P L D 1964 (W (PLP)

MUHAMMAD YAQUB ALI, J.‑The facts of the two appeals out of which this reference to the Full Bench has arisen, may be briefly stated thus: R. S. A. No. 486 of 1961, has been preferred by Mst. Khurshid Jan from the judgment and decree of Mr. Salah‑ud‑Din Hanif, District Judge, Rawalpindi, dated the 4th of November 1961, by which he has, reversing the judgment and decree of the trial Court, dismissed her suit for a declaration of repudiation of marriage in exercise of option of puberty. A peculiar feature of this litigation is that after the institution of the suit for dissolution of marriage, Mst. Khurshid Jan appellant went to stay with her husband, Fazal Dad respondent, for a period of 15 days, during which cohabitation is said to have taken place between the parties. The appellant claimed that she was taken away by the respondent with the assistance of the police and that she had not submitted herself to cohabitation with him, but the plea has not found favour with the Courts below. The Court of first instance, following the judgments of this Court in Mst. Aishan v. Jodha Ram (A I R 1938 Lah.719) and Mst. Muni v. Habib Khan (P L D 1956 Lah.403), decreed the suit on the ground that repudiation of marriage took effect with the institution of the suit and that there was no subsisting marriage between the parties when the respondent cohabited with the appellant. On appeal by the respondent, the learned District Judge, relying on a note under paragraph 275 of the Principles of Muhammadan Law by Mulla, that according to Hedaya no declaration for repudiation of marriage can be made if the wife has permitted sexual intercourse with her husband after the exercise of option, reversed the finding of the trial Court and dismissed the appellant's suit. Dissatisfied with this finding, Mst. Khurshid Jan instituted the present appeal and, in addition to the two judgments, referred to above, has relied on Muhammad Bakhsh v. Crown (P L D 1950 Lah, 203).

2. In opposition to the appeal the learned counsel for the defendant relied on the text of Hedaya, Radd‑ul‑Muhtar, Digest of Muslim Law by Baillie, Amir Ali and Tayyabji, in which the view expressed is that the decree of the Qazi is essential to impart validity to the exercise of option of puberty. The dictum of the Judicial Committee in Agha Mahmood Jaffer Bindanim v. Koolsoom Beebee (I L R 25 Cal. 9 at p. 18), was also pressed into service that "it would be wrong for the Courts to put their own construction on the Qur'an in opposition to the express ruling of commentators of great, antiquity and high authority", namely, Hedaya and Baillie's Imamiya in which the clear text of Qur'an, "such of you as shall die and leave your wives ought to bequeath to them a year's maintenance" is not followed. It was accordingly contended that in delivering the aforementioned judgments this Court had acted without authority in departing from the settled rule of Muslim Law that a decree of a Qazi is necessary to effectuate the exercise of option of puberty.

3. The decision of the Judicial Committee had the force of law in the Sub‑Continent until Independence. The dictum in Agha. Mahmood Jafer Bindanim v. Kalsoom Beebee had, therefore, considerably lessened the burden on the Courts to determine with rule of law applicable to both Sunni and Shia Muslims, but with the coming into being of Pakistan, the situation has considerably changed. Firstly, the scope of application of Shariat to disputes of civil nature between Muslims was enlarged by the Punjab Muslim Personal Law (Shariat) Application Act (IX of 1948) since replaced by the West Pakistan Muslim Personal Law (Shariat) Application Act (V of 1962). Section 2, as amended by Punjab Act XI of 1951, provided as under: "Notwithstanding any rule of custom or usage, in all questions regarding succession (whether testate or intestate), special property of females, betrothal, marriage, divorce, dower, adoption, guardianship, minority, legitimacy or bastardy, family relations, wills, legacies, gifts, religious usages or institutions including waqfs, trusts and trust property, the rule of decision shall be the Muslim Personal Law (Shariat) in cases where the parties are muslims." Secondly, the Constitution of Islamic Republic of Pakistan (1956) and the present Constitution of 1962 contain express provisions that the Muslims of Pakistan should be enabled individually and collectively to order their lives in accordance with the teachings and requirements of Islam and set out in the Qur'an and Sunnah; that no law should be enacted which is repugnant to the Qur'an and Sunnah and that all existing laws should be brought into conformity with the Qur'an and Sunnah. The dictum of the Judicial Committee in Agha Mahmood Jafar Bindanim v. Koolsoom Beebee, therefore, did not hold good for if a rule in a text book of whatever antiquity and high authority is in opposition to a clear injunction in Qur'an or an authentic Hadith of the Holy Prophet (may peace be upon him), then undoubtedly the latter shall prevail and it is the bounden duty of the Courts to ascertain the correct rule of decision in all the matters enumerated above. This, in my view, gave rise to the following questions of fundamental importance to administration of justice in the country:

(i) what are the sources of Muslim Law; (ii) what are the rules of interpretation of Muslim Law and can Courts differ from the views of Imams and other juris -consults of Muslim Law on grounds of public policy, justice, equity and good conscience; and (iii) in case of conflict of views found in text books on Muslim Law, such as Hedaya, Fatawa‑i‑Alamgiri, Radd‑ul- Muhtar, how are the Courts to determine which of the, view is correct?

5. F. A. O. No. 65 of 1962, has been preferred by Mst. Zohra Begum from the order, dated the 31st of July 1962, of the‑ Guardian Judge, Lahore, directing her to hand over the custody of her minor son, who has attained the age of seven years, to his father Sheikh Latif Ahmad Munawwar, respondent. Mr. A. R. Sheikh, learned counsel for the appellant (since elevated to the Bench) maintained that there is no definite rule of decision in Islamic Jurisprudence as to the age at which the mother loses the right of custody of her son and that under section 25 of the Guardians and Wards Act the principal consideration before the Court in directing that the custody of the minor should be given to the father is the welfare of the minor. He took me through a large number of text books on Muslim Law in which conflicting views are expressed about the age of a minor at which the mother loses the right of his custody and strenuously maintained that the views expressed by the Faqihs on this point were not of such binding authority as to exclude the discretion of the Court to decide the question of custody in accordance with the welfare of the minor. In support of it, he relied on Mst. Aishan v. Jodha Ram and others and Muhammad Bakhsh v. Crown and Mst. Muni v. Habib Khan in which as seen above, this Court did not follow the view expressed in more than one authentic text books on Muslim Law that the decree of a Qazi was necessary to impart validity to the exercise of option of puberty. Reference was also made to Mst. Rashida Begum v. Shahab Din and others (P L D 1960 Lah. 1142), in which Mr. Justice Muhammad Shafi did not follow the rule that on remarriage a mother loses the right of custody of her minor daughters. The questions of law raised in the appeal were the same as in R. S. A. No. 486 of 1961, and it was, therefore, directed that both of them be referred together to a larger Bench for an authoritative pronouncement.

6. The known sources of Muslim Law are Qur'an, Sunnah, i.e., precepts and the conduct of the Holy Prophet (may peace be upon him), Ijama', Qiyas and Ijtihad. Quran: Qur'an consists of divine revelations and is divided into chapters (SOORAT) and verses (AYAT). It was compiled by Hazra Abu Bakr the first Caliph, within two years of the demise of the Holy Prophet and completed in its present form by Hazrat Usman, the third Caliph, ten years later. The arrangement is not the same in which it was revealed but is said to be in accordance wit the plan of the Holy Prophet. The rules of law are mostl contained in Surat‑ul‑Baqara, Surat‑un‑Nisa, Surat‑al‑Imran, Surat‑ul‑Maida, Surat‑un‑Noor, Surat‑ut‑Talaq and Surat‑ul‑Bani -Israel. The Ordinances contained in the Qur'an were revealed to settle questions which arose for determination by the Prophet and to repeal the objectionable customs like un-forbidden gambling, usury and unlimited polygamy among Arabs and for effecting social reforms like the raising of the status of the women, regulating succession and inheritance on equitable basis, providing protection to minors and persons suffering from disabilities and to provide punishment (HADOOD) for maintaining law and order. Qur'an is the absolute word of God, and if there is a clear injunction in it that, is the rule of decision on the facts of a given case. There are detailed rules for interpretation of the Qur'an. Some of them are collected in Chapter IV of Al‑Risala by Imam Al‑Shafi' under the heading "on the Book of God" (KITAB ULLAH) e.g., general declaration of the Qur'an intended to be general in which the particular is included, the explicit general declaration of the Qur'an in which the general and the particular are included; the explicit general declaration of the Qur'an intended to be all particular; category of declaration the meaning of which is clarified by the context; category of declaration the wording of which indicates the implicit, not the explicit meaning and general declaration which the Sunna specifically indicates is meant to be particular. The following instance is quoted by Imam AL‑Shafi' under the last‑named principle which makes its meaning explicit:‑ "God, glorious be His praise, said: And his parents each receive a sixth of what he has left, if he has children, but if he has no children and his heirs are his parents, then his mother receives a third: if, however, he has brothers, his mother receives a sixth (Q. IV 12). "And He said: And half of what your wives leave belongs to you if they have no children; but if they have children, a fourth of what they have belongs to you, after any bequests may have been made or debts (have been paid) . . . . . To them belongs a fourth of what you leave, if you have no children; if you have children; an eighth of what you leave belongs to them, after any bequests you may have made or debts (have been paid), If a man or a woman‑whose property is inherited has no direct heirs, but has a brother or a sister, each of the two receives a sixth; if they be more than that, they share in a third, after any bequests you may have made or debts (have been paid), without prejudice one to the other; a charge from God; verily God is knowing; gracious (Q. IV 13, 15‑16). "Thus God made it plain that fathers and wives are among those He named in various circumstances, the terms being general; but the Sunna of the Prophet indicated that this is intended to mean only some fathers and wives, excluding others, provided that the religion of the fathers, children and wives is the same (i.e., Islam) and that each heir is neither a killer nor a slave. And He said: After any bequests he may have made or debts (have been paid) (Q. IV 15). "The Prophet made it clear that bequests must not exceed one third (of the deceased's estate), and the heirs receive the two thirds; and he (also) made it clear that debts take precedence over bequests and inheritance and that neither the bequest nor the inheritance (should be distributed) until the creditors are (first) paid. Thus if it were not for the evidence of the Sunna and the consensus of the people, there would be no inheritance until after the bequest (was paid) and the bequest would not fail to take precedence over the debt, or be on equal footing with the debt." Sunnah:

7. But the divine revelations did not cover the facts of every case, the dicta of the Holy Prophet, to whom cases were brought for decision were, therefore, treated as supplementaries to the Divine' Ordinances and accorded the same sanctity. In the beginning] there was a controversy as to the authority of Sunnah for, some believed that if later in point of time it repealed the text of Qur'an. The accepted position, however, is that it is the most authentic source of Islamic Law next to Qur'an. This is based on the doctrine that the holy Prophet, as a recipient of the mes sage of God, was guided by Him in his narrative and action. These both are, thus, the words of God, one expressed in direct form and the other as the interpretation and application of the word of God by His Prophet. There can, thus, be no contra diction between the two of them, and this is the test to judge the authenticity of a Hadith.

8. Much of the important work on Fiqah is contained in the collection of Ahadith in the form of corpus juris as compared to corpus traditions. Previous to these compilations, Jurists like Imam Abu Hanifa an‑Numan ibn Thabit formulated legal theories of speculative character comparable to legal fiction in the modern laws. While he relied on eighteen Ahadith only, Imam Malik (died A. H. 179) relied mainly on Ahadith and he gathered them not for their own sake but to use them in law.

9. The earliest and most authentic musnaf is that of Imam Hanbal (died A. H. 240). It contained 30,000 Ahadith narrated by 700 narrators. The first musnaf in which Ahadith are arranged in chapters according to their subject‑matter is Sahih by Al -Bokhari (died in A. H. 257). Out of 6,00,000 Ahadith, which were prevalent during his age, he selected only 7,000, including 2,000 repetitions, thus, reducing their number to some 5,

000. The principal arrangement in Sahih is legal and affords a basis for a complete system of jurisprudence. The next Sahih is that of Muslim (died in A.YH. 261). The two Sahihs are known as Jamis. There are four other collections: (1) by Ibne Maja (died in A. H. 275), (2) Abu‑Daud, (died in A. H. 276), (3) Al‑Tirmazi (died in A. H. 279), and (4) Al‑Nisayee (died in A. H. 303). By the end of the fifth century of the Hijra, those six com pilations came to be regarded the principal and most authentic work on the science of Traditions. Ibne Khaldoon, the great historian of Islam (died A. H. 808), speaks of only five while others speak of seven adding Mauta‑i‑Imam Malik which contains only 300 Traditions.

