Project

Federal Shariat Court

Submitted to: Madam Hafsa Ayaz Quraishi Submitted by:

Irum Ayesha, Nadia Zafar, Aaisha Basharat

Subject
History of Fiqh Date of Submission 04.06.2012.

Fatima Jinnah Women University

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Acknowledgement
If the oceans turn into ink and all wood becomes pen, even then, the praise to Almighty Allah cannot be expressed. I set my unfeigned and meek thanks before him, who created the universe and bestowed the mankind knowledge. With trembling lips and wet eyes for Prophet (SAW), who is forever a torch of guidance for the entire humanity, all respect and regard to Holy Prophet (SAW) for paving the right path for us, with essence of faith in Allah and a quest of knowledge as our duty. I express my gratitude to Madam Hafsa Ayaz to carry out this project work for her able guidance and useful suggestions; she had been a source of inspiration and for her timely guidance in the conduct of our project work. Words are inadequate in offering my thanks for her encouragement and cooperation in carrying out the project work. We are also thankful to Ms Nazia, Ms Zainab and Layer Mushtaq Mughal for their support; suggestions and guidance for helping us to complete this project. We are also thankful to our parents for their never ending support and encouragement.

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Table of Content:
Table of Content: .......................................................................................................................................... 4 1.1. 1.2. 1.3. 1.4. 1.5. 1.6. 1.7. 1.8. History of Establishment of Federal Shariat Court ........................................................................... 6 Federal Shariat Court: ....................................................................................................................... 7 Objectives: ........................................................................................................................................ 9 Functions: ........................................................................................................................................ 10 Jurisdiction of the Court:................................................................................................................. 10 Original and Suo Moto Jurisdiction: ................................................................................................ 10 Revisional Jurisdiction: .................................................................................................................... 11 Appellate Jurisdiction:..................................................................................................................... 11

1.9. Powers and Procedure of the Court: ................................................................................................... 11 1.10. 1.11. 1.12. 1.13. 2.1. 2.2. 2.3 2.4. 1) 2) 3) 2.5. 2.6. 2.7. 2.8. 2.9. 2.10. 2.11. 2.12. 2.13. Decision of court binding on High court and courts subordinate to it: ...................................... 12 Power to Make Rules: ................................................................................................................. 12 Jurisconsults: ............................................................................................................................... 12 Appellate Jurisdiction:................................................................................................................. 13 Laws in Federal Shariat Court: ....................................................................................................... 14 Hudood and Tazir: .......................................................................................................................... 15 Offences Covered By the Term Hadood In Fsc: .............................................................................. 15 Laws regarding Zina in FSC: ............................................................................................................. 16 Laws in case of Unmarried: ........................................................................................................ 16 Laws in case of Married: ............................................................................................................. 17 Laws for zina with dead person .................................................................................................. 17 Law regarding Qadhf (false accusation) in FSC: .............................................................................. 17 Laws of drinking wine in FSC: .......................................................................................................... 19 Laws for Theft in FSC: ...................................................................................................................... 20 Laws of Highway Robbery according to FSC: .................................................................................. 21 Laws regarding Apostasy in FSC: ..................................................................................................... 22 Laws regarding Rebellion in FSC: ................................................................................................ 23 Laws for treason in FSC: .............................................................................................................. 23 Laws for Liwatat in FSC: .............................................................................................................. 24 Laws of Human Trafficking in FSC: .............................................................................................. 25 4

FEDERAL SHARIAH COURT 3.1 3.2. 3.3. 3.4. 3.5. 4.1. 4.2. Implementation of Federal Shariat Court in Pakistan .................................................................... 26 Methodology:.................................................................................................................................. 27 Instrument: ..................................................................................................................................... 27 Result: ............................................................................................................................................. 27 Quantitative explanation: ............................................................................................................... 32 Conclusion: ...................................................................................................................................... 33 References: ..................................................................................................................................... 34

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Chapter 1
1.1. History of Establishment of Federal Shariat Court

