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LLB Notes Part I

Islamic Jurisprudence
Best For Punjab Uni exam, BZU Uni, ISUB Uni, Quaid e azam Uni, Other all universities
exams, CSS, PMS, Judicial Services,

Lecturer: Mobushar Iqbal

LLB. LLM. DIPL Communication Skill. MSc

Cell No: 0300-0096491

0333-8999491

Address: Contact#
Near Metro Bus Station, Feroozpur road, MAO stop, 0300-0096491
Opposite. Jain Mandir Lahore .
“I am very thankful to my almighty ALLAH for giving me such a courage, success and honor. I
am also very thankful to all the students who appreciated my work and received them
warmly. In these notes the law has been elaborated with the help of landmark judgments
which is delivered by the Hon’ble Courts and has been written for the examination point of
view and i hope that these notes will also be received warmly by the students and may led
to the success in the examination as well as in their profession.

The below-given notes prepared for the student of the LLB. The subject is very technical
subject and i have taken every step to ensure that these notes may fulfill the need of the
students, but there may be some shortcomings or flaws in it, so every suggestion for the
improvement of these notes will be warmly welcome.”

I Am Very Thankful To You All

Your Well Wishers

Lecturer: Mobushar Iqbal

LLB. LLM. Msc. Dipl communication skills

Cell No: 0300-0096491

0333-8999491

Innovative Law Academy Lahore

Q1: Quran is primary and fundamental source of Islamic
law.
Discuss its importance.

1 Preface
Quran is Primary source of Law and it is in very Words of ALMIGHTY ALLAH .The holy Quran is
basically direct revelations on Holy Prophet (P.B.U.H) by ALMIGHT ALLAH. For jurists is
restricted for his first search for any hukam to be in Qura. Jurist can’t move in search of any
hukam to other source unless their search for a hukam complete from Quran.

1) Meaning

The word Quran derived from Arabic word Qura’a which means “TO READ”

2) Definition

Jurists unanimously unable to define the definition but:

3) Definition by Al Bazdawi

Quran is revealed on Holy Prophet (P.B.U.H) and it has been transmitted to us by Holy Prophet
(P.B.U.H). Quran is an authentic revelation without doubt

5) Revelation of the Holy Quran

Quran revealed on Holy Prophet (P.B.U.H).First revelation was on Holy Prophet (P.B.U.H)
in age of 40.Surah Al Alaq was revealed firstly upon Holy Prophet P.B.U.H
Following is the verse of Holy Quran:
” READ IN THE NAME OF THY LORD, WHO CREAT THE MAN FROM A CLOT”

4) Attributes of the Holy Quran

There are 55 attributive names of Holy Quran, some out of them are as under
Al Kitab
Al-Furqan
Al-Noor

5) Quran as a source of Law

Quran is complete code of creed (mazhab) because Islamic laws based on Holy Quran and
Quran Guides the man in all aspects of life and it is a major source of law

7) Ahkams in the Holy Quran

Following are the Ahkaams in the holy Quran.
 1. Hukam Taklifi

The main object of Hukam e Taklifi is to Create obligation for commission and omission of
certain act

2. Hukam Wadi

The main object of Hukem e Wadi is to Provision of criterion (Asool) whether an act
performed is valid or not.

9) Division of Quran

The Holy Quran has been divided into the following way.
The Quran consists of 30 divisions which are called Paras
It has 114 divisions which are called Surrahs
The Holy Quran has 6666 verses
86 surah which are called Makki Surahs and rest of 28 are called Madni Surahs

10) Division of Verses

Verses of the Holy Quran are divided into three portions.

1. First portion

The first portion of the verses of the Holy Quran deals with Religious duties such as Belief in
one ALLAH, Holy prophet (P.B.U.H) is the last prophet

2. Second portion

Second portion of the verses of the Holy Quran deals with Quranic ethics like behavior
with neighbors, dealing with parents etc.

3. Third portion

Third portion of the Holy Quran deals with individual relationships with one another
(Purchase, Sale, Lease ,Evidence)
It develops relationship among people, furthermore, deals with other Social duties.

11) Category of verses revealed

Category of the verses revealed are being discussed as under and the point of concern
are those issues which are arouse in the life of Holy Prophet P.B.U.H. All verses
containing rules of law for service of humanity

1. Abrogating Verses

Verses which abrogate objectionable customs like Gambling, etc

2. Penal verses

Verses which providing principles for Punishment

And Securing the society

3. Legal verses

Verses which providing constitutional and administrative matter

Such kind of verses exist in Madni Surahs

4. Verses affecting social reforms

Verses which raise living standard as status of women in society

As property Inheritance on equality basis

5. Verses providing Rights

Protection of minors like their rights such right of life, right of freedom etc
Protection of Disables who are unable to perform their duties in the society ,islam
protects them

12) Nature of Laws lays down

Fundamental principles laid down in the Holy Quran are not in details If details required,
Jurist should be recourse Sunnah because sunnah is the interpretation of holy Quran. All
rules and principles laid down in the Holy Quran requires explanation and interpretation
which only can be made by Sunnah

13) Mode of interpretation of Quran

Sunnah is the Primary mode of interpretation of Quran because some of general rules
laid down in the holy Quran needs explanation as well as there are a lot of rules which
can’t be understand without the help of Sunnah

14) Position in Pakistan

Pakistan is an Islamic state and all Existing laws modifies in the light of Holy Quran and
Sunnah
Article 227/1973,
”ALL EXISTING LAWS SHALL BE BROUGHT IN
CONFIRMITY WITH THE INJUNCTIONs OF ISLAM AS LAID DOWN
IN THE HOLY QURAN AND SUNNAH”

15) Constitutional status of Quran

In west, constitutional law is supreme law but in Pakistan as it is an Islamic state there is
in Islamic jurisprudence Quran is constitutional law. Quran provides all norms
(Namonay,Misalen) for livelihood

16 Preclude

Quran is very words of ALMIGHTY ALLAH and primary source of Islamic law. As well as
validation of other sources is by Quran. One of the biggest feature of Holy Quran is that
it doesn’t has details in it for multiple general rule laid down in it and in this regard jurist
has to recourse the sunnah for explanation of these rules. Quran is not a book of law but
book of guidance for humanity,
Q # 02: Discuss the theory of Abrogation in Quran in detail.

1 Preface
Abrogated law is called Mansukh it was need of the time and total or partial abrogation of
verses of Quran through later text is called abrogation. Modification of verses of Quran
through later revelation is also called abrogation. All schools of thought unanimously accept
the doctrine of Abrogation but may disagree on details.It is generally acknowledged that
Islamic law works for the interest of human beings

1) Meaning of Abrogation

Literal Meaning of abrogation is cancelling, transferring or replacement

2) Definition of Abrogation

Legal definition of abrogation is Lifting of a legal rule through legal evidence of later date

3) Importance of theory

It is very Important theory in Islamic legal system because All schools of thought accept the
doctrine of this theory. As well as all jurists accept the doctrine of this theory due to its
importance

4) Theory of Abrogation According to Holy Quran

According to the Holy Quran, theory of abrogation is as under:

Abrogation is necessary in Islamic legal system because Islamic law acknowledges the
theory of abrogation

As Quran says:

“AND WHEN WE PUT A REVELATION IN PLACE OF ANOTHER
REVELATION”

5) Theory of Abrogation according to Sunnah

It is Narrated by Abdullah bin Massed (R.A) that after revealing of the revelation from
ALLAH we were ordered by Holy Prophet (P.B.U.H) to wrote and next morning when we
see that revelation has been rubbed at the same time When matter taken to Prophet
P.B.U.H, he says it was repealed

6) Significance of theory of Abrogation

The theory of abrogation plays three major functions in Islamic jurisprudence

All previous divine books have been abrogated by Quran. A lot of verses have been
repealed , there were some verses whose text and law both were repealed
There were some such verses whose Only text repealed but law remained same of some
verses , it was the process of abrogation which was used in Quran for revelation of new
laws

7) Types of Abrogation

Following are the types of abrogation.

1. Explicit Abrogation

When law giver clearly states that the rule has been abrogated it is called explicit
Abrogation

Example:

THE PROPHET (P.B.U.H) SAID

“I USED TO FORBID YOU FROM VISITING GRAVES, BUT YOU MAY DO SO

NOW.”