10. Even in these authentic compilations of Ahadith there are certain contradictions. How are the Courts to reconcile them? The answer i5 two‑fold: either the so‑called contradiction lies in different rules of decision being laid down for different set of facts or that one or more' of them are not authentic. There are numerous rules for determining the authenticity of a Tradition. There is a time‑limit counted from the death of the Holy Prophet and divided into three periods: (i) The period of the Companions who were more righteous and had often shared the counsel of the Holy Prophet; (ii) the successors of the Companions (TABIAN); and (iii) their successors (TABA TABIAN) The Traditions are classified into three groups: (i) Those which have received universal publicity and acceptance in each one of the three periods HADEES-I-MUSHOOR. These are treated with absolute certainty almost as the text of the Qur'an. (ii) Carrying conviction of genuineness but reported by a limited number of Companions and thereafter in the two successive periods HADEES-I-MUSHOOR and (iii) the isolated IHAD. They neither ensure certainty nor carry conviction of genuineness. Some of the Faqihs have not accepted them as having the authority of law. The interpretation of Ahadith is a science in itself and it is not possible to narrate it here. A useful summary of it will be found in Muhammadan Jurisprudence by Dr. Abdur Rahim at pages 77 to

114. Ijma'

11. On the demise of the Holy Prophet (may peace be upon him) in the 12th year of Hijra, the third source of Muslim Law; viz. Ijma' came into being. An illuminating definition of Ijma is to be found in the following Questions and Answers in Al- Risala of Imam Al‑Shafi'i (referred to above):‑‑ "Shafi'i said: Someone has asked me: I have understood your doctrine concerning God's commands and His Apostle's orders that he who obeys God obeys His Apostle, (for) God has imposed (on men) the duty of obeying His Apostle, and that the proof for what you held has deen established that it would be unlawful for a Muslim who has known the Book (of God) and the Sunna (of the Prophet) to give an opinion at variance with either one, for I know that this (i.e., acceptance of the Book and the Sunna) is a duty imposed by God. But what is your proof for accepting the consensus of the public (on matters) concerning which no explicit command of God nor any (Sunna) related on the authority of the Prophet is to be found? Do you assert, with others, that the consensus of the public should always be based on an established Sunna even if it were not related (on the authority of the Prophet)? Shafi'i replied: That on which the public are agreed and which, as they assert, was related from the Apostle, that is so. As to that which the public do not relate (from the Prophet), which they may or may not relate as a tradition from the Prophet, we gannot consider it as related on the authority of the Prophet‑because one may relate only what he has heard for no one is permitted to relate (on the authority of the Prophet) information which may or may not be true. So we accept the decision of the public because we have to obey their authority, and we know that wherever there are Sunnas of the Prophet, the public cannot be ignorant of them, although it is possible that some are, and we know that the public can neither agree on anything contrary to the Sunna of the Prophet nor on an error. Someone may ask: Is there any evidence in support of what you hold? (Shafi'i) replied: Sufyan (b. Uyayna) told us from Iabdal- Malik b. Umayr from `Abd al‑Rahman b. `Abd‑Allah b. Masud from his father, who said: The Apostle said `God will grant prosperity to His servant who bears my words, remembers them, guards them and hands them on. Many a transmitter of law is no lawyer himself, and many may transmit law to others who are more versed in the law than they, etc.' And Sufyan (also) told us from `Abd‑Allah b. Abi Labid from `Abd‑Allah b. Sulayman b. Yasar from his father, who said: `Umar b. Al‑Khattab made a speech at al‑Jabiya in which he said The Apostle of God stood among us by an order from God, as I am now standing among you, and said: "Believe my Companions, then those who succeed them (the Successors), and after that those who succeed the Successors; but after them untruthfulness will prevail when people will swear (in support of their saying) without having been asked to swear, and will testify without having been asked to testify. Only those who seek the pleasure of Paradise will follow the community, for the devil can pursue one person, but stands far away from two. Let no man be alone with a woman, for the devil will be the third among them. He who is happy with his right (behaviour), or unhappy with his wrong behaviour, is a (true) believer!" "He asked: What is the meaning of the. Prophet's order to follow the community? (Shafi'i) replied: There is but one meaning for it." "He asked: How is it possible that there is only one meaning? (Shafi'i) replied: When the community spread in the lands (of Islam), nobody was able to follow its members who had been dispersed and mixed with other believers and unbelievers, pious and impious. So it was meaningless to follow the community (as a whole), because it was impossible (to do so) except for what the (entire) community regarded as lawful or unlawful (orders) and (the duty) to obey these (orders). He who holds what the Muslim community holds shall be regarded as following the community, and he who holds differently, shall be regarded as opposing the community he was ordered to follow. So the error comes from separation: but in the community as a whole there is no error concerning the meaning of the Qur'an, the Sunna, and analogy."

12. On the authority of some Traditions, particularly, "Whatever the Muslims hold `to be good is good before God" (Taudih p. 298 and Kashaful Israr Vol. III, p. 258) and certain Quranic texts, Dr. Abdur Rahim has defined Ijma' as agreement of the jurists among the followers of Muhammad (peace be upon him) in a particular age on a question of law. (Taudih p. 498; `Mukhtasar', Vol. II, p. 29; `Jam'ul‑Jawami', Vol. III, p. 288). The Qur'anic Texts relied in support of this definition are:‑ (i) `God does not allow the people to go astray after he has shown them the right path.' (ii) `Do not be like those who separated and divided after they have received clear proofs.' (iii) `Today we have completed your religion.' (iv) `What lies outside the truth is an error.' (v) `Obey God and obey the Prophet and those amongst you who have authority.' (vi) `If you yourself do not know, then question those who do.' (vii) You are the best of men, and it is your duty to order men to do what is right and to forbid them from practising what is wrong.' (viii) `We have made you followers of the middle course so that you may be witnesses (of truth) to others'. (ix) `He who breaks away from the Prophet after he has been shown the right path and follows the ways of men other than Muslims, we shall give him what he has chosen and relegate him to hell'. Besides the Traditional and Qur'anic Texts, the Sunni School of Law recognizes the authority of Ijma' on the basis of unanimity of opinion among the Companions. (Bazdawi, p. 253; `Taudih', p. 283, `Mukhtasar' Vol. II, p. 30, `Jam'ul‑Jawami', Vol. III, p. 308). Imam Abu Hanifa an‑Numan Ibn Thabit (born A. H. 80), the first of the four great Imams of the Sunni School, recognized Ijma' of the Companions, the successors of the Companions and their successors and extended it to every age.

13. It was not considered valid by Imam Ibne Hanbal, who is known to have said that any claim of unity is a mere lie and that the utmost one could claim is that he does not know of any dis agreement on a particular issue. Ibne Hazm considered only the consensus of opinion among the Companions as being a sign of early prophetic sanction or approval. Processor Abu Zahra says: "The very validity of al‑Ijma' is not a matter of consensus among Muslims. There are prominent jurists who have explicitly denied its very existence. There are others who have admitted its validity, but when an issue came with a claim of a previous Ijma', they denied its very existence". and concludes: ‑ "It was but for the maintenance of national unity and as a check against individual deviations, that al‑Ijma' was legalised as an authority after tire sacred texts." In developments of Muslim Theology, Jurisprudence and Constitutional Theory (1903 Edition) Duncan B. Mac‑Donald, dealing with Ijma' as a source of law says: "Al‑Shafi'i is without question one of the greatest figures in the history of law perhaps he had not the originality and keenness of Abu Hanifa, but he had a balance of mind and temper, a clear vision and full grasp of means and ends that enabled him to say what proved to be the last word in the matter. After him came attempts to tear down, but they failed. The fabric of the Muslim canon law stood firm. There is a tradition from the Prophet that he promised that with the end of every century would come a restoror of the faith of his people. At the end of the first century was the pious Khalifa, Umar ibn `Abdal‑Aziz, who by some accident strayed in among the Umayyads. At the end of the second came al‑Shafi'i. His work was to mediate and systematize and bore especially on the sources from which rules of law might be drawn." "But there lay a rock in his course more dangerous than any mere contradiction in differing traditions. Usages had grown up and taken fast hold which were in the teeth of all traditions. These usages were in the individual life, in the Constitution of the state, and in the rules and decisions of the law Courts. The pious theologian and lawyer might rage against them as he chose; they were there, firmly rooted, immovable. They were not arbitrary changes, but had come about in the process of time through the revolutions of circumstances and varying conditions. Al‑Shafi'i showed his greatness by recognizing the inevitable and providing a remedy. This lay in an extension of the principle of agreement and the erection of it into a formal source. Whatever the community of Islam has agreed upon at any time, is of God. We have met this principle before, but never couched in so absolute and catholic a form. The agreement of the immediate Companions of Muhammad had weight with his first Successors. The agreement of these first Companions and of the first generation after them, had determining weight in the early church. The agreement of al‑Madina had weight with Malik Ibn Anas. The agreement of many divines and legists always had weight of a kind. Among lawyers, a principle, to the contrary of which the memory of man ran not, had been determining. But this was wider, and from this time on the unity of Islam was assured." Majid Khadduri, in his translation of Risala of Imam Shafi'i, (referred to above) at pages 37 and 38 has made the following comments:‑ "Shafi'i's doctrine of consensus, as Schacht rightly points out, develops continuously in his writings. It brings as the consensus of a few scholars in a certain locality, following Malik's method, and becomes a concept that includes the entire Muslim community. If the view that the new Risala was written or revised as the last of Shafi'i's writings is correct, his doctrine of consensus as defined in this work should represent his final formulation. In various parts of the Risala, Shafi'i refers to the consensus of the scholars as a method of expounding the law acceptable to contemporary jurists, but in his references to the consensus of the community at large, specially in the chapter on consensus, he undoubtedly tends to invest it with higher authority. Shafi'i ends his chapter on consensus by asserting: `He who holds what the Muslim community holds shall be regarded as following the community, and he who holds differently shall be regarded as opposing the community he was ordered to follow. So the error comes from separation. . . . . . . In Reconstruction of Religious Thought in Islam Dr. Iqbal has dealt with the subject of Ijma' at length and it will be profitable to quote the following: "But there are one or two questions which must be raised and answered in regard to the Ijma'. Can the Ijma' repeal the Qur'an 7 It is unnecessary to raise this question before a Muslim audience; but I consider it necessary to do so in view of a very misleading statement by a European critic in a book called `Muhammedan Theories of Finance'‑published by the Columbia University. The author of this book says, without citing any authority, that according to some Hanafi and Mutazilla writers the Ijma' can repeal the Qur'an. There is not the slightest justification for such a statement in the legal literature of Islam. Not even a tradition of the Prophet can have any such effect. It seems to me that the author is misled by the Naskh in the writings of our early doctors to whom, as Imam Shatibi points out in Al‑Muwafiqat, Vol. III, p. 65, this word, when used in discussions relating to the Ijma' of the Companions, meant only the power to extend or limit the application of a Qur'anic rule of law, and not the power to repeal or supersede it by another rule of law. And even in the exercise of this power the legal theory, as Amidi‑a Shafi'i doctor of law who died about the middle of the seventh century, and whose work is recently published in Egypt-- tells us, is that the Companions must have been in possession of a Shariah value (Hukm) entitling them to such a limitation of extension. "But supposing the Companions have unanimously decided a certain point, the further question is whether later generations are bound by their decision. Shoukani has fully discussed this point, and cited the view held by writers belonging to different schools. I think it is necessary in this connection to discriminate between a decision relating to a question of fact and the one relating to a question of law. In the former case, as for instance, when the question arose whether the two small Suras known as `Muavazatain' formed part of the Qur'an or not, and the Companions unanimously decided that they did; we are bound by their decision, obviously because the Companions alone were in a position to know the fact. In the latter case the question is one of interpretation only, and I venture to think, on the authority of Karkhi, that later generations are not bound by the decision of the Companions. Says Karkhi: The Sunnah of the Companions is binding in matters which cannot be cleared up by Qiyas, but it is not so in matters which can be established by Qiyas."

14. Ijma' is now an accepted source of law in Islamic Jurisprudence and without it further evolution of laws cannot come into being which is absolutely essential to avoid out-modding of many of the laws in the changed situation and facts of the present age. The all important question, therefore, is how can this source of law‑making be utilised in the present day. The answer is fraught with religious and political considerations and we are not in a position to give an authoritative pronouncement on the subject. But on a humbler plane we may point out that Ijma' is not only a source of law‑making but also bed rock of unity in Islam. The difficulties in its implementation are, of course, many particularly the modern trend of a national State which has spread over most of the Muslim countries. Legislation is an important constituent of sovereignty. A national State will, therefore, stand in the way of an Ijma-ul‑Ummat. Indeed, in the dissolution of the office of Khilafat, the possibility was lost for ever.

15. That there is need for same uniformity of laws in Muslim countries goes without saying., In the opening Chapter of his Book "Legal Theory" (II Edition) Mr. W. Friedmann says: "All systematic thinking about legal theory is linked at one end with philosophy and, at the other end, with political theory. Sometimes the starting‑point is philosophy and political ideology plays a secondary part‑as in the theories of the German classical meta‑physicians or the Neo‑Kantians. Some times the starting‑point is political ideology, as in the legal theories of Socialism and Fascism. Sometimes theory of knowledge and political ideology are welded into one coherent system, where the respective shares of the two are not easy to disentangle, as in the scholastic system or in Hegel's philosophic system. But all legal theory must contain elements of philosophy‑‑man's reflections on his position in the universe‑and gain its colour and specific content from political theory‑the ideas entertain on the best form of society. For all thinking about the end of law is based on conceptions of man both as a thinking individual and as a political being." A little further it is said:‑ "To the further question of the relation of law to religion, ethics, economics and science, no general answer can be given. These are the sources from which a particular legal theory may be nourished. Religion determines the philosophical and political outlook of the scholastics, ethical principles determine the legal philosophy of Kant, economics underlies the legal thought of Marxism, scientific fact study inspires the functional approach of the realist movement. The answer to these questions must therefore be given in conjunction with any particular legal theory in varying strength and combination, to form the philosophical and political valuations from which a legal theory is built up."

16. The sphere of law is much wider in Islam than in any other jurisprudence. In theory every act of a Muslim is guided. Our actions are divided into (i) Farz or Wajib; a duty the omission of which is punished and the doing rewarded, (ii) Mandub or Mustahab the doing is rewarded but omission is not punished. (iii) Jaiz or Mubah, that which is permitted, (iv) Makrooh disapproved by Law but not under penalty and (v) Haram, forbidden, an action punishable by law. All pious Muslims are also required to strictly follow the precedent of the Holy Prophet (may peace be upon him). Religion and law are, thus, inextricably woven into one single Code for Muslims al over the world. Any radical change in the system of laws in Muslim countries will, therefore, have the same effect as differences in religious practices.

