Repugnancy to Injunctions of Islam

Penal Code (XLV of 1860), Ss. 496-B & 496-C [as inserted by S. 7 of Protection of Women (Criminal Laws Amendment) Act (VI of 2006)]

Shariat petition

Fornication and false accusation

Repugnancy to Injunctions of Islam

Petitioner assailed provisions of Ss. 496-B & 496-C, P.P.C., as un-Islamic

Validity

All those sections which were introduced in Penal Code, 1860, by virtue of Protection of Women (Criminal Laws Amendment) Act, 2006, were primarily considered as Islamic for either akin, auxiliary, analogous or supplementary to or germane with Hudood Offences, hence were declared to be included within the scope of term "Hudood"

As a consequence of such declaration, it was decided that appeal against a decision/judgment of any case by Trial Court involving section in question shall lie to Federal Shariat Court under Art. 203DD of the Constitution

Federal Shariat Court in its earlier judgment clearly defined term "Hudood" which included those offences which were introduced by Protection of Women (Criminal Laws Amendment) Act, 2006, in Penal Code, 1860

Federal Shariat Court declined to interfere in the matter which had already been decided earlier and was subject matter of appeal pending before Shariat Appellate Bench of Supreme Court

Shariat petition was dismissed, in circumstances.

Petitioners were aggrieved of provision of S. 14(2)(b) and (c) of Family Courts Act, 1964 curtailing right of appeal for maintenance fixed for a meager amount of Rs.5000/- in aggregate and sought it to be declared as un-Islamic

Validity

In view of the provisions of Art. 203D of the Constitution, it was essentially the authority of the Federal Shariat Court, if any, to declare any law repugnant to Injunctions of Islam

Jurisdiction of High Court in such regard was expressly barred under Art. 203G of the Constitution

High Court declined to declare provision of S. 14(2)(c) of Family Courts Act, 1964, repugnant to Injunctions of Islam.

Provision of Art. 203B(c) of the Constitution envisages that law to be examined and decided, inter alia, includes any custom or usage having the force of law but does not include the Constitution, Muslim Personal law and any other law relating to procedure of any Court or tribunal

Such bar in the Constitution itself under Art. 203B(c) of the Constitution does not empower Federal Shariat Court to examine any Article of the Constitution

Shariat petition was dismissed as being not maintainable.

Present Shariat petition was not maintainable as it was in direct conflict with Art. 17(2) of the Constitution, which makes it a fundamental right of every citizen of Pakistan to form a political party or to be a member of any political party

Formation and presence of a political party within the country is one of the fundamental rights given by the Constitution, which is guaranteed and also protected by the Constitution

Shariat petition was dismissed as being not maintainable.

Practices of raising objections on the working of a government in a society in a civil and democratic way is a part of a consultative process, which cannot be done in the absence of persons of different political thoughts and groups or political parties and same is the purpose of the impugned law i.e. the Political Parties Order, 2002

To have a constructive, healthy consultative process i.e. Shurah can only be promoted through the political parties of a polity, and that is the main purpose of the impugned law according to its Preamble

Articles 3, 4 & 5 of the Political Parties Order, 2002 were not against the inunctions of Islam.

Islam promotes protection and promotion of life or Hifz al-Nafs, and, protection and promotion of progeny or Hifz al-Nasl, which are two of the five basic goals of Shariah (Maqasid Al Shariah)

Therefore, on the basis of these two principles of Shariah, the medical treatment of intersex persons to treat any physical and biological infirmity in their sexual organs and reproductive system is not only permissible but desirable under Shariah Law according to the Islamic injunctions

In accordance with these principles of Shariah, any medical treatment and cure of intersex persons which helps them in their complete sex affirmation as either male or female is preferable under the principles of Maqasid Al Shariah.

According to the wordings of S. 7(2) of the impugned Act, the share in inheritance of a transgender person shall be determined as per his/her gender declared on CNIC, which means if a woman starts feeling that she is a male person and gets herself registered as a male person in the record of National Database and Registration Authority (NADRA) and accordingly gets CNIC, then she will be entitled to get the share of a male out of the inheritable property

All the directions of Islam regarding division and distribution of inheritance shares are based on the basis of sex of the legal heirs of a deceased; it is the sex of a person, which has the defining status to decide how much share that person will get from the inheritance

Male person cannot get the share of a female person and a female person cannot get the share of a male person

Therefore, the right to inherit as mentioned in S. 7(2) of the impugned Act is against the injunctions of the Islam as laid down in the Holy Quran and Sunnah of the Holy Prophet (pbuh) and will cease to have any legal effect immediately

Any provisions of the Transgender Persons (Protection of Rights) Rules, 2020 relating to S. 7(2) of impugned Act, shall also cease to have legal effect

Shariat petitions were disposed of.

