their full contribution towards international peace and progress and happiness of humanity. The resolution enunciated the principles on which the future Constitution of Pakistan was to be formed and it thus served as the basis of all Constitutional structure worked out and introduced in the country. The Objectives Resolution, later on, was added as a preamble to the Constitution and the position continued uptill 1985 when by way of Article 2A it was provided that the principles and provisions set out in the Objectives Resolution shall be the substantive part of the constitution and shall have effect accordingly. It would be pertinent to mention here that since Muslims of India struggled for Pakistan not simply for the sake of independence but they wanted to establish an Islamic Society in their homeland and they were also desirous to have an Islamic criminal justice system at home, therefore, notwithstanding the fact that intention was conveyed through the Objectives Resolution, appropriate measures, in this regard, were yet to be taken. Challenges were many, of which paramount importance, of course, were inter alia, firstly; to see that in future no law contrary to the Holy Qur'an and Sunnah of the Holy Prophet Muhammad (p.b.u.h.) is enacted, secondly; to ensure that the current laws are amended and brought in conformity with the Injunctions of Islam and thirdly; to guarantee that non-Muslim citizens though treated at par with other citizens concerning the matters of property, life, freedom of speech, movement, gatherings, earning their livelihood etc., their right of freedom of worship, cultural affinities and religious education is fully preserved and that they are free to decide their personal matters according to their own laws and traditions. It would be worthwhile to mention here that the first challenge, referred to hereinabove, was immediately met with and it was provided in all the successive Constitutions, enforced in the country in 1956, 1962 and 1973 that in future no law contrary to the Holy Qur'an and Sunnah would be enacted, however, there was a great confusion with regard to the second challenge i.e. as to how and by which mean the existing laws should be brought in conformity with the Injunctions of Islam. In order to achieve the very end, in the Constitution of 1956 it was provided that every citizen would have a right to take a decision from the Court as to whether or not a certain law was in accordance with the Shariah? and if any law was found against the principles of Shariah the Court was bound to annul the same. In the 1962 Constitution, however, though it was incorporated that the existing laws would be amended according to the principles of Islam and un-Islamic practices like usury, adultery, gambling, drinking and the use of intoxicating drugs would be discouraged, yet no way out was provided. In the 1973 Constitution, however, a step further was taken and it was, under Article 228, provided that a Council of Islamic Ideology shall be constituted to make recommendations to the Government on the points, "as to whether or not a proposed law was repugnant to the Injunctions of Islam? and that "as to what measures for bringing the existing laws in conformity with the Injunctions of Islam" should be taken. Accordingly, on the recommendations of the' Council of Islamic Ideology, the following Ordinances amending the existing Laws relating to certain offences were promulgated in February, 1979. These Ordinances were: (i) Offence of Qazf (Enforcement of Hadd) Ordinance, 1979 modifying the existing Law relating' to Qazf thereby providing punishment of offences of Qazf liable to Hadd and Tazir. (ii) Offence of Zina (Enforcement of Hudood) Ordinance, 1979 promulgated with a view to bring in conformity with the Injunctions of Islam the existing Law relating to Zina, thereby providing punishment for Zina-bil-Jabr liable to Hadd and Tazir, kidnapping, abducting or inducing a woman to compel for marriage, or any person for unnatural lust or buying or selling persons for the purpose of prostitution etc. (iii) Offences Against Property (Enforcement of Hudood) Ordinance, 1979, enforced to make provisions for the punishment of offences of theft and Harabah liable to Hadd and Tazir. (iv) The Prohibition (Enforcement of Hadd) Order, 1979. By means of which the existing Laws relating to prohibition of intoxicants were modified and Islamic punishments provided for the offences, e.g. for importing, exporting, transporting, manufacturing, selling or buying or keeping in possession any intoxicant, were introduced. (v) Another Ordinance i.e. "Execution of the Punishment of Whipping Ordinance, 1979" was also promulgated but it was subsequently abolished. Need to amend these Laws necessitated because, in the Sub-continent, though the Islamic Criminal Laws, in original form, were prevalent up to 1772, yet, it were substantially changed by the British Ruler, as to them, some of the provisions of the Islamic Criminal Law particularly with regard to Hadd and Qisas including its waiver and compromise by the heirs of the victim appeared to be at variance and inconsistent with the common law of England. The same, therefore, were gradually done away with, through certain regulations. It would be worthwhile to mention here that under the common law of England the State had direct control over offences and trials particularly concerning the human body and property. Even power to launch or withdraw prosecution and compounding or compromising the offences, before or after conviction or to reprieve and pardon the offender vested in State and its functionaries and the victim of a crime or his heirs had no say in the entire process. Whereas, under the