Pakistan was liberated in the name of Islam on the basis of the two nation theory. Before the creation of Pakistan, the Muslims of the Subcontinent were right in thinking that by achieving independence and creation of a separate home land they would be able to order their lives in accordance with the dictates of the Holy Quran and the Sunnah of the Holy Prophet (PBUH). They were also sanguine that their lives, properties and rights would be protected in the Islamic State and no one would dare to transgress there on. Keeping in mind these objectives, the Muslims of the Subcontinent, under the dynamic leadership of the Quaid-e-Azam, succeeded in establishing Pakistan, and in the process countless believers laid down their lives besides suffering irreparable loss of honor and property. The founder of the country had promised that Pakistan would be an ideological State to be organized and administered in accordance with the Injunctions of the Holy Quran and the Sunnah. The Objectives Resolution passed by the Constituent Assembly affirmed the main objectives set forth for the creation of Pakistan. 1 The Objectives Resolution was incorporated in all the successive Constitutions. It is now enshrined in the 1973 Constitution of the Islamic Republic of Pakistan. Initially, it remained merely a preamble having no binding legal force on the proceedings and judgments of the Superior Courts in the country. Article 227 of the 1973 Constitution mandates in clear terms that all existing laws shall be brought in conformity with the Injunctions of Islam as laid down in the Holy Quran and the Sunnah. It, however, contained an explanation that as regards the application of Article 227, the personal law of any Muslim sect, the expression Quran and Sunnah would mean the Quran and Sunnah as interpreted by that sect. With a view to implementing the mandate of Article 227, the Council of Islamic Ideology was constituted. It is a matter of record that the said Council has, over the last many years, made numerous recommendations in writing to amend certain existing laws so as to bring them in conformity with the Holy Quran and the Sunnah, but no serious effort has been made, so far, to implement the same.2
1 2

Chauhary.G,(2010),Constitution of Pakistan 1973,Lahore,Federal Law House,The ideal Publishers Ibid

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On the promulgation of Martial Law in July 1977, the Government declared it a matter of policy that the Islamization of laws would be given top priority on its agenda. The Council of Islamic Ideology was reactivated to achieve this objective. It prepared and codified the Hudood Laws, which were enforced, and they hold the field up to date. In 1979, a constitutional amendment was effected to set up the Shariat Benches comprising three Judges in each High Court of the four Provinces. The Shariat Appellate Bench comprising similar number of Judges in the Supreme Court of Pakistan was also formed. The Shariat Benches of the High Courts were conferred powers to examine and decide petitions brought before them for scrutiny of any existing law on the touchstone of the Injunctions of Islam, except Muslim Personal law, Any law relating to procedure of the Court or Tribunal until expiration of ten years period from June, 1980 Any fiscal law or law relating to levy of Zakat, taxes and fees.

Unfortunately, the process of Islamisation could not be speeded up despite the creation of the Shariat Benches in the High Courts. Keeping this situation in view, the Federal Shariat Court was established in May, 1980. 3

1.2.

Federal Shariat Court:

The Federal Shariat Court was established by virtue of the Presidents Order No.1 of 1980 with effect from 27th May, 1980. It is located in Constitution Avenue, opposite Prime Minister's Secretariat Pakistan Islamabad. It consists of 8 Muslim judges appointed by the President of Pakistan after consulting the Chief Justice of this Court, from amongst the serving or retired judges of the Supreme Court or a High Court or from amongst persons possessing the qualifications of judges of a High Court. Justice Agha Rafiq Ahmed Khan is the current Chief Justice of the Court. Of the 8 judges, 3 are required to be Ulema who are well versed in Islamic law. The judges hold office for a period of 3 years, which may eventually be extended by the President. It is authorized by Constitution of Pakistan. This establishment order was incorporated in the Constitution of Pakistan, 1973 Chapter 3-A entitled Federal Shariat Court. 4