17. How is then Ijma' to be achieved in the present day conditions? In Reconstruction of Religious Thought in Islam, Dr. Iqbal has observed: "One more question may be asked as to the legislative activity of a modern Muslim assembly which must consist, at least for the present, mostly of men possessing no knowledge of the subtleties of Muhammadan law. Such an assembly may make grave mistakes in their interpretation of law. How can we exclude or at least reduce the possibility of erroneous interpretation?" He then referred to the ecclesiastical committee of Ulama provided by the Persian Constitution of 1906, conversant with the affairs of the world having power to supervise the legislative activity of the Majlis", and described it as a ‑dangerous arrange ment but, perhaps, necessary in view of the national theory of Iran that the King is a mere Custodian of the realm which really belongs to the absent Imam, and the Ulama as representatives of the Imam considered themselves entitled to supervise the . whole life of the community and struck a note of warning that the arrangement may be tried if at all only as a temporary measure in Sunni countries. As a remedy, he laid stress on the Ulama forming a vital party of Muslim legislative assemblies helping and guiding free discussion on questions relating to law. Against the possibilities of erroneous interpretations, Dr. Iqbal advised reform in the present system of legal education in Muhammadan countries, to extend its sphere, and to combine it with an intelligent study of modern jurisprudence. Two distinct thoughts are visible in these observations. One that the legislative assemblies of the modern States may assume the role of Ijma' and the other that the sovereignty of the Legislature should not be impaired by subjecting it to the authority of an external organ.

18. The idea of Dr. Iqbal seems to underlie the provisions of Article 198 (3) of the 1956 Constitution, which authorised the President to appoint a Commission:‑ (a) to make recommendations‑ (i) as to the measures for bringing the existing law into conformity with the Injunctions of Islam, and (ii) as to the stages by which such measures should be brought into effect ; and (b) to compile in a suitable form, for the guidance of the National and Provincial Assemblies, such injunctions of Islam as can be given legislative effect. The present Constitution contains more specific provisions on this ; subject. The President or the Governor of a Province may refer to the Advisory Council of Islamic Ideology for advice any question that arises as to whether a proposed law disregards or violates, or is otherwise not in accordance with those Principles. The Constitution of the Advisory Council of Islamic Ideology is provided for in Articles 199 to 203 of the Constitution. In i selecting a person for appointment to the Council, the President shall have regard to the person's understanding and appreciation of Islam and of the economic, political, legal and administrative problems of Pakistan. The functions of the Council are: (a) to make recommendations to the Central Government and the Provincial Governments as to means of enabling and encouraging the Muslims of Pakistan to order their lives in all respects in accordance with the principles and concepts of Islam, as set out in the Holy Qur'an and Sunnah; and (b) to advise the National Assembly, a Provincial Assembly, the President or a Governor on any question referred to the Council under Article 6, that is to say, a question as to whether a proposed law disregards or violates, or is otherwise not in accordance with the Principles of Law‑making. Along with these provisions, Article 207 of the Constitution requires the President to establish an Islamic Research Institute which shall undertake Islamic research and instruction in Isle for the purpose of assisting in the reconstruction of Mush society, on a truly Islamic basis.

19. It is only in certain matters, which are regarded as the fundamentals of Islam, such as the saying of five daily prayers, paying the poor‑rate, fasting during the month of Ramadan and performing pilgrimage, that laws were established by the Ijma' of the entire body of Muslims (Kashful‑Israr, Volume III, page 240). In other matters, the masses are to follow the learned in exposition of laws on the basis of the Qur'anic verse "Obey God and obey the Prophet and those amongst you who are in authority". According to the four Sunni Schools, the words "men in authority" referred to men, who are learned in the laws so as to be considered fit for Ijtihad or Qiyas and not to Rulers or Governors since they themselves are required to conform to the rules of Shariat and to act upon the advice of the learned accord ing to the Qur'anic Text: "That if you yourself do not know then question those who do". The constitutional provisions .for the establishment of Advisory Council of Islamic Ideology and Islamic Research Institute, in our opinion, seek to conform to this rule. With due respect to them, the Members of our Legislative Assemblies, at present, are not sufficiently learned so as to be considered fit for Ijtihad or Qiyas, the two essential conditions for participating in an Ijma'. This, however, is not a counsel of dispair. A remedy against it has been suggested by Dr. Iqbal and we may add that the pre‑requisite for every Member of a Legislative Assembly in Pakistan should be a fair amount of knowledge of law‑making in Islam. We do not mean that each one of them should be a Faqih or a Mujtahid, but at the same time he should not be wholly unfamiliar with the primary duty of a legislator in an Islamic country.

20. A question may be asked as to what will happen to the unity of Islam so firmly secured by Imam Abu Hanifa and Imam Al‑Shafi'i by extending Ijma' to every age if Legislativ Assemblies of Muslim countries are to perform the function of Ijma' independently of each other. The unity shall, no doubt, be impaired, but we may venture to suggest that the remedy perhaps lies in the setting up of a World Commission of Islamic Ideology and a common Islamic Research Institute, as envisaged in our Constitution of 1962. To begin with, the scope of such Commission may be restricted to consultation and research, but in due course by mutual consent it may acquire the authority to enforce its views on the member‑States as the International Court of Justice at Hague and the United Nations Organization exercise over the States who have subscribed to their Charters. The conclusion to be drawn from the above discussion is that Ijma' is an important source of law‑making in Islam, but in the present conditions it is not feasible to resort to it in an orthodox sense. The Legislative Assemblies are perhaps the only bodies which may perform this function and the duty of the Courts is to interpret and apply the laws to be enacted by them in conformity with the) Qur'an and Sunnah.

21. The fourth source of law in Islam is Qiyas which is comparable to legal fiction in western jurisprudence. It is based on Qur'an, Sunnah and Ijma'. Fresh facts and situations arose in the ever‑growing Muslim World in the early centuries of Hijra. In many cases neither the dicta of Qur'an nor the Sunnah was applicable in terms. Nor was the rule of decision settled by an Ijma'. Qiyas, or analogical deduction, from these sources was, therefore, the only answer. The Companions had applied Qiyas and so did their successors, but Imam Abu Hanifa was the first to treat it as a formal source of law‑making in Islam and he gave great latitude to private opinion and in his formulations relied on eighteen Ahadith only. He is known to have set up a committee of forty learned from among his disciples for the codification of laws, including Yahya ibn Abi Zaid, Hafs ibn Ghiyath, Abu Yusuf, Da'ud at‑Tai, Habban, Mandal, Qasim ibn Nu'im and Muhammad. They discussed practical and theoretical questions of law, and their deliberations are sometimes described as Ijma'‑i‑Abu Hanifa. The entire Code is lost, but we have a small collection of Traditions based on his authority, called `Musnadu'‑i -Imam Abu Hanifa' and a letter which he wrote for the instruction and guidance of his disciple, Abu Yusuf, the Chief Qazi of Bughdad. In the codification of laws Imam Abu Hanifa and his disciples made free use of private judgment and Qiyas.

22. A common place instance of Qiyas is that Qur'an has prohibited only khumar, that is, a distilled preparation of dates. The principle underlying the prohibition, however, is intoxication on account of which one is restrained from joining a prayer. Every intoxicant which creates such a state of mind, whether prepared from dates, opium or other drugs, is, therefore, forbidden by analogy.

23. In literal sense, Qiyas means `measuring', `accord' and `equality'. It is a process by which the rule of law embodied in the Qur'an, Sunnah and Ijma' is extended to cases not covered by their text. The reason of the text on which analogy is based is `effective cause' (ILLAT) and the legal effect is (BAHUKKAM). It is to b R distinguished from interpretation of Qur'an, Sunnah and Ijma', though in theory Qiyas is a process of discovering the law embodied in them. In Chapter XII of AI‑Risala, Imam Shafi' has described Qiyas as follows: "He asked: On what ground do you hold that (on matters) concerning which no text is to be found in the Book, nor a sunnah or consensus, recourse should be had to analogy? Is there any binding text for analogical deduction? (Shafi'i) replied: They are two terms with the same meaning. He asked: What is their common (basis)? (Shafi'i) replied: On all matters which touch the (life of a) Muslim there is either a binding decision or an indication as to the right answer. If there is a decision, it should be followed; if there is no indication as to the right answer, it should be sought by Ijtihad, and Ijtihad is Qiyas (analogy). He asked: If the scholars apply analogy correctly, will they arrive at the right answer in the eyes of God? And will it be permissible for them to disagree (in their answers) through analogy? Have they been ordered to seek one or different answers for each question? What is the proof for the position that they should apply analogy on the basis of the literal rather than the implicit meaning (of a precedent), and that it is permissible for them to disagree (in their answers)? Should (analogy) in matters concerning the scholars themselves be applied differently from the way it is applied in matters concerning others? Who is the person qualified to exercise ijtihad through analogy in matters concerning himself, not others, and who is the person who can apply it in matters concerning himself as well as others? (Shafi'i) replied: (Legal) knowledge is of various kinds: The first consists of the right decisions in the literal and implied senses; the other, of the right answer in the literal sense only. The right decisions (in the literal and implied senses) are those based (either) on God's command or on a sunna of the Apostle related by the public from an (earlier) public. These (God's commands and the sunnah) are the two sources by virtue of which the lawful is to be established as lawful and the unlawful as unlawful. This is (the kind of knowledge of which nobody is allowed to be ignorant or doubtful (as to its certainty). Secondly, (legal) knowledge of the specialists consists of traditions related by a few and known only to scholars, but others (the public) are under no obligation to be familiar with it. Such knowledge may either be found among all or a few (of the scholars), related by a reliable transmitter from the Prophet. This is the (kind of) knowledge which is binding on scholars to accept and it constitutes the right decision in the literal sense such as we accept (the validity of) the testimony of two witnesses. This is right (only) in the literal sense, because it is possible that (the evidence of) the two witnesses might be false. (Thirdly), (legal) knowledge derived from ijma' (consensus). (Finally), (legal) knowledge derived from ijtihad (personal reasoning) through Qiyas (analogy), by virtue of which right decisions are sought. Such decisions are right in the literal sense to the person who applies analogy, not to the majority of scholars, for nobody knows what is hidden except God."

24. The substance of this reference perhaps is to ascertain how far it is permissible for a Qazi and, in the modern context, for a Court of Law to differ from the Qiyas of the earlier Imams and Faqihs. In Chapter XV of Al‑Risala on Disagreement (Ikhtilaf)' Imam Shafi'i has dealt with this subject as follows: "He asked: I have found the scholars, in former and present times, in disagreement on certain (legal) matters. Is it permissible for them to do so? (Shafi'i) replied: Disagreement is of two kinds: one of them is prohibited, but I would not say the same regarding the other. He asked: What is prohibited disagreement? (Shafi'i) replied: On all matters concerning which God provided clear textual evidence His Book or (a sunna) uttered by the Prophet's tongue, disagreement among those to whom these (texts) are known is unlawful. As to matters that are liable to different interpretations or derived from analogy, so that he who interprets or applies analogy arrives at a decision different from that arrived at by another, I do not hold that (disagreement) of this kind constitutes such strictness as that arising from textual (evidence)." This is followed by instances in which the Companions and their successors disagreed in their transmission and concerning which God had provided a textual command and disagreement in the interpretation of Qur'anic communications. For example‑ "God said: Divorced women shall wait by themselves for three periods (Q. II, 228). And He said: As for your women who have despair of (further) men struation, if you are in doubt, their period shall be three months, and those who have not menstruated as yet. And those who are pregnant, their term is when they are delivered of what they bear (Q. LXV, 4). And He said: Those of you who die, leaving wives, they shall wait by themselves four months and ten (days) (Q. II; 234)." Some of the Companions of the Apostle said: Concerning divorced women, God prescribed that the period of the `idda of those who are pregnant should be until they are delivered; but those whose husbands have died should observe an `idda of four months and ten days. So the `idda of the widow who is pregnant must be four months and ten days, even if she has been delivered so that she fulfils two `iddas, since delivery itself does not mean the termination of the prescribed `idda save in the case of divorce. (Malik, Volume II, page 589; Bukhari, Volume III, page 478; Shawkani; Mayl al‑Awtar, Volume VI, page

304. They hold, in effect, that delivery is acquittance, while the waiting for four months and ten days is obligatory, and that the widow cannot lawfully remarry until the four months and ten days are completed. (Bulaq, ed., page 79). They believe that she is under obligation in two senses, and that neither one can be waived. It is as if she were subject to the claims of two men, neither one of whom invalidated the other, or if she married (one of them) during the `idda and had intercourse with him, she would have to fulfil an `idda before she could marry the other one. Other Companions of the Apostle have held that if she (the widow) has been delivered, it is lawful for her to remarry even if her dead husband is not yet buried. (Malik, Volume II, page 590). Imam Shafii'i said: "Thus the Qur'anic communication can be interpreted in two ways at the same time, but the most reasonable literal one is that a state of pregnancy puts an end to the 'idda." At page 139, of Muhammadan Jurisprudence Doctor Abdur Rahim has summed up the subject as follows: "Rules of law analogically deduced do not rank so high as authority, as those laid down by a text of the Qur'an, or Hadith, or by consensus of opinion. The reason is that with respect to analogical deductions one cannot be certain that they are what the Lawgiver intended, such deductions resting as they do upon the application of human reason which is always liable to error. In fact, it is a maxim of the Sunni Jurisprudence that a jurist may be right or may be wrong. A Qadi in deciding a case is not, therefore, bound by a particular rule of juristic law merely because it has the approval of certain doctors, but may follow his own view. An analogical deduction, if agreed upon by the learned as a body assumes, however, a different legal aspect, but that is because of such agreement and not the strength of the reasons on which such collective decision may be founded." Every one, however, is not entitled to apply Qiyas. According to Imam Al‑Shafi'i‑ "Nobody should apply analogy unless he is competent to do so through his knowledge of the commands of the Book of God: its prescribed duties and its ethical discipline, its abrogating and abrogated (communications), its general and particular rules, and its (right) guidance. Its (ambiguous) communications should be interpreted by the sunna of the Prophet; if no sunna is found, then by the consensus of the Muslims; if no consensus is possible, then by analogical deduction. No one is competent to apply analogy unless he is conversant with the established sunnah, the opinions of (his predeces sors) the agreement (consensus) and disagreement of the people, and has (adequate) knowledge of the Arabic tongue. Nor is he regarded as competent in analogical (reasoning) unless he is sound in mind, able to distinguish between closely parallel precedents and not hasty in expressing an opinion unless he is certain of its correctness. Nor shall he refrain from listening to the opinions of those who may disagree with him, for he might be warned against (possible) forgetfulness or be confirmed in his right (judgment). In so doing he must, exert his utmost power not to be misled by personal (bias), so that he knows on what ground he has given one opinion and on what ground he has rejected another. Nor should he be more preoccupied with the opinion he has given than with the one with which he disagrees, so that he knows the merits of what he accepts as compared with that which he rejects."