Islamic Law the position was other way round. Thereunder, the victim and his heirs were incharge of the proceedings. From the beginning of the prosecution to the end they had effective control over the crime and the criminal. It was their choice to report the matter or keep quiet, it was also at their sweet will to prosecute the offender or not. It too, was within their competence to abandon the prosecution at any stage of the trial, or enter into compromise with the offender or waive the right of Qisas or pardon the offender even just before execution of sentence and the process could not have been impeded by the State rather it was bound to facilitate the victim or his legal heirs in achieving their object. On 3rd December, 1790 therefore, on the basis of a minute of Lord Cornwallis, the discretion left to the next of kins of a murdered person, to remit the penalty of death on the murderer, was taken away. In 1791, the Government resolved that punishment of mutilation should not be inflicted on any criminal. In 1.797, under Regulation IV of 1797, the Law Officers were directed to give their Fatwa in all cases of wilful murder on the assumption that the Qisas was claimed, when it was not. In case where, otherwise, law prescribed the payment of "Diyat" the Judges were directed to commute the punishment to imprisonment. By Regulation VIII of 1799, all cases of homicide in Muslim Law were declared liable to capital punishment. Capital sentence was also prescribed in cases of homicide, which were previously exempted from retaliation on sole ground e.g., the prisoner being one of the ancestors of the deceased. Through Regulation VII of 1801 different types of accidental homicide were distinguished and provision for expiatory compensation in cases of involuntary homicide in the prosecution of lawful intention, e.g., shooting at a mark and accidentally killing a man, was removed. Changes were thus introduced to effectively punish the offenders as in the opinion of the British rulers, the offender had ample opportunities to escape punishment under the Islamic Law. Having felt that establishment of the Council of Islamic Ideology alone was not sufficient to cater the requirements laid, down by the Objectives Resolution as well as the Constitution and the object could not be achieved without doing away with the Laws opposed to the Injunctions of Islam, in February, 1979, Shariat Benches were established in the Supreme Court and High Courts and they were authorized to strike down the Laws found contrary to Islamic faith. However, in May, 1980 the Shariat Benches of the High Courts were abolished after the establishment of the Federal Shariat Court. A new Chapter i.e. 3-A was added to the Constitution and by means thereof the "Federal Shariat Court" was authorised to examine and decide as to whether or not any law or provision of law was repugnant to the Injunctions of Islam as laid down in the Holy Qur'an and Sunnah of the Holy Prophet (p.b.u.h.). It was further provided that such law or provision shall, to the extent, to which, it was held to be so repugnant by the "Federal "Shariat Court", shall cease to have effect and that the decisions of the Federal Shariat Court will be binding upon all the High Courts and Courts subordinate to it. The Federal Shariat Court, soon after its formation, started examination of the existing laws, including the Criminal Laws and in the case Muhammad Riaz etc. v. Federal Government etc. reported as PLD 1980 FSC 1 declared certain provisions of the Pakistan Penal Code as well as the Criminal Procedure Code as repugnant to the Injunctions of Islam. Reasons for the decision, inter alia, were that sections 299 to 338 of the P.P.C. which dealt with the offences against human body, did not provide for the Qisas in cases of Qatl-e-Amd (deliberate murder) and Jurooh-ul-Amd (deliberately causing hurt), for Diyat in cases of Shibh-ul-Amd and Khata of both Qatl (murder) Jurh (hurt), for compromise between the parties on agreed compensation when they make Sulh (compromise) in cases of Qatl and Jurh and also did not provide that the offender may be pardoned by the victim in the cases of Jurh (hurt), and by the heirs of the victim in the cases of Qatl (murder). It further did not exempt a non-pubert and an insane offender from the sentence of death in cases of murder and also did not define the different kinds of Qatl and Jurh (murder and hurt) in accordance with their respective punishments prescribed in the Holy Qur'an and Sunnah. Certain provisions of the Criminal Procedure Code were also declared repugnant to the Injunctions of Islam as under the Islamic Laws, Central or a Provincial Government were not empowered to pardon the offenders or commute or remit the sentences in cases, violating Huqooq-ul-Ibad. Section 345, Cr.P.C., was also found repugnant insofar as it did not include some of the offences against human body in the table of compoundable offences. Section 381, Cr.P.C., too was found repugnant as it did not provide that the heirs of the deceased in case of murder were competent to pardon the offender or enter into a compromise with him even at the last moment before execution of sentence, upon which execution, could not have taken place. Provisions of sections 337 to 339-A, Cr.P.C., insofar as they permitted tender of pardon to an offender without reference to and without permission of the victim, were also found repugnant. The above decision of the "Federal Shariat Court" was upheld by the Shariat Appellate Bench of the Hon'ble Supreme Court of Pakistan in the case Federation of Pakistan v. Gul Hassan Khan, reported as PLD 1989 Supreme Court 633, thus the said provisions, to the extent, to which, it were