3 4

Q. L Cian (2009), Powers, Jurisdiction and Function of the Federal Shariat Court Ibid

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When General Muhammad Zia ul Haq came into power by imposing the Martial Law in the country in 1977, The Process of Islamization of Law etc., was started by him. Initially, Shariat Branches were created in High courts for the purpose. Subsequently, the said branches were replaced a single court at the federal level. It is named as Federal Shariat Court. The Constitution was amended and a new chapter namely, Chapter 3 A, was inserted after chapter 3, which is in the respect of High Courts. Chapter 3A deals with the Federal Shariat Court only. It contains as many as eleven articles which deal with the composition of Federal Shriat Court and its jurisdiction and powers, etc.5 The Jurisdiction of Federal Shariat Court extends to whole country. Appeals against the decisions of the lower and higher courts can be presented before Shariat Court for hearing. The Supreme Court of Pakistan can hear the appeals against the decisions of Federal Shariat Court. However Pakistan Family Laws and financial affairs are out of jurisdiction of Federal Shariat Court. The decisions of the court are binding on the High Courts as well as subordinate judiciary. The court appoints its own staff and frames its own rules of procedure. The Federal Shariat Court decides various issues related to Hadood Crimes brought before it, in the Light of Holy Quran and Sunnah. Any Citizen can challenge any law of the Country in Federal Shariat Court where he has no prove that a certain Law is against the injunctions of Islam. The appellant can claim that since a particular law is against principle of Islam, it may therefore be declared an Ultra vires. The Federal Shariat Court is authorized to give its decisions in order to declare any law of the Country as ultra vires if the Law is found and proved as against spirit of Islam.6 It can hardly be disputed that the Federal Shariat Court is a part of the Superior judiciary. Other components of the superior judiciary are Supreme and High Courts. One of the members of the Chief Justices Committee, which is headed by the Chief Justice of Pakistan, is the Chief justice of Federal Shariat Court. In Fact, the Federal Shariat Court has an edge over a High Courts and Supreme Court, Chapter 3 A referred to above deal with the establishment etc. of Federal Shariat court. The chapter included in part VII of the constitution which is in the regard to Judicature. It is therefore, necessary the High Court and the Supreme Court, the Federal Shariat Court should be an independent judicial forum. In other words, it should not be subject to control of the executive, especially when the Judiciary has been separated from the executive even at lowest tier. It started functioning by opening its registry in a residential accommodation in Islamabad. So far, it has succeeded in examining large number of Federal and Provincial laws, not only on its own motion but also by disposal of Shariat Petitions, filed before it by citizens of Pakistan,
5 6

Q. L Cian (2009), Powers, Jurisdiction and Function of the Federal Shariat Rabbani,I.(2003).Introduction to Pakistan Studies.Lahore,The Carvan Press Pg 261

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challenging various laws or certain provisions thereof, as being repugnant to the Holy Quran and the Sunnah. Simultaneously, a large number of criminal appeals, revisions and review petitions, in Hudood Laws were also disposed of.7

1.3.

Objectives:

The Judges of the Court, since its inception in 1980, armed with the provision of the Constitution, serving the glory of Islam, and dedicating themselves to the sacred task, laid down a sizable body of judgments, which taken together constitute a remarkable chapter in the history of Islamic law. The task continues as new problems emerge and the consistent stream of fresh legislation gives rise to new questions. The policy of the Federal Shariat Court is that the delay in the disposal of cases may be averted. Islamic norms demand the very prompt redressal of grievances. In fact, the concept of Adl in the Holy Quran and the Sunnah of the Holy Prophet (peace be upon him) demands that there should be no delay in the dispensation of justice. Even the Western concept is that justice delayed is justice denied. The Judges of this Court exercise tact, wisdom, knowledge and authority to see that the hearing of cases may not be unreasonably delayed at the instance of any one. To provide justice to the litigants at their doorsteps and to hear cases filed in Bench Registries of this court at Lahore, Karachi, Peshawar and Quetta. The Branches of this Court hold sittings at these seats. 8 The Rules of the Court provide for free legal representation in cases where an appeal is filed from jail and the appellant is not in a position to pay for the services of a lawyer irrespective of the quantum of his sentences. Federal Shariat Court has taken a lead in this respect as compared even to the most advanced countries in the world. The legal representation over there is generally provided to a pauper accused mostly through free legal aid societies and the Courts rarely pay the bills of such representation. Another important feature of the working of this Court is that no Court fee is payable either on petitions or appeals While exercising its suo moto jurisdiction, the Courts policy is to take into confidence, and to associate in its working, the lawyers, the Ulema, the social reformers, the intellectuals and other members of the public. With this purpose in view public notices are published in leading Newspapers of the country inviting comments as well as representation from the citizens of Pakistan.9
7 8

Ibid Pg 262 www.federalshariatcourt.gov.pk

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1.4.