25. In the modern extent the place of the Qazi is taken by Judges appointed by the authority of the State and their juris diction to interpret and apply Laws is derived from the Constitution and the law of the land. The tests laid down by Imam Al‑Shafi'i may not, therefore, be strictly applicable to the presiding officers of present day Courts. Qiyas is not the word of God nor Sunnah of the Holy Prophet. It also lacks the authority of Ijma'. The application of Qiyas cannot, therefore, be limited to the early doctors nor their opinion, though entitled to utmost respect, be considered as binding for all times to come. The fact that the great Imams and their disciples have differed among themselves on numerous rules of decision as well as their details also furnishes further warrant for it. Some recent judgments of our own Court furnish instances of application of Qiyas by Courts of law as well as difference of learned Judge with the views of the learned A'imma and Faqihs.

26. According to Hedaya a decree of a Qazi is necessary to impart validity to dissolution of marriage in exercise of option of puberty. The following discussion appears at page 37:‑ "It is also to be remarked that, in dissolving the marriage, decree of the Kazee is a necessary condition in all cases of option exerted after maturity: contrary to the rule in the exertion of a similar right of option after manumission; that is to say, if a master marries his female slave to any person, and afterwards emancipates her, she will have a right of option upon her emancipation if she pleases the marriage continues, but if she disapproves, it is dissolved; and the decree of the Kazee is not essential to such dissolution; but it is otherwise in the case of option after maturity; because that option is reserved with a view to guard against injury to the other rights of the parties, which might occur in a variety of instances and which if admitted (as if the marriage were absolute, they must be) would be calculated to introduce many evils into the married state, since the guardian might, for instance, in executing the contract, agree to an inadequate dower, or to an unequal match; and as the dissolution of the marriage thus tends to affect others, a decree of the Kazee is essential thereto; but in case of the female slave, the right of option after emancipation, is intended as a security against an evident injury to herself as the husband's power over her is extended and his authority, as well as her obligations, in many respects enlarged, by her emancipation from slavery; whence it is that this right of option is restricted to female slaves only, and does not extend to males, to whom the above principle would not apply; and such being the case, the dissolution of her marriage is to be regarded merely as the removal of a hardship from herself, in which the decree of the Kazee is no way necessary, since all persons are entitled to relieve themselves from evil." In Muhammad Bakhsh v. Crown, at page 208 of the report (P L D 1950 Lah. 203), S. A. Rahman, J., expressed difficulty in appreciating the reason for the distinction between the right of option after manumission and the right of option of puberty and remarked: "That the option of puberty was the absolute right of an individual who is not bound to make an accusation against the guardian, before asserting that right." The learned Judge then referred to the following passage in Fatawa‑i‑Alamgiri, Volume II: "If the minor on attaining puberty has exercised her option and has obtained witnesses to that effect but she did not approach the Qazi for two months, she would retain her option until she had allowed her husband to cohabit with her. This is in the Zakhira." and expressed inability to understand if the right is retained intact for a period of two months or more without going to Qazi why the Qazi's order should be essential to lend validity to the exercise of that right and, agreeing with Sayyad Amir Ali, held "On a view of the original authorities, therefore, and having regard to the opinion of the well‑known savant the late Sayyed Amir Ali, I have reached the conclusion that a Court's order is not essential for conferring validity on the exercise of the option of puberty. The Qazi must be replaced in the modern context by the Civil Court. The Court's order would seem to be only necessary to invest it with the judicial imprimature in order to avoid any possible dispute, as Mr. Amir Ali has explained." Similarly, in Mst. Munni v. Habib Khan, at page 411 of the report (P L D 1956 Lah. 403) Kaikaus, J., observed: "But the dissolution takes place by act of party as in the case of a divorce and before the suit for declaration is filed, the parties are no longer spouses."

27. Khula' is defined in Hedaya as an agreement entered into for the purpose of dissolving a connubial connection, in lieu of a compensation paid by the wife to her husband out of her property (Jama' Ramooz). The entire discussion in Durr‑ul‑Mukhtar also proceeds on the same premise. The relevant chapter in Fatawa‑i‑Alamgiri, Volume II, in which a large number of authorities of A'imma and their disciples are quoted as to the manner in which dissolution of marriage by Khula' takes place, the consideration for Khula', its quantum, the validity of consideration and rights which flow from such a divorce also impart the same impression that divorce by Khula' is an act of the husband and not a unilateral exercise of a right by the wife. In Sayeeda Khanam v. Muhammad Sami (P L D 1952 Lah. 113), a Full Bench of this Court also defined Khula' as dissolution by agreement between the parties for consideration paid or to be paid by the wife to the husband. It may be also a necessary condition that the desire should come from the wife. In a later Full Bench Mst. Balqis Fatima v. Najm‑u1‑Ikram Qureshi (P L D 1959 Lah. 566), this Court, however, came to a contrary conclusion. B. Z. Kaikaus, J., who delivered the judgment, noticed that in some authorities the word `Khula' is defined as an agreement between the husband and the wife; but on the basis of interpre tation of Surat‑ul‑Baqr, verse 229, proceeded to observe as follows: "This verse admittedly permits the termination of a marriage by the wife passing consideration to the husband. The question for consideration is whether this termination can be effected only by agreement between the husband and the wife or whether the wife can claim such termination even if the husband be not agreeable. The first point that deserves attention is that the words `if you fear' are addressed to the `ulil amr' that is, the State or the Judge. On this point there is no difference between the commentators and there could be no difference for the spouses are being referred to as `they' in this part of the verse. The words `if you fear' show that the Judge is to determine if the circumstances are such that there is appre hension of the spouses not observing the limits of God. Now, what for is he to determine this question if after he had determined it, his finding is to have no effect on the matter? It is not the view of any of the schools of Muslim Law that if the spouses agree to a separation still a finding by the Judge that there is apprehension of transgression of limits of God is essential. All jurists accept that if parties agree, no such finding is needed. If without agreement there could be no termination of marriage and if in case of agreement nothing further was needed, the determination by the Judge would become meaningless. The reference to the Judge can only mean that he is entitled to pass an order even though the husband does not agree. This interpretation is supported by the two oft‑quoted instances of Khula' ordered by the Holy Prophet. Both relate to Sabit Ibn‑i‑Qais." In support of it, B. Z. Kaikaus, J., placed reliance on the views of Maulana Abul‑ala‑Maudoodi in "Haqooq‑uz‑Zaujain", Maulvi Muhammad Ali in "Religion of Islam", Aziz Ahmad in "Muslim Law" (Ahmadi view), Amir Ali in "Muslim Law" and Sir Rowland Wilson in "Anglo‑Muhammadan Law" that if a Qazi may compel the husband to give her Khula' on payment of a price fixed by him in his discretion it would, to a certain degree, assimilate the woman's position as regards divorce to that of the man. The discussion is concluded in paragraph 24, at page 582 of the report as follows:‑ "The only proper interpretation of the verse relating to khula' is that khula' depends on the order of the Judge and not on the will of the husband. That is the implication of the words `if you fear' being addressed to a Judge, or the head of the State. The Judge ought to grant khula' if he finds that `they will not observe the limits of God'. Contemporary opinion is unanimous on this interpretation. As regards the verse relating to shiqaq the clear implication of `arbiter' is that there is power to order separation and the verse does not contemplate an attempt at reconciliation alone. So far as the power of the Qazi is concerned, there does not appear to be any dispute that he will be able to separate the parties in case of shiqaq.

28. In Mst. Rashida Begum v. Shahab Din and others (P L D 1960 Lah. 1142), Muhammad Shafi, J., recognised that according to Hanafi Law a mother on remarriage to a person not related to the children within the prohibited degree loses the right of their custody, but on an elaborate survey of the Quranic and Traditional text the learned Judge did not follow the rule on the grounds that there are numerous traditions which enjoin the children to serve their parents, particularly the mother, which showed that the Holy Prophet considered the mother better person to have the custody of the children than the father, and that the children of Umme Salmah, which she had by her previous husband, were not taken away on her marriage with the Holy Prophet who was not related to the children within the prohibited degree.

29. While recounting the causes which brought about the decadence of Muslims, Dr. Sobhi Mahmassani, a learned modern jurist states‑ "After the fall of Baghdad in the 13th century, the Islamic civilization began to fade, and orthodox or Sunni jurists agreed that the four well‑known Sunni Schools i.e., the Hanafi, Maliki, Shafi and Hanbali were sufficient. They, thus, agreed upon the closing of the door of Ijtihad. As a result, new interpre tations were prohibited and, consequently, inconsiderate and slavish imitation (taqlid) became general." According to the learned doctor, this resulted in intellectual stagnation, in the history of Islamic jurisprudence and to remedy this evil, it is necessary to reopen the door of Ijtihad. In support of it, he relies on the view of the Shieites and the reformists Sunnites, such as Ibn Taimiyya, Ibn Kayyam Al‑Jawziyya, Muhammad Ibn Abdul Wahhab, Jamaluddin Al‑Afghani and Sheikh Muhammad Abdullah.

30. In Islamic Law and Constitution, Abul‑ala‑Maudood' has defined Ijtihad as an academic research and intellectual effort which makes the legal system of Islam dynamic and its develop ment and evolution in the changing circumstances possible. Ijtihad, however, does not, according to him, mean completely independent use of one's opinion. The primary source of Muslim Law being Qur'an and Sunnah, the legislation that human‑beings may undertake must, therefore, be derived from this fundamental law, or it should be within the limits prescribed by it for the use of one's discretion or the exercise of one's opinion. In conclusion, it is observed that Ijtihad that purports to be independent of the Shari'ah can neither be an Islamic Ijtihad nor there is any room for such an incursion in the legal system of Islam.

31. Imam Al‑Shafi'i includes Ijtihad in Qiyas. In reply to the question as to what is analogy; is it Ijtihad, or are the two different; at page 288 of Al‑Risala he states that they are two terms with the same meaning. When asked as to what is their common basis, he replied that in all matters touching the life of a Muslim there is either a binding decision or an indication to the right answer. If there is a decision, it should be followed and if there is no indication as to the right answer it should be sought by Ijtihad and Ijtihad is Qiyas (analogy). Again, while recounting the various kinds of legal knowledge, the great Imam describes the fourth kind as follows:‑‑‑ "Finally, legal knowledge derived from Ijtihad (personal reasoning) through Qiyas (analogy) by virtue of which right decisions are sought. Such decisions are right in the literal sense to the person who applies analogy, not to the majority of scholars, because nobody knows what is hidden except God." The next question and answer are rather instructive on the subject. The Interlocutor asked: "If legal knowledge is derived through analogy‑provided it is rightly applied‑should the scholars who apply analogy agree on most of the decisions, although we may find them disagreeing on some? The answer is: "Analogy is of two kinds: the first, if the case in question is similar to the original meaning of the precedent, no dis agreement on this kind is permitted. The second, if the case in question is similar to several precedents, analogy must be applied to the precedent nearest in resemblance and most appropriate. But those who apply analogy are likely to dis agree in their answers."

32. Ijtihad may be in the form of determining the rule of decision in a particular case or class of cases and it attains the status of law by (i) consensus of opinion (Ijma') of the learned men of the community, (ii) wide popularity of Ijtihad of an individual or a group of individuals and acceptance of their verdict by the people . . . . suo motu, such as the four Sunni Schools of the Hanbalite and (iii) adoption by a Muslim Government of a particular form of law, just as Ottoman Government adopted the Hanafi Law. Maulana Maudoodi adds that an institution may be empowered in an Islamic State to legislate and it may enact any particular piece of Ijtihad in the form of law. One may presume that the `institution' means a Legislative body, though this nomenclature appears to have been purposely avoided by the Maulana.

33. At page 168 of the Muhammadan Jurisprudence, Dr. Abdur Rahim has described Ijtihad and Taqlid as follows: - "The word Mujtahid which is a nomen agentis means a person who can make Ijtihad. Ijtihad literally means striving, exerting and as a term of jurisprudence it means the application by a lawyer (faqih) of all his faculties to the consideration of the authorities of the law (that is Qur'an, the Traditions and the Ijma') with a view to find out what in all probability is the law that is, in a matter which is not covered by the express words of such texts and has not been determined by Ijma'). In other words Ijtihad is the capacity for making deductions in matters of law in cases to which no express text or a rule already determined by Ijma' is applicable."

34. The next question is what are the qualifications of a Mujtahid? As stated by Dr. Abdur Rahim, Sadru'‑sh.‑Shariat following Fakhru'1 Islam says that a jurist should have knowledge of the Qur'an together with its meaning dictionary and legal, and its various divisions, of the traditions including the texts and the authorities thereof, and of the rules relating to analogical deduction. Further, there are different ranks of a Mujtahid. For example, Mujtahidun fish‑Shari', jurists who founded schools of law, such as Abu Hanifa, Imam Malik, Imam Shafi'i and Imam Ibn Hanbal, the founders of the four Sunni Schools; to whom is conceded an absolute and independent power of expounding the law; (2) Mujtahidun fi'l -Madhhab jurists having authority to expound the law according to a particular School; (3) Mujtahidun‑fil -Masa'1 jurists, who are competent to expound the law on particular , questions which have not been settled by jurists of the first and the second ranks; and a fortiori not competent to oppose them on any matter of principle and (4) Mujtahi -dunu‑'1‑Muqayyid or Mujtahids with a limited sphere of exposition like those of the last two grades, though of inferior authority as distinguished from Mujtahidunu‑'1‑Mutlaq. These doctors of inferior authority are divided into three groups, namely: (1) Ashabu't takhrij or those that occupied themselves in drawing inferences and conclusions from the law laid down by higher authorities and in explaining and illustrating what had been left doubtful or general. Abu Bakru'r‑Razi was a jurist of this class. (2) Ashabu't‑tarjih or those who were competent to discriminate between two conflicting opinions held by jurists of a higher rank and to pronounce that, `this is better', `this is most correct', `this is agreeable to people' and so on. Qaduri and the author of `Hedaya' have been assigned a place in this rank. (3) Ashabu't‑tashih or those who have authority to say whether a particular version of the law is strong or weak, namely, whether it is a manifest or rare version of the views of the Mujtahids of his School. The great jurist Sadru' sh‑Shariat, the author of Al‑Mukhtar, who was rightly called Abu Hanifa the second, is included in this rank. The last class is of those who cannot decide for themselves whether a particular rule of law is strong or weak in authority and have to accept what the doctors of the above‑mentioned classes have laid down, but on questions not dealt with by them, they can proceed upon the analogy of what has been laid down for similar matters, taking into consideration the change in the customs and affairs of men and must adopt a rule which would be most suitable in the circumstances of the case and in accordance with their usage. The author of Durrul‑Mukhtar claims to belong to this rank which, according to Dr. Abdur Rahim, corresponds to modern lawyers.