2. Implicit Abrogation

Following are the sub types of implicit abrogation.

Types of implicit abrogation
A. Total abrogation

Lifting of entire law by replacing another one for it is called total abrogation
B. Partial abrogation

Repealing law for certain class alone is called partial abrogation

8) Conditions for Abrogation

Following are the conditions of theory of abrogation. Process of abrogation should have
following qualifications otherwise this theory will not be accepted as valid.
Abrogation should be during the lifetime of Holy Prophet P.B.U.H
Should be latest
Abrogated text Should be equal in meaning and authenticity
Must be in conflict ,no possibility of reconciliation in between both texts
Both texts must not revealed together

9) Rules of Abrogation

Following are the rules of abrogation

Quran can abrogate the Quran
Sunnah can abrogate the Sunnah
Sunnah by Quran
Quran by Sunnah

11) Examples of Abrogation from Quran and Holy Sunnah

Following are the examples from Holy Quran and Holy Sunnah.

Example from Holy Quran

Changing the direction of QIBLAH From “Bay-Tul-Muqaddas” to “Masjid-EAlharam”
is the best example of the abrogation

Example from Hadith

THE PROPHET (PBUH) SAID “I USED TO FORBID YOU FROM VISITING GRAVES, BUT
YOU MAY DO SO NOW.”

12) Limitation on the doctrine of Abrogation

Following are the limitations upon theory of abrogation
Divine attributes can’t be repealed e.g. Tawhid, Prophethood, Books of ALLAH etc.
Moral truth can’t be repealed as ALLAH in one, Prophet (P.B.U.H) last messenger of ALLAH
Islamic sharia Can’t be repealed , Order of Prayer, giving Zakat etc

13) Preclude

Abrogation was the need of time and society because civilization is changing time to time
Islamic laws works for Human beings and provides a lot of easement in order to live better
life for all humanity
Law laid down gradually and step wise in the reign of Holy Prophet (P.B.U.H)
Abrogation’s aim is to facilitate the society.

Q # 03: Discuss Sunnah as a source of Law.

1) Preface

SUnnah is the Second primary source of Law.If any jurist is unable to find a Hukm from
Quran, he has to recourse to Sunnah because Sunnah is Special bond between Quran
and Sunnah
Sunnah is explanation of Holy Quran without Holy Sunnah it is very difficult to
understand the general rules of the Islamic law laid down in the Quran
There are three different kind of sunnah such as Sunnah e Qauliyah, failiyah, and
approval of the holy Prophet (P.B.U.H)

2) Meaning of Sunnah

Sunnah means “Well known path” is being which is being followed again and again

3) Definition of Sunnah

Sunnah are the Sayings ,acts and approvals of Holy Prophet (P.B.U.H)

4) Kinds of Sunnah
Following are the kinds of sunnah.

1. According to its Nature

According to its nature sunnah have following of the three kinds

A. Sunnah Al Qauliyah

These are Saying or narration of the Holy Prophet (P.B.U.H) and the main object of
the sunnah is to explanation of Ahkams

Example

“NO INJURY TO BE CAUSED AND NONE IS TO BE BORNE”

B. Sunnah Al Failiyah

These are deeds and practices of the Holy Prophet (P.B.U.H) such as his prayers
,fasts etc. these kind of sunnah are purely based on practical

C. Sunnah Al Taqririyah

These are Commission of certain acts by words or deed of the Holy Prophet
(P.B.U.H).If something was done before Holy Prophet (P.B.U.H) but Holy Prophet
(P.B.U.H) remained silent and Such silence also would be considered as Sunnah

5) Division of Hadith
According to its written record following are the kinds of sunnah

1. Hadith Muttasil

Whose chain of Narration is complete and no narrator is missing up to the Holy
Prophet (P.B.U.H)
Following are the sub-types of Hadith-e- Muttasil
A. Hadith Mutwatar
o When all the narrators unanimous reporting it with the same words
without any difference is called hadithe mutawatar
Following are the sub-types of Hadith-e-Mutwatar

Tawatar Lafzi

When all the narrators of Ahadith agree on words, it is called
tawatar lafzi

Tawatar Man,navi

When all narrators agree with meaning but words may not
exactly the same. It is called tawatar manavi

B. Hadith Mash,hur

This such hadith which is narrated by more than two narrators Or
narrated by a Group

C. Hadith Ahad

Narrated by one or two persons from beginning to end of its chain of
narration. It is called Hadith-e-Ahad

2. Hadith Mursal

When a lot of names of narrators are missing in this case Jurists disagree to
implement this kind of hadith for hukam

6) Sunnah as a source of Law

ALLAH ALMIGHTY delegated powers to Holy Prophet (P.B.U.H) for law making. Sunnah is
obligatory on Muslims Because Sunnah is source of Law. Holy Sunnah also was revealed
on Holy Prophet (P.B.U.H

1. Authority of Sunnah

Quran gives authority to Sunnah for legislation and the following Quranic verse throws
light on it

Quran Says”
“HE WHO OBEYS THE PROPHET (P.B.U.H) OBEYS ALLAH”

2. Legislative functions of Sunnah


Sunnah is 2nd primary source of law. Jurist can’t move to Sunnah unless the
search from Quran completed. Jurist unable to comprehend the text of Quran
unless he recourse to the sunnah. Sunnah is explanation of Quran itself

7) Qualification for sunnah as a source of Law


Every Sunnah is not a source of Law. To Qualify as source of law must sunnah must have
a legal content. Purpose of the saying or act is to lay down a law or its elaboration

1. Original law making


When no hukam to be found in Quran for commission or omission of certain act
at that time, Holy Prophet’s own decision becomes an original law

2. Relationship between Holy Quran and Sunnah


Quran provides priciples for Islamic life and Sunnah explains them very
efficiently

3. Provision the details of General rules


Ahkams in Quran are undetermined but Sunnah explains these Ahkams

Example
As Quran says, the male two shares of the female,
Sunnah explains murderer will not inherit

4. Explanation of the Implicit


Some Quranic verses are unclear but but Sunnah makes them clear and
without sunnah all of us are unable to understand these ahkams

Example

Quran says : hand of each thief to be cut

Sunnah explains it, the thief who steals wealth equalent to Nisab from
the protective custody

5. Elaboration of Ahkams

Ahkams in Quran are unelaborated. Sunnah explains these Ahkams

Example

Quran order prayer, Sunnah provides its timings, numbers and

Rak’as of prayer.

6. Linkage of case

Sunnah links the case with well-known principle of Quran

Example
Quran permits to eat good things, Forbid to eat khabaith ,
Sunnah categories of animal with Molars (Peesne k daant) and
birds with Claw (Panjay)

7. General principle laid down by Sunnah


Sometime Sunnah lays down a general principle but sunnah explain
them for the benefit of the humanity

Example
“NO Injury is to be caused or to be borne” while Quran says,
”INJURY TO OTHERS HAS BEEN PROHIBITED”

8) Relation of Quran with Sunnah


Sunnah is mode of interpretation & elaboration of Quran. Sunnah does not go against
Quran and Quran does not go against Sunnah. Sometimes it becomes difficult to
maintain that these are two separate sources

9) Difference between Sunnah and Hadith


Word “HADITH ”derived from “HADATHA” which means a TALE . In legal sense, hadith
means Sayings of Holy Prophet (P.B.U.H) which must be practiced. Meaning of both are
approximately Same

1. As to meaning

HADITH means sayings of Holy Prophet (P.B.U.H)
SUNNAH is Every act of Holy Prophet( P.B.U.H)

2. As to Scope

SUNNAH is bigger in scope
HADITH is narrow in scope because it only the saying of Holy Prophet ( P.B.U.H)

3. As to element

SUNNAH is complete term which has three element
HADITH is one element of Sunnah

4. As to activity

HADITH ,there is only saying
SUNNAH, This is the act of holy Prophet (P.B.U.H )
Silence is also a Sunnah in case any was performed before Him

5. As to collection

HADITH have been collected and compiled
Collection of Sunnah is never made it is out of collection

10) Constitutional status of Sunnah


Sunnah performed pivotal role in making constitutional. God delegated powers to Holy
Prophet (P.B.U.H) for legislation. Holy Prophet (P.B.U.H) gave a practical shape to
injunctions of Quran
11) Preclude Remarks

Sunnah is second primary source of Islamic Law. Sunnah is interlinked with Quran.
Sunnah Explains the difficult words of Quran and unable us to understand the real aim
of Quran.