declared repugnant to the Injunctions of Islam, ceased to have effect. In pursuance of above decision sections 299 to 338 of the Pakistan Penal Code were accordingly, substituted by sections 299 to 338-H, initially by way of Ordinances and subsequently by the Criminal Law (Amendment) Act (II of 1997), commonly known as the Qisas and Diyat Act. Provisions of the Criminal Procedure Code, declared repugnant too, were amended through the above Act. Thus the changes introduced in the Criminal Laws, by the British in the colonial days, were annulled and it were brought in accordance with the Injunctions of Islam. The Evidence Act, 1872 was also repealed and substituted by the Qanun-e-Shahadat Order, 1984 in order to incorporate the directions of the "Federal Shariat Court" contained in the above-referred judgment delivered in Muhammad Riaz's case, referred to hereinabove. With regard to the third and foremost challenge as to how the interest of the minorities was to be safeguarded, though provisions were made in all the three Constitutions that non-Muslims would enjoy all rights guaranteed under the Constitution as well as the Islam yet, special care was taken while amending the existing Laws conferring the rights of the minorities especially in criminal matters because the concept of crime in western society is somewhat different from Islam. Though it is difficult to define what is criminal or distinguish a crime by definition from a tort because the same act or omission may give rise to both civil as well as criminal liability, yet, for the purpose of understanding the subject, it is necessary to find answers to certain questions such as What is a crime?. What purpose or function does the criminal law serve? are some human behaviours inherently bad or evil so that they are universally condemned and as to whether the criminal laws are intended to protect individual victim or to protect society as a whole. It is also hard to come up with definition that encompasses all crimes because every jurist and scholar of criminal law as per his own philosophical approach has, defined the "crime" differently keeping in view the prevalent social conditions in a particular society, yet there appears to be unanimity of opinion on the point that crime is a wrong to society involving the breach of a legal Rule which has Penal consequences attached to it. The criminal law thus seeks to identify and control the types of behaviour which the community finds unexceptionable. All crimes, however, can conveniently be classified into two categories represented by the Latin terms "Malum in Se" or "Mala in Se" and "Malum Prohibitum" or "Mala Prohibita". Where the term "Malum in Se" simply means "bad in itself" whether prohibited by human laws or not and this class includes offences such as murder, robbery, perjury, injury to persons and destruction of property etc., the term "Malum Prohibitum" denotes "bad because it is prohibited" and this classification symbolizes the religious origin of the ideas about crime. Anthropologists are of the opinion that modern humans are biologically very young, having emerged only a few hundred thousand years ago. There is substantial controversy about the exact origin and development of the human species but probably humans originated in Africa and spread across the earth over the millennium, differentiating into various social, ethnic and cultural groups that now make up the human family. By the evolution of society however, certain laws and rules were inducted so that rights and obligations, arising amongst the members of the society could be determined and adjusted and social equilibrium could be maintained. Though different civilizations ranged from ancient empires of Sub-Saharan Africa, to the many cultures that arose in China and Central Asia to the variety of societies of the Indian Sub-continent and South-East Asia and Maya and Aztecs in the Americas flourished time to time and they also created rules of conduct to regulate their lives yet, the fact remains that from all the ancient human variety we ironically have only three major kinds of legal systems in the world today i.e. Common law, based on the law of England. Civil Law, based on modern continental European law codes derived from the ancient Roman Law system and the Islamic Law, based, of course upon the Holy Qur'an and Sunnah of the Holy Prophet Muhammad (p.b.u.h.). The Fourth system i.e. the socialist law existed for about 70 years yet, it, more or less, vanished with the death of communism after the collapse of the Sovient Union. The reason for this situation is that in the last 500 years European countries, created, exploited and then relinquished a colonial system that subjugated most of the other countries of the world. Alongwith their economic, political and military systems, the Europeans brought their law, which was either imposed upon or adopted by the native people. Even countries that were never colonized, such as Japan and Thailand, voluntarily adopted European style legal systems. Islamic Law, naturally was taken initially by Military conquest and later by appeal of the religion to the parts of the world which are now predominantly Muslim. However, the fact remains that where the English speaking countries have common law legal systems because they used to be English colonies such as the United States, Canada, Australia, New Zealand, Nigeria, India and Kenya, the Islamic Law though only exists in its pure form in homogeneously Muslim countries such as Saudi Arabia, is the foundation of Islamic criminal justice system, while more secular matters are being governed by a common law or civil law system, left over from colonial days. A minute study of all these