Law Final Report Body

8/9/2019 Law Final Report Body

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Shariah Implementation in Pakistan

Summary

The Two-Nation Theory was the basis for the Partition of India in 1947. Itstated that Muslims and Hindus were two separate nations by every definition,and therefore Muslims should have an autonomous homeland in the Muslimmajority areas ofBritish India for the safeguard of their political, cultural, andsocial rights, within or without a United India.

The ideology of Pakistan took shape through an evolutionary process, basedon historical experience. Muslim Modernist and reformer Sir Syed AhmadKhan (1817-1898) began the period of South Asian Muslim self-awakeningand identity; Poet Philosopher Allama Muhammad Iqbal (1877-1938), (the poet of East), provided the philosophical explanation; and BarristerMuhammad Ali Jinnah (1871-1948) translated it into the political reality of anation state. The All-India Muslim League, in attempting to represent IndianMuslims, felt that the Muslims of the subcontinent were a distinct andseparate nation from the Hindus. At first they demanded separate electorates,but when they came to the conclusion that Muslims would not be safe in aHindu-dominated India, they began to demand a separate state. The Leaguedemanded self-determination for Muslim-majority areas in the form of asovereign state promising minorities equal rights and safeguards in theseMuslim majority areas.

The State Bank of Pakistan (SBP) is the central bank ofPakistan. While itsconstitution, as originally laid down in the [State Bank of Pakistan Order1948], remained basically unchanged until January 1, 1974, when the bankwas nationalized, the scope of its functions was considerably enlarged. TheState Bank of Pakistan Act 1956, with subsequent amendments, forms thebasis of its operations today. The headquarters are located in the financialcapital of Pakistan, Karachi with its second headquarters in the capital,Islamabad.

Creation of State bank, is purely based on Indian British Law instead offollowing the regulations of Shariah and Islamic Banking Laws. In order to

speed up the enforcement of Islam, Islamic Council has been reorganized inJan. 1981 and the number of its members has been increased to 19. Allschools of thought have been given due consideration. The members of thecouncil will be those ulemas who not only understand Islamic laws but arecapable of understanding latest problems and modern sciences.

This council has therefore, become an effective institution and has startedgiving better performance. The council is working for the glory of Islamicculture and establishes an Islamic society.

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http://en.wikipedia.org/wiki/Partition_of_Indiahttp://en.wikipedia.org/wiki/Muslimshttp://en.wikipedia.org/wiki/Hindushttp://en.wikipedia.org/wiki/British_Indiahttp://en.wikipedia.org/wiki/Greater_Indiahttp://en.wikipedia.org/wiki/Reformerhttp://en.wikipedia.org/wiki/Sir_Syed_Ahmad_Khanhttp://en.wikipedia.org/wiki/Sir_Syed_Ahmad_Khanhttp://en.wikipedia.org/wiki/Muhammad_Iqbalhttp://en.wikipedia.org/wiki/Barristerhttp://en.wikipedia.org/wiki/Muhammad_Ali_Jinnahhttp://en.wikipedia.org/wiki/All-India_Muslim_Leaguehttp://en.wikipedia.org/wiki/Indiahttp://en.wikipedia.org/wiki/Leaguehttp://en.wikipedia.org/wiki/Self-determinationhttp://en.wikipedia.org/wiki/Central_bankhttp://en.wikipedia.org/wiki/Pakistanhttp://en.wikipedia.org/wiki/Pakistanhttp://en.wikipedia.org/wiki/January_1http://en.wikipedia.org/wiki/1974http://en.wikipedia.org/w/index.php?title=State_Bank_of_Pakistan_Act_1956&action=edit&redlink=1http://en.wikipedia.org/wiki/Karachihttp://en.wikipedia.org/wiki/Islamabadhttp://en.wikipedia.org/wiki/Partition_of_Indiahttp://en.wikipedia.org/wiki/Muslimshttp://en.wikipedia.org/wiki/Hindushttp://en.wikipedia.org/wiki/British_Indiahttp://en.wikipedia.org/wiki/Greater_Indiahttp://en.wikipedia.org/wiki/Reformerhttp://en.wikipedia.org/wiki/Sir_Syed_Ahmad_Khanhttp://en.wikipedia.org/wiki/Sir_Syed_Ahmad_Khanhttp://en.wikipedia.org/wiki/Muhammad_Iqbalhttp://en.wikipedia.org/wiki/Barristerhttp://en.wikipedia.org/wiki/Muhammad_Ali_Jinnahhttp://en.wikipedia.org/wiki/All-India_Muslim_Leaguehttp://en.wikipedia.org/wiki/Indiahttp://en.wikipedia.org/wiki/Leaguehttp://en.wikipedia.org/wiki/Self-determinationhttp://en.wikipedia.org/wiki/Central_bankhttp://en.wikipedia.org/wiki/Pakistanhttp://en.wikipedia.org/wiki/Pakistanhttp://en.wikipedia.org/wiki/January_1http://en.wikipedia.org/wiki/1974http://en.wikipedia.org/w/index.php?title=State_Bank_of_Pakistan_Act_1956&action=edit&redlink=1http://en.wikipedia.org/wiki/Karachihttp://en.wikipedia.org/wiki/Islamabad