Duty of establishing rights and duties, to enjoin good and forbid evil in a society according to the dictation of Allah and His Prophet (SAW) is clearly and categorically placed by the Almighty Allah upon Muslim men and women equally, which is the prime responsibility of the Judiciary in any society

Contention that the words "she" and "her" are alien to the chapter of Judicature of the Constitution, is misconceived as use of the masculine gender in any statute and law includes female unless there is anything repugnant in the subject or context

Said principle of law is contained in S. 13 of the General Clauses Act, 1897, and also in Art. 263 of the Constitution

Islam is the only religion which is based upon a revealed book of Allah in which a substantial portion of beliefs and practices are based on those traditions or Hadiths which are narrated by female companions of the Holy Prophet (PBUH) in general and by the wives of the Holy Prophet (SAW) in particular

Great portion of Islamic religion, faith, beliefs and practices are transmitted to the Ummah through these highly exalted and revered ladies i.e. the Mothers of the Faithful, which tells one of the actual elevated status, whereupon Islam places women

Some Umahat al-Moomineen would give Juristic opinions commonly called the 'Fatwas'

Books of Ahadith including Sahih Bukhari and Sahih Muslim contain Fatwas of Hazrat Ayesha (RA) i.e. the legal opinions of Hazrat Ayesha (RA) so much so that there are reported instances where very senior Ashaab al-Rasool (RA) sought legal opinion from Hazat Ayesha (RA)

In the light of such strong tradition and history of Islam which acknowledges the legal and jurisprudential scholarship of women, the appointment of female judges subject to the provisions of any law and the Constitution is not against the injunctions of Islam as laid down in the Holy Quran and Sunnah

Shariat petition was dismissed.

Loan that draws any additional amount which is normally called as interest is Riba; be it the amount taken by the banks from their customers upon lending them loan for any purpose or be it the payment made by the banks to its customers against their deposits which they maintain with the banks

Shariat petitions were allowed.

Shariat petitions were allowed.

Concept of Riba according to Injunctions of Islam in the light of Holy Quran and Sunnah of the Holy Prophet (SAW) and views of Muslim jurists stated.

Question as to whether interest or Riba becomes permissible if a transaction is undertaken or made in the name of a business

Held, that all or any transaction undertaken by a bank, if it involves interest or Riba at any percentage, less or more, in any form simple or multiplied or compound, is prohibited and haram

Banking itself per se is neither permissible nor impermissible according to the Injunctions of Islam in the light of the Quran and Sunnah, and it is actually the nature of transaction which it undertakes that makes it permissible or impermissible

If its transactions are Shariah compliant then it is permissible ,and if they are not Shariah compliant or there are doubts about them of being Shariah compliant, then such transactions are impermissible and against the Injunctions of Islam

Shariat petitions were allowed.

Civil Procedure Code (V of 1908), Ss. 2(12), 34, 34-A, 34-B, 35(3) & 144(1) & O. XXI, R. 11(2)(g), O. XXI, R. 38, O. XXI, R. 79(3), O. XXI, R. 80(3), O. XXI, R. 93, O.XXXIV, Rr. 2(1)(a)(i), 2(1)(a)(iii), 2(1)(c)(i) & 2(1)(c)(ii), O.XXXIV, R. 2(2), O.XXXIV, R. 4, O.XXXIV, Rr. 7(1)(a)(i), 7(1)(a)(iii), 7(1)(c)(i) & 7(1)(c)(ii), O.XXXIV, R.7(2), O. XXXIV, R. 11, O.XXXIV, R. 13 (1), O.XXXVII, R. 2 & O.XXXIX, R. 9

Co-operative Societies Act (VII of 1925), Ss. 33-A, 50, 59(2)(e), 71(2)(m) & 71(2)(ee)

Co-operative Societies Rules, 1927, Rr.14(1)(h), 22 & 41 & Appendices 1 to 4

West Pakistan Money-Lenders Ordinance (XXIV of 1960), Preamble

Sindh Money-Lenders Ordinance (W.P Ordinance XXIV of 1960), Preamble

Khyber Pakhtunkhwa Money-Lenders Ordinance (W.P. Ordinance XXIV of 1960), Preamble