Q # 04: Define Ijma. What are its kinds and how it is

conducted?

1) Preface

Ijmar is the third source of law which means “Consensus” and basically it is an agreement of
muslim scholars upon religious issues. According to the need of the time ALLAH gave sanction to
Muslims for perform ijma because It is necessary to resolve the arising needs of time. All school
of thoughts accepts the doctrine of this theory and exercise this theory when needed

2) Meaning of Ijma

The word ijma has been derived from Arabic word “AJMAA” which means “Agreement upon a
matter”

3) Definition of ijma

Agreement upon a Question of Law of the Muslim scholars of the same age

4) Basis of Ijma
Following are the three basis of Ijma.
1. Quran
2. Sunnah
3. Analogy (Qiyas)

5) Arguments in support of Ijma


Allah Almighty completed islamic religion and Holy Prophet P.B.U.H last of the prophet .
If any rule of law not found in Quran and by Holy Prophet (P.B.H.U) then Ijma is permitted to
Muslim jurists and they can find out the laws for rising issues of the modern age
1. Quranic verses in support of Ijma

As Quran Says:

“OBEY GOD AND OBEY PROPHET (P.B.U.H) AND THOSE AMONGST YOU WHO HAVE
AUTHORITY”

2. Hadith in support of Ijma


As Hadith Says:
“MY FOLLOWERS WILL NEVER AGREE UPON WHAT IS WRONG”

6) Kinds of Ijma
Following are the kinds of ijma.

I. Explicit Ijma
Where jurists clearly express their views regarding any religious issue under discussion before
them

II. Tacit Ijma

Where jurist not clearly express his views and remain silent on legal decision ,his silence also will
be considered with majority

7) Who can perform Ijma

Qualifications of Mujtahid who can perform Ijma.
1. Scholar of Quran and Sunnah
2. Expert of Arabic Language
3. Knows the priciples of Naskh
4. Knows Qiyas
5. Impartial thinking
6. Familiar with the traditional science
7. Competent to explain law
8. Up to date with knowledge of society

8) Validity of Ijma
Ijma is valid if it has following.

1. Ijma by Mujtahid
Ijma must be performed by Mujtahid who have attained the status of Ijtihad

2. Unanimous opinion
All jurist or Muslim scholar must have unanimous opinion on a religious issue

3. Performed by Muslims
All participating jurists should be from Ummat-e-Muhammadi

4. After the death of Holy Prophet (P.B.U.H)

Ijma must be performed after the death of Holy Prophet (P.B.U.H) if it has been performed
within the life of Holy Prophet (P.B.U.H) then it will not be accepted as valid

5. In a same period
Ijma should be performed in a same period By Muslim scholars of the same age

6. Upon rule of Law

Ijma must be upon a rule of law because it can’t be applied on non-legal matters

7. Reliance upon a Sanad (Evidence)

Ijma must be relied upon some sanad otherwise it will not be considered as valid

9) Ijma as a source of law

Ijma is 3rd source of law and many issues have been resolved by Ijma. Scholars of modern age
can perform ijma if they are eligible or qualify as Mujtahid

1. Enforcement of Ahkams of Quran and Sunnah

Ijma discovers the new Laws and enforces the Ahkams of Quran and Sunnah

2. Interpretation of Sharias
Ijma helps the Muslims scholars in interpretation of Laws of sharia laid down in the Holy Quran
and Holy Sunnah
3. New legislation can be made
After Quran and Sunnah ,new legislation can be made with the help of Ijma which is permitted
in Islam

4. First Ijma performed by Muslims

ELECTION of HAZRAT Abu Bakar R.A for CALIPHA was based on IJMA

10) Legal effect of Ijma

The law laid down by Ijma has authority even till:
No jurist raise question before its creation
No jurist raise question after its creation
Decision must be proved universally

11) Imja and Western Concept of “Opinio Prudentium”

Opinio Prudentium which means “Opinions and decisions of lawyers”. In Roman law system
lawyers give their opinions on the directions of the king Such opinions become part of legal
system later on. However concept of Ijma has wide scope than Opinio Prudentium

12) Ijma in modern period

Ijma is not confined to any age or country and it has been permitted if there is no hukm to be
found in Quran and Sunnah. Muslims jurists are permitted to perform ijma in the light of laws
laid down in the Holy Quran and Sunnah

13) Can parliament perform Ijma?

It is very important question for Islamic country. If parliament possess the qualification of
mujtahid then it can perform Ijma it parliament does not qualify so it cannot perform Ijma

14) Preclude Remarks

Ijma is a basic principle of sunni thought of school because whenever they don’t find any issue
from Quran and Sunnah then they perform Ijma and get the result in shape of new legislation
Ijma of one age can be changed by subsequent ijma of same age
It can be established by words or practice
Q # 05: What are the modes of acquiring ownership and
loosing it in Islam?

1) Preface
Ownership is very important concept in Islamic legal system
It relates to man’s worldly desires and his relations with an another’s
Islamic law providing different modes of acquiring and loosing of ownership
Ownership is basically a right of possession something and property may be land or other than this

2) Meaning of ownership
Right of possessing something

3) definition of Ownership
Ownership is a relationship between a person and thing and it is the absolute control and right of
decision over thing as well as it is a power of Exclusion of others

4) Elements in Ownership
In ownership essential elements are presence of “CONTROL” and “EXLUSION OF OTHER” the
person
who has such powers is called Owner

5) Subject matter of Ownership

Mal is the subject matter of Ownership

1) Meaning of Mal by Al-Hawi

Mal is thing which is other than human being and have been created for benefit of Man and
Which man can store or utilize on his own will

2) Things which are including in Mal

A Mal may include following things

I. Things having a corpus

All things which are touchable included in Mal

II. Things connected with corpus


Things connected with corpus also included in Mal

Such as Munafah it either in shape of PRODUCTION OF PHYSICAL OBJECT or SERVICES OF ME

3) Modern concept of Mal

In traditional Islamic legal system, mal not included incorporeal ( rights like copyrights etc
In modern Islamic law now courts and jurists are trying to expand the concept of Mal

4) Classification of Mal
Concept of Mal has been classified as under

1. Moveable and immoveable

Immoveable things are those things which cannot be move from one place to another
place such as land and buildings etc.
Moveable things are those things which can be moved from one place to another

2. Similars and dissimilars

If alternate can be found by weight or measure is called Similar
If alternate can’t be found in market is called Dissimilar

3. Marketable and non-marketable

Marketable things which can be converted to private Property such as currency, car, etc
Non-Marketable which can’t be converted to Private property like air, sunshine, etc.
Non-Marketable thing are not regarded as Mal

4. Consumable and non-Consumable

Consumable things like food, water etc.
Non-Consumable things like house, Gold etc.

6) Modes of Acquiring Ownership

Following are the modes of acquisition of ownership. Details are as under.

1. Original acquisition
Original acquisition means an acquisition of a property or estate which has never been the
property of another. This is original acquisition because such things may have not been used
commonly by someone before this. Such acquisition is called original acquisition

2. By Transfer
Transfer of ownership is frequent mode of acquisition and ownership of a property is
transferred from one person to another. It only can be possible only by contract in form of sale,
gift etc.

3. By Succession
It belongs to the family Law and after someone’s death property passes to his legal heirs and
they become owner by succession

4. By Prescription
It belongs to property Law. It means continued occupation by someone over a thing from a long
period
In Islamic legal system such kind of Ownership can’t be acquired by prescription
But In modern age in English system, such acquisition is allowed and can be acquired which is
illegal exercise

7) Modes of Loosing Ownership

Following are the modes of loosing ownership

1. By transfer
An act of transfer can cause loosing ownership. Original owner transfer his things to another
person by mean of contract like sale,gift,waqf etc. Similarly ownership passed one to another

2. By destruction of thing
In case of destruction of thing owner can lose ownership upon his property

3. By Death of Owner
After the death of owner, ownership ends.Right on that thing transfers to his legal heirs

4. By Operation of Law
By operation of Law, Ownership comes to an end and it can be by way of transfer, sale, as well
as seizure of property by the court of law

8) Ownership in Islam as compared to that of English Law

According to Islamic system, ownership on liberties, powers, properties can’t be acquired
According to English System, above rights or ownership can be occupied by different rules

9) Preclude Statements
Every human being has right to make property
Islam forbids to acquire other’s property by means of fraud or by doing illegal act
But property can be transfer by an act of transfer with the consent of ownership without making
undue influence
Property can be acquired by operation of Law
Q # 06: Define contract? What are the ingredients of a valid
contract in Islamic law?