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Introduction

Sharia, Shariah, Shareeah, Shariah are all basically terms that mean thesame thing. The islamic law sent down by God for all of mankind is known assacred law to some, but muslims in arabic call it the Sharia, Shariah,Shareeah, Shariah. The word Sharia, Shariah, Shareeah, Shariah in arabicmeans the source or sometimes linguistically it was refered to a source ofwater or an oasis. The source of law in islam is therefore Sharia, Shariah,Shareeah, Shariah.

There are many people in this world who dislike things that they see aroundthem. Many fear that which they know not. As a matter of fact after the sad

and tragic events that occurred on september 11 in the united states ofamerica, many people were driven towards hating muslims and islamic law.Memories of the witch hunts that occurred at salem began to be conjured uponce again. As a matter of fact some of this negative media publicity actuallycaused people to become curious and to go and read the quran themselvesand see what the sharia was all about. In the end many people becomemuslims and reverted back to Islam.

The sharia basically is being demonized in the world today and this is greatlydue to ignorance and what the media has done to taint the image of muslimsall around.

Pakistan is an Islamic state. Basic purpose of acquiring this country was theestablishment of a country which should be the custodian of Islamic traditionsand where Muslims could freely shape their lives in an Islamic way of life. Thebest way to pay homage to the martyrs and heroes was to make Pakistan afort of Islam. Efforts for Islamic system, therefore, started from the inception ofPakistan.

Quaid-e-Azam desired to make Pakistan a true Islamic state but life did notallow him to accomplish his mission. After his death efforts were continued by

Liaquat Ali Khan and other leaders. Various Islamic clauses wereincorporated in the Constitution of 1956 and 1962 but enforcement of Islamicsystem was not complete.

Every effort was made to enforce Islamic system in the Constitution of 1973and quite a few Islamic clauses were also incorporated but it was notsufficient. Attempts were required to enforce Islamic system in the country sothat all citizens could benefit from this system. During different periods,therefore, following sincere actions were taken for the practical enforcementof Islamic system in the country:

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Concept of Justice

in IslamThe concept of justice in Islam is radically different from the concept of justice underother orders. For the Greeks the concept of justice was that of remedial justice. TheRoman concept was that of natural justice, while the Anglo-Saxon concept of justiceis that of formal justice. In Islam, justice is symbolized by balance and this standsfor absolute fairness. In Islam, justice is not merely a formal function of the state; it isa religious obligation. The concept of justice in Islam accordingly stands at a higher

pedestal as compared with the concept of justice under other orders.

PRINCIPLES OF JUSTICE UNDER ISLAM

From the verses of the Holy Quran concerning justice quoted above, we can deducesome principles of justice which distinguish Islam from other orders. Some of theseprinciples are as follows:

1. Justice must be substantial and not merely formal, which means law (i.e.formal), but it should be done in such a way that it results in absolute justiceand complete fairness (i.e. substantial).

2. In Islam the doing of justice is not the concern of the judge alone; it is theresponsibility of the community as well. Every member of the community isinvolved in the process. If any injustice is committed to any personsknowledge he cannot stand apart as a silent spectator even though he is notpersonally affected.

3. Justice according to the Islamic concept demands a very high sense of moralstandard, so that a person has the courage to be a witness even againsthimself if he has done any wrong.