West Pakistan Money-Lenders Rules, 1965

Agricultural Development Bank Rules, 1961, Rr. 17(1), 17(2) & 17(3)

Banking Companies Ordinance (LVII of 1962), S. 25(2)(a)

Banking Companies Rules, 1963, R. 9

Banks (Nationalization) Payment of Compensation Rules, 1974, R. 9

Defense Saving Certificates Rules, 1966

Special Savings Certificates Rules, 1990

Legal Practitioners and Bar Councils Act (XXXV of 1973), S. 61(2)(c)

Life Insurance Nationalization Order (President's Order No. 10 of 1972), Preamble

War Risks Insurance Ordinance (XXXII of 1971), Preamble

Federal Employees Benevolent Fund and Group Insurance Act (II of 1969), Preamble

War Risks Insurance Ordinance (XXVI of 1965), Preamble

Riots and Civil Commotion Risks Insurance Ordinance (III of 1947), Preamble

War Injuries (Compensation) Insurance Act (XXIII of 1943), Preamble

Shariat petitions

Riba/interest

Repugnancy to Injunctions of Islam

Federal Shariat Court declared that the Interest Act, 1839, the West Pakistan Money-Lenders Ordinance, 1960, the Sindh Money-Lenders Ordinance, 1960, the Khyber Pakhtunkhwa Money-Lenders Ordinance, 1960, the West Pakistan Money-Lenders Rules, 1965, Section 10 of Government Savings Banks Act, 1873, Sections 78, 80, 114 and 117(c) of the Negotiable Instruments Act, 1881 (so far as these sections are used to support or facilitate any interest bearing transaction), Sections 28, 32, 33, and 34 of the Land Acquisition Act, 1894 (so far as the word 'interest' is used in these sections within the meanings of banking interest), Section25(2)(a) of the Banking Companies Ordinance, 1962 relating to interest and mark-up, Section 61(2)(c) of Legal Practitioners and Bar Councils Act, 1973 (to the extent theword 'any interest' is used in this clause), the Defense Saving Certificates Rules, 1966, the Special Savings Certificates Rules, 1990, Rule 9 the Banking Companies Rules, 1963, Rules 17(1) & (2) of the Agricultural Development Bank Rules 1961, Rule 9 of the Banks (Nationalization) Payment of Compensation Rules, 1974, Rules 14(1)(h), 22 & 41 along with Appendices 1 to 4 of the Cooperative Societies Rules 1927 (and any circular made thereunder containing the provision of word interest), are repugnant to the Injunctions of Islam as laid down in the Holy Quran and Sunnah of the Holy Prophet (SAW)

Federal Shariat Court further declared that Sections 33-A, 50, 59(2)(e), 71(2)(m) and 71(2)(ee) of the Co-operative Societies Act, 1925, Sections 2(12), 34, 34-A, 34-B, 35(3) & 144(1) and O. XXI, R.11(2)(g), O. XXI, R. 38, O.XXI, R. 79(3), O. XXI, R. 80(3), O. XXI, R. 93, O.XXXIV, Rr. 2(1)(a)(i), 2(1)(a)(iii), 2(1)(c)(i) & 2(1)(c)(ii), O.XXXIV, R. 2(2), O.XXXIV, R. 4, O.XXXIV, Rr. 7(1)(a)(i), 7(1)(a)(iii), 7(1)(c)(i) and 7(1)(c)(ii), O.XXXIV, R.7(2), O. XXXIV, R. 11, O.XXXIV, R. 13(1), O.XXXVII, R. 2 and O.XXXIX, R. 9 of Civil Procedure Code, 1908 to the extent that the word interest appears in all these provisions are repugnant to the Injunctions of Islam hence they shall be deleted and be amended appropriately

Federal Shariat Court also declared that the Life Insurance Nationalization Order, 1972, the War Risks Insurance Ordinance, 1971, the Federal Employees Benevolent Fund and Group Insurance Act, 1969, the War Risks Insurance Ordinance, 1965, the Riots and Civil Commotion Risks Insurance Ordinance, 1947, and the War Injuries (Compensation) Insurance Act, 1943, to the extent the word interest occurred in these laws, are against the Injunctions of Islam as laid down in the Holy Quran and Sunnah, hence the same should be deleted or alternatively changed where ever possible with any of the Shariah-compliant mode which is approved by the State Bank of Pakistan.