Functions:

Article 227 makes it incumbent that all existing laws shall be brought in conformity with the injunctions of Islam as laid down in the Holy Quran and the Sunnah of the Holy Prophet (peace be upon him), and Chapter 3-A which pertains to the functions and organization of Federal Shariat Court, empowers the court and entrusts the court with the responsibility to examine and decide the question whether or not any law or provision of law is repugnant to the injunctions of Islam as laid down in the Holy Quran and the Sunnah of the Holy Prophet (peace be upon him). (1) To examine any law as defined in Article 203-B(c) and decide the question whether or not any law or provision of law is repugnant to the Injunctions of Islam. (2) By an amendment to Article 203-D of the Constitution in 1982, the Court was given the powers to act Suo Moto where any Law or provision of Law appears to be repugnant to the injunction of Islam. (3) To exercise appellate jurisdiction, to hear and decide appeals in Hudood cases if the sentence of imprisonment awarded by the trial Court exceeds two years; (4) To confirm or pass other appropriate order about any Hadd punishment awarded by the trial Court in Hudood laws. Until it is so confirmed, no Hadd punishment can be executed; and (5) To exercise revisional powers to call for any case decided by any Criminal Court under any law in relation to the enforcement of Hudood.10

1.5.

Jurisdiction of the Court:

The Federal Shariat Court has jurisdiction to decide matters in its original, revisional, appellate and review jurisdictions and to decide a Reference made to it. 11

1.6.

Original and Suo Moto Jurisdiction:

Article 203-D of the Constitution empowers the court to examine and decide the question, whether or not any law or provision of law is repugnant to the Injunctions of Islam. For the information of the readers it may be pointed out here that this court, during the past years, has examined over 1500 Laws Suo Moto on the touchstone of Injunctions of Islam and have found 55 Federal Laws and 212 Provincial Laws to be repugnant to these injunctions. This is the only court which, under the Constitution, enjoys Suo Moto Jurisdiction.12

10 11

www.federalshariatcourt.gov.pk Ilyas.M(1998) Updating the Constitutio Of Pakistan, Islamic Vanguard books(Pvt) 12 Ibid

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1.7.

Revisional Jurisdiction:

Article 203-DD of the Constitution confers jurisdiction on the court to call for and examine the record of any case decided by any criminal court under any law relating to the enforcement of Hudood for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed by, and as to the regularity of any proceedings of, such court and may, when calling for such record, direct the suspension of the execution of any sentence and, if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record.13

1.8.

Appellate Jurisdiction:

The court exercises appellate jurisdiction in Hudood cases registered under the Hudood Laws viz. The Offences against Property (Enforcement of Hudood) Ordinance, 1979 The Offence of Zina (Enforcement of Hudood) Ordinance, 1979. The Offence of Qazaf (Enforcement of Hadd) Ordinance, 1979.The Prohibition (Enforcement of Hadd) Order, 1979.14

1.9. Powers and Procedure of the Court:

1. For the purposes of the performance of its functions, the court have the powers of a Civil Court trying a suit under the Code of Civil Procedure, 1908 (act V of 1908), in respect of the following matters, namely:a. Summoning and enforcing the attendance of any person and examining himon oath; b. Requiring the discovery and production of any document; c. Receiving evidence on affidavits; and d. Issuing commissions for the examination of witnesses or documents. 2. The Court have power to conduct its proceedings and regulate its procedure in all respects as it deems fit. 3. The Court has the power of a High Court to punish its own contempt. 4. A party to any proceedings before the court under clause (1) of Article 203D may be represented by a legal practitioner who is a Muslim and has been enrolled as an advocate of a High Court for a period of not less than five years or as an advocate of the Supreme Court or by a jurisconsult selected by the party from out of a panel of jurisconsults maintained by the court for the purpose.

