P L D 2017 Federal Shariat Court 33 (PLP)

Dr. ALLAMA FIDA MUHAMMAD KHAN, J.

By this Shariat Miscellaneous Application Shahid Orakzai, hereinafter called the petitioner, has challenged the conventional condemnation/stoning of 'Shaitan' by the Pilgrims and has questioned whether this rite or act is included in the Manasik-e-Hajj by the Qur'an or whether Prophet Ebrahem or any Prophet of Allah from among his children did ever perform this rite.

2. The petitioner has cited Verses Nos. 125, 130, 198 and 200 of Surah Al-Baqrah, Verse No.67 of Surah Al-Ankaboot, Verse No.35 of Surah Ebrahem, Verses Nos. 95 and 97 of Surah Aal-e-Emran, Verse No.27 of Surah Al-Qasus. Placing reliance on the same he has submitted that these Verses pertaining to Hajj do not make any mention of "stoning the Shaitan". He has prayed the Court to:-- * declare the act of condemning Shaitan by stoning, called 'Rammi' as it has absolutely no religious link or spirital connection with Prophet Ebrahem and Prophet Muhammad the Last of the Prophets; * instruct the Federal Government to take steps to prevent the said practice by the citizens of Pakistan as well as the pilgrims in general; and * any other remedy under the Constitution and the law when this petition is accepted with costs.

3. We have heard the petitioner in detail. The crux of his contentions can be summed up as follows:- * rammi has no religious link with Hajj and is not mentioned in the Holy Qur'an or in any previous Book of Allah; * this has not been performed by any Prophet of Allah particularly the Prophet Ebrahem who is the architect of Ka'ba; * the guide book officially provided to the pilgrims is absolutely false and baseless. Therefore, the providers of this book may be declared as Sufahaa (senseless People); and * since Ka'ba being a home of Allah ensures "Amn" (peace and security), therefore, the said "Sufahaa" may be prevented from making it a house of death and danger.

4. The petitioner contended that this custom has been causing lot of casualities and, in view of Article 5 as well as Article 9 of the Constitution, it is responsibility of the State to ensure security of its citizens anywhere in the world. According to the petitioner this custom has no link with performance of Hajj as it is not mentioned anywhere in the Holy Qur'an or in any other former Book revealed by Allah to His Prophets.

5. Before discussing the instant petition, we deem it pertinent to mention that casting pebbles at the pillar/monument (Jamrah), symbolically considered as Shaitan, is unanimously held as a mandatory part of Hajj by Muslim Jurists of all schools of thought. Anybody who fails to do so, personally or in case of women or disabled persons, by representation, has to offer an additional sacrifice as compensation (Jinayet) according to all the prominent Muslim Jurists. (Al-Fiqhal Islami-wa Addilatuhu Vol. III p.236 and 245). Since this portion of the rituals as well as wearing of unstiched sheets for Ehram and other necessary important details (which are not mentioned in the Holy Qur'an) are mentioned in the Sunnah of the Holy Prophet we would like to add that Sunnah is nothing else but in fact an elaboration/explanation of the Injunctions of Islam as revealed to the Holy Prophet who was entrusted with the obligation of reciting the Holy Qur'an as well as teaching the Injunctions contained in the Holy Qur'an. It can be easily understood from the following Verses where the four functions of Nubuwwat have been very explicitly mentioned. Our Lord! raise up from among them a Messenger who shall recite to them Your Revelations, and teach them the Book and the wisdom, and purify their lives. Indeed You alone are All-Mighty, All-Wise." (2:129) "Likewise We have sent to you a Messenger from among yourselves who recites to you Our Revelations, purifies your lives, and teaches you the Book and the wisdom and teaches you what you did not know." (2:151) "It is He who raised among the illiterate people a Messenger from among themselves who recites His Verses to them, purifies their lives and teaches them the Book and the wisdom. Indeed they were clearly in error" (62:2). " ......... and We have sent to you this Revelation (Reminder) so that you may explain distinctly to people what was sent down to them, so that they may reflect." (16:44)