1) Preface
Generally contract forms when one person offers and another person accepts it. Contract is
basically a Legal agreement between the parties and a valid contract is enforceable by the law
according to rules prevail. As safety of property or ownership is a legal right of the peoples and
state plays his pivotal role in order to prevent transaction among people in shape of contract

2) Definition
An agreement which is creating an Obligation and enforceable by law. The basic element of an

agreement is a mutual consent of the parties

3) Literal and legal meaning meaning

Literally it means “Tie” and “Knot”. Legally it means any statement which legally binds
the parties to fulfill an obligation to do something or not to do something in legal way

4) Importance of contract according to Quran and Sunnah

Following verse of the Holy Quran shows the importance of the contract. Verse is as under

As Quran Says:
“O YE WHO BELIEVE FULFILL YOUR AGREEMENTS”

As Hadith Says:

“HE WHO HAS NO RESPECT FOR KEEPING PROMISES, DOES NOT POSSESS DEEN”

5) Formation of Contract
Contract is a branch of the civil law. ... A contract arises when all the parties are agree
that there is an agreement. Formation of a contract generally requires an offer,
acceptance, consideration, and a mutual consent to be bound

6) Essentials of contract in Muhammadan Law

Following are the essentials of contract

1) Plurality of Parties
Contract requires two parties at least because it is not possible without two parties
One person can’t create a valid contract

2) Capacity to enter into the contract

Parties must have the capacity to enter into the contact
They must be Sane,
Must be Major,
Must not lunatic etc.

3) Legal relation
Contract must be establish legal relations between the parties. Contract must be
legally bounds the parties to fulfill their agreement conditions

4) Legal Contract
Contract must be legal or lawful it should not not contrary to Islamic legal law as well
should not contrary to public policy

5) Free Consent
Consent of the parties must be genuine it has not been taken by undue influence or

fraud or illegal pressure etc

6) Offer and acceptance

Offer and acceptance are the major things of contract
One party makes a contract and other party accepts it

Example:
A offer to Sell his car to B
B accepts his offer. It is a contract

i. Conditions for offer and acceptance

Following are conditions for offer and acceptance

a) Conformity of proposal and acceptance

If there will be any conflict between offer and acceptance in this case it would not
be valid contract

Example:
A says to B. I have sold this car to you for 100. B replies I have accepted it for
8000. This is not a valid acceptance. There is not contract

b) Must be in same session

Offer and acceptance should be in same time. Otherwise contract can’t be made

Example:
A says to B,I want to sell my house to you. B says nothing and leaves the place.
Offer comes to and ends, B can’t accept it later

c) Acceptance before the termination of offer

Acceptance should be ,before the termination of offer. Otherwise contract
can’t be made

7) Mahall al Aqd (Subject matter of Contract)

Mahall Al Aqd is the thing for which agreement has been made. It is same as the term
Consideration in English Law

Conditions of Mahall Al Aqd(Thing)
Following are the conditions of Mahall al Aqd
1) Thing must be available at the time of contract
2) Thing must be deliverable at the time of contract
3) Must be in notice of the parties

8) Fitness of Mahall
If subject matter is not fit according to the prescription in this case contract will be
cancelled altogether

7) Preclude Fact
Law of contract is more or less similar to Western law. The major factor is to establish a legal
relation between the parties. It is the most frequent mode of acquisition of ownership
Q # 07: what is concept of sovereignty in Islam? To what
extent
this concept is applied in the present system.

1) Preface
ALLAH is the creator of everything exist on the earth and heaven, there is not GOD but ALLAH.
Concept of Sovereignty in Islam different from western concept of sovereignty. Islamic concept
of sovereignty has been derived from Quran and Sunnah. Sovereignty only belongs to ALLAH
and ALLAH alone. All the things are under the authority of ALLAH and ALLAH has sent human
being on earth as his kahlifa who exercise the powers within the limits prescribed by ALLAH

2) Literal meaning
The word sovereignty has been derived from Latin Word “Superanus” which means SUPERMACY
OF ONE OVER THE OTHERS

3) Definition of sovereignty
All things are under ALLAH’s control and nothing happens without his permission and directions
as ALLAH is sovereign over the world

4) Islamic concept of Sovereignty

Islam teaches us that all Supreme powers belongs to ALLAH and ALLAH alone and there is no
one who can compete ALLAH against his sovereignty

Quran Says:
“TO ALLAH BELONGS THE SOVEREIGNTY OF THE HEAVENS AND EARTH”
“HE WHO GIVES LIFE AND DEATH AND HE HAS POWER OVER ALL THE THING”

5) Attributes of ALLAH’S Sovereignty

Sovereignty of ALLAH has the following attributes

1. Absolute as Quran Says:

ALLAH is the creator of all things and he is one the Almighty.(AL Quran)

2. Indivisible (Naa Kaablay Taqseem)

Sovereignty of ALLAH is not indivisible because there is not God but ALLAH

3. Inalienable (Naa kablay Intiqaal)

Sovereignty of ALLAH is inalienable because it Can’t give away to anyone and can’t be shared
with anyone

4. Unlimited
As ALLAH is sovereign and he has unlimited powers over the others in the world and whole
command is with ALLAH in all things

5. Universal
ALLAH’S Sovereignty is Universal because It covers the every particle of the heavens and on
the earth

6. Comprehensive
Sovereignty of ALLAH is including everything in the world and no one can challenge to his
powers in the whole world

7. Eternal (Abdi)
Sovereignty of ALLAH is eternal because ALLAH sovereignty is from beginning of time to till
end of time. It is permanent and everlasting sovereignty

8. Original
ALLAH’s Sovereignty is not derived from superior to him. As Quran says that ALLAH is creator
of all things and he is guardian over all things(Al Quran)

6) Attributive name of ALLAH’S Sovereignty

ALLAH’S Sovereignty is shows from his attributive names. Some of are as under:
AL Khaliq The Creator
AL Ahad Only One
Al Wahab The Grantor
AL Hakam The Judge

7) Vicegerency (Khilafat) of man

ALLAH is lord of Heavens and earth and ALLAH delegates powers to men for administration of
justice and they exercise their authority with the limitations by ALLAH
Man is a khalifa of ALLAH ALMIGHTY on the earth who is responsible for administration of
the earth according to the will of ALLAH

Quran Says:
“AND WHEN THE LORD SAID TO ANGELS, LO! (SEE) I AM ABOUT TO PLACE A
KHALIFA IN THE EARTH”

8) Concept of Sovereignty and Amir in Pakistan

Concept of sovereignty of recognized in 1973 constitution of Pakistan
Sovereignty over the entire universe belongs to ALLAH alone But Authorized person
will exercise their powers for administration of justice within the limits prescribed by
ALLAH Almighty

9) Concept of Sovereignty in West

Sovereignty is modern concept of the west. And it has been born by modern state. At the
first time tt was presented by Jean Bodin in 1576 who declares sovereignty is not power to
make law it is above to law


Blackstone Says
“Sovereignty is the supreme will of the state”

Analysis,
o Western concept is imperfect because there are certain limitations on it and western
refers sovereignty to state .It means there can be as many sovereigns as states in the
world
o As compare to Islamic concept it is more realistic and logical that Sovereignty of
ALLAH is unlimited and covers the whole universe , heavens and earth

10) Difference between Islamic Concept of Sovereignty and

Western Concept of Sovereignty
Following are the differences.

1. As to Authority
1) In Islam, sovereignty of entire universe belongs to God
2) In Western concept, sovereignty belongs to people

2. As to kinds of Sovereignty
1) In Islam, there are no kinds of Sovereignty
2) In Western concept, Sovereignty has different kinds

3. As to State
1) In Islam, Sovereignty is not subject to State
2) In Western concept, there must be state for sovereignty

4. As to Scope
1) Islamic concept of sovereignty has wider scope
2) Western concept of sovereignty has less scope

5. As to Perfection
1) Islamic concept of sovereignty is perfect in all aspects
2) Western concept of sovereignty is imperfect

6. As to Nature
1) Islamic concept is permanent nature
2) Western concept is temporary nature

11) Preclude
Islamic theory is completely different from west theory. Islamic theory derived from
Quran and Sunnah which are basic sources. Islam teaches sovereignty belongs to
ALLAH alone. No human being can be lord of another human being .

