P L D 2004 Federal Shariat Court 1 (PLP)

2. We have given our anxious consideration to the points raised by the petitioner and besides going through provisions of the Ordinance and Rules, also considered import of the above mentioned Holy Verse, as applicable in the context of instant petition. It may be pertinent to mention right in the beginning that the Ordinance and the Rules place no embargo on keeping of weapon for the purpose of self‑protection as well as protection of honour and property but, as highlighted in its preamble itself, only aims at consolidating the law relating to the sale, transport, bearing or possession' of arms ammunition for military store, by making certain rules and regulations for the same. The only 'purpose of the Ordinance and Rules appears to regularise the possession of weapons etc. and thereby, check misuse of the same, so that the lives and properties of innocent people are properly safeguarded.

3. It may , be mentioned that Islamic Shariah empowers the authorities in, power to make legislation for all matters which are not specifically covered by the Injunctions of Islam, as contained in Holy Qur'an and Sunnah of the Holy Prophet The Holy Prophet has made it explicitly clear that Almighty Allah has revealed Commands for certain things but has left out many other matters for consideration by the Ummah to make laws for the same if they feel the necessity to do so. The only condition, particularly imposed and emphasized upon in this connection, is the requirement that the legislation must be in accordance with the Injunctions of Islam and no law shall be enacted which is repugnant to such injunctions. At the time of revelations, the Muslims were strictly directed to abstain from asking questions from the Holy Prophet, in respect of matters intentionally left out by the Injunctions. Verse No. 101 of Surah No.5 which follows is very clear in this respect. The said' verse reads as under: "O. ye who believe; ask not of things which, if they were made known unto you, would trouble you, but if ye ask of them when the Qur'an is being revealed they will be made known unto you. Allah pardoneth this, for Allah is Forgiving, Clement. (5:101) The Holy Prophet (peace be upon him) while explaining the point further is reported to have said:‑‑

4. The inference drawn from the above Verse and Hadith is states to be the fact that while some Injunctions were revealed in respect or matters which are permanent in nature and scope and are not liable to be changed, while some matters were left out to the discretion of Ummah so that, while keeping in view the principles and broad outlines contained to the permanent Injunctions, they should make laws according to their requirements, from time to time. This flexibility, based on the eternal principles, has made the Islamic System a solid rock to always stand the test of time everywhere. The institution of Ijtihad has played a vital role in the evolution of laws and making them progressive, modern and dynamic. It has been held that where there is no explicit provision in the Holy Qur'an and Sunnah, the legislative body may enact laws in respect of the same while keeping in view the general spirit of Islam. Allama Abdul Aziz Amir, a renowned authority on Islamic Law, has rightly pointed out that the Ummah may consider enactment of various laws according to the requirement of its people from time to time. He writes:‑‑ Most of the details of crimes and their punishments have been left out, to the discretion of rulers, so that they may declare acts as crimes and determine punishments for them, appropriate for their age and generation.

5. So it follows that wherever and in whatever matters the specific guidance is not available from the Qur'an, the Sunnah, or the conventions of the early periods of Companions of .the Prophet the Ummah is authorized to legislate, through their qualified representatives, in respect of the same according to' their requirements. The principle governing such situations is that whatever has not been disallowed is allowed.

6. Legislation in Islam, in fact, is mainly based on public welfare and "Maslaha". Imam Ghazali defines "Maslaha" (public welfare) as the establishment of a legal principle for which there is no evidence in the source, but which is recommended by reason as advantageous. The rightly guided Caliphs have also followed the principles of "Maslaha". The Muslim Jurists have relied upon various examples of their rulings. Ali Hassaballah has highlighted several such rulings e.g. judgment of Hazrat Umar in the case of Mawalafat ul Qulub, supension of punishment of Hadd in the year of famine, suspension of the punishment of sending in exile for the "Zani" etc. (Usual al Tashria al Islami, page 149).

7. There are a number of legal maxims laying down rules for the application of the principle of "Maslahah". This principle defines the limit within which the rulers can exercise their administrative and political authority and take measures for the protection of the rights and freedom of the masses so as to establish .law and order and maintain justice. The concept of justice is eternal but its dynamics may change in the changing circumstances. A certain law may be just in one time but may entail injustice at another time and in another context. Abdul Azizl Amir writes: (Whatever is not treated as a crime in a particular era and country may be treated as crime in other era and country and vice versa).

8. Another significant feature of Islamic legislation worth mentioning is that every harm and corruption, in whatever form and whatever degree and proportion it may be, should be removed and exterminated as far as possible. Dr. Farooq al Nabhan writes: "Islamic law is based on' the principle of gaining public interest and warding off harms. If the commission of any action of a human being causes harms to the public, then he will be prohibited from the using of the same right. So that the basic legal maxim may be implemented, i.e. to ward off harm has priority over gaining interest."

9. The same opinion has been supported by the internationally acknowledged scholar and authority on Islamic Law, namely Abdul Qadir Audah, He writes: "The approach of the Legislature to penal crimes varies with lands and customs. The same act may be declared by the Legislature of one State as lawful and by that of another an unlawful. Similarly the Court of one country may award punishment for an at on grounds other than the Court of another country may do so."

10. In this respect Shariah has given vast power to the authorities in power to enact appropriate laws for the public welfare. Here we may refer to a legal maxim laid down by the Muslim Jurists which is as follows:‑‑ "The ruling of a ruler over his subject is based on their welfare. (Majallah, Article 558)." The maxim has been derived from the following verses. The Holy Qur'an says: "O, you who believe, Obey Allah, Obey the Prophet and those who are in power among you." (4:58). Explaining the above verse, Abdullah Yousaf Ali writes; "As Islam makes no sharp division between sacred and secular affairs, it expects ordinary Government to be imbued with righteousness, and stand in the place of the righteous Imam, and we must respect and obey such authority, otherwise there will be no order or discipline". (Commentary on Holy Qur'an by Abdullah Yousaf Ali, page 198).

11. Another basic principle which naturally follows in Islamic Shariah is that if a permissible act becomes a source of trouble and harm to the public, it will be prohibited in the interest of the public. In this connection a famous contemporary scholar Ali Hasabullah writes: "When it appears in some matters that to act therein according to the text ( ) (of Holy Qur'an or Sunnah) or analogy do not fulfil the requirements of Maslaha (public welfare) but rather it amounts to mischief or harm (to the public); such act will be suspended (prohibited) in such critical situation for the achievement of public weal. (Usual al Tashri'a al Islami, p.160). Explaining Maliki opinion in this regard, Abdul Aziz Amir writes: "Some times the commission of an act in itself is permissible but it, amounts to a mischief or public harm. According to the majority of the Maliki jurists such act in such context will be prohibited as preventive measure and the violation of such prohibition should be made punishable with Tazir if punishment has not been prescribed therefor." (Al‑Tazir fi al shariah al‑Islamiyyah, p.85).

12. In view of the above we have come to the conclusion to hold that the impugned law and rules having, been duly made for the general welfare and security of Umma at large are not against the Injunctions of Islam.

13. Regarding the imposition of fees for keeping arms, we may refer here to a judgment of this Court reported. as PLD 1992 FSC 329 wherein, inter alia, it has been held that:

14. Consequently for the reasons stated above, we find this petition misconceived and therefore, dismiss it accordingly in limine. M.B.A./9/FSC Petition dismissed.