Held, that according to the Injunctions of Islam, Pakistan is bound to fulfill all or any financial obligation regarding its foreign debt, however, if it wants to make those Riba based transactions Shariah-compliant, then it is also possible but with the mutual consent of the parties

Any interest stipulated in the Government borrowings acquired from domestic or foreign sources is Riba and clearly prohibited by the Holy Quran and Sunnah, therefore, in future the Government should adopt Shariah-compliant modes while borrowing either from domestic or from foreign sources

For future foreign borrowing there are enough Shariah-compliant modes available in the international financial market which can be used and which are well recognized by the International banks and financial institutions

Islamic finance structure savailable for financing infrastructure projects and shariah compliant solutions for foreignborrowing offered by major international banks and multi-lateral agencies stated.

Question as to whether mechanism of indexation and inflation should be adopted by the banking sector in Pakistan to balance the inherent imbalance in the economic transactions

Held, that such question did not come under the precinct of jurisdiction of the Federal Shariat Court because presently there did not exist any law which contains the said issue

At present, there did not exist any law, regulation or SRO of State Bank, etc., which deals with the question of indexation; therefore, the question of indexation and all the related questions in such regard, which are connected to the effect of inflation of money over the borrowed amount during the period of borrowing fall outside the scope of the jurisdiction of the Federal Shariat Court at the moment

Mechanism of indexation and inflation was a matter to be decided by the relevant authorities like the regulator of the banking sector, i.e., Sate Bank of Pakistan or the Government or the Parliament

Shariat petitions were allowed.

Islamic Banking or interest free banking was a reality; it was not only practical but also feasible not only in Pakistan but all across the world

Calling the Islamic Banking as a whole as heela i.e. a device to avoid what is otherwise Riba, is an unfounded and baseless argument

Products of Islamic Banking issued by the State Bank are reviewed and approved from Shariah Board of the State Bank in the light of Islamic Injunctions

Accounting standard adopted by the State Bank of Pakistan for such purpose are made and issued by a highly reputed International body of well recognized Islamic scholars of the world called Accounting and Auditing Organization for Islamic Financial Institutions (AAOIFI)

Islamic Banking is contributing a lot in bringing economic stability in the country according to its market share

Similarly, the apprehension that Islamic Banking may pose a risk to security of the country is also unfounded

State Bank of Pakistan was also making efforts to remain compatible with the international standers of Islamic Banking

Currently there are many international organizations which are systemically working on standardization of Islamic finance and Islamic banking like Islamic Financial Services Board (IFSB) and Accounting and Auditing Organization for Islamic Financial Institutions (AAOIFI)

In Pakistan a comprehensive framework exists for Sukuk (bonds) and regular issuance of Sukuk (bonds) can be used to make the financial system Shariah compliant and interest free at the Government Level

Gradual target can be set by Government to convert its entire borrowing to Islamic modes in next few years and stop issuance of interest-based instruments

Therefore, to eliminate Riba completely Federal Shariat Court directed all Public Sector entities to start dealing only in interest-free Shariah-compliant modes which are approved by the State Bank of Pakistan

Steps taken and standards adopted by the State Bank of Pakistan and Government of Pakistan through Ministry of Finance to promote Islamic Banking in Pakistan stated.

Timeline for the Government to take necessary steps for formulation of legislation which could provide enabling legal framework necessary to transform the Conventional banking system into Riba-free or Islamic banking system

Held, that under the prevalent circumstances it is appropriate and suitable for the Federal Shariat Court to set a time line for complete implementation of present decision which is also a Constitutional requirement in terms of Art. 203-D(2)(b) of the Constitution

Setting of the timeline is the requirement of the Constitution which also fulfills the requirement of Shariah as in some situations time is required for proper implementation of a Shariah ruling

Existence of Shariah Standard for Audit and Accounting approved by the State Bank of Pakistan and above all the existence of number of full-fledged Islamic Banks in the country in addition to many conventional Banks with branches or windows of Islamic Banking is ample evidence that the transformation from conventional banking system into Riba-free or Islamic banking system can be completed very easily

Federal Shariat Court observed that five years period is reasonably enough time for the implementation of the present decision completely i.e converting economy of Pakistan into, equitable, asset based, risk sharing and interest-free economy

Accordingly the Federal Shariat Court specified 31-12-2027 as the date on which the present decision shall take effect by way of complete elimination of Riba from Pakistan

Shariat petitions were allowed.