Q # 08: What are the qualifications prescribed in Islamic

Law for
competent witness? And define the woman as witness.
1) Preface
It’s a duty of witness to come forward and give testimony because a witness is medium
through which facts can be identified. Islamic law provides qualifications and disqualifications
for a competent witness to appear as witness

2) Definition of witness
Individuals who provide evidence in legal proceedings before a court. Persons who give
testimony under oath in court, relevant to what they have seen, heard, or otherwise observed.

3) Meaning of Competency of Witness

A witness is competent if he lawfully be called to give evidence In criminal proceedings all
persons are (whatever their age) competent to give evidence

4) Doctrine of Tazkiya-Tu-Shahood
Doctrine of Tazkiya-Tu-Shahood is very important. It means those persons who appears before
court for testimony and court will inquire the character and background of such witness

5) kinds of Tazkiya-Tu-Shahood
It has two kinds
o Declared Tazkiya-Tu-Shahood
o Secret Tazkiya-Tu-Shahood

6) Importance of testimony (Gawahi) According to Quran

Importance of giving testimony has been provided by Holy Quran.
Holy Quran says:
“DON’T CONCEAL TESTIMONY. HE WO CONCEALS IT. HIS HEART IS SINFUL “

7) Qualification for a competent witness

Following are the qualifications for competent witness

1. Able to understand the questions

Witness should be able to understand the question put to them but due to tender age, old
age or disease whether body or mind

2. Not convicted by Court for Perjury(Jhooti Gawahi)

Witness should not be convicted by Court for giving false testimony
3. Free from Prejudice
Witness must not be prejudice as well as the testimony of following witnesses is
unacceptable
1. Father in favor of his son and vice versa
2. Slave in favor of his master
3. Non-Muslim against a Muslim etc.

4. Must be Muslim
Witness must be a Muslim for testimony
Disbeliever not permitted for testimony
Abu Hanifa permits disbeliever testimony upon certain conditions
But Other schools of thought disagree about the testimony of disbeliever

5. Reliability of Character
By Tazkiya -tu-Shahood
1. Witness should be clean from deeds which cause Hadd punishment
2. Witness should be free from SINs
3. Witness should be Adil

6. Maturity
Person must be of a mature mind and must be able to understand the fact related to
criminal act

7. Eye-Sight
Must possess perfect eye-Sight and must be capable of being seen the facts

8. Speech
Person must possesses the capacity to communicate in hadood cases

9. Strong Memory
Person must has a good memory because person of bad memory is unacceptable as
witness

8) Conditions for giving testimony

There must be existence of complaint and requirement to the testimony
Testimony should be given before the court
Witness has the personal knowledge of the fact ,hearsay is unacceptable
The word shahadat must be used in the beginning
Witness must be remember the incident
Witness must be able to identify the parties
Conformity(Mutabqat) of the statement with the claim
In Hadud cases (Qadhaf) facts must not occurred in the distant part

9) Competency of Woman as witness

Competency of woman as witness is discussed as under

1. Competency in Hadood Cases

In Hadood Cases( Category of violation of right of ALLA) Competency of women is
regarded as incompetent

2. Competency in Tazir Cases

In case where violation of right of individual involved, women’s testimony is accepted.
Prescribed Nisab for testimony of One male and two female witnesses

3. Financial transaction
In financial matter or future obligation (zimadari). Testimony of two women is accepted
with one male

4. Specific matter where testimony of women is needed

In matters which generally known to women
Such as whether a particular child was born by a particular women
Can be proved by the testimony of single woman

5. Other matters
A court may accept and act upon the testimony of one women
After the tazkiya of Women that she has possess all qualifications as a witness

10) Position in Pakistan

The competency and number of witnesses are provided in Article 3 and 17 of Q.S.O
1984
Article 3 says that witness must not prevented from understanding and is capable to
giving evidence
Article 17 says the how many witnesses are required to prove a fact in light of
injunction laid down by Quran and Sunnah
11) Preclude
In mostly case ,it is being observed someone has given testimony against someone
But later witness denies, there are certain reason which compel men to tell falsehood or
other circumstances. Which prevent them from giving correct and reliable information
that’s why Islamic law has provided certain qualifications for competent witness .

Q # 09: Define Hadd and Tazir. What is difference between

these?

1 Preface
In Islamic law there are two kinds of punishments are given by Islamic law which is Hadd
and Tazir.
Tazir refers to punishment for offences at the discretion of the judge
Hadd refers to punishment for offenses as mentioned in Holy Quran and judge can’t
change them. In Islamic Law ,aim or objective of such kind of punishments is to reformation
of criminal and disgracing them

2) Types of Punishment

Types of punishments are divided into two types

1. Hadd

A. Literal meaning

Word hadd means limit

B. Definition of Hadd

Legally Hadd means those punishments whose limit has been defined in the Holy
Quran and Hadith
2. Tazir

A. Literal meaning

Literally means disgracing the criminal for his shameful act

B. Definition of Tazir

Legally Tazir means those Punishments “where Judge is authorized to fix the nature
of punishment which may be fine, death, imprisonment, compensation etc against
violation of individual rights.

3) Hadd crimes and punishments

No judge can change or reduce the punishment for these serious crimes because these have
been set by ALLAH in Quran. The Hadd crimes are:

1. Murder Punishment

Death by retaliation(Jawabi Karwaee) (by victim’s family)

Compensation (Payment or property)
Pardon by victims family

2. Apostasy(Inkaar) from Islam Punishment

Punishment
Death by Beheading (Sar Kalam Krna)
Imprisonment until repentance (Toba,Mufi)

3. Robbery Punishment

Death by beheading (Sar Qalam Krna)

Cutting off hands or foot
Imprisonment
4. Theft Punishment

Cutting of right hand from joint of wrist if theft is committed first time
As for the thief, male or female, cut off the hands of both from the joint of
Wrist

5. Adultery Punishment
Stoning to death for those who are married
100 lashes for those who are un-married or bachelors

6. Defamation Punishment

80 lashes are defined under Hadd for defamation

7. Alcohol drinking Punishment

80 lashes are defined under Hadd for Alchohold Drinking

8. Rebellion Punishment

Death if Captured by the forces

Tazir Punishment if surrendered or arrested himself

4) Tazir Crimes and punishments

Judge can fix a punishment on his own discretion against violation of rights of
individuals
Tazir crimes are less serious than the hadd crimes found in the Quran. Tazir
punishments vary according to circumstances. Change time to time and place to
place. Objective of such punishment is to prevent the society from offender
from future. Judges are not bound to make decision on behalf or Precedent ,or
later case etc
Some of most common punishments are comes under Tazir crimes:
1. Counseling (Sulaah)
2. Fines
3. Public or private pressure
4. Imprisonment
5. Seizure of property
6. Confinement (nazarbandi) in the home
7. Lashes
5) Difference between Hadd and Tazir

Being Muslims, it is obligatory (lazmi) for us to accept wholeheartedly all the tenets of
Islam. Hadd crimes are crimes against ALLAH’s Law. Tazir crimes are crimes against society.
Islam has defined two kinds of punishment namely Hadd ,Tazir,. Punishments for Hadood
are integral part of Islam which can’t be reduced by Judge. In Tazir crimes, judges are
authorized to fix the nature of punishment on their own discretion (Sawabaydeed)
Following are the some point of distinction between hadd and tazir

1. As to Object

The object is hadd is prevention of a crime by following the principles laid down in the
Quran and limits prescribed by ALLAH
The object of Tazir is reformation and correction of the offender

2. Procedure

The procedure of trial in Hadd is complicated

The procedure of trial in Tazir is Simple, according to some jurists, Judge can judgment on
basis of his own knowledge

3. As to Right

Violation of rights of ALLAH gives raise to Hadood Punishments

Violation of rights of Individual gives raise to Tazir Punishments

4. Change of Sentence

The penalty of Hadd can’t be commuted

The penalty of Tazir can be commuted

5. Pardon of Sentence
Pardon can’t be granted in Hadood cases
Pardon may be granted in Tazir cases

6. Operation of Mistake

Doubt or mistake can affect the penalty of Hadood cases

Doubt or mistake can’t effect the penalty of Tazir cases

7. Rule of testimony

The evidence of women is not acceptable in Hadood Cases

The evidence of women is acceptable in Tazir cases, but the nisab of one man and two
women will have to keep in view

8. Standard of evidence

In hadood ,the standard of evidence is so high as to number, qualification and conditions
of witness because any doubt can prevent the implementation of hadd punishment
In Tazir,Standard of evidence is not so high

9. Mention of Offences

Some jurists listed seven hadd offences.