4. According to Islam, justice is next to piety. As such the doing of justice is not

merely a legal obligation or a moral duty; it is a religious imperative.

5. In an Islamic state, justice is to be done in the name of Allah, and Allah is fullyaware of the intentions of men. In Islam, therefore, the administration ofjustice is not based merely on the overt act; the motive behind such act isalso to be taken into account.

6. Justice in Islam is not blind; it is very much enlightened.

7. Allah the Sovereign of an Islamic state in whose name justice is to beadministered is not only just; He is most merciful as ell. Justice according toIslam has therefore to be tampered with mercy and an otherwise legal claim

may be withheld, or a legal obligation may not be enforced in the interests ofthe community as a whole.

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8. Islam stands for absolute equality before law, and the equal application oflaw. In Islam no one enjoys immunity, and no discrimination is permissible inthe application of the law. Unlike the secular concept. The King can do nowrong, the Head of the State in an Islamic order is accountable before lawfor any wrong that he may have done.

9. Under Islam, law and equity are not two different concepts as in the Anglo-Saxon Law. As such there are no separate courts of equity in Islam, nor thereany different principles to govern the grant of equitable remedies. Specificperformance is the rule and not an exception under the Islamic system ofjustice.

10. In the matter of criminal justice the principle adopted under the Islamic systemin preventive rather than punitive. The aim of the Islamic system is to preventthe committing of crimes, and no merely to punish the offender. An Islamicstate is not concerned merely with the punishment of offering; it is under anobligation to create conditions which would prevent the commission of crime.

11. In the Islamic system, torts and crimes come within the same jurisdiction. Theduty of the state is not only to see that the culprit is punished; it has to seethat the victim is duly indemnified.

12. In Islam, justice is the basic obligation of the state, and has therefore to beadministered free. No court fees can be levied under the Islamic system.

13. There is no law of limitation in Islamic jurisdiction. In Islam mere delay cannotbe made an excuse for delaying justice. The British common law principle thatdelay defeat equity has no application under an Islamic system.

14. Islam does not recognize the Anglo-Saxon concept that Ignorance of Law isno excuse. In an Islamic state the state has to ensure that no should sufferbecause of the ignorance of law.

15. Under Islam, there can be no exploitation or professionalization of the judicialprocess. Under Islam, if a lawyer knows that his client is guilty he cannotplead his case.

16. In secular orders, justice is a long drawn out time consuming process.According to Islam Justice delayed is justice denied. Islam stands forspeedy justice.

17. In Islam the laws of natural justice are of special significance. In Islam no onecan be condemned or subjected to any disability without being heard. In Islamif an unjust order has been passed by a judge because of any bias, it is thejudge who should be removed and not merely his decision as in the secularorders.

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The Holy Quran on

JusticeAccording to Islam, Allah (God) is the Sovereign and He is Most Just. Man as thevicegerent of Allah is enjoined to do justice even though it may be against himself.According to Islam, justice is next to piety. There are numerous verses in the HolyQuran enjoining the Muslims to do justice. Some of these verses are quotedhereunder:

1. Allah commands that when you judge between man and man, judge withjustice. (4:58)

2. Allah has sent down the Book in truth, so that you may judge between men asguided by Allah. (4:103)

3. O you who believe stand out firmly for justice as witnesses to Allah even asagainst yourselves, or your parents, or your kith and kin and whether it be

against rich or poor for Allah can protect both. Follow not the lusts of yourhearts lest you swerve, and if you distort justice or decline to do justice, verilyAllah is well acquainted with all that you do. (4:135)

4. O you who believe, stand out firmly for Allah, as witnesses to fair dealing, andlet not the hatred of others to you make you swerve to wrong and depart fromjustice. Be just; justice is next to piety. (5:9)

5. If you judge, judge in equity between them Allah loves those who judge inequity. (5:45)

6. The balance of Allah is true to a nicety; those alone hose scale of good isheavy will prosper. (7:9)

7. Allah never commands what is shameful. Do not say of Allah what you knownot. He commands justice; so set your whole selves to Him. (7:28-29)

8. Allah commands justice, the doing of good and liberality to kith and kin. Heforbids all shameful deeds, injustice and rebellion. (16:90)