35. Ijtihad is, thus, a very fruitful source of Muslim Law and all modern reformist jurists are agreed, that Taqlid should be discarded and the door of Ijtihad thrown open to help in the y evolution of laws necessary for meeting new facts and situation as they arise from time to time in different parts of the Muslim World. Istihsan, Istislah and Istidlal

36. Istihsan and Istislah are doctrines of equity, while Istidlal is a branch of Qiyas applicable to those cases where no analogy is to be found in the Qur'an, Sunnah and Ijma'. Equity, in English sense, claims to override the elder jurisprudence of the country on the strength of an intrinsic ethical superiority. In Roman Law, it was the Law of Nature (Jus Nature), the par of law which natural reason appoints for all mankind. In spite of the fact that the analogy (Qiyas) clearly points to one course but the Legist "considers it better" (Istihsan), he may follow a different course. Under the same conditions, he may choose a free course "for the sake of general benefit to the community" (Istislah). The rule of Istihsan was reduced to definiteness by Imam Abu‑Hanifa. He would say "analogy in the case point to such and such rule but under the circumstances I hold it for better to rule such and such". The principle of Istislah enunciated by Imam Malik is when a rule would work general injury it was to be set aside even in the face of valid analogy. It is also called as Musalihul‑Mursala Wal‑Istislah and has more valid basis than the mere preference of a legist. According to Jam‑ul‑Jawani, Volume IV, pages 101‑102, Imamul‑Harmain also held the same view.

37. In literal sense Istidlal means inferring from a thing another thing. The Hanafi jurists used it in this sense in connection with the rules of interpretation, while according to Malikis and Shafi'is it is a distinct method of juristic deduction, not falling within the scope of Qiyas. Istidlal is of three kinds:‑ (i) The expression of the connection existing between one proposition and another without any specific effective cause (ii) Istishabul‑hal or presumption that a state of things, which is not proved to have ceased, still continues; and (iii) the authority as to the revealed laws previous to Islam. The first category distinguishes Istidlal from Qiyas because as seen in the earlier discussion on this subject (ILLAT) or an effective cause is the basis of Qiyas but not so in Istidlal. It may, how ever, be mentioned that according to Imam Ghazali it is harmful to make a deduction. An instance of the second category is the presumption that a person who has disappeared is alive so that his estate is not distributed among his heirs and according to one School he also inherits from others. The third category of Istidlal is based on the rule of permissibility viz. that which is not forbidden or expressly or impliedly abrogated continues to be rule of decision of general character if it be called for by absolute necessity affecting the Muslims as a body.

38. In the light of the above discussion, a stage has been reached when we may proceed to answer the questions raised in the order of reference. I. The first question deals with the sources of Muslim Law; As seen above, the primary sources of law are Qur'a and Hadith, while Ijma', Qiyas, Ijtihad and Istidlal are the secondary sources; Istihsan and Istihsab being doctrines of equity and not an independent source. II. As to the rules of interpretation of Muslim Law: A clear injunction in Qur'an and Sunnah is binding and no departure is permissible provided that if the effective cause of an injunction has disappeared or an injunction was confined to the facts of a particular case its extension is not warranted.

39. There are, of course, detailed rules for the interpretation of Qur'an and for testing the genuineness of a Hadith, the two principal subjects of Fiqah. For obvious reasons; it is not possible to set out those rules in this order, but we may take advantage of this opportunity to emphasize that it is of utmost, necessity to amend the curriculum of legal studies in Pakistan so as to include Fiqah as a compulsory subject in the examination of Degree of Laws.

40. The well‑known rules of interpretation have been collected by Dr. Abdur Rahim in Muhammadan Jurisprudence at pp. 77‑

112. By way of introduction, some of them are enumerated below: (i) Function and scope of interpretation: According to the learned author, the function of interpre tation is to discover the intention of a person, whether he be the lawgiver, or an expounder of the law, or any other person, either from his words or his conduct. The object of interpre tation of conduct, which is called `interpretation by necessity' (bayenu'dh‑dharurat), is in the case of the lawgiver and the expounders of law to ascertain their intention with regard to what has been left unexpressed as a matter of necessary inference from the surrounding circumstances as furnishing an index to their minds. For instance, when the lawgiver sees certain customs prevailing among the people and does not promulgate any laws prohibiting them, it is presumed that such customs have his sanction, or, if a Companion of the Prophet narrates a tradition from an obscure narrator without impugning its correctness, it is presumed that he considered the tradition to be genuine. (ii) Words classified with reference to their application to convey meaning: Words with reference to their application to convey a certain meaning are susceptible of fourfold divisions, having regard to (1) their grammatical application, for instance whether a word is a homonym or of a specific or general import; (2) their actual use such as whether a word is used in its primary or secondary, plain or allusive, in its dictionary, technical or customary sense; (3) the extent to which their meaning is made clear or left ambiguous or doubtful that is to say, whether the meaning of the proposition which they embody is manifest, explicit, explained and soon, and (4) the different ‑ways in which the meaning of words is indicated. (iii) Homonyms, general and specific words: Homonyms applicable to general and specific words e.g., mushtarak, a'am and Jama' Munakkar. (iv) Derivative proper and generic nouns: Derivative (sifat), proper generic nouns (alam) otherwise called a general noun Ism Jins (v) Absolute and limited words: If a derivative or generic noun is meant the thing named without any limitation, it is called absolute (mutlaq), otherwise it is called limited (muqayyad). If all the things to which it is applicable are included, it is called a common noun (am). If it is applied to only some determinate things, it is called particular (ma'hud) and if it is applied to some of the things but not determinate, it is called indeterminate (nakara). (vi) Specific words. They establish an absolute proposition: A specific word establishes an absolute proposition, e.g., by the phrase `as such' it is intended to exclude from present consideration the effect of the context, or of extrinsic facts on such a proposition. When it is said, Zaid is learned, learning is a predicated for certain of Zaid, and similarly the word `learned' being specific, learning and nothing else is predicated of Zaid. (vii) Force of then (al‑fa) in a Qur'anic text relating to divorce: The text lays down: `Divorce may be by two sentences, then you may detain them (meaning the divorced wives) in a proper manner, or let them go with kindness. It is not lawful for you to take from them anything out of what you have given them, unless you are both afraid that you will not be able to keep within the bounds of law, that is, if they lived together. If both of you are afraid that you will not be able to keep within the bounds of law, then it will not be wrong if she (meaning the wife) ransoms herself. These are the limits of law laid down by God and so do you not transgress them; those who transgress those injunctions are wrong‑doers. Then, if the husband divorces her, she will not be lawful to him thereafter, until she marries another husband and then if he (meaning the last husband) divorces her, there is nothing to prevent her and the first husband to return to each other again (i.e. marry each other), provi ded they think they will be able to observe the limits laid down by God. These are the injunctions of God revealed for the benefit of the people who know (what is right from wrong) (Surat‑ul‑Baqara). (viii) General words: When a general word is used its application, according to the Hanafis, covers for certain everything to which it is applicable. The Shafi'is say that a general word includes everything to which it is applicable, but not for certain, so that its application in a text of the Qur'an or a continuous tradition may, according to them, be limited by a tradition of isolated origin or by analogy. (ix) Interpretation of conflicting texts: When two speeches of a general character conflict, one of them sanctioning a certain thing in general words and another prohibiting it, the prohibitive speech will prevail. (x) Two apparently conflicting propositions ought to be reconciled if possible: For example, in Suratu'1‑Baqara it is laid down: `Those women whose husbands are dead should restrain themselves (from marrying again) for four months and ten days' while in the Suratu'n‑Nisa'ul‑qasira it is laid down that the period of probation for pregnant women is until delivery. Hazrat Ali reconciled the two texts holding that the period of probation for a widow who is enceinte is the remotest of the two periods, namely, four months and ten days mentioned in the first text, and the period ending with delivery as laid down in the second. Ibn Masud, on the other hand, is of opinion that the last text repeals the first to the extent to which they are in conflict, and therefore holds that the `iddat of a widow in expectation of a child, is completed on delivery, even if the event takes place before the expiry of four months and ten days. (xi) Rule of construction, where a general and a limited proposition conflict: According to Shafi'is the general proposition is to be accept ed, subject to the limitation imposed by the special proposition According to Hanafis, if they cannot be reconciled then the rule as to contradictory propositions will apply. If the general proposition be later in date than the special, the latter will be held to have been repealed. , (xii) Qualification of a general proposition: A general proposition may be, qualified in its operation, either by a clause which is not independent of it or by an independent speech. If by the latter, the qualifi cation is called limitation or specification (takhsis). Wnen the qualifying words are such that they relate to what has preceded and do not by themselves form a complete speech, such qualifying words will not be regarded as an independent proposition. (xiii) Qualification by a dependent clause: A qualifying dependent clause may introduce an exception, a condition or a quality (4,o) or indicate the extent (L. 14) of application of the original proposition. (xiv) Qualification by an independent speech: When the application of a general proposition is narrowed down, not by a clause which is part of the general speech, itself, but by an independent speech, the limitation may be expressed, or is to be inferred, by the application of human reason or experience, or by the light of custom, or from the fact that the general word is less appropriately applicable to some things than to others. (xv) Effect of a qualifying dependent clause: When a general proposition is qualified by a dependent clause, then, so far as it is not so qualified, it retains its characteristics as a legal authority. (xvi) Effect of an independent limiting speech: When the qualifying speech is independent, then, the original proposition, in so far as it is still operative, will be regarded as general only in a secondary sense, and would not be treated as absolute. There is, however, one exception to this, when the limitation is introduced by our reason as, for instance, in excluding infants from the purview of certain obligatory commands, the general law in its application to other cases is still of absolute authority. (xvii) General words: A word may be general in its grammatical form (sigha) and application (ma'na) (xviii) Plural number denotes at least three. (xix) Force of a plural word preceded by "the". (xx) Determinate and indeterminate plural. (xxi) Effect of a singular preceded by "the". (xxii) Indeterminate words: For instance, in the Qur'anic verse: `say (i.e. ask them) "who sent down the book which Moses taught", the word `who' negatives all but the speaker, namely, God. (xxiii) Whoever: (aiyyun) (xxiv) He who (`man') (xxv) That which (Ma) (xxvi) All of them and all (jami ) and (kull) (xxvii) Inference from a man's acts: When a man's act is reported, no general inference is to be drawn therefrom, for it is possible that the act had reference to particular circumstances. (xxviii) Interpretation of a statement made in answer to an inquiry, or with reference to a particular occurrence: When a statement is made in answer to an inquiry, or with reference to an occurrence, the question whether such statement is to be regarded as a general applicability, or is to be confined to the particular facts embodied in the question or the occurrence, has several aspects. In the first place, the statement may not be independent of the inquiry or occurrence, or it may be so. If the former, it may be absolutely connected with the particular facts, or may be apparently connected with them, but admitting of the possibility of its being an independent statement or the reverse. It is laid down by Sadru'sh‑Shariat that, according to the general rule as accepted by consensus of opinion among the learned, that which is taken into account is the generality of expression used in a proposition, and not the particularity of the cause or circumstance which led to it. (xxix) An absolute and a qualified proposition with reference to the same matter: The principle of interpretation applicable in a case where there are two propositions, one absolute and the other qualified is that if what is laid down by one of them be distinct from what is laid down by the other, effect should be given to both. (xxx) Construction of homonyms: A homonym when used in a proposition is to be given only of its several meanings, for it cannot be held to have been used in more than one of its senses. (xxxi) Dictionary, legal, conventional and technical meanings: If a word is generally used in its dictionary sense, it is regarded as proper in connection with such application and, if that word be used in another sense connected with it, that is to convey a legal, conventional or technical meaning, it will be regarded as a trope with reference to such application and vice versa. The tropical or secondary application of word, therefore, consists in its transference from its original to a connected sense. When a word is transferred from its dictionary meaning to a legal or technical meaning, it shows that preference is given to the latter, although it may be by reason of the connection which subsists between it and the former. After such transference has taken place, it is the new meaning which generally dominates its application, and both the meanings cannot be assigned to it at one and the same time. (xxxii) The meaning of words may be manifest, explicit, unequivocal, or fixed: The meaning of a word in a passage or sentence may be disclosed or concealed. When it is disclosed the word is said to be apparent or manifest of meaning (zahir), if it is still further disclosed by means of the context, it is regarded as clear or explicit (pass) if it is so clear that there is no room for exposition and does not admit of limitation it is regarded as explained or unequivocal (mufassar) and if it is made still clearer so that the possibility of repeal is precluded, it is said to be settled or unalterably fixed (muhkam). (xxxiii) The meaning may be obscure, difficult, vague or unintelligible If the meaning of a word be concealed by reason of an extraneous circumstance, it is called obscure (khafi). If a word be obscure of meaning in itself, but is capable of being understood by the application of our judgment, it is regarded as difficult (mushkil); if the meaning of a word cannot be discovered expect with the help of another text, it is called vague (mujmal); and if its meaning cannot be discovered at all, it is called unintelligible (mutashabahi). (xxxiv) Words to be interpreted in their ordinary sense unless the context requires a different interpretation: (xxxv) Necessary implication: Doctor Abdur Rahim quotes an instance that if a man says: `Emancipate your slave on my behalf for one thousand rupee'; it necessarily implies as a condition precedent that the owner should sell the slave first to the speaker for a thousand rupees and then emancipate it as his agent, because a man cannot emancipate a slave who is not his own property. (xxxvi) Authentic interpretation: It means interpretation of one text by another. Sadru'sh Shariat following Fakhru'1 Islam, brings in repealing laws under the heading of interpretive laws. Their theory is that when a revealed law is abrogated by another revealed law, it means that the former is to have operation until the revelation of the latter. But other jurists object to this doctrine on the ground that the repealing law deprives the repealed law of all its effect and, therefore, to say that the one interprets the other is an artificial use of the term. Taftazani points out that, if interpretation be taken to mean discovery of the intention of the lawgiver with respect to the operation of a text, and not merely of what he meant to convey by it, Sadru'sh‑Shariat's theory would be well‑founded. There are detailed rules as to the repealing text. For example, one text is said to be repealed by another when the two are in conflict. Two texts are held to be in conflict, if one of them imports the negation of what the other lays down, provided that both refer to the same subject with reference to the same point of time, and both are of equal rank, or if one of them is of a higher rank than the other, it is by reason only of a subsidiary circumstance. When there are two isolated traditions, for instance, one of which rests on the authority of a narrator who is also a jurist, while the narrator of the other is not a jurist, the former is said to have an advantage over the latter of a subsidiary nature. When two texts are really in conflict, the one earlier in date is taken to have been repealed by the one later in date, as it cannot be conceived that God intended that two inconsistent laws should be in force at the same time. Both the repealed and the repealing texts must, however, be revealed. According to the Hanafis and most of the Shafi'i and Maliki jurists the repeal may be (1) of one Quranic text by another, (2) of one traditionary text. by another, (3) of a Qur'anic text by a traditionary text and (4) of a traditionary text by a Qur'anic text. There are some Shafi'is and Malikis who agree so far as (1), (2) and (4) are concerned, but not as to (3) that is to say, they do not admit that a Qur'anie text can be repealed by a traditionary text. The last rule is "authentic interpretation by way of necessary implication". It may be in the nature of necessary implication (bayan dharurat) of what is left unsaid from what has been said. From the instance quoted by Dr. Abdur Rahim of the verse in the Qur'an ". and his heirs are his parents, so the mother will have one‑third," it is interpreted as the case of a deceased who has left only his parents and no other heirs, the necessary implication being that the remaining two‑third will go to the father.