Question as to whether the term 'Riba' is confined to compound interest only, and hence in light of Islamic Injunctions only charging of compound interest on loans is prohibited and not the charging of simple interest

Held, that Riba is haraam or prohibited in every form and quantity; its prohibition is not at all dependent on its percentage or the mathematical style in which it is calculated

Phraseology or expression of the Quran used in Verse 130 of Surah Aal-e-Imran itself makes it evident that in the said verse only doubled or multiplied interest is not meant or intended but it also includes even the smallest percentage of interest

Riba or interest is absolutely prohibited and forbidden

Shariat petitions were allowed.

Question as to whether only the charging of interest upon consumption loans is prohibited and the charging of interest upon commercial or productive loan is not prohibited in Islam

Held, that the prohibition of Riba is absolute, irrespective of the purpose for which the loan is taken on interest

Purpose of taking a loan does not change the status of prohibition of Riba

Shariat petitions were allowed.

Plea that the Quran and Ahadith of the Prophet (pbuh) stressed upon the importance of making compromise (sulah) between any conflicting parties in general; that Islam also gave much importance to family system, therefore, in light of Ayat 35 of Surah Al-Nisa of the Holy Quran, the process of reconciliation referred to in S.10(3) of the Family Courts Act, 1964 must be made mandatory upon the Family Courts

Held, that the Quran and Sunnah stressed upon reconciliation and compromise to be made between the spouses in case any unpleasant rift occurred between them to avoid divorce

Quran put a moral and religious duty upon the elders and family members of the parties to put efforts for making a compromise between the spouses in case any unpleasant rift occurred between them

Ayat 35 of Sura Al-Nisa of the Holy Quran explained the manner in which such reconciliation efforts may be made between the parties within the family

Ayat 35 of Sura Al-Nisa was directed for the family members and elders of the conflicting spouses for making compromise or doing efforts for reconciliation between them

Even otherwise the jurisprudence of Federal Shariat Court was clear on the issue that the authority given to Family Court for reconciliation or compromise at pre-trial proceedings under S.10 of the Family Courts Act, 1964 or after conclusion of trial under S.12 of the said Act, was adopted on the basis of Ayat 35 of Sura Al-Nisa of Holy Quran

Shariat petition challenging S.10(3) of the Family Courts Act, 1964 was dismissed accordingly.

Plea that Ss. 4, 5 & 6 of the Child Marriage Restraint Act, 1929 ('the impugned provisions') were in contradiction with Islamic law and rules

Held, that the minimum age of girl for marriage was set at 16 years by the State through the Child Marriage Restraint Act, 1929

Majority of Muslim jurists are of the view that the Nikah of a minor girl is permissible, however there are some jurists having an opposing opinion too

Settled principle of Shariah was that if any 'Mobah' act appeared to be harmful to the society collectively or to a particular segment of a society, the State had power to make that act prohibited so that the society could be protected from a larger damage

Limitations could be set on a 'Mobah' act in a precautious way that it did not affect any other 'hukum' set out by Shariah

Setting a minimum age limit of 16 for girls to marry was one such example

Furthermore in Islamic law, there was a well-developed concept of 'Sad-uz-Zaraey' based on Quran and Sunnah, according to which it was also a duty of the State to control, curtail or curb any act in a society, which may lead to harmful consequences to society at large or to any of its segments, no matter how minor it was

According to this principle of 'Sad-uz-Zaraey' the "impugned provisions" were not against the Quran and Sunnah

When a rule was abused or misused then it could be defined clearly to protect it from being abused

Impugned provisions did the same thing

Law or principle of Shariah was defined in a more clear way, that minimized the chance of its abuse or misuse, i.e., a marriage should not be consummated before the attainment of the age of medical maturity by the girl

Setting an age of 16 years reduced the possibility of breach of this principle of Shariah to the maximum

Setting a threshold of minimum age at 16 years for a girl by law would also generally help the girls to get at least basic education

Need for education was equally important for everybody irrespective of gender, which is why Islam had made the acquisition of education mandatory for every Muslim

At a personal level, for a girl or for anybody irrespective of gender, the factor of getting education came under the concept of Hifz-ul-Aql i.e. protection and promotion of intellect, which was also one of the basic goals of Shariah

For a healthy marriage, not only physical health and economic stability etc. were necessary factors but mental health and intellectual development was equally important, which were achievable through education

According to the teaching of Islam providing the best education to a child girl or a daughter was one of the best deeds a person could do which guaranteed 'Jannah'

Shariat petition challenging Ss. 4, 5 & 6 of the Child Marriage Restraint Act, 1929, being misconceived was dismissed in limine.

