Islamic Jurisprudence

The religion of Islam, undoubtedly is a complete and comprehensive code of life which provides full protection to privacy and confidentiality of every individual

It also emphasizes the importance as a mandatory injunction qua spying on others or unwarranted intrusion into their private personal affairs

In this regard, reference is made to Ayat No.12 of Surah Al-Hujurat.

Law prohibits the taking of the law into one's hands, let alone to cause hurt or death, and this protection is also fully applicable to one who may be guilty

In Islamic jurisprudence even if a person has been found guilty and sentenced to death, the sentence cannot be executed by one who is not so authorized, and if he kills the convict, he is liable for the offence of iftiyat (wasting the right of the State) and is to be punished.

Claim on the basis of adverse possession was declared against injunctions of Islam.

Word rushd has been explained/defined as integrity of (one's) actions, proper, sensible conduct; reason, good sense, senses; consciousness; maturity (of the mind)

Meaning thereby a person who has attained puberty and he/she can form good decision and have maturity of mind can contract nikah.

Where an act appears to be harmful to the society collectively or to a particular segment of society, the State has the power to make that act prohibited even if permissible generally in Shariah.

Who succeeded in a litigation unjustly must not retain its benefit.

"Appearance of justice" in Islam was essential not only for lawyers and intellectuals, but also for people of the country in general and the litigants/parties in particular.

Term 'Ikrah' means coercion or duress it is a general exception regarding applicability of rules and law under Islamic Jurisprudence.

Iztrar is also a general exception to applicability of rules and law.

Safe custody is called "Hirz" , a place which is considered by owner of thing as safe and it depends upon custom and usages.

Necessary ingredient of Hirz to constitute theft liable to Hadd such ingredients wanes mainly under following situations:

Such thief does not go scot free and he may or may not be subject to Tazir depending upon situation of the case.

Number of Islamic Jurists over last fifteen centuries have developed principles of interpretation of dictates of Allah as prescribed in the Holy Quran

Whole subject has been developed for such purpose which is known as Principles of Islamic Jurisprudence or Usul al Fiqh ( )

Plenty of literature is available of Usul-al-Fiqh explaining rules for interpretation of verses of the Quran in a systematic, disciplined and uniformed way

Some of the prominent works are: Usul-i-Shashi, al Wajeez, Jamia ul Usul, etc.

Usuliyeen categorized words of the Quran in many categories according to their use, meaning, context and legal impact etc.

Treating a guest or traveler well was the most important belief in Islam, belief in God and belief in the Day of Judgement.

Concept of life in Islam stated.

Islamic jurisprudence has defined different types of discretionary punishments some of which are; admonition (Al-Waz); reprimand (Al-Tawbikh); threat (Al-Tahdid); boycott (Al-Hajr); public disclosure (Al-Tashhir); fines and seizure (Al-Gharamah wal Musadarah); imprisonment (Al-Habs) and banishment (Al-Nafy).

Concept of right of information explained through an example of an exchange between a person and Caliph Umar (second Caliph of Muslims.)

Penalty for an offence against the right of Allah could not be waived off or commuted after due trial and conviction, however, the penalty for an offence against the right of an individual only, subject to various conditions, could be commuted

Violation of right of Allah could not be pardoned.

Better to acquit ten guilty persons than to convict a single innocent person.

Basic guiding principle of Islamic law was that the accused shall be granted the benefit of doubt.

Presumption of innocence existed till the contrary was established by reasonable cogent evidence, as was required by the law

Where the required evidence failed to satisfy the Court affirmatively and bring home guilt of the accused beyond reasonable doubt, the accused stood entitled to acquittal.

In an Islamic State, no one could be subjected to any punishment for committing unlawful sexual intercourse unless that charge was fully established by due evidence

Unless there was definite evidence against someone that he/she was guilty of unlawful sexual intercourse, he/she may not be subjected to the Hadd punishment regardless of all other external sources wherefrom information about the commission of that offence was gathered but was not duly proved in the court of competent jurisdiction, as was required by the Injunctions of Islam laid down in the Holy Quran and Sunnah.

Tazkiyah was a technical term of Islamic system of evidence which required clearing a witness from accusation or suspicion cast upon him by the opposite party, by holding an enquiry by a Qadi, openly or secretly, himself or through an official purgatory

Under Islamic system of law, like other legal systems, the opposite party had every right to test, weaken, or destroy the credit of a witness by cross-examination

Purgation did not bar such right of the opposite party but at the same time, it should not be used to the disadvantage of the party producing the witness

While cross examination was the right of defence, 'Tazkiyah al-Shuhood' ( )" was a duty of the Court to ascertain the veracity of witnesses in cases of Hudood that each one of them was just and righteous, worthy of credence, reliable, truthful and not a previous convict of perjury or other major offence

Tazkiyah al-Shuhood ( ) was the mode which was adopted for excluding all possibilities of innocence of an accused and ensuring absolute justice in each and every case.

Principles with regard to witnesses stated.

Sunnah was in fact the interpretation, explanation, elaboration, implementation and specific demonstration of Quranic Injunctions by the Holy Prophet (p.b.u.h.) himself, thus, its binding authenticity could not be questioned on any ground

Without Sunnah no one could ever be able to properly understand or act in accordance with the Islamic Injunctions, as required by the Holy Quran.

