Shariah Implementation in Pakistan

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

The ideology of Pakistan took shape through an evolutionary process, based

on historical experience. Muslim Modernist and reformer Sir Syed Ahmad
Khan (1817-1898) began the period of South Asian Muslim self-awakening
and identity; Poet Philosopher Allama Muhammad Iqbal (1877-1938), (the
poet of East), provided the philosophical explanation; and Barrister
Muhammad Ali Jinnah (1871-1948) translated it into the political reality of a
nation state. The All-India Muslim League, in attempting to represent Indian
Muslims, felt that the Muslims of the subcontinent were a distinct and
separate nation from the Hindus. At first they demanded separate electorates,
but when they came to the conclusion that Muslims would not be safe in a
Hindu-dominated India, they began to demand a separate state. The League
demanded self-determination for Muslim-majority areas in the form of a
sovereign state promising minorities equal rights and safeguards in these
Muslim majority areas.

The State Bank of Pakistan (SBP) is the central bank of Pakistan. While its
constitution, as originally laid down in the [State Bank of Pakistan Order
1948], remained basically unchanged until January 1, 1974, when the bank
was nationalized, the scope of its functions was considerably enlarged. The
State Bank of Pakistan Act 1956, with subsequent amendments, forms the
basis of its operations today. The headquarters are located in the financial
capital of Pakistan, Karachi with its second headquarters in the capital,
Islamabad.

Creation of State bank, is purely based on Indian British Law instead of

following the regulations of Shariah and Islamic Banking Laws. In order to
speed up the enforcement of Islam, Islamic Council has been reorganized in
Jan. 1981 and the number of its members has been increased to 19. All
schools of thought have been given due consideration. The members of the
council will be those ulemas who not only understand Islamic laws but are
capable of understanding latest problems and modern sciences.

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

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Introduction
Sharia, Shariah, Sharee’ah, Shari’ah are all basically terms that mean the
same thing. The islamic law sent down by God for all of mankind is known as
sacred law to some, but muslims in arabic call it the Sharia, Shariah,
Sharee’ah, Shari’ah. The word Sharia, Shariah, Sharee’ah, Shari’ah in arabic
means ‘the source’ or sometimes linguistically it was refered to a source of
water or an oasis. The source of law in islam is therefore Sharia, Shariah,
Sharee’ah, Shari’ah.

There are many people in this world who dislike things that they see around
them. 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 of
america, many people were driven towards hating muslims and islamic law.
Memories of the witch hunts that occurred at salem began to be conjured up
once again. As a matter of fact some of this negative media publicity actually
caused people to become curious and to go and read the quran themselves
and see what the sharia was all about. In the end many people become
muslims and reverted back to Islam.

The sharia basically is being demonized in the world today and this is greatly
due to ignorance and what the media has done to taint the image of muslims
all around.

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

Quaid-e-Azam desired to make Pakistan a true Islamic state but life did not
allow him to accomplish his mission. After his death efforts were continued by
Liaquat Ali Khan and other leaders. Various Islamic clauses were
incorporated in the Constitution of 1956 and 1962 but enforcement of Islamic
system was not complete.

Every effort was made to enforce Islamic system in the Constitution of 1973
and quite a few Islamic clauses were also incorporated but it was not
sufficient. Attempts were required to enforce Islamic system in the country so
that all citizens could benefit from this system. During different periods,
therefore, following sincere actions were taken for the practical enforcement
of Islamic system in the country:

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Concept of Justice
in Islam
The concept of justice in Islam is radically different from the concept of justice under
other orders. For the Greeks the concept of justice was that of remedial justice. The
Roman concept was that of natural justice, while the Anglo-Saxon concept of justice
is that of formal justice. In Islam, justice is symbolized by “balance” and this stands
for absolute fairness. In Islam, justice is not merely a formal function of the state; it is
a 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 deduce
some principles of justice which distinguish Islam from other orders. Some of these
principles 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 justice
and complete fairness (i.e. substantial).

2. In Islam the doing of justice is not the concern of the judge alone; it is the
responsibility of the community as well. Every member of the community is
involved in the process. If any injustice is committed to any person’s
knowledge he cannot stand apart as a silent spectator even though he is not
personally affected.

3. Justice according to the Islamic concept demands a very high sense of moral
standard, so that a person has the courage to be a witness even against
himself 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 fully
aware of the intentions of men. In Islam, therefore, the administration of
justice is not based merely on the overt act; the motive behind such act is
also 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 be

administered is not only just; He is most merciful as ell. Justice according to
Islam 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 of
the community as a whole.