Vires of legislation could be subject to judicial review by Superior Courts, but such power was subject to jurisdiction as conferred by the Constitution

In the present case, petitioner had questioned S.10(4) of the Family Courts Act, 1964 alleging the same to be contrary to the Injunctions of Islam

Petitioner missed relevant provisions of the Constitution which specifically placed bar on the jurisdiction of High Court in such matter

Article 203G of the Constitution placed a bar on jurisdiction of any court, including Supreme Court or High Court, to entertain any proceedings or exercise any power or jurisdiction in respect of any matter lying within the power or jurisdiction of the Federal Shariat Court

Article 203D of the Constitution dealt with the powers and jurisdiction vested with the Federal Shariat Court

Power to examine and decide the question whether or not any law or provision of law was repugnant to Injunctions of Islam or Holy Quran or Sunnah were included in Art.203-D of the Constitution

High Court lacked jurisdiction in the matter

Constitutional petition was dismissed accordingly.

Plea of petitioner that the act of "Rammi" had no religious link with Hajj and was not mentioned in the Holy Quran or in any previous Book of Allah; that such act had not been performed by any Prophet of Allah particularly Prophet Ibrahim who was the architect of Ka'ba; that such act had been causing lot of casualities and, in view of Art.5 and Art.9 of the Constitution, it was responsibility of the State to ensure security of its citizens anywhere in the world

Validity

Casting pebbles at the pillar/monument (Jamrah), symbolically considered as Shaitan, was unanimously held as a mandatory part of Hajj by Muslim jurists of all schools of thought

Any person who failed to do so, personally or in case of women or disabled persons, by representation, had to offer an additional sacrifice as compensation according to all the prominent Muslim jurists

Act of "Rammi" and other important details of Hajj, which were not mentioned in the Holy Qur'an, were mentioned in the Sunnah of the Holy Prophet

Sunnah [i.e. sayings, actions and tacit approval of the Prophet Muhammad (p.b.u.h.)], in fact, represented the Holy Quran in practice-Ritual of "Rammi" was practiced by the Holy Prophet (p.b.u.h.), his companions and millions from succeeding generations, ever since the 9th Hijra when Hajj was made mandatory for all who could afford

Continuous, constant and incessant practice of "Rammi" during the past 1429 years, provided an irrefutable proof that it was an integral part of Hajj

Casualties during the act of "Rammi" were caused by the negligence, haste or violation of rules by the pilgrims and had nothing to do with the pebbles being cast at pillar/monument (Jamrah)

Rituals necessary for performing Hajj could not be left out for such reason

Shariat petition was dismissed accordingly.

Under Art. 203-D of the Constitution, the Federal Shariat Court may, [either of its own motion or] on the petition of a citizen or the Federal Government or a Provincial Government, examine and decide the question whether or not any law or provision of law was repugnant to the Injunctions of Islam, as laid down in the Holy Quran and the Sunnah of the Holy Prophet (pbuh)

Where the petitioner neither challenged any law or provision of law as required under R. 7(d) & (e) of the Federal Shariat Court (Procedure) Rules, 1981, nor gave any particular Nass of the Holy Quran or Sunnah of the Holy Prophet (pbuh) relating to the relevant law or its provisions, supporting the petition, the same would be liable to be dismissed.

Plea of petitioner that honour killing was Fasad-Fil-Arz" and therefore there should be no compoundability in granting waiver to or compounding the offence of Qisas with an accused who took law in his hands and committed a heinous offence of murder without adopting recourse to the judicial process

Validity

Section 311, P.P.C. already provided for the relief sought by the petitioner

Said section started with the word "notwithstanding anything contained in S.309 or 310" pertaining to waiver of Qisas in Qatl-i-amd and compounding of Qisas in qat1-i-amd and by authorizing the court to award, inter alia, even death sentence to such a culprit despite the waiver of or compounding the right of Qisas by the adult sane 'Wali'

Shariat petition being misconceived was dismissed accordingly.

By virtue of the provisions of Art. 203G of the Constitution, the Supreme Court, or even a High Court, had no jurisdiction to test repugnancy or contrariety of any existing law or legal provision to the Injunctions of Islam as laid down in the Holy Qur'an and Sunnah and such jurisdiction vested exclusively in the Federal Shariat Court and the Shariat Appellate Bench of the Supreme Court.