systems, however, reveals that where, in the Islamic countries the Holy writings have the force of law, in the other countries where the system is based on common law, the Holy Writings, though do not have the force of law, still provide moral guidance for the believers. Fundamental idea of all the religious writings, however, appears to be one and the same i.e. that violation of moral rules specified in the Holy Books demands that transgressors and wrong doers who threaten the fundamental rules upon which a society is founded must be punished. Though there has been some criticism regarding severity of punishments prescribed by the Islamic Laws yet, ironically the very fact has been ignored that Islamic Laws have not introduced any new or strange punishment for any crime as all these offences were also culpable in Pre-Islamic days and similar, rather severe punishments were provided therefor. The earliest written code of conduct prescribed by any society, as we know, is the code of Hammurabi from the city of Babylon in Mesopotamia over 4000 years ago. It is written on a large black stone, which is now housed in the Louvre in Paris. A study thereof reveals that in the ancient times, even, sanctions were placed on the offenders by the society as its disapproval and abhorrence against crimes and also for the infringement of moral values. For instance it was provided therein that if in a lawsuit damnatory evidence was given by some one and the word that he had spoken was not justified, then, if the suit was a capital. one, that man had to be slain and that if a man had stolen an ox or a sheep, or an ass or a goat, then he had to pay thirty-fold or if the thief had nothing to pay, he had to be slain or if a son had struck his father, his hands had to be cut off or if a man had destroyed the eye of a man his own eye had to be destroyed or if he had broken the bone of a man his bone had to be broken. In the Holy Bible* too; the offences of like nature were made culpable and severe punishments therefor, were provided. * King James Version, World Publishing Company, Cleveland (undated). In Chapter 21 it has been laid that "He that smiteth a man, so that he die, shall be surely put to death", "And, he that smiteth his father, or his mother, shall be surely put to death", "And he that stealeth a man, and selleth him, or if he found in his hand, he shall surely be put to death", "And, he that curseth his father, or his mother, shall surely be put to death", "If men strive, and hurt a woman with child, so that her fruit depart from her and if any mischief follow, then thou shalt give life for life, eye for eye, tooth for tooth, hand for hand, foot for foot, burning for burning, wound for wound and stripe for stripe. In Chapter 22 it has been further provided that if a man steals an ox, or a sheep, and kills it,-or sells it, he shall restore five oxen for an ox, and four sheep for a sheep and with regard to false evidence it has been in Chapter 23 laid as under: "Thou shall not ?Elise a false report; put not thine hand with the wicked to be an unrighteous witness." A perusal of Verse 13 of Sura Shura. and Verses 85 to 88 of Sura Al-Inaam, translation whereof is given hereunder reveals that the Commandments contained in Holy Qur'an are not only identical but are in continuation of the messages conveyed by "Allah" through his Messengers, earlier: "He had ordained for you that religion which He commanded unto Noath, and that which, We command unto Abraham and Moses and Jesus saying; Establish the religion and be not divided therein." (42/13). "And We bestowed upon them Issac and Jacob. Each of them We guided, and Noah did We guide aforetime and of his seed (We guided) David and Soloman, and John and Joseph, and Moses, Auron. Thus do, We reward the good. And Zachariah and John and Jesus and Elias each one of them was of the righteous. And Ismail and Elia, and Jonah and Lot. Each one of them did We prefer above (Our) creatures. With some of their forefathers, and their offspring and their brethren, and We chose them and guided them unto a straight path." (6/85 to 6/88). From the above discussion it implies that not only the Codes of conduct evolved by the society from time to time are based primarily, on the Divine Laws but all the Holy Books carry the same message which was revealed by "Almighty" to the human beings, through his Prophets, for the betterment of mankind. However, development of this Law kept pace with the advancement of the society and its needs and was perfected with the advent of Islam, Shariah, which means ''spending of life in accordance with the Commandments of "Allah" however, remained the same, throughout. Majority of the non-Muslims therefore, feel no discomfort with the application of these Laws because their religious belief is near to it. As stated above, the Islamic Laws were introduced in Pakistan more than two decades ago and since then no problem or difficulty has been experienced because thereunder, non-Muslim citizens are well protected against any discrimination rather they are exempted from various punishments for instance under the Zina (Enforcement of Hudood) Ordinance, a non-Muslim citizen guilty of the offence of Zina liable to Hadd cannot be stoned to death, likewise under the Prohibition (Enforcement of Hadd) Order, a non-Muslim is immuned from prosecution for keeping in possession reasonable quantity of intoxicating liquor, kept for the purpose of consumption, on or about the time of his religious ceremony. Having applied and experienced the Islamic Laws in Pakistan it can be safely concluded that Islamic Criminal Justice System can conveniently be introduced in a multi-religious country/society. CASE AND COMMENT