1. Murder
2. Apostasy from Islam
3. Robbery
4. Theft
5. Adultery
6. Defamation
7. Rebellion
8. Alcohol drinking
Tazir offences has not been mentioned because they are innumerable (Angint)

10. Discretion

In Hadood crimes ,judge can’t exercise his discretion(Raye/Sawabaydeed)

In Tazir crimes, Judge can exercise his discretion
11. Replacement

Hadd punishment can be dealt with under Tazir

In Tazir the punishment of Hadood can’t be enforced

6) Preclude
Punishment for Hadd and Tazir is part of Islamic law. Hadd was implemented in Arabic before
promulgation (Ishaat) of Islam as Tazir in Pakistan. Islamic law does have separate courts for
Muslims for RELIGIOUS CRIMES. Non-religious courts for other criminal and civil matter.
Objective of Islamic law and courts to secure the people of society from offenders.
Q # 10: What are the sources of an Islamic State?

1) Preface
There are difference source of Islamic revenue such as Zakat ,Ushar,Khiraaj,jizya and khums
Zakat is a pillor of Islamic revenue system and it is an annual tax upon yearly saving of one
person order for giving zakat is repeated in Holy Quran. Zakat helps to remove poverty
from community and it is the major economic source for establishing financial justice
Ushar is also form of tax which is imposed in lands of muslims of the community and it is
annual tax which mean one tenth
Khiraj is also form of usher but it is being imposed upon non-Muslims land within the state
Jizya is an annual personal tax which is imposed upon Non-Muslims of the state against their
protection within the state
As well as there are a lot of taxes which have been imposed on the members of the muslim
and non-Muslim community and these all are major sources of an Islamic state

2) Sources of Revenue
Following are five sources of an Islamic state
1. Giving Zakat
2. Ushar
3. Khiraj
4. Paying Jizya
5. Khums

1) What is Zakat (Poor Rate)

Zakat is a tax which imposed(Lagu) on Muhammadans alone and it is Yearly paying the
payment which is obligatory act of worship

i. Meaning
Zakat means GROWTH or PURIFICATION

ii. Importance of Zakat

Zakat is a right of ALLAh and It is a duty of every Muslim to give zakat to those who are
poor. A number of verses in Holy Quran for order to pay the Zakat which is 2.5 % of
yearly savings of wealth
Quran Says:
“SO ESTABLISH WORSHIP, PAY THE POOR- DUE AND HOLD FAST TO ALLAH”

iii. Upon whom Zakat levied (Lagu)

According to Muslim jurists ,it is obligatory upon every Muslim
who is Free ,Sane, baligh and owns wealth equal to prescribed Nisab

iv. Persons entitled to Zakat

1) The poors and needy
2) To thouse who cannot meet their basic needs
3) To zakat collectors
4) To those who converts Islam recently
5) Those who are in debt
6) To traveller
7) In the way of ALLAh
8) To free from the slavery

v. Nisab of Zakat
The nishab of Zakat is 7.5 tolas Gold and 52 tolas Silvers if someone have such thing he
is liable to give zakat

vi. Rate of Zakat

Rate of Zakat is 2.5 % of yearly savings

vii. Realization of Zakat

Zakat was realized by Hazrat Abu Bakar Siddique (R.A)

2) Ushar
Ushar means “One tenth” and this is the Tax on all lands of the Muslims of the country
i. Rate of Ushar
Upon naturally irrigated land is 1/10 % e.g by rains, floods etc
Upon artificially irrigated land is 1/20 e.g by Wells ,canals etc

3) Khiraj
Khiraj is the tax on the production of land of all Non-Muslims that Land which has been
conquered by Muslims after fighting

I. Rate of khiraj
The rate of Khiraj vary with the kinds of crops grown on land
It never exceeds from half of the value of production

II. Exemption from Khiraj

If land get destroyed by flood or fire in this case khiraj is exempted for that year
Exception
If the land get destroyed by negligence of the owner in this case khiraj is not
exempted for that yea

4) Jizya (Personal Tax)

Jizya is an annual personal tax which has been imposed upon Non-Muslims of the state
upon those Who has fought against Islam or are able to participate in a war against Islamic
state

a) Upon whom jizya imposed

Jizya is imposed on those who have following of the three characteristics
1. Must be a Male Person
2. Must be free
3. Must be a Major

b) Persons exempted from Jizya

Following are the person who exempted from Jizya
1. Religious personality 5) Women
2. Slave 6) Minor
3. Disables
4. Non-muslims giving military services

c) Mode of imposing Jizya,:

Following are the two modes of imposing jizya
Under an agreement in which its amount to be determined by the parties
Under an agreement in which its amount to be determined according to income
of each individual

d) Amount of Jizya
Amount for jizya is not fixed because it varies time to time

e) According to Abu Hanifah

The jizya ranges are between 12 Dhirham,24 dirhams and 48 dirhams
Poor can’t pay less than 12 dirhams
Rich can’t pay more than 48 dirhams
Moderate person will have to pay 24 dirhams

f) Mode of paying Jizya

Jizya can be paid in mode of currency
It also can be paid other than currency such as garments etc.

g) Jizya at present time

Jizya is disappeared at present time after the revolution in Turkey since when
Christian also do military service

5) Khums
Khums consisting of 1/5 of the property and it is being collected even from Muslims or Non-
Muslim of the state but It is taken only once

i. Trade Tax
It is laveid upon all and collected from Muslim and Non-Muslims tradesmen
Its rate is fixed for all and tt is taken for once

3) Objectives of Revenue
Following are the objectives of revenue in Islamic state
Protecting the society from crimes by paying the poor’s
Equal distribution of wealth among all
Peace and prosperity among the people of the state
Social and financial development of society

4) Modern Sources of Revenue

Following are the some modern sources of Revenue in Islamic state
1. Income Tax
2. Sales Tax
3. Property Tax
4. Wealth Tax
5. Custom and excise duty
6. Court fee

5) Preclude
Paying taxes makes the individuals responsible and caring persons. Such kind of revenue in the
shape of money or other made the financial position of the country strong . It is very much
cleared and proved that the System of Zakat plays effective and successful role in developing the
social life and moral values of Muslim society. Other sadaqat which are not compulsory ,they
also play the pivotal role in supporting the poor people.
Q # 11: What is meant by Public and Private rights? Which
one is
more important and why.

1. Preface
Islam is complete code of life which protects the rights of the human being for better service.
Islam has provided rules and regulations for individual and collective life and these rules are
rights of men for all aspects of life. All person have different rights with different duties which
has been imposed upon them against other one’s right

2. Definition of rights
Rights are the benefits of the people of any state which has been protected by law to
facilitate the mankind

3. Islamic concept about rights

The concept of rights in Islam is basically based on honor and equality of all mankind.
4. Types of Rights
According to majority of Muslim jurists there are two types of Rights are as under

i. Public Rights
ii. Private Rights

5. Public Rights
Public rights are those rights, which are only related to ALMIGHTY ALLAH and are not related to
persons.