Judge/Qazi empowered to pass decree for khula at pre-trial stage without approval of husband and without recording evidence

Repugnancy to Injunctions of Islam

Plea of petitioners that a Qazi/Judge before whom prayer for dissolution of marriage on basis of khula was made was not authorized to pass such decree in favour of wife if the husband was unwilling; that S.10(4) of Family Courts Act, 1964 was against Injunctions of Islam as it bound the Family Court to pass a decree (for khula) in case reconciliation failed at pre-trial stage without recording of evidence in respect of liking and disliking on the basis of which compromise between husband and wife was refused

Validity

Where the husband did not agree to accept compensation by his wife for purposes of khula and refused to release her from his marital tie and also declined to divorce her, question was what should be the course of action for the wife; would it be justified to leave such a wife in darkness who could not live happily or perform her marital obligations; should she be pushed back to her husband to remain tongue tied, tight-lipped, depressed, dejected, having a miserable survival throughout her whole life; should she be kept, at the mercy of her in laws, vulnerable to indecent immoral life; was such a situation morally justified on any standard; would not such a situation assigned to her defeat the very object of marital peace and tranquility; who would be considered responsible if she could not bear the mental agony in such state of affairs and put an end to her life by setting herself on fire or adopted any other method for committing suicide; who would stop her or what would prevent her from administering poison to her husband if she found herself entangled in a "holy dead lock"

Islam did not intend to force a wife to live a miserable life, in a hateful unhappy union, forever

If wife was unhappy and reconciliation failed, she should be entitled to get relief as this is what justice demanded

Courts were there to resolve the disputes that arose between the parties, and they could decide all type of matters including, admittedly, dissolution of marriage on certain grounds

In such circumstances it was not understandable as to why the courts would not be authorized to decide a case of khula, if a husband did not at all agree to divorce his wife and all reconciliatory efforts failed

No specific verse or authentic ahadith existed which provided a bar to the exercise of jurisdiction by a competent Qazi/judge to decree the case of khula agitated before him by a wife, after reconciliation failed (and husband refused to release her from marital tie by accepting compensation in lieu of khula)

Shariat petition was dismissed accordingly.

On expiry of period prescribed by law for a suit for possession of any property, the right of owner was to be extinguished

Basic concept and logic of the declaration of section 28 of the Limitation Act, 1908 to be repugnant to the Injunctions of Islam was that no lawful owner could be deprived of his right, merely by the efflux of time nor a person enjoying possession for such a long period could be rewarded with premium of ownership

Mortgagee enjoying the possession of mortgaged property for sixty years or more get too much through its usufruct, more than his mortgage money and could not additionally be bestowed with the ownership of property, as well on expiry of sixty years.

Agricultural land acquired by male heir under custom before commencement of Punjab Muslim Personal Law (Shariat) Application Act, 1948, deemed to have been acquired by such male heir under Muslim Personal Law (Shariat)

Repugnancy to Injunctions of Islam

Past and closed transactions

Scope

Section 2-A of West Pakistan Muslim Personal Law (Shariat) Application Act, 1962 prevented the retrospective application of provisions of S.2 of the same Act in case of past and closed transactions in order to avoid confusion and chaos

Section 2-A of West Pakistan Muslim Personal Law (Shariat) Application Act, 1962 was clearly meant to avoid chaos where the property rights had already been transferred and acquired under the law

Holy Quran also had made provisions for the ease and smooth operation of corrections and improvements brought about in laws, prospectively and not retrospectively, by exempting 'closed and past transactions', without carrying any force of being 'a precedent

Islamization of the legal framework was a gradual process, in the larger interest of the public, that took place by reforming the prevailing laws and customs having the force of law

Provisions of S.2-A of West Pakistan Muslin Personal Law (Shariat) Application Act, 1962 did not validate the custom that was contrary to the Injunctions of Islam and at the same time it provided a strategic way to avoid chaos in closed transactions

Shariat petition was dismissed accordingly.

Power of court to appoint a guardian of person or property or both of a minor and undertake necessary proceedings for his/her welfare

Repugnancy to Injunctions of Islam

According to Injunctions of Islam a court was the final authority to administer justice and give due rights to every individual who needed the same at any time

Court had to decide cases according to the facts and circumstances of each case and determine as to what would be just and beneficial for protection and safeguarding the interests of a minor

Persons in authority (legislature/judges/executive) were duty bound to appoint or terminate guardianship of person and property belonging to minors or disabled persons according to norms of justice, principles of "Ihsan" and besides, also forbid harmful acts, evil deeds, oppressive conduct and fulfil Commandments of Allah as laid down in the Holy Qur'an and Sunnah of the Holy Prophet

Provisions of Guardians and Wards Act, 1890 impugned by the petitioner, which clearly authorized the court to appoint a guardian or a person for the person or property or both for safeguarding interests of a minor, were just for his/her welfare and the court was duty bound to consider all facts and circumstances of each case and pass an appropriate order in accordance with the norms of justice as deemed appropriate for the welfare of a minor

Courts were empowered to appoint or remove guardians, keeping in view the Islamic principles of justice

Shariat petition was dismissed accordingly.

