P L D 2009 Supreme Court 861 (PLP)

DR. ALLAMA KHALID MEHMOOD, J.

This appeal is directed against the judgment, dated 5-11-2003 passed by the Federal Shariat Court, whereby appellant's_ Appeal No.1/I of 2003, was dismissed in limine.

2. Through the instant appeal, appellant has challenged the vires of Pakistan Arms Ordinance, 1965 and Arms Rules, 1924. Grievance of the appellant is that Arms Ordinance No.XX of 1965 and Arms Rules, 1924 are repugnant to the injunctions 'of Islam:-- It is sorry to note that the words "Qur'an and Sunnah" are so frequently used on our own far-fetched ideas, having been drawn in some general directions of the Qur'an and Sunnah. This attitude injures the sanctity of Qur'an and Sunnah whereas only clear cut and direct evidence of the Qur'an and Stinnah should have been quoted in these Names. All the other issues where there is apparently only the implied evidence of any of these two Headlights of Islam, should not be quoted in these Two Names, when the jurists asserted their own ideas in the name of Torah, the Qur'an condemns their this attitude in these lines: "Woe to those who write the Book with their own hands and they say "This is from Allah", so that they may sell it for a pretty price. Woe to them, for what their hands have written and woe to them, for what they have earned, Al-Baqarah

79. This does not mean that they had no prescribed words of Torah; surely they had. It suggests here their wrong (quoting) from the book on their own presumed ideas. When Ijtihad can be given due consideration in such matters why to dare referring such weak issues directly to Qur'an and Sunnah and degrade their -sanctity. We are sorry to express that our some learned counsel also do not hesitate to misuse these Two Names and produce these as evidence on their own derivations and for their own far-fetched ideas. It is true that certain issues demonstrated in the Sunnah were ascribed to the Qur'an because of the daily practice of the Prophet under the Divine guidance; yet we find no evidence in the early period of Islam that any analogical approach ever has been maintained in the names of these Two Head lights of Islam.

3. Appellant while appearing in person has submitted that every citizen of this country has right to protect his life and property and ultimately he has to keep any kind of weapon for that purpose. He further contended that there was no requirement for grant of License for retaining fire-arm weapons as envisaged by the said Ordinance and rules framed thereunder. He urges that levying of annual fees for grant of license is also not in accordance with the injunctions of Islam. It is also not true that all the subjects of a Muslim State are responsible to safeguard their lives and property on their own. This is only in Dar-Harb. Where there is a legal government it is the discretion of the authorities to decide who should be given license of the Arms and who is to be refused. The companions of the Prophet proceeded to Macca to perform Umrah without Arms whereas they were barred at Hudaybia and they were not allowed to enter Macca. It indicates that it is not the basic necessity of every Muslim to have Arms at all times.

4. As regards the general welfare of the public it is the duty of the Rulers to look after the interest of the public saving their lives and their belongings. If they consider that without this they cannot fulfil this need of their subjects they can impose some tax upon the rich. This is to maintain their equal rights of living. We find a general direction to this effect in the Qur'an as follows:-- Trans. There is a known right in their wealth for the beggars and the deprived. This idea finds support in Hadith of the Prophet (p.b.u.h.) Fatimah B. Qays relates the Prophet as saying:

It says verily in the wealth of the (rich) people they have their share, other than Zakat also.

5. So it is not forbidden in Islam if the Defender of the Faith or the authorities levy upon rich, taxes other than Zakat. Islamic Shariah authorizes the Rulers to make legislation for all matters they deem it to be necessary to ensure their subjects a secure life, fulfilling, their all basic needs. We do not agree with the appellant's proposition that imposing of such duties are against the Shariah. If such position was not found in the period of the Prophet and his direct success it would not suggest that this was against the Shariah. If anything is not specifically found in the Qur'an and Sunnah it falls in the category where the Qur'an and Sunnah are silent on that specific issue. In this position legislation can be made by a State by way of Ijtehad which was already suggested by the Prophet to fulfil the needs of the public provided any of their findings do not contradict any Injunction of the Qur'an and Sunnah; and it is not right to say that these conclusions are against the Qur'an and Sunnah.

6. The Qur'an require the believers to follow their Ulul-al-Amr provided that they do not ask believer to adopt anything which contradicts any of the Injunctions of the Qur'an and Sunnah. The Qur'an says:

Tran. O believers! Obey Allah, Obey the Rasool and those charged with authority among you. Here the word "obey" occurs two times, for Allah and for the Prophet but the obedience is sought here for three for Allah, for the Prophet and for the rulers. It indicates that obedience to the rulers has been placed under that very word "obey" which relates to the Prophet. It means the rulers are to be obeyed, provided they do not transgress any guidance of the Prophet. If the believers fall in dispute with the rulers in that position the solution can be made by referring the point of dispute only to the Qur'an and Sunnah. The next part of the above quoted Verse states as follows:- The conclusion of this discussion is that obedience to Allah and the Prophet is unconditional and obedience to the authorities is conditional that it may not supersede any Injunction of the Qur'an and the Sunnah. We have given our anxious consideration to the contentions of the appellant and have also perused the record of the case. After examining the record minutely and carefully, we observe that all the contentions raised before us by the appellant are exactly the same which were raised by the appellant before the Federal S'hariat Court. The learned Federal Shariat Court, after deeply examining the points in dispute has discussed each and every point in paras Nos.2 to 13 of the impugned judgment and answered the issues which were raised. The learned Federal Shariat Court has rightly observed that Ordinance and Rules place no embargo on keeping of weapon for the purpose of self protection as well as protection of honour and property but as highlighted in its preamble itself only aims at consolidating the law relating to the sale, transport, bearing or possession of arms ammunitions for military store by making certain rules and regulations for the same. The only purpose of the Ordinance and Rules appears to regularized the possession of weapons etc. and thereby identify misuse of the same so that the lives and properties of innocent people are properly safeguarded. While discussing Ijtihad, the learned Federal Shariat Court has rightly held that it has played a vital role in the evolution of laws and making them progressive, modern and dynamic. Learned Federal Shariat Court rightly relied upon the judgment in the case in the judgment in the case in (PLD 1992 FSC 329) regarding the imposition of fees for keeping arms. The nut-shell of the above discussion is that we do not find any infirmity or illegality misreading or non-reading of record in the impugned judgment calling for interference by this Court. Thus, the appeal being devoid of any force is hereby dismissed. M.B.A./A-46/S Appeal dismisse