Sunnah was an elaboration/explanation of the Injunctions of Islam as revealed to the Holy Prophet (p.b.u.h.) who was entrusted with the obligation of reciting the Holy Qur'an as well as teaching the injunctions of the Holy Qur'an

Prophet Muhammad (p.b.u.h.) was not only the recipient of the Divine Revelation, contained in the Holy Qur'an, but he was also its utmost authentic teacher, interpreter and expounder

Holy Quran had given complete injunctions, principles and precepts for guidance

For the sake of practical implementation of the injunctions and manifestation of the principles, however, Almighty Allah commissioned the Holy Prophet (p.b.u.h.) and assigned him the duty to explain as well as demonstrate by his personal example all that which was actually required

Prophet Muhammad (p.b.u.h.) thus set a perfect model which was shown to the people to be followed in letter and spirit

One would never be able to act upon any Islamic Injunction, in accordance with the Holy Qur'an, without following Sunnah of the Holy Prophet (p.b.u.h.).

"Equality before law" and "equal protection of law" was one of the fundamental principles of Islam which could not be ignored.

Islamic law is divine in its original sources, as such it necessitates great caution and meticulous care in dealing with the issue of interpretation of verses or in changing its universally accepted meanings to suit varying times, places and needs

Interpretation or meaning of a Quranic Verse, therefore, must have full support by the Sunnah of the Holy Prophet (p.b.u.h.).

Quran is the first source of Islamic law and jurisprudence; it is the fundamental source wherein there is absolutely no doubt; it has been sent down for administration of justice between mankind

Legislation in the Holy Quran was revealed gradually and intermittently to meet the requirements of events in Islamic State and society

Sunnah (i.e. sayings, deeds or tacit approvals) of the Holy Prophet (p.b.u.h.) is the second most important source after the Quran and is unanimously considered supplementary to, and explanatory of Quran.

Adherence to Sunnah is obligatory, subject to verification of its authenticity.

State was bound to exercise its power and authority within the limits prescribed by the Injunctions of Islam, through the chosen representatives of the people

State in performance of its obligation had to legislate for maintaining law and order situation in all circumstances and had to resort to various measures including promulgation of laws for protection of life, honour and property of the citizens.

Main sources of Shariat are the Holy Qur'an, Sunnah, Ijma and Qias.

Many verses of the Holy Quran prohibited evil and unjust practices/transactions (prevalent before Islam), with immediate effect and stopped them forthwith, however such verses expressly provided that past and closed transactions were left untouched and, rather, waived off, even from the "Akhirath" point of view.

Decree of court-Significance-Decree passed by a competent court had great significance and sanctity in Islam.

Word "Hajj" (the holy pilgrimage) means "to intend a journey" which connoted both the outward act of a journey and the inward act of intentions.

Significance and reward of performance of "Hajj" in Islam stated.

Basic principle of Sharia/Law was that conviction must be based on evidence beyond any shadow of doubt, because the damage resulting from erroneous sentence, was irreversible; and the principle that it was better to acquit guilty person than to punish an innocent one.

Fatwa could not be relied upon unless its author/signatory was produced in the Court and was subjected to cross-examination and entire circumstances were brought into his knowledge.

Fundamental principles of Islamic jurisprudence on criminal law was to do justice with mercy, being the attribute of Allah Almighty

On earth such attribute had been delegated and bestowed upon the Judges, administering justice in criminal cases, therefore, extra degree of care and caution was required to be observed by the Judges while determining the quantum of sentence, depending upon the facts and circumstances of particular case/cases.

Word "Hajj" (the holy pilgrimage) meant "to intend a journey" which connoted both the outward act of a journey and the inward act of intentions.

Significance and reward of performance of "Hajj" in Islam stated.

Such freedom was documented in both the Holy Quran and the Prophetic teachings known as Sunnah.

Not only did Islam give religious freedom to non-Muslims, its tolerant laws also extends to the preservation of their places of worship.

Mosques are for Allah and not for a particular group, party, sect (mazhab) or sub-sect (maslaq).

Principles of Shariah governing mosques.

Both divorce and khula were most undesirable options and were allowed only when the spouses genuinely came to the conclusion that continuation, of their union was harmful, making them unable to perform their mutual obligations amicably enough to live within the bounds prescribed by Almighty Allah.

Khula denoted laying down by the husband of rights and authority over his wife, at her instance, on acceptance of consideration

Khula signified a conditional situation on the part of wife, entered into for the purpose of dissolving the marital tie at her instance, in lieu of a compensation paid or agreed to be paid by her to the husband out of her property

In case of mutual agreement on such an arrangement, the wife did not need to go to court and ask for dissolution of her marriage as in such a situation the husband would release her from the marital bond and the wife would be free to marry any other person after the iddat period, as would be required in her case, if she was or was not pregnant.

Marriage was not a sacrament; it was not irrevocable but, in essence, it was a civil contract between husband and wife which credted mutual rights and obligations

Marriage contract was a life-long commitment, meant to last happily for the whole life between husband and wife.

Even thereafter both the spouses could contract fresh marriage with mutual consent, of course if they wanted to, without any intermediary marriage of the wife with another person, as was required in the case when a husband pronounced divorce for the third time; however, iddat shall to be incumbent on the wife if she wanted to contract marriage with someone else.

Objectives of marriage in Islam.