6. A bare reading of the above mentioned Verses reveals that the Messenger of Allah was not only the recipient of the Divine Revelation, contained in the Holy Qur'an, he was also its utmost authentic teacher, interpreter and expounder. The Sunnah (i.e. sayings, actions and tacit approval), in fact, represents the Holy Qur'an in practice. It embodies and radiates the perfect model in both space and time. Hazrat Ayisha when asked about the conduct of the Holy Prophet , rightly said "His entire life was a complete reflection of the Qura'nic Injunctions" The reason for this has been explained in the following Verses:- "He does not speak out of his (own) desire. His speech is nothing but outright Revelation, which is sent down to him" (53:3, 4) "Say: "I just follow that which is revealed to me from my Lord". (7:203) "Say:"............. I just follow that Revelation which is sent to me." (46:9) "Say: "If you love Allah, then follow me so that Allah may love you and forgive you your sins, and Allah is Most Forgiving, Ever-Merciful." (3:3 1) "You have indeed a most beautiful and perfect model (of life) for all those who are certain about meeting Allah and the last day and remember Allah most frequently." (33:21) The Holy Qur'an has given complete injunctions, principles and precepts for guidance which contain all that is required for this purpose. For the sake of practical implementation of the Injunctions and manifestation of the principles, however, Almighty Allah (SWT) commissioned the Holy Prophet and assigned him the duty to explain as well as demonstrate by his personal example all that which was actually required. Thus he set a perfect model which was shown to the people to be followed in letter and spirit.

7. This is an undeniable fact that one will never be able to act upon any Islamic Injunction, in accordance with the Holy Qur'an, without following Sunnah of the Holy Prophet . Not to speak of civil, criminal and personal laws etc, one would not be able to take even a step to implement the Injunctions concerning ....... like ....... ....... .......etc. as these terms are not explained, not even defined, in the Holy Qur'an. In this view of the matter, we have to follow the Sunnah where we find that was practiced by the Holy Prophet , his companions (raa) and millions of the succeeding generations, ever since 9th Hijra when Hajj was made mandatory for all who could afford, till date. The continous, constant, consistant, incessant practice of ........ during the past 1429 years, provides an irrefutable proof that is an integral part of Hajj. Regarding the pelting of pebbles at Jamarat the following Hadith out of dozen others on this subject suffices:- "Anas b. Malik (Allah be pleased with him) reported that Allah's Messenger came to Mina; he went to the Jamrah and threw pebbles at it". (Hadith No. 2991, Chapter CDXCIX Sahih Muslim).

8. Regarding the casualties during it is needless to mention that these are caused by the negligence of or violation of traffic rules by the pilgrims and have nothing to do with the mustard- size pebble being cast at . Similar incidents of fatal casualties always happen in and even during and also, due to stampede etc. but the rituals necessary for performing cannot be left out for that reason. The Government of Saudi Arabia always makes hectic efforts, best possible arrangements and take all precautionary measures to save people from such unhappy accidents but the negligence, haste etc. by the pilgrims themselves result in so many unfortunate casualties at as well as at other sacred places while performing mandatory rituals.

9. We have anxiously considered the contents of the petition as well as contention raised by the petitioner. In this connection we may point out that this Court, being the creation of Constitution of Islamic Republic of Pakistan, can only perform its functions under the jurisdiction granted by the Constitution. The relevant Article dealing with the powers and functions of this Court is mentioned hereunder:- "203D(1) The Court may, [either of its own motion or] on the petition of a citizen of Pakistan or the Federal Government or a Provincial Government, examine and decide the question whether or not any law or provision of law is repugnant to the Injunctions of Islam, as laid down in the Holy Qur'an and the Sunnah of the Holy Prophet."

10. Obviously the petitioner has challenged no law or provision of law as required under the above provision.

11. The petitioner was reminded of the constitutional requirement but he could not persuade us to bring his petition under the ambit of constitutional provision which confers jurisdiction upon this Court. 12 In view of the above this petition being mis-conceived is accordingly dismissed in limine. MWA/13/FSC Petition dismisse