Divorce, according to Fiqh-e-Jaafaria, became effective only when it was uttered by a husband in presence of witnesses by using specific "seeghas "

Shariat petition was dismissed accordingly.

Share of local Muslim investor could possibly be reckoned for levy of Zakat by him as the present system did not comprehend all possible sources qualifying for levy of Zakat

Zakat and Ushr Ordinance, 1980 had not introduced an all comprehensive Zakat system in the country

Petition was dismissed accordingly.

Petition was dismissed accordingly.

Zakat not deducted from maturity/surrender value of an asset/investment maintained in foreign currency and the return on which and the value on encashment redemption or withdrawal of which, was payable in foreign currency

Foreign currency was not the local legal tender

Most money in present times was fiat money, i.e. that which had been declared to be legal tender by a government and would not be regarded as such without government backing

Zakat and Ushr Ordinance, 1980 covered a very limited segment in banking system using local legal tender, and it did not reckon all wealth and assets in which Zakat was legitimately leviable under the Injunctions of the Quran and Sunnah of the Holy Prophet (P.B.U.H.)

Petition was dismissed accordingly.

Such refund was quite reasonable and apparently logical and not repugnant to Injunctions of Islam as all undue amounts deducted in excess must be refunded to the legitimate/ legal owners of such amount

Petition was dismissed accordingly.

Plea was that First Schedule of Zakat and Ushr Ordinance, 1980 provided that Zakat would be deducted on the date on which the first return is paid on date of withdrawal or date of maturity, whereas in Islam Zakat became payable on the date when one year had passed over the assets

Validity

Practice of levying Zakat on yield when it became mature/available on a time line (i.e. 1st of Ramadan) within a time frame (Lunar year) was quite in conformity with Islamic practice

Petition was dismissed accordingly.

Liability and duty for payment of Zakat, as prescribed under the Injunctions of the Holy Quran and Sunnah of the Prophet (P.B.U.H.) remained in force and intact, against the "sahib-e-nisab"

Said exemptions had limited implication/application only to the reference and extent of the relevant provisions of the Zakat and Ushr Ordinance, 1980, and it remained incumbent upon the "sahib-e-nisab" to discharge the liability and duty of payment of due Zakat, loyally and faithfully, under his own arrangements

Federal Shariat Court observed that the present system of deduction and distribution of Zakat lacked confidence of public at large and as such, they tended to opt for exemptions on one ground or other

Federal Shariat Court directed that the Ministry of Finance and Law in consultation with Islamic Ideology Council as well as Provincial Governments should take necessary steps, within the legal framework, in the light of Injunctions of the Quran and Sunnah of the Prophet (P.B.U.H.) to bring uniformity and clarity in the system of deduction of Zakat through banks and should ensure the transparent distribution of Zakat strictly according to the Injunctions of the Quran and Sunnah of the Prophet (P.B.U.H.)

Petition was dismissed accordingly.

Office Memorandums No. R.2(3)/03, dated 31-7-2004, Ministry of Housing and Works, F-5(17)/Gaz-Imp(i)/73, dated 20-11-1974 & F.2(1)-R5/91, dated 25-8-1991, Ministry of Finance Division

Repugnancy to Injunctions of Islam

House rent allowance to husband and wife

Entitlement

Petitioners were civil servants and their grievance was that when both husband and wife were civil servants they both were entitled to house rent individually and not only to one out of the two

Validity

Marriage was not a disqualification nor an offence and therefore, civil servant after getting married should not be penalized or deprived of his / her due house rent

Both spouses were entitled to get conveyance allowance even if they were working at same station and same place and same logic applied to house rent as well

Office memorandum/rule to the extent of depriving of house rent allowance to one of the spouses who were civil servants and one of whom was allotted government accommodation, was repugnant to the Injunctions of Islam

Federal Shariat Court, in view of Art.203-D(3) of the Constitution, directed Federal Government, as well as the Provincial Governments of Punjab, Sindh, Balochistan and Khyber Pakhtunkhwa and relevant autonomous bodies and institutions including universities, to take necessary steps to amend office memorandums/rules so as to bring the same in conformity with Injunctions of Islam

Petition was allowed accordingly.