1. Pure rights of ALLAH

There are certain matter which are the rights of ALLAH for benefit to men

Example:
As giving the punishment of hadd for theft

2. Mixed right of ALLAH and men

There are certain matters in which right of ALLAH and men are combined.
But the rights of ALLAH dominates on men rights

Example:
The right to punish the slander (Gheebat krne wala) who blames unchastity
to another person. Because he trespassed the right of
community and individual both
Following are Public rights
1. Prayer (Salat)
2. Give Zakat
3. Perform Haj
4. Equality
5. Punishment (Hadd) is enforced
6. Taxes imposed on Muslims i.e., Zakat, Ushar etc
7. Taxes imposed on Non-Muslim i.e., Jizya, Khiraj etc

6. Private Rights
Private rights are those rights, which are only related with people but some of rights related to
both Allah and Men.
1. Pure rights of individual
There are certain matters which are the rights of individual men

Example:
The enforcement of this right is only upon the option of individual
whose private right has been violated

2. Mixed right of ALLAH and men

There are certain matters in which rights of ALLAH and men are combined. But the
rights of men, that is private right ,supersedes on the rights of ALLAH

Example:
Qisas which is a punishment for murder, Qisas comes into this
category that the person injured may pardon the offender
Following are Private rights
1. Protection of Life,
2. Protection of Non-Muslims
3. Protection of Family
4. Permission to perform Lawful acts
5. Permission to do contract etc.
6. Personal Freedom
7. Freedom of Religion
8. Freedom of Expression
9. Freedom of Work

7. Difference between Public and Private rights

The main difference between private and public rights is as under:

1. As to enforcement
Public rights always enforced by state
Private right always enforced on the option of the party whose private right is
violated

2. As to Pardon
Public right can’t be pardon or condoned
In private right ,it is upon the discretion of effected individual whose private right is
violated who may pardon or insist for punishment

8. General divisions of Rights

Public and private rights are divided into following classes
1. Independent rights
Independent rights are those rights which creates and obligation upon any particular
individual to perform certain duties

2. Dependent rights
Dependents rights are those rights which creates an obligation upon any individual
to perform certain duties

3. Original and Substitutory rights

Following is the example for original and subsitutory rights

Example:
Original right is such right which requires the performance of Ablution with
water before Prayer is original right. In case of sickness, Ablution by rubbing
one’s hand with earth is allowed as substitutory right

9. Preclude
Right is an interest which is protected by rule of law. Islam is a religion which is based upon
equality and justice. This concept of Islam is given by Holy Prophet (Peace Be upon Him) in his
Khutaba-Hajatul-Wida. . Holy Prophet (P.B.U.H) makes all men equal. There are many rights
given under Islamic Jurisprudence. Such as right to security, Justice, equality, etc

Q # 12: Islam has categorized the penal system into Hadd

and
Tazir.Explain.
1. Preface
There are a number of rights which may be affected by criminal act. Such as rights of ALLAH
and rights of Individual and right of state. Crimes classified on basis of violation of rights
There are three types of punishments against crimes

2. Meaning of Crime
“Crime is an act which violates of public right and it makes offender liable for punishment

3. Elements of Crime
Following are the main element of Crime
1) Mens rea is an element of crime where mental intent of criminal is considered
2) Actus reus is an element of crime where physical act of criminal is considered
3) The criminal act can be either by commission or omission of certain act
4) The criminal must be a major for his liability

4. Classification of Crime
Crimes have been classified on the basis of violation of following rights

1. Violation of right of ALLAH

If the right of ALLAH is violated, Crime comes into the category of Hadood
punishments

2. Violation of right of Individual

If the right of individual is violated Crime comes into the category of Tazir
punishments

3. Violation of right of State

If the right of state is violated Crime comes into the category of Siyasah and
punishments is given according to the siyasah

5. Crimes of Hadd

1. Legal Meaning
Legally Hadd means those punishments whose limit has been prescribed in the Holy
Quran
2. List of Hadd offences
Some jurists have presented its seven kinds which are as under,

1. Unlawful sexual intercourse

Zina in Islamic is unlawful sexual relations between Muslims who are not married to
one another through a nikah (Islamic marriage)

Proof of Zina
Offence should be proved by testimony of four eligible witnesses who
present evidence of actual penetration (Dakhool)
Or accused (Mulzim) must confess four times

Punishment of Zina
A. In case of Married
In case of married the punishment for zina is death by stoning
B. In case of Un-married
In case of non-married, the punishment is 100 lashes

2. Defamation
Any Person who is competent and adult whether male or female, slave or free,
falsely charges unlawful sexual intercourse without eyewitness is liable for Qadf.

Proof of Defamation
Offence should be proved by confession
Or testimony of two adult male free Muslims

Punishment of Defamation
Punishment for Qadf is 80 stripes for free person
And 40 stripes for slave

3. Drinking of Wine
Muslims are not allowed to drink wine because it will be considered a sin to have a
beer whatever the quantity and this is punishable act

Proof of drinking vine

Crime should be proved by two adult male eligible Muslims
4. Theft
This is the action or crime of stealing. If offender takes something from custody of
safe place. By stealing property with the value of ¼ dinar according to majority. He
should be punished for theft by Hadd

Punishment
Cutting of right hand from joint of wrist if theft is committed first time

5. Robbery
The taking of money or goods from the possession of another by force. It may be
robbery from travellers who are far away from home. It may be armed entrance into
a private home

Punishment
Death by beheading (Sar Qalam Krna)
Cutting off hands or foot
Life Imprisonment

6. Apostasy
Act of converting to another religion, by a person who was born in a Muslim family or
who had previously accepted Islam after awareness of penalty which is death for
men and physical punishment for women

7. Rebellion
Rebellion is an act of armed resistance against state and it also comes into the Hadd ,
its punishment is death or life imprisonment

6. Crimes of Tazir

i. Legal Meaning
“Punishments “where Judge is authorized to fix the nature of punishment which may
be fine, death, imprisonment, compensation etc against violation of individual rights.

ii. Classes of offences

1. Crimes which belong to offence punishable under hadd but punishment gives for
these crimes according to Tazir like unlawful sexual intercourse
2. Crimes which may be punishable under had but by mistake of law, punishment
gives of Tazir
3. Crimes which are not punished by Hadd but fall under the punish of Hadd like
slander(Ilzaam Trashi)
Some of most common punishments are as under for Tazir crimes:
1. Counseling (Sulaah)
2. Fines
4. Imprisonment
5. Seizure of property
6. Confinement in the home
7. Lashes

7. Crimes of Siyasah
These crimes are crimes which violates the rule of the state State may determine the offences
and punishments for these crimes has been laid down in shariah according to nature of
offense
In such crimes ,state can determine the nature of offense and can punish the offender
according to the state’s rules

8. Preclude
At the present time crimes are classified into Hadd and tazir. As today difference between
Tazir and siyasah is not being maintained. Muslims jurist merged these two with the stander
of evidence being determined by state

Q # 13: Discuss the characteristics of Islamic system of

Shura.

1. Preface
Shura is one of the most important institution of Islam and a source of expression of Public
opinion where representatives of Islam discuss upon state’s administrative issues. In shape
of shura system Islamic state provided a method to hold consultation among Muslim in
order to resolve government administrative affairs. Parliament is form of shura system and
it has been derived from Islamic shura system

2. Meaning of Shura
Shura is an Arabic word which means “To Consult” or “To ask for advice”

3. Definition of Shura
Shura is a body of representatives of Muslim community who gets together for consultation
with each other in order to reach upon a decision for resolution of administrative issues

4. Importance of Shura in Islamic State

Following verse of the Holy Quran shows the importance of Shura System

1. According to Quran
“And consult with them upon the conduct of affair”

2. According to Ahadith
“Hazrat Abu Hurrairah (R.A) said that, the practice of Holy Prophet (P.B.U.H) I have not
seen anybody who could excel (Barhay) the prophet (P.B.U.H) in consultation from
companions”

Hazrat Ayesha (R.A) says:

“I have not seen a person consulting the people to more than Holy Prophet (P.B.U.H)”

5. Types of Shura
During the period of Caliph Hazrat Umar (R.A) there were two types of Shura

1. Shura Aam
It was consisted on the people from the general public or upon the common people of
the Muslim community

2. Shura Khas
It was consisted on well-known companions or well-known people of Muslim
community

6. Person who may be elected as Shura members

Following persons can be elected as members of Majlis-e-Shura
1) Person who is citizen of the state and
2) Person should be Muslim
3) Whose sincerity ,ability and loyalty is high in the eyes of Public
4) Who participated in the major decisions of the state
5) Who has enough knowledge of Islamic teachings
6) Who character is clean and free from sins and not violates Islamic injunctions

Quran says:
“The most honored of you in the sight of God is the most pious among you”

7. Duty of Majlis e Shura

Duty of the members of Shura is to give their best opinions according to their wisdom as
Holy Prophet (P.B.U.H) said that,