41. As every student of Fiqah knows the study of ;Quran and science of its interpretation (tafsir) engaged the best talents among A'imma and Faqihs. Some of the best known com Tentaries are by Tibri (died A. H. 310), Makhshori (died A. H. 538), Imam Ghazali (died A. H. 504), Wadai (died A. H. 685), Jalal‑ud‑Din Roomi, Fakhar‑ud‑Din Razi and Ahmad, commonly known as Mulla Jiwan in the time of Emperor Aurangzeb. Side by side with it, the work on collection of authentic traditions and usages of the Holy Prophet also continued.

42. A reference has earlier been made to the two Sahihs technically called Jamies, the first by Bokhari and the second by Muslim, and the four Sunnah by Ibn Maja (died 303), Abu Daud al‑Sajistani (died 275), al‑Tirmadhai (died 279) and al‑Nasai (died 303). The influence which Bokhari and Muslim had on the evolution of Muslim Laws based on traditions and usages of the Holy Prophet is, indeed, very great. They streng thened the position of the Medinites who upheld the traditions like Shafi'i and Maliki Schools as opposed to the Hanafi or Iraqi School. As mentioned in the earlier part of this order, Imam Abu‑Hanifa who lived at a time when the precepts and usages of the Holy Prophet were fresh in the memories of the successors of the Companions (Tabaeen), relied on only 17 or 18 traditions, but under the influence of Bokhari and Muslim his followers relied on many more traditions which may be counted by hundreds and thousands.

43. The subject of judging the authenticity of Traditions and usages of the Holy Prophet and their interpretation is indeed very vast and we will content ourselves by quoting from Al‑Risala by Imam Shafi'i. Imam Shafi'i said: "The Sunnah which the Holy Prophet has laid down on matters for which a text is to be found in the Book of God is always in full agreement with that text and clarifying on God's behalf a general text; the Holy Prophet's specification is more explicit than the text. But as for the Sunnah which he laid down on matters for which a text is not found in the Qur'an, the obligation to accept them rests upon us by, virtue of the duty imposed by God to obey the Prophet's orders. As to the abrogating and abrogated Sunnas, like the abrogating communications laid down by God to abrogate orders, they are in like manner laid down' by the Holy Prophet so that each Sunna may be abrogated by another. As to the contradictory traditions where no indications exist to specify which is the abrogating and the abrogated, they are all in accord with one another and contradiction does not really exist among them. For the Holy Prophet being an Arab by tongue and by country may have laid down as general rule intended to be general and another general rule intended to be particular, or a certain question may have been asked to which he gave a certain concise answer, leading some of the transmitters to relate the, tradition in detail and others in brief, rendering the meaning of the tradition partly clear and partly vague, or it may happen that the transmitter of a certain tradition related the answer he heard from the Holy Prophet without knowing what the question had been for had he known the question he would have understood the answer clearly from the reasoning on which the answer was based. The Holy Prophet may have likewise laid down a Sunna covering a particular situation and another covering a different one, but some of those who related that they heard failed to distinguish between the two differing situations for which he had laid down the Sunnas. And he may have laid down a Sunna on‑a certain matter in conformity with the text of the Qur'an‑transmitted by one authority and another in one form in another contradictory to it owing to changes in the circumstances‑transmitted by another authority. Hence, the transmission by one authority appeared to many as contradictory to the other, while in reality no contradiction existed at all. He may have also provided a Sunna consisting of an order of permission or prohibition the wording of which was general and he may have provided a second specifying Sunna which made evident that his order of prohibition was not intended to prohibit what he made lawful, nor that his order of permission made lawful what he had prohibited. For all the possibilities of this kind parallel examples exist in the Qur'an. The contradictory Sunna is due either to incomplete transmission rendering it contradictory, although what was lacking can be known from other traditions or it is the product of the transmitter's imagination. No contradictory tradition from the Prophet was known to Imam Shafi'i for which a possible explanation was lacking or the category to which it belonged was not known."

44. The Imam further said: "Analogy on the basis of the Sunna falls into two categories, each sub‑divided into various forms. God has imposed the obligation of obedience upon men through His Book and His Prophet's tongue, in accordance with the obligation of obedience set forth in His established judgment that men shall obey His will without challenge to His command. (Qur'an, Surah XIII, verse 41). The Holy Prophet specified the meaning of what God made obligatory or in any narrative transmitted from him so that nothing is left unexplained and the scholars are under obligation to regard this narrative as authentic as other traditions if it expresses the indentical meaning. The second category of traditions consists of a general order of permission qualified by a particular order of prohibition. Men should regard all acts under the general order of permission as lawful and the specific act under the particular order of prohibition as unlawful. But in so doing they should not apply analogy to a particular order of prohibition, for the general rule is that an order of permission and analogy must be applied ordinarily on the general, not on the particular rule." The interlocutor asked Imam Shafi'i if we find in the Qur'an an explicit general meaning which a certain Sunna may either make specific or to which it may give an implicit meaning that is contradictory, did he agree that the Sunna is abrogated by the Qur'an? The Imam replied: "Since God has imposed on His Prophet the duty to obey His communications to .Him, and He testified to his right guidance and imposed on men the duty to obey Him, and since the Arab tongue, as already explained, may give a variety of meanings for each word so that some of the communications of the Book are general and intended to be particular and others particular and intended to be general, and some are general duties which the Apostle specified in the Sunna‑a function which the Sunna fulfils in its relation to the Book, the Surma cannot be contradictory to the Book of God, but will always follow the Book of God, in conformity with His divine communication, and clarify on God's behalf the meaning intended by God. Thus the Sunna always follows the Book of God."

45. It is not possible to detail here further rules for judging the authenticity of the precepts and usages of the Holy Prophet and their interpretation, but what the great Imam has said perhaps contains the pith and substance of Ilm‑ul‑Hadith that this part of the question is not properly framed. As seen above, a Qazi or a Court of Law may differ with the Qiyas of earlier A'imma and Faqihs, but that will be on the basis of interpretation and extension of the rule of decision contained in Qur'anic and Traditional Text or Ijma' and not on the basis of what appears to be more agreeable to the Judge. A reference has earlier been made to the rules of Istihsan and Istislah, two distinct doctrines of Muslim Jurisprudence. If there is no clear rule of decision in Quranic and Traditional text nor an Ijma' or a binding juristic analogy a Qazi or a Court may resort to private reasoning and, in that, he will undoubted be guided by the rules of justice, equity and good conscience or, in terms of Fiqah, by the doctrines of Istihsan and Istislah.

46. The third question referred to the Full Bench likewise needs amendment. It reads‑ "In case of conflict of views found in text books on Muslim Law, such as Hedaya, Fatwa‑i‑Alamgiri, Radd‑ul‑Muhtar, how are the Courts to determine which of the view is correct?" In the course of hearing arguments, we found that the more appropriate question which falls for determination under this head is: "How are the Courts to be guided in case of conflict of views among the founders of different Schools of Muslim Law and their disciples, other A'imma and Faqihs?" If we are in a position to ascertain with a degree of certainty the opinion of Mujtahidun fish‑Shari' who founded the Schools of Law, such as Imam Abu‑Hanifa, Malik, Shafi, and Ibn Hanbal, Mujtahidun fil‑Madhahab as Imam Abu Yusuf, Imam Muhammad, Zufar, Hasan Ibn Ziyad and the opinion of Mujtahidun fil‑Masa'1 as Khassaf, Tahawi, Sarakhsi, Karkhi, Bazdawi, Halwani and Qadi Khan, who are called the jurists of the first three ranks, ordinarily that would be binding on Courts. And if there is a difference of opinion among them, according to some the Fatwa is that the view of Imam Abu Hanifa shall weigh even if all his disciples differ from him. In the absence of any dictum of his, the decision will be in accordance with the opinion of Abu Yusuf, then Muhammad, then Zufar and then Hasan Ibn Ziyad. In all judicial matters and in questions relating to the duties of the Courts and the Law of Evidence, the Fatwa is based on the opinion of Abu Yusuf because of his experience as the Chief Qazi of Baghdad, and in questions relating to the succession of distant kindred on the opinion of Muhammad. The opinion of Zufar has been accepted only in seventeen cases, according to Radd‑ul‑Muhtar, Volume 1, page 53.

47. The view of Imam Al‑Shafi'i on disagreement (of law) has been reproduced in the earlier part of this order. On all matters concerning which God provided clear textual evidence in His Book or a Surma uttered by the Prophet's tongue, dis agreement among those to whom these texts are known is unlawful. As to matters that are liable to different interpre tations or derived from analogy, so that he who interprets or applies analogy arrived at a decision different from that arrived at by another, Imam Shafi'i did not hold that disagreement of this kind constitutes such strictness as that arising from textual evidence. Lastly, as a doctrine of juristic preference it is permissible that a Qazi belonging to one School of Sunni law such as the Hanafi may decide a case depending on juristic deduction according to Shafi'i law, or he may make over the case to a Shafi' Qazi, if there is one available. In support of this view, Dr. Abdur Rahim has quoted a number of instances. A Hanafi Qazi, following the views of other Sunni Schools, may declare that divorce by a drunken person is not valid, uphold a marriage contracted without two witnesses being present as valid, set aside the marriage of a minor contracted by his father in the presence of profligate witnesses, uphold the sale of a mudabbar. In Fatawa' Qazi Khan, Volume II, pages 451 to 459 and Fatawa' Alamgiri, Volume III, pages 439 to 441, the authorities cited in support of this view are. As‑Siyaru 1‑Kabir, Jamiul Futawa, Khazanutul‑Muftin, Majma'un-Nawazil, Al‑Zakhira, Futawa Rashidud‑din, Shaikhul‑Islam Abdul Wahabu'sh‑Shaibani, Shaikhul‑Islam Ata Ibn Hamza and others. In the modern context, Courts who have taken the place of Qazis may, with advantage, apply this rule to mitigate hardship or the rigour of a particular School of Law to which the parties belong, if the facts of the case so merit.

48. The answer to the third question may be summed up thus: There can be no disagreement in matters which are provided for in the Quranic and Traditional Text. Similarly, Ijma' is binding upon all, until changed or modified by another Ijma'. There is, thus, no room for a Court to disagree with it for, according to the tradition relied upon by Imam Shafi'i, "what ever the community of Islam may agree upon at any time is of "God". In the case of juristic analogy and Istidlal it is open to Courts to adopt any one of the conflicting view of the earlier A'imma and Faqihs, subject of course to the qualification that they possess the requisite knowledge. Lastly, ljma' and Ijtihad in the form of law made by the competen legislative bodies, as envisaged by the modern reformist Jurists, will be binding on Courts and it is not permissible for them to differ from those laws on the ground that they conflict with the views of the earlier A'imma and Faqihs.

49. The three questions before the Full Bench are answered accordingly. But before parting with this order, we would like to express our thanks to the learned counsel for the parties, Messrs A. R. Sheikh, Karam Elahi Chohan and Mazhar‑ul‑Haq, Mr. Khalid M. Ishaque, Advocate‑General, and Messrs Manzur Qadir and Aziz Ahmad, who appeared as amicus curiae, for the valuable help they rendered us in surveying in such a short period the vast subject of Muslim Jurisprudence; by no means an easy task even for the most learned in this science and, undoubtedly, the most difficult assignment undertaken by the Members of the Bench.