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8. Islam stands for absolute equality before law, and the equal application of
law. In Islam no one enjoys immunity, and no discrimination is permissible in
the application of the law. Unlike the secular concept. “The King can do no
wrong”, the Head of the State in an Islamic order is accountable before law
for 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 there
any different principles to govern the grant of equitable remedies. Specific
performance is the rule and not an exception under the Islamic system of
justice.

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

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

12. In Islam, justice is the basic obligation of the state, and has therefore to be
administered 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 cannot
be made an excuse for delaying justice. The British common law principle that
delay defeat equity has no application under an Islamic system.

14. Islam does not recognize the Anglo-Saxon concept that “Ignorance of Law is
no excuse”. In an Islamic state the state has to ensure that no should suffer
because of the ignorance of law.

15. Under Islam, there can be no exploitation or professionalization of the judicial

process. Under Islam, if a lawyer knows that his client is guilty he cannot
plead 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 for
speedy justice.

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

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The Holy Quran on

Justice
According to Islam, Allah (God) is the Sovereign and He is Most Just. Man as the
vicegerent 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 Holy
Quran enjoining the Muslims to do justice. Some of these verses are quoted
hereunder:

1. Allah commands that when you judge between man and man, judge with
justice. (4:58)
2. Allah has sent down the Book in truth, so that you may judge between men as
guided by Allah. (4:103)
3. O you who believe stand out firmly for justice as witnesses to Allah even as
against 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 your
hearts lest you swerve, and if you distort justice or decline to do justice, verily
Allah 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, and
let not the hatred of others to you make you swerve to wrong and depart from
justice. Be just; justice is next to piety. (5:9)
5. If you judge, judge in equity between them Allah loves those who judge in
equity. (5:45)
6. The balance of Allah is true to a nicety; those alone hose scale of good is
heavy will prosper. (7:9)
7. Allah never commands what is shameful. Do not say of Allah what you know
not. 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. He
forbids all shameful deeds, injustice and rebellion. (16:90)
9. Allah has set up the balance of justice; so establish justice, and fall not short
in the balance. (55:7-9)
10. O Daud, We indeed made you a vicegerent on earth. So judge between men
in truth, and follow not your lusts for these will mislead you from the oath of
Allah. (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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12. 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 stand
forth in justice. (57:25)

Islamic Shariah Laws &

Punishment
Sharia law is being opposed all over, but the truth behind it is not truly
understood. I would like people to do better research in this area before
jumping to conclusions based on false propoganda. There are people all over
the world who believe in Sharia and feel that it is ordered by God to manking
for 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 at
the big picture then we realize that sometimes punishment is necessary to
prohibit or curtail crime in society. Sometimes true justice can only be served
through punishing the aggressor.

1. Shariah law reduces crime

2. Islamic law will bring on world peace
3. Islamc law will be implemented by Jesus peach be upon him when he
returns to earth
4. 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 as
something very different or separate from rewarding or punishing people
according to how well or badly they observe the body of the mutual rights and
obligations in their society. But if the concept of punishment is universal, the
controversies surrounding it are nonetheless intense. We shall now look at
some basic Islamic principles concerning punishments.

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BASIC PRINCIPLES

Each human being is responsible for his or her actions. This simple truth
provides the whole basis for the justification of punishment; for to fulfill the
purpose of this creation, mankind has been granted the freedom to choose
and 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 person’s actions, for acts
intended but not performed, or for acts done under duress or while not of
sound mind. Everyone must be equal before the law and their guilt must be
established by the due process of justice.

PROPORTIONAL JUSTICE

It is important to note that there is no concept in Islam of the punishment

being exactly and justly proportional to the crime. Absolute and truly
proportional justice would require the exact and complete evaluation of such
complex factors as intentions and motives, the surrounding circumstances,
and the causes and repercussions factors which human judges must consider
but cannot evaluate fully and which only God, in the new moral order to be set
up in the life after death, can measure. Islamic punishments are not,
therefore, to be judged on the scales of proportional and full retribution. They
are, however, laid down by the One who is infinitely merciful and wise, and
are, therefore, more suitable for the particular crimes than anything that can
be 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 justifiably
implemented in isolation. First, law is not the main, or even major, vehicle in
the total framework for the reinforcement of morality; it is the individual belief,
the individual God-consciousness and taqwa that inherent and innate quality
which makes one want to refrain from what displeases God and do what
pleases Him. Second, justice is a positive ideal which permeates and
dominates the entire life of the community it is not merely an institutionalized
means of inflicting punishment. Third, and consequently, a whole environment
is established where to do right is encouraged, facilitated, and found easy,
while to do wrong is discouraged, inhibited, and found difficult. All men and
women 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 verses
of the Holy Quran. During the last quarter of the nineteenth century an Islamic
civil code known as the Meijalla was compiled under the orders of the Sultan
of Turkey. In the Preface to the compilation over a hundred legal principles
were enumerated which were deduced directly from the verses of the Holy
Quran. Some of these principles are specified hereunder:

1. Judge with justice. 4:58

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2. If you judge, judge in equity. 5:45
3. When doing justice, apply your mind. 17:35
4. One is innocent unless proved guilty. 24:12-13
5. No offence without mens rea. 33:5
6. No offence can be created with retrospective effect 2:275
7. There is no offense is an act is done under compulsion. 16:106
8. The punishment shall be commensurate with the offense and no more
2:194
9. Self-defense is no offense. 42:41
10. An abettor is also guilty. 16:25
11. No one can be held responsible for the offense of others. 42:15
12. Contracts should be in writing. 2:282
13. An agreement is not binding hen the other party has broken it. 8:56
14. The aggrieved is entitled to compensation. 17:33
15. Decide according to evidence produced. 4:105

Enforcement of Islamic
Penal Laws
RESTORATION OF ISLAMIC CLAUSES OF OLD CONSTITUTION

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

In view of Islamic spirit of 1973 Constitution General Zia-ul-Haq made certain

important declarations on 10 February 1979 on the birthday of Holy Prophet (SAW).
According to these declarations Islamic punishments as enforced on crimes like theft
and 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 eradication
of poverty. According to this system every Muslim was bound to pay Zakat and Ushr
on his money and other property. Zakat committees were formed at local and
provincial level. Out of the amount so collected from 1980 todate financial aid has
been given to welfare institutions, religious schools, poor individuals, widows and
orphans. With a view to enforce this system effectively Zakat councils and
committees have been established at center, province, district and local level. Central
Zakat Council has recently been reorganized and various ulemas and economists
have been appointed members of Zakat Councils.

ISLAMIC COUNCIL

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

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thought have been given due consideration. The members of the council will be
those ulemas who not only understand Islamic laws but are capable of understanding
latest problems and modern sciences. This council has therefore, become an
effective institution and has started giving better performance. The council is working
for the glory of Islamic culture and establishes an Islamic society. Justice Tanzil ur
Rehman 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 in
1973 Constitution with a view to provide justice according to the teachings of Islam.
First Head of Shariat Court was Justice Aftab Hussain. Presently Justice Gul
Mohammad is the head of the Shariat Court. Learned people of different schools of
thought are the judges of this court who decide the cases according to Shariah.

In addition Shariah Appellat Court has been established where anybody can request
for 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 banking
has been introduced from 01 January 1981 to ensure interest free economy in the
country. 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 Islamic
education. A new Islamic university at Islamabad has been established in addition to
improving the work of Jamia Islamia Bahaalpur.

AID TO RELIGIONS SCHOOLS

Government aid has been given to religious schools and they have been asked to
continue their system of education on the modern lines. Modern education school
have 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 other
social 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 Islamic
democracy.

COMPULSORY STUDY OF ISLAMIC JURISPRUDENCE

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With a view to bring country laws in line with Islamic commands Islamic jurisprudence
has 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 this
policy. Girls University at Islamabad is to start functioning very soon. To bring the
modern education system in line with the Islamic education, to expand the syllabi of
religious institutions and to find ways and means to dispel uneducation International
Educational Conference was held in March 1980. About 20 intellectuals from Muslim
countries participated in this conference. This conference emphasized to introduce
similar syllabi of education to develop mental conformity among the Muslims, to do
away with hypocrisy in the education system and bring it in time with Quran and
Sunnah 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 order
removing 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 has
been recently enforce which is producing favorable results.

With a view to bound people to offer prayers maintenance of prayers system has
been 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 such
changes are being affected in the system of elections and system of government
which should safeguard Islamic view point of life and people should gain benefits
from the Islamic culture and civilization. Application of Islamic democratic principles
of justice, equality and tolerance will guarantee a prosperous Pakistan. Enforcement
of 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 the
people so that IJI should reshape Pakistan into a complete Islamic State. Ismaic
Jamhoori Ittehad and other parties have been trying for the enforcement of Shariah
during the previous regime and had even arranged a demonstration for the purpose
but the previous regime did not pay any attention on the subject as a result they
suffered during the elections. Safely of the country depends on the enforcement of
Shariah. Let us see how far the present government succeeds in enforcing Shariah in
the 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. ... The
ongoing 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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• 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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heirs 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, Diyat shall

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

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