9. Allah has set up the balance of justice; so establish justice, and fall not shortin the balance. (55:7-9)

10. O Daud, We indeed made you a vicegerent on earth. So judge between menin truth, and follow not your lusts for these will mislead you from the oath ofAllah. (42:26)

11. Say, I am commanded to judge justly between you in accordance with the

Book which Allah has sent don. (42:15)

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Shariah Implementation in Pakistan12. Allah sent forth aforetime His prophets with clear signs and sent down them

the Book and the Balance that man may stand forth in justice. (57:25)

13. We sent down with our Apostle the Balance of Justice so that man may standforth in justice. (57:25)

Islamic Shariah Laws &

Punishment

Sharia law is being opposed all over, but the truth behind it is not trulyunderstood. I would like people to do better research in this area beforejumping to conclusions based on false propoganda. There are people all overthe world who believe in Sharia and feel that it is ordered by God to mankingfor their wellbeing. Sharia teaches good morals and conduct. There are many

people in the world who feel sharia is barbaric or inhumane, but if we look atthe big picture then we realize that sometimes punishment is necessary toprohibit or curtail crime in society. Sometimes true justice can only be servedthrough punishing the aggressor.

1. Shariah law reduces crime2. Islamic law will bring on world peace3. Islamc law will be implemented by Jesus peach be upon him when he

returns to earth4. Prophet Muhammad peach be upon him taught us shariah which

encompasses the Quran and Sunnah (includes sayings of Prophet

Muhammad pbuh and his actions and teachings)

SHARIAH PUNISHMENTS

Punishments have always been considered an integral part of the concept of justice. Indeed, a common man would find it hard to think of justice assomething very different or separate from rewarding or punishing peopleaccording to how well or badly they observe the body of the mutual rights andobligations in their society. But if the concept of punishment is universal, thecontroversies surrounding it are nonetheless intense. We shall now look at

some basic Islamic principles concerning punishments.

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Shariah Implementation in PakistanBASIC PRINCIPLES

Each human being is responsible for his or her actions. This simple truthprovides the whole basis for the justification of punishment; for to fulfill thepurpose of this creation, mankind has been granted the freedom to chooseand act and the moral sense to distinguish between right and wrong.Responsibility goes with knowledge and freedom. Punishment cannot,therefore, be meted out to one person for another persons actions, for actsintended but not performed, or for acts done under duress or while not ofsound mind. Everyone must be equal before the law and their guilt must beestablished by the due process of justice.

PROPORTIONAL JUSTICE

It is important to note that there is no concept in Islam of the punishmentbeing exactly and justly proportional to the crime. Absolute and truly

proportional justice would require the exact and complete evaluation of suchcomplex factors as intentions and motives, the surrounding circumstances,and the causes and repercussions factors which human judges must considerbut cannot evaluate fully and which only God, in the new moral order to be setup in the life after death, can measure. Islamic punishments are not,therefore, to be judged on the scales of proportional and full retribution. Theyare, however, laid down by the One who is infinitely merciful and wise, andare, therefore, more suitable for the particular crimes than anything that canbe prescribed by any human legislature or judge.

Most importantly, punishments are only a part of a vastly larger, integrated

whole. They can neither be properly understood nor successfully or justifiablyimplemented in isolation. First, law is not the main, or even major, vehicle inthe total framework for the reinforcement of morality; it is the individual belief,the individual God-consciousness and taqwa that inherent and innate qualitywhich makes one want to refrain from what displeases God and do whatpleases Him. Second, justice is a positive ideal which permeates anddominates the entire life of the community it is not merely an institutionalizedmeans of inflicting punishment. Third, and consequently, a whole environmentis established where to do right is encouraged, facilitated, and found easy,while to do wrong is discouraged, inhibited, and found difficult. All men andwomen are enjoined, as their foremost duty, to aid, exhort, and commend

each other to do good and to avoid evil.