50. Regular Second Appeal No. 486 of 1961 and First Appeal from Order No. 65 of 1962 will now go back for disposal in the light of our reply to the reference. WAHIDUDDIN AHMAD, J.‑I have had the advantage of reading in advance the well considered and learned judgment proposed by my brother Yaqub Ali, J. I must confess that the problems raised in the questions referred to the Full Bench are too broad and involve most controversial issues. Naturally one must be cautious in dealing with such questions. I am, therefore, most reluctant to answer them in general terms. It is with this object that I would like to record my opinion in as precise terms as possible.

2. The answer to the first question need not detain me. It is accepted by all the Sunni Schools that besides two principal sources of Islamic law namely the Qur'an and Hadis there are two other important distinct sources namely Ijma' i.e., consensus of opinion and Qiyas i.e., analogical deduction from the above three sources. Istihsan as a source of Law has also achieved considerable importance. It is resorted to in cases where no clear authority is available on a point or where the authorities are of a conflicting nature. In such cases the view is that it is open to jurists to resort to principles of equity for the purpose of deciding the issue before them. In other words Istihsan is juristic preference or equity. Sir Abdur Rahim in his commentary on Muhammadan Jurisprudence on this topic observed at page 163 as under: "It sometimes happens that a rule of law deduced by the application of analogy to a text is in conflict with what has been expressly laid down by some other text, or by the unanimous opinion of the learned. All the four Sunni Schools of law agree that in such cases the former must give way to the latter. It may happen that the law analogically deduced fails to commend itself to the jurist, owing to its narrowness and inadaptability to the habits and usages of the people and being likely to cause hardships and inconvenience. In that event also according to the Hanafis, a jurist is at liberty to refuse to adopt the law to which analogy points, and to accept instead a rule which in his opinion would better advance the welfare of men and the interests of justice. The doctrine by which a jurist is enabled to get over a deduction of analogy, either because it is opposed to a text or consensus of opinion, or is such that his better judgment does not approve of it, is technically called Istihsan (literally, preferring or considering a thing to be good) which I have translated juristic preference or equity." According to Hanafi lawyers it is nothing but hidden analogy. But it cannot be denied that as a source of law it has a much wider scope.

3. The Rules of Istidlal and Ijtihad are more in the nature of further juristic exposition and development of the Muhammadan Law. Therefore, they cannot be treated as independent sources of law. Strictly speaking the principles underlying these rules are outside the domain of Courts of law f and prudence demands that the application of these rules should be left to the Legislature, of the country, which can usefully adopt them with the aid of leading Theologians and eminent Muslim Jurists.

4. The scope of the second question is very wide. It includes not only the principles on which Qur'an should be inter preted but also the other, sources of law. It is, therefore, for consideration whether the Courts of law should put their own construction on the Qur'an. There is lot of controversy on this point. One view is "that nearness to the Prophet, in time and space, implies a greater accuracy in understanding the Quran and that, therefore, we of this generation, being farthest in time, are not best able to understand the Qur'an". Kamal A. Faruqi, a young lawyer, in his recent book on Muslim Jurisprudence at page 108 of the book has forcefully put the other view that "the Qur'an must be approached for the fullest possible under standing, both in the context of early Islamic Arabic of the heroic and classical periods and also in the context of Arabic as a living and developing language". The question, therefore, arises whether Courts of law should solve this controversy. In my judgment this is a path not free from danger and must be avoided. It was for this reason that the Privy Council as early as 1897 disapproved of this tendency and discouraged the Courts of law to put their own construction on Qur'an in opposition to the express ruling of Muhammadan Commentators of great antiquity and high authority. Although much water has flown since then but the view expressed by the Judicial Committee in Agha Muhammad Zafar v. Koolsoom Bibi to the following effect still holds good:‑ "But it would be wrong for the Courts on a point of this kind to attempt to put their own construction on the Qur'an in opposition to the express ruling of commentators of such great antiquity and high authority (as the Hedaya and the Fatawai Alamgiri)." After that decision even late Amir Ali in the fourth edition of his book Muhammadan Law Vol. II in the notes at page 436 had to concede that the enunciation in the Qur'an which was the subject‑matter of interpretation, is regarded as a recom mendation rather than a rule. This would show that even such eminent jurist could be imperfect in the interpretation of the text of Qur'an. I am, therefore, not inclined to depart from the view taken by the Privy Council. Subject to this in cases arising under Muhammadan Law a clear injunction of Qur'an and Sunnah is binding and no departure is permissible from them. Thus if it is possible to ascertain clear authority from these two primary sources in support of any proposition advanced as a rule it must be followed. But if no clear authority is available resort can be had to other sources referred to above.

5. This brings me to the next point arising out of the second question namely, whether the Courts can differ from the views of Imams and other juris‑consults of Muslim law on grounds of public policy, justice equity and good conscience. Before discussing this aspect of the, question it will not be out of place to mention that the history of the development of the Muslim h Jurisprudence clearly indicates that the preponderance of the x views amongst the Muslim Jurists is that only the qualified jurists of the early days had the faculty of Ijtihad, namely, the right to go back to the original sources for purposes of indepen dent interpretation. They opined that all the jurists since about the end of the Third Hijra are Muqallids, whose duty was only to accept the opinion of their great predecessors without the exercise of private judgment. For this reason the role of the later jurists was mostly confined to resolve the differences of opinion amongst the masters with the object of adopting one or the other view in preference to others, which finds place in the books of Fatawa or legal decisions. The result was that the Judge and juris‑consults had no independent capacity and were bound to follow the view of their School in very detail in pre ference to the views of other Sunni Schools.

6. For this and other historical reasons which need not be mentioned "the gate of Ijtihad" was closed in the third Century. This is the unanimous view of all the Sunni Schools. This rule of law was followed by the Qazis appointed by the secular authorities. It however, appears that the learned amongst the Muslim refused to accept the office of the Qazi and gradually this office lost confidence of the public because in the administration of justice they began to follow "weak opinion". Consequently about the time of the author of Durrul Mukhtar the then Sultan of Turky on the advice of Alama Qasim promulgated an order enjoining upon the Qadi not to follow "weak opinion". In this way the doctrine of Taqlid got firm roots. According to this doctrine jurists have been classified by Muslim Lawyers in order of preference. In one of the Full Bench decisions of the Allahabad High Court Muhammad Yasin v. Rahmat Rahi (A I R 1947 All. 201), Waliullah, J. has sum marised the classification as under:‑ "According to the recognised doctrine of Taqlid of Muhammadan Jurisprudence, jurists are classified as under;‑. (1) Jurists who founded schools of law such as Abu Hanifa, Malik, Shafi'i and Ibn Hambal, the founders of the four Sunni Schools to them is conceded an absolute and independent power of expounding the law. (2) Jurists who are conceded authority to expound the law according to a particular school. They were the disciples of juris‑consults of the first rank. Abu Yusuf, Muhammad Zaffar and Hossan Ibn Ziyad are among the most prominent jurists of this class in the Hanafi School. (3) Jurists who were competent to expound the law on particular questions not settled by jurists of the first and the second ranks. Among the Hanafis Tahawik, Serakhsi, Bazdawi and Qazi Khan attained this position. (4) Jurists who occupied themselves in drawing inferences and conclusions from the law laid down by jurists of higher ranks and expounding and illustrating what had been left doubtful. Abu Bakrur'r Razi occupies a place in this rank. (5) Jurists who are generally held competent to discriminate between two conflicting opinions held by jurists of a higher rank, Qaduri and the author of Hedaya have been assigned a place in this rank. (6) Jurists who have authority to say whether a particular version of the law which has come down from eminent jurists of a particular School is strong or weak. The great jurist Sadrush Shariyat who has been called Abu Hanifa the second, has been given a place in this rank; and lastly (7) Lawyers who have to accept what the jurists of the above‑mentioned classes have laid down. On any question not dealt with by jurists of the higher classes they have to proceed upon the analogy of what has been laid down in similar matters, taking into account the change in the customs and affairs of men. The author of Durrul Mukhtar belongs to this class".

7. It will thus be noticed that under this doctrine in those cases where difference of opinion is found amongst the three masters the view held by the later doctors about the correctness or otherwise of the opinion is generally followed. In Muhammadan Jurisprudence by Sir Abdur Rahim, the learned author has discussed this topic at page 188, which is as under: "In such cases accept the view which according to the jurists of the fourth, fifth and sixth degree is correct and has been acted upon. But if in any case the later doctors have not adopted in clear language any one of the conflicting opinions, the law is to be ascertained by proceeding on the view which is most in accord with the habits and affairs of men." In this connection one of the eminent jurist Sir Shah Sulaiman, C. J. in Anis Begum v. Muhammad Istafa Wali Khan (55 All. 743) observed as under: "It would follow that if jurists of the first rank have differed among themselves but the jurists of the second, third and fourth ranks have followed the opinion of one of them, it would not be proper in later times to go behind the opinion of these jurists and prefer the opinion of the majority of the jurists of the first rank which has been discarded by those of subsequent periods. The proper course undoubtedly is to abide by the opinions which have been adhered to in the commentaries which are of recognised authority in India and not to decide the point on any general rule of interpretation based on the majority of votes of the ancient jurists." It is for consideration whether there is any justification to depart from these principles in interpreting the Muslim Law. Since the time the doctrine of Taqlid was adopted, the position has not considerably changed. I regret to point out that so far as Court of Law is concerned, for obvious reasons it cannot claim with confidence to form independent judgment on intricate questions of Muslim Law. This problem has not arisen for the first time and has received the attention of High Courts in this sub‑continent on many occasions. In Aziz Banu v. Muhammad Ibrahim Hussain (A I R 1925 All 720), Sulaiman, J. as he then was, held that when there is difference of opinion among the jurists the point in dispute cannot be decided by Courts sitting so many centuries afterwards by the examination of traditions only. Reliance must be placed on the opinion of recognised jurists who alone could have undertaken the task of sifting the traditions and, in case of divergence, on their comparative superiority. It will be useful to reproduce the view of the learned Judge at page 723 of the report. He observed:‑ "The first difficulty in our way is that all the authorities referred to by the, various commentators are not available to us. It is, therefore, impossible to find out exactly how many authorities are one way and how many the other way. Even most of the books which have been made use of by Messrs Baillie, Shama Charan Sircar and Ameer Ali, have not been laid before us. It is, therefore, not an easy task to say that the conclusion at which these learned authors arrived was necessarily wrong or that it was not supported by authorities other than Sharaya‑ul‑Islam. Another danger that has to be guarded against was pointed out by their Lordships of the Privy Council in the case of Abdul Fateh Ahmad Ishak v. Russomoye Dhur Chowdhury 22 Cal. 619 = 22 and the case of Baqar Ali Khan v. Anjuman Ara Begum 25 All.

236. In the last‑mentioned case their Lordships remarked: `That danger is equally great whether reliance be placed upon fresh texts newly brought to light or upon fresh logical inferences newly drawn from old and undisputed texts'. "It is, therefore, dangerous to depart from the view of the law which has remained unchallenged for at least over half a century and which is to be found in the Sharaya‑ul‑Islam, the book of the highest authority in India, merely because some other authors have been taken a contrary view." This problem also came before a Full Bench of Patna High Court in the case of Fazlur Rahman v. Mst. Aisha (A I R 1929 Pat. 81). In that case it was urged by one of the eminent counsels, that the functions of the British Courts in administering the Muhammadan Law are more or less the same as the functions of a Qazi under the Muhammadan rule, and it was contended by him that if we find that a particular form of divorce is not sanctioned by the laws of Qur'an, it is their duty to declare that the divorce pronounced in the bidai form will not be valid. In this con nection, Fazal Ali, J. at page 84 of the report observed as under:‑ "Now all the commentators are agreed that the words `a third time' should be read after the words `divorces her' in verse 230, and the verse means that if the wife has been divorced thrice the divorce is irrevocable and the wife cannot lawfully return to the husband. This is so, because under verse 229 after the divorce is pronounced twice there is an option with the husband to keep or abandon his wife, and in order to complete the divorce he must pronounce it a third time. This is obvious from the use of the word `then' in the aforesaid verse. After the divorce is completed by three pronouncements contemplated by verse 229, it becomes irrevocable under verse

230. The Shias and the' Malikis have interpreted the three divorces referred to in these verses to mean divorces pronounced on three different occasions. There is, however, one school of commentators which has taken the view that the language used in the Qur'an is wide enough to include cases in which the divorce has been pronounced thrice on the same occasion. Thus although it may be said that of the two views the one is not so broad and not so well supported by reason as the other, yet when there is a consensus of opinion among a large and influential section of theologians who hold that the words of the Qur'an are capable of the interpretation which sanctions the bidai form of divorce and when we find that the bidai form of divorce has been in vogue among the Hanafi Muhammadans for so many centuries, it is not for us to lay down that the interpretation which does not favour the bidai form must necessarily be preferred to the interpretation which favours it. Nor do "I think we shall be justified in introducing a sudden and drastic change in what has been for generations the accepted law of the Hanafi Muhammadans. I must, therefore, hold that talak‑ul‑bidat is a valid and binding form of divorce according to the law of the Hanafis and as such is binding upon the parties in this case." I quite see the force of restoring life to "Ijtihad" as a source of Muslim Law to remove stagnation in the development of Islamic Law. But apart from practical difficulties of having an Ijma of the type recognised by earliest Jurists, the question still remains whether the Court of law should embark on and traverse on this hazardous field. In my judgment nothing has happened since the above decisions were pronounced to justify any departure from the principle of interpretation recognised in them. I would, therefore, hold that it is not open to the Courts of law to differ from the views of Imams and Jurists r of Muslim Law if it is in accordance with the consensus or preponderance of authorities of the doctors and Jurists of the later time.

8. The last question as now formulated is in the following terms:‑ "How are the Courts to be guided in case of conflict of views amongst the founders of different Schools of laws and their disciples, other A'imma and Faqihs" ? In the earlier part of the judgment I have fully discussed this aspect of the case. Under the present circumstances, I am firmly of the opinion that the question of differing from the views of A'imma and Faqihs should be resolved according to the doctrine of Taqlid referred to and discussed above. If their interpretation had been accepted as correct by preponderances of authority of the doctors of the later time it should be accepted without any demur.