Holy Prophet (P.B.U.H) says

“The man who gives advice to his brother by knowing well that is not right; he does
deceive his trust”

8. Characteristics (Sifaat) of Shura

Following are the important characteristics of Shura system

1. Will of God
Shura is subject to the Will of God and without the will or against ALLAH’s will no
decision is taken

2. Freedom of opinion
Freedom of opinion is an integral part of Shura because everybody is free to express his
opinion. Holy Prophet (P.B.U.H) always left the companions to speak freely to express
their opinions on matter of concerns

3. Rule of Majority opinion

Minority should follow the opinion of Majority sometimes companions differed with
one another but The Holy Prophet (P.B.U.H) also followed the majority opinion

4. Principle of vicegerency (khalifat)

In shura, the people are only representatives of ALLAH. They have no power to
supersede any provision of the sharia

5. Binding authority
Once shura is reached on a decision. It should be enforced because it has binding
authority

Quran says:
“Once you determine, and then trust in ALLAH”

9. Important Shura’s in Islam

Following are the most important shura’s in Islamic history

1. Shura e Ahad
At occasion of Ahad, the Holy Prophet’s (P.B.U.H) opinion that they should fight the
enemy by remaining inside of the city but majority wanted to battle outside the city ,
and the opinion of the majority honored
2. Shura e Badr
At the occasion of Badr, this shura was held by Holy Prophet (P.B.U.H) to finalize that
they should meet at Badr or Not. The Companions unanimously agreed to meet the
enemy at Badr

3. Nomination of Hazrat Umar (R.A)

Hazrat Abu Bakar Siddique (R.A) proposed the name of Hazrat Umar (R.A) as caliph after
him. All the members of shura agreed and approval was given to it

10. Comparison of Shura with Parliament


The concept of Shura presented by Islam is much earlier than the present concept of
parliament. Islam gave the concept of parliament system nearly one thousand year earlier
than the western concept that’s why shura is superior to parliament system

1. As to will
In shura will of ALLAH is supreme
In parliament public opinion is supreme

2. As to religion
In shura religion of the state is Islam
In western parliament form of govt, religion is not so important

3. As to source of Law
In shura, sources are Quran and Sunnah
In western parliament form of govt, sources of law are man made laws

4. Dual personality
In shura member are responsible and answerable to the people and ALLAH
In parliament system, the members are answerable only to the people

5. Freedom of opinion
In shura , every member is free to gave his opinion
In Parliament system , every member is not free to gave his opinion as they are elected
on party basis

6. Jurisdiction
In shura system the jurisdiction covers the whole world
In parliament system , jurisdiction covers the geographical boundaries

11. Preclude
Islamic shura system is model for whole world. Shura develops the Islamic concepts and
theories. Shura makes decisions on legal, political matter in light of social norms. In Pakistan
constitution of 1973, the parliament has been given the name of Majlis-e-Shura by virtue of
Aritcle 50
Q # 14: Why jihaad is waged (Impose)? What acts are
permissible and
what not during jihaad?

1. Preface
Jihaad is a holy war. The spread of Islam by arms is a religious duty of Muslims in general.
The goal of Din is to spread the message of Islam in the whole world and to establish the
supremacy of Din. The instrument for attaining this goal is dawah (Invitation) in conjunction
with jihaad

2. Meaning of Jihaad

The word jihaad has been derived from the Arabic word “Jehad” which means to “Strive
hard”

3. Definition of jihaad
Jihaad is usage of abilities and powers against enemies during fighting in the path of God by
means of life, property, tongue and other than these.

4. JIhaad in the light of quranic verses

In Makki suras of the Holy Quran, patience under attack is taught. No other attitude was
allowed to Muslims
But in Madni Suras of the Holy Quran, it has been given right to defend and gradually it
became a prescribed duty to fight against enemies

Holy Quran Says”

“Fight against such of those who have been given the scripture as
believe not in ALLAH or the last day”

5. Hadith in support of jihaad

Following hadith of the Holy Prophet Peace Be Upon Him supported the concept of jihaad

Hadith Says”
“I have been commanded to fight mankind until they say, there is no GOD but
ALLAH”

6. Who can declare jihaad

According to Islamic law, the imam or the head of the state can declares the jihaad
against the Non-Muslims of the state for the protection of religion
7. When jihaad can be declared
Jihaad can only be declared to ensure the safety of Islam, the Muslim state and to avoid
injuries likely to be made by Non-muslims

8. Conditions for Declaration war

Following are the conditions for waging war
1) Jihaad is only permitted for the protection of Islam at the time of declaration of jihaad,
Islamic state must be powerful enough to wage a war
2) War cannot be declared , when head of state has no real aim of jihaad
3) After refusal from acceptance of Islam, non-Muslim have a choice to,become dhimmis
and pay jizya and khiraaj or fight with Muslim state

9. Modes of doing jihaad

There are following modes of jihaad

1. Jihaad bil Maal

A person who contributes financially to launch jihaad, and cannot take part physically, is
called Jihaad Bil Mall.

2. Jihaad bil Nafs

This is to fight the enemy by involving physically. This is the best way of Jihaad and is
preferable to any other type of jihaad

3. Jihaad bil illam

If a person who contributes his abilities for the protection and spreading of Islam. It is
jihaad bil illam. It can be done by his deeds, actions, knowledge or other than these. In
modern world this type of Jihaad is most important

10. Types of jihaad

Following are the types of Jihaad

1. Internal jihaad
Internal Jihaad is used against the evils that are dangerous for Muslims society. Evil
customs and Un Islamic acts are a serious danger for Islam and they should be crushed
by means of Jihaad
2. Jihaad through knowledge
This type of Jihaad is against non-muslims and disbelievers who raise objections against
Islam. It the duty of Muslims to reject such propaganda in the light of Holy Quran and
the Holy Sunnah

3. Jihaad through war

Islam has advocated that a war with in the fields should be avoided as far as possible,
but if it becomes unavoidable for the cause of Islam. It should be waged and
It has two types
A. Difaee jihaad
When Islamic state is attacked by enemies of Islam, Jihaad is waged in order to defend
the country is called Jihaad Dafie

B. Iqdami jihaad
When the enemies of Islam do not stop doing evils against Muslims ,then to attack the
enemy is called Iqdami Jihaad e.g. conquest of Makkah

11. Acts forbidden during jihaad

Following acts are forbidden by Islam during Jihaad
1) Killing by Unnecessary and cruel way
2) Killing of those who do not participate in war
3) Killing of those who are incapable of fighting e.g. Woman ,minor etc
4) Killing of prisoners in war
5) Acts which are forbidden under treaties must be respected
6) Killing by Unnecessary and cruel way
7) Killing of person who surrenders
8) Not destroy the organ of men as well as animals
9) Slaughtering of animal which is more than needed for food is also forbidden
10) Unnecessary destruction of harvest and cutting of tress is forbidden
11) Adultery and Zina with captive women is strictly forbidden
12) Massacre (Qatal e Aam) is not allowed
13) Killing of captives
14) Burning of captured men or animal
15) Cutting the head of enemy and send it to higher authority is forbidden
16) Traders, shopkeepers, and contractors are to be left alone if they do not participate in
war
17) To keep non-Muslims in front while fighting against enemy
18) Use of poisonous arrows to the enemy is forbidden

12. Acts permitted during jihaad

Following are the acts permitted during jihaad
1) Killing of person who fought against Islamic Army
2) Any type of weapon may be used axcept poisonous weapon
3) To detect the presence of enemy and to surround him in war
4) Propaganda against enemy can be made
5) To take possession or destroy enemy property
6) To cut water supply of enemy
7) Using of force to get food for Islamic army
8) To do anything which not expressly forbidden

13. Preclude
ALMIGHTY ALLAH ha laid down in the Holy Quran that Muslims should make every
possible efforts to remove barriers in the way of Islam even fight with enemies and give
their lives in the way of ALLAH. The ideal of Jihaad is to maintain the balance of power
and such can be achieved by way of agreements. Muslims should focus on the
institution of dawah (Invitation) on the behalf of Jihaad

‫آپ سب کی دعاؤں کا ہمہ وقت طلب گار ہو میں‬

‫ مـبشراقبال‬:‫لیکچرار‬
LL.B, LL.M, MSC, Dipl Communication Skills

Call No: 0300-0096491

0333-8999491