LEGAL PRINCIPLES

The Muslim jurists have deduced a number of legal principles from the versesof the Holy Quran. During the last quarter of the nineteenth century an Islamiccivil code known as the Meijalla was compiled under the orders of the Sultanof Turkey. In the Preface to the compilation over a hundred legal principleswere enumerated which were deduced directly from the verses of the HolyQuran. Some of these principles are specified hereunder:

1. Judge with justice. 4:58

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Shariah Implementation in Pakistan2. If you judge, judge in equity. 5:453. When doing justice, apply your mind. 17:354. One is innocent unless proved guilty. 24:12-135. No offence without mens rea. 33:56. No offence can be created with retrospective effect 2:2757. There is no offense is an act is done under compulsion. 16:1068. The punishment shall be commensurate with the offense and no more

2:1949. Self-defense is no offense. 42:4110.An abettor is also guilty. 16:2511.No one can be held responsible for the offense of others. 42:1512.Contracts should be in writing. 2:28213.An agreement is not binding hen the other party has broken it. 8:5614.The aggrieved is entitled to compensation. 17:3315.Decide according to evidence produced. 4:105

Enforcement of Islamic

Penal LawsRESTORATION OF ISLAMIC CLAUSES OF OLD CONSTITUTION

An order of interim constitution was issued on 24 March 1981 which included variousclauses of 1973 Constitution of Islamic Republic of Pakistan.

In view of Islamic spirit of 1973 Constitution General Zia-ul-Haq made certainimportant declarations on 10 February 1979 on the birthday of Holy Prophet (SAW).According to these declarations Islamic punishments as enforced on crimes like theftand fornication so that commission of such crimes was discourage.

ZAKAT AND USHR SYSTEM

Zakat and Ushr system was enforced throughout the country on 21 Jan. 1980 for

enforcement of Islamic system of life, establishing economical justice and eradicationof poverty. According to this system every Muslim was bound to pay Zakat and Ushron his money and other property. Zakat committees were formed at local andprovincial level. Out of the amount so collected from 1980 todate financial aid hasbeen given to welfare institutions, religious schools, poor individuals, widows andorphans. With a view to enforce this system effectively Zakat councils andcommittees have been established at center, province, district and local level. CentralZakat Council has recently been reorganized and various ulemas and economistshave been appointed members of Zakat Councils.

ISLAMIC COUNCIL

In order to speed up the enforcement of Islam, Islamic Council has been reorganizedin Jan. 1981 and the number of its members has been increased to 19. All schools of

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Shariah Implementation in Pakistanthought have been given due consideration. The members of the council will bethose ulemas who not only understand Islamic laws but are capable of understandinglatest problems and modern sciences. This council has therefore, become aneffective institution and has started giving better performance. The council is workingfor the glory of Islamic culture and establishes an Islamic society. Justice Tanzil urRehman is the chairman of the council and its members include learned people of

different sects.

CENTRAL SHARIAT COURT

Shariat benches and Central Shariat Court were formed under the amendment in1973 Constitution with a view to provide justice according to the teachings of Islam.First Head of Shariat Court was Justice Aftab Hussain. Presently Justice GulMohammad is the head of the Shariat Court. Learned people of different schools ofthought are the judges of this court who decide the cases according to Shariah.

In addition Shariah Appellat Court has been established where anybody can requestfor a solution to a sharai problem.

INTEREST FREE ECONOMY

In the light of the report of a panel of experts of Islamic Shariah interest-free bankinghas been introduced from 01 January 1981 to ensure interest free economy in thecountry. The banks will carry out their business on profit and loss share basis.

ISLAMIC UNIVERSITIES

Shariah faculties have been established in various universities for the uplift of Islamiceducation. A new Islamic university at Islamabad has been established in addition toimproving the work of Jamia Islamia Bahaalpur.

AID TO RELIGIONS SCHOOLS

Government aid has been given to religious schools and they have been asked tocontinue their system of education on the modern lines. Modern education schoolhave been also been formed along with many religious schools.

PREVENTION OF SOCIAL EVILS

Orders have been issued to prevent increasing curse of nudity, obscenity and othersocial evils. Safeguard of the self respect of the people has been promised.

SETTLEMENT OF PERSONAL PROBLEMS

Elections were held 1979 at local and municipal level as a first step towards Islamicdemocracy.

COMPULSORY STUDY OF ISLAMIC JURISPRUDENCE

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Shariah Implementation in PakistanWith a view to bring country laws in line with Islamic commands Islamic jurisprudencehas been introduced as a compulsory subject in law colleges.