9. In conclusion I would like to point out that most of the difficulties which have arisen in answering the questions referred to the Full Bench can be resolved by proper legislative measures. After the introduction of important directive principles in this behalf in 1962 Constitution, the responsibility to implement them is on the State and the Legislative Authorities. It is for them to take measures to have an authoritative codification of rules derived from the Shariat. Majalla which is an out standing achievement of the old Turkish rulers, can be a good basis for meeting the present‑day requirement and solving this controversial issue. ANWARUL HAQ, J.‑I have read with great care and interest the very learned, illuminating and elaborate opinion proposed to be delivered by Muhammad Yaqub Ali, J. I have also had the benefit of seeing in advance the differing views so ably put forth by my learned brother Wahiduddin Ahmad, J. It is not my intention to embark upon any detailed discussion of the questions referred to the Full Bench but, in view of the far‑reaching importance of the issues involved, I deem it necessary to clearly state my own position in the matter.

2. Perhaps, for facility of reference, it would be well to reproduce here the questions which we have been called upon to answer: (i) What are the sources of Muslim Law? (ii) What are the rules of interpretation of Muslim Law, and can Courts differ from the views of Imams and other juris‑consults of Muslim Law on grounds of public policy, justice, equity and good conscience? (iii) How are the Courts to be guided in case of conflict of views among the founders of different schools of Muslim Law and their disciples, other A'imma and Faqihs? (Question as amended by the Full Bench)?

3. The first question has been answered at great length by Muhammad Yaqub Ali, J. who has, if I may say so with respect, taken pains to bring out the importance and scope of the various accepted and recognised primary and secondary sources of Muslim Law. I have nothing to add to this part of the discussion.

4. As regards the second question, it will be seen that it consists of two parts. The first part aims at stating the rules of interpretation of Muslim Law. I respectfully agree with the answer given to this part of the question by Muhammad Yaqub Ali, J. in paragraphs 39 to 44 of his judgment. These paragraphs furnish an extremely valuable guide for anyone engaged in the task of interpreting and applying Muslim Law.

5. The answer to the second part of the second question, namely, as to the competence of Courts to differ from the views of earlier A'imma and Faqihs on the grounds of public policy, justice, equity and good conscience, is clearly not free from difficulty and controversy. Moreover, there are several aspects to it. In the first place, the question is whether the Courts can put their own interpretation on the Qur'an. There is no doubt that in the case of Agha Muhammad Jafar v. Kalsum Bibi (24 I A 196) the Judicial Committee of the Privy Council did observe that "it would be wrong for the Courts on a point of this kind to attempt to put their own construction on the Qur'an in opposition to the express ruling of commentators of such great (antiquity and high authority (as the Hedaya and the Fatawa‑i‑Alamgiri)", yet this view has not been followed by this Court in recent years. In Mst. Balqis Fatima v. Najm‑ul‑Ikram Qureshi (P L D 1959 Lah. 566), Kaikaus, J. who delivered the judgment of the Full Bench, observed as follows (in paragraph 27 of the judgment on page 584 of the Report):‑ "The third reply is that we are really dealing with the interpretation of the Holy Qur'an and on a question of inter pretation we are not bound by the opinions of jurists. If we be clear as to what the meaning of a verse in the Qur'an is, it will be our duty to give effect to that interpretation irrespective of what has been stated by jurists. `Atiullah‑ha wa Ati‑ur‑Rasul' is the duty cast on the Muslim and it will not be obedience to God or to the Prophet if in a case where our mind is clear as to the order of the Almighty or the Prophet we fail to decide in accordance with it . . . . . ."

6. This question was also discussed at some length by Muhammad Shafi, J. in Mst. Rashida Begum v. Shahab Din and others (P L D 1960 Lah. 1142). On page 1153 of the Report the learned Judge has expressed himself as under:‑‑ "Thus it is quite clear that reading and understanding the Qur'an is not the privilege or the right of one individual or two. It is revealed in easy and understandable language so that all Muslims if they try may be able to understand and act upon it. It is thus a privilege granted to every Muslim which cannot be taken away from him by anybody, however, highly placed or learned he may be, to read and interpret Qur'an. In understanding the Qur'an one can derive valuable assistance from the commentaries written by different learned people of yore, but then that is all. Those commentaries cannot be said to be the last word on the subject. Reading and understanding the Qur'an implies the interpretation of it and the interpretation in its turn includes the application of it which must be in the light of the existing circumstances and the changing needs of the world . . . If the interpretation of the Holy Qur'an by the commentators who lived thirteen or twelve hundred years ago is considered as the last word on the subject, then the whole Islamic society will be shut up in an iron cage and not allowed to develop along with the time. It will then cease to be a universal religion and will remain a religion confined to the time and place when and where it was revealed . . . . . ."

7. It may be stated that, on this view of the matter, Muhammad Shafi, J. proceeded to examine the various verses of the Qur'an of the question of the guardianship of minors and came to the conclusion that "there is no provision in the Holy Qur'an that a woman should be bereft of the child if she marries a man not related to the minor within the prohibited degrees".

8. With great humility I venture to submit that it would not be correct to lay it down as a positive, rule of law that the present‑day Courts in this country should have no power or authority to interpret the Qur'an in a way different from that adopted by the earlier jurists and Imams. The adoption of such a view is likely to endanger the dynamic and universal character of the religion and laws of Islam. At the same time, it is clear that the views of the earlier Imams and jurists are entitled to the utmost respect, and no Court or Commentator would differ from them except for very compelling and sound reasons. I would also like to make it clear at this stage that this difference of interpretation does not, and cannot, mean a departure from a clear injunction of law as contained in the Qur'an or Sunnah, or even Ijma, on any grounds of equity, good conscience or public policy.

9. The next aspect which needs consideration in this behalf is whether the Courts can differ from the views of Imams and other juris‑consults of Muslim Law on grounds of equity and public policy. It is clear that this part of the question does not relate to the interpretation of the Qur'an or Sunnah, nor to the interpretation and application of Muslim Law as laid down by Ijma'. It obviously refers to that field of Muslim Law which is coveted by Qiyas, Ijtihad, Istihsan, Istislah and Istidlal. Here we are face to face with the doctrine of what is called Taqlid in Muslim Jurisprudence. Relying upon certain decisions of Indian High Courts and an extract from the well‑known book on Muhammadan Juris prudence by Sir Abdur Rahim, my learned brother Wahiduddin Ahmad, J. has expressed the view that "nothing has happened since the above decisions were announced to justify any departure from the principle of interpretation recognised in them. I would, therefore, hold that it is not open to the Courts of Law to differ from the views of Imams and Jurists of Muslim Law if it is in accordance with the consensus or preponderance of authorities of the doctors and jurists of the later time". As against this view, my learned brother Muhammad Yaqub Ali, J. has stated (in Paragraphs 25 and 45 of his judgment) that "a Qazi or a Court of law may differ with the Qiyas of earlier A'imma and Faqihs, but that will be on the basis of interpretation and extension of the rule of decision contained in Qur'anic and Traditional text or Ijma' and not on the basis of what appears to be more agreeable to the Judge". His Lordship has further expressed the view that "the application of Qiyas cannot, there fore, be limited to the earlier doctors nor their opinion, though entitled to utmost respect, be considered as binding for all times to come. The fact that the great Imams and their disciples have differed among themselves on numerous rules of decision as well as their details also furnishes further warrant for it".

10. It appears to me that before dealing with this aspect of the second question, it would be more appropriate to refer to the third question before us, as that has a direct bearing on the question as to how far the Courts can differ from the earlier A'imma and Faqihs of Muslim Law. Both my learned brothers (Muhammad Yaqub Ali and Wahiduddin Ahmad, JJ.) have rightly narrated the various categories into which the earlier Muslim Jurists are usually classified by writers on Muslim Jurisprudence. They have also described the rules which obtain in the matter of giving preference to the opinion of one category of jurists as compared to those falling in a lower or a higher category, and I have nothing useful to add to that discussion except to say that I agree with the answer to the third question, as summed up by Muhammad Yaqub Ali, J. in paragraph 48 of his judgment.

11. However, even when the correct view (i.e. the view which should prevail according to the rules laid down by the earlier Muslim jurists) of a particular school of Muslim Law on a given question of law has been ascertained, the question still remains whether the Court which is called upon to decide that case has the power or authority to differ from the view of the earlier jurists. The need for such difference may arise on account of several reasons, such as, for instance, a sincere conviction in the mind of the Court that the rule as laid down by the earlier jurists is not correct according to the Qur'an and Sunnah; or that the rule is no longer appropriate or equitable in the changed circumstances of the present day Muslim society to which the Judge belongs, and that its operation will work undue hardship on one or both the parties before him. It has already been stated that this part of the question does not extend to the law as contained in the Qur'an, Sunnah or Ijma, and, therefore, the question really narrows down to whether we are to adopt the doctrine of Taqlid in all its rigour or whether we are to keep the door of Ijtihad open.

12. I find that even in the cases to which my learned brother Wahiduddin Ahmad, J. has referred, there are clear indications that the Court is not precluded from giving effect to considerations of equity, justice and good conscience. For instance, in Aziz Banu v. Muhammad Ibrahim Hussain (A I R 1925 All. 720), the following observations appear in the judgment of Sulaiman, J. on page 728 of the Report:‑ "Even apart from all these considerations it is the duty of Courts, in cases of divergent opinion, when it seems impossible to ascertain the comparative merits of the autho rities, to accept the view which is more in accordance with equity, justice and good conscience. Mr. Ameer Ali in his preface to the third edition at page 7 has referred to the important rule to which attention has been called by Sir William Jones that: "When the great expounders of Musalman Law have enunciated divergent doctrines or expressed different opinions, the Judge administering Musalman Law is to adopt the one most conformable to equity and the requirements of the times." Mr. Tyabji also in his book on Muhammadan Law, para graph 11 (a) pointed out; When Musalman jurists of authority have expressed dis sentient opinions on the same question the Islamic Courts presided over by a Qazi have authority to adopt that view which in the opinion of the presiding officer is most in accordance with justice in the particular circumstances."

13. Again, in Anis Begum and others v. Muhammad Istafa Wali Khan (55 I L R 743), Sulaiman, C. J. while observing that "it would not be proper now to go behind such a consensus of opinion and decide a point contrary to such opinion, on the ground that the majority of the. three Imams favoured that view in the earlier centuries", went on to say that: "But if in any case the later jurists have not adopted in clear language any one of the conflicting opinions, but have merely stated the conflicting opinions without expressing any preference for either, then it is implied that the conflict of opinion was still continuing without any general concurrence having been attained, and it would then be open to choose whichever of the opinions appears to be the sounder and better adapted to the conditions and the needs of the times".

14. While dealing with the subject of Ijtihad and Taqlid in his book `The Principles of Muhammadan Jurisprudence', Sir Abdur Rahim has, on page 188, indicated the rule which is to be observed in case of conflict of opinion among the earlier jurists, but the discussion of the subject is, however, not concluded by him on that page, and the observations of the learned author himself are contained on pages 190 to 192 of the Book (1958 Edition). It will be instructive to give here a few extracts from these observations: "It is to be observed that so far as the administration of justice is concerned it was mainly the appointment of corrupt and incompetent Qazis that led to the formulation of the doctrine of Taqlid in its present form. That the simple remedy of appointing competent men as judges and in other ways securing a proper administration of justice should not have been sought, is apparently due to the fact that the Shari'at or the Islamic Code except during the age of first four Caliphs and for some brief period of time afterwards never had the full support of the heads of the State, who more often than not assumed powers which the law did not concede to them, and in their conduct isolated its vital principles. It is con tended that Taqlid introduces the principles of certainty and uniformity in the administration of laws; but it may be doubted whether this advantage is not greatly outweighed by the danger that the rule, if narrowly interpreted, might put obstacles in the way of progress and development of law. Besides it must not be overlooked that Islamic Jurisprudence which accords an absolute authority to Ijma' or consensus of opinion furnishes by that doctrine a guarantee against such uncertainty in the administration of law as is capable of being avoided. "In support of Taqlid it is further contended that at least since the fifteenth century, it had the implied support of the Sunni lawyers and would thus be covered by the principle of Ijma'. But the fact supposing it to be so would not, as I have pointed out, bring the rule within the purview of Ijma'. . . . . . . The lawyers who gave currency to the doctrine, in fact, emphatically lay down, that on questions which have not been clearly pronounced upon by Mujtahids of the first three degrees especially the first and the second, the Mufti and the Qadi, in applying the law must have regard to the change in the circumstances of society, which indeed is in accordance with the vital principles of the system. If this be borne in mind along with the fact that the questions on which Abu Hanifa and his disciples agree are but few, and that they or the later jurists of recognised authority the last of whom lived in the fourteenth century, could not have anticipated most of the questions which now‑a‑days arise under different combinations of circumstances, and that the doctors who devoted themselves to the task of collecting and sifting the dicta of ancient jurists disagree among themselves as to which of the various conflicting versions of their views is correct, the doctrine of Taqlid should not stand in the way of substantial justice or of the progress of laws in accordance with an advanced society . . . . . ."

15. My answer, therefore, to the second question referred) to the Full Bench is that the rules of interpretation of Muslim Law are as stated by my learned brother Muhammad Yaqub Ali, J.; that the Courts must be given the right to interpret for themselves the Qur'an and Sunnah; and that they may also differ from the views of the earlier juris‑consults of Muslim Law on grounds of Istihsan (i.e., equity) or Istislah (i.e., public good) in matters not governed by a Qur'anic or Traditional Text or Ijma or a binding Qiyas. At the same time, it must be reiterated that the views of the earlier jurists and imams are entitled to the utmost respect and cannot be lightly disturbed, but the right to differ from them must not be denied to the present‑day Courts functioning in Pakistan, as such a denial will not only be a negation of the true spirit of Islam, but also of the constitutional and legal obligation resting on all Courts to interpret the law they, are called upon to administer and apply in cases coming before them. K. B. A. Reference answered.