NEW EDUCATION POLICY

New education policy was sanctioned in April 1979 wherein Islamic studies,

ideological base of Pakistan Movement, history and culture have been kept in view.Separate universities for girls will be established in Lahore and Karachi under thispolicy. Girls University at Islamabad is to start functioning very soon. To bring themodern education system in line with the Islamic education, to expand the syllabi ofreligious institutions and to find ways and means to dispel uneducation InternationalEducational Conference was held in March 1980. About 20 intellectuals from Muslimcountries participated in this conference. This conference emphasized to introducesimilar syllabi of education to develop mental conformity among the Muslims, to doaway with hypocrisy in the education system and bring it in time with Quran andSunnah and to lay special emphasis on science and technology.

QASAS AND DIYAT LAW

Islamic law of Qasas and Diyat has been promulgated through a presidential orderremoving present legal flaws in murder cases to meet the demands of justice.

MAINTENANCE OF PRAYERS SYSTEM

With a view to bound people to offer prayers maintenance of prayers system hasbeen recently enforce which is producing favorable results.

With a view to bound people to offer prayers maintenance of prayers system hasbeen recently enforced which is producing favorable results.

REFORM IN THE SYSTEM OF GOVERNMENT

With a view to bring national politics in conformity with the Islamic values suchchanges are being affected in the system of elections and system of governmentwhich should safeguard Islamic view point of life and people should gain benefitsfrom the Islamic culture and civilization. Application of Islamic democratic principlesof justice, equality and tolerance will guarantee a prosperous Pakistan. Enforcementof rights and duties set forth by Islam will go a long way towards our better future.

In elections of Oct. 1990 Ismaic Jamhoori Ittehad has been voted to power by thepeople so that IJI should reshape Pakistan into a complete Islamic State. IsmaicJamhoori Ittehad and other parties have been trying for the enforcement of Shariahduring the previous regime and had even arranged a demonstration for the purposebut the previous regime did not pay any attention on the subject as a result theysuffered during the elections. Safely of the country depends on the enforcement ofShariah. Let us see how far the present government succeeds in enforcing Shariah inthe country.

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Conclusion

It must be understood that when we claim that Islam has a

satisfactory solution for every problem in any situation in all times

to come, we do not mean that the Holy Quran and Sunna of the

Holy Prophet or the rulings of Islamic scholars provide a specific

answer to each and every minute detail of our socioeconomic life.

What we mean is that the Holy Quran and the Holy Sunna of the

Prophet have laid down the broad principles in the light of which

the scholars of every time have deduced specific answers to the

new situations arising in their age.

Therefore, in order to reach a definite answer about a new

situation the scholars of Shariah have to play a very important role.

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They have to analyze every question in light of the principles laid

down by the Holy Quran and Sunna as well as in the light of the

standards set by earlier jurists enumerated in the books of Islamic

jurisprudence. This exercise is called Istinbat or Ijtihad. ... Theongoing process of Istinbat keeps injecting new ideas, concepts

and rulings into the heritage of Islamic jurisprudence

Bibliography

Islamic Penal Laws

o http://www.renaissance.com.pk/septfeart2y2.html

Shariah

o http://www.shariah.net

o http://www.wikipedia.com

Pakistan and Shariah

o Author: Shaikh Mohammad Hafiz

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http://en.wikipedia.org/wiki/Ijtihadhttp://en.wikipedia.org/wiki/Ijtihad


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Shariah History

o Author: Abdul Raheem Khan

References

Mufti Muneeb-ur-Rahman (Islamic Scholar)

Dr. Rana Sabah Sultan (KU Instructor)

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Glossary

Shariah

The term means "way" or "path to the water source"; it is the legal framework

within which the public and private aspects of life are regulated for those living

in a legal system.

Qasas

Islam has given to the will and intention of the heirs of the slain has many

aspects of wisdom in it. Leaving the life of the killer directly at the mercy of the

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Shariah Implementation in Pakistanheirs of the murdered person compensates to some extent the tremendous

loss caused.

Diyat

If the victim is a Muslim belonging to a people at enmity with you, the freeing

of a Muslim slave is enough. But if the victim belongs to an ally, Diyatshall

also be given to his heirs and a Muslim slave shall also have to be set free.

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