13 14

Patel. R,(1986) Islamization Of Law,Karachi Saad Publications. Ibid

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5. For being eligible to have his name borne on the panel of jurisconsults referred to in clause (4), a person shall be an Aalim who, in the opinion of the Court, is well-versed in Shariat. 6. A legal practitioner or jurisconsult representing a party before the court shall not plead for the party but shall state, expound and interpret the Injunctions of Islam relevant to the proceedings so far as may be known to him and submit to the court a written statement of his interpretation of such injunctions of Islam. 7. The court may invite any person in Pakistan or abroad whom the court considers to be well-versed in Islamic law to appear before it and render such assistance as may be required of him. 8. No court fee is payable in respect of any petition or application made to the court under Article 203-D.15 1.10. Decision of court binding on High court and courts subordinate to it: Article 203 GG of the Constitution inter alia provide as under:Subject to Article 203D and 203F, any decision of the court in the exercise of its jurisdiction under this Chapter shall be binding on a High Court and on all courts subordinate to a High Court.16 1.11. Power to Make Rules: Article 203J of the Constitution empowers the court to make rules regulating the practice and procedure of the court. Accordingly the Federal Shariat Court (Procedure) rules, 1981 have been framed Sanctioned Strength of the Judges of Court Article 203C of the Constitution lays down that the court shall consist of not more than eight Muslim Judges including the Chief Justice and Ulema Judges who are well versed in Islamic Law.17 1.12. Jurisconsults: As a Constitutional requirement, the court maintains a list of jurisconsults comprising prominent Ulema of the country who represent the various schools of thought. The panel consists of Jurisconsults, composed of Ulema of different schools of thought from all over the country, having extensive as well as intensive knowledge of Shariat, is maintained by the Court. Whenever assistance is required by the Court in decidinga question on the Shariah, the Jurisconsults are requested to assist the court on questions arising in any petition.

15 16

www.federalshariatcourt.gov.pk Q. L Cian (2009), Powers, Jurisdiction and Function of the Federal Shariat 17 Ibid

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1.13. Appellate Jurisdiction: The court exercises appellate jurisdiction in Hudood cases registered under the Hudood Laws viz. The Offences against Property (Enforcement of Hudood) Ordinance, 1979 The Offence of Zina (Enforcement of Hudood) Ordinance, 1979. The Offence of Qazaf (Enforcement of Hadd) Ordinance, 1979. The Prohibition (Enforcement of Hadd) Order, 1979.18

Ever since its establishment in 1980, the Federal Shariat Court of Pakistan has been the subject of criticism and controversy in the society. Created as an Islamisation measure by the military regime and subsequently protected under the controversial 8th Amendment, its opponents question the very rationale and utility of this institution. It is stated that this court merely duplicates the functions of the existing superior courts and also operates as a check on the sovereignty of Parliament. The composition of the court, particularly the mode of appointment of its judges and the insecurity of their tenure, is taken exception to, and it is alleged, that this court does not fully meet the criterion prescribed for the independence of the judiciary. That is to say, it is not immune to pressures and influences from the Executive.

18

www.federalshariatcourt.gov.pk

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Chapter 2
2.1. Laws in Federal Shariat Court:

The Federal Shariat Court was pleased to order that: The Ordinance and Rules Place no prohibition on keeping of weapon for the purpose of self protection as well as protection of honour and property. The purpose of this Ordinance appears to regularize the possession of weapons etc and to check the misuse of the same, so that the lives and properties of innocent people are properly safeguarded. Secondly, the Shariah empowers the authority in power to make legislation in matters that are not specifically covered by the injunctions of Islam in the light of commands, as contained in the Holy Quran and Sunnah of the Holy Prophet. Where there is no explicit provision in the Holy Quran and Sunnah, the legislative body may enact laws in respect of the same while keeping in view the general principles and spirits of Islam. Legislation in Islam, in fact, is mainly based on public welfare (Maslaha). The principle of "Maslaha" defines the limit where the rulers can exercise their administrative and political authority and take measures for the protection of the rights and freedom of the citizens, to establish law and order and maintain justice. In Shariah, the power granted to the ruler is based on the welfare of the subject. Another principle of Islamic law is: (Gaining public interest and warding off harms). While implementing this legal maxim, Warding off the harm or mischief has priority over gaining interest. The Court also elaborated the principle of Sadduzzaraa under which, if a permissible act becomes a source of trouble and harm to the public, it will be declared as prohibited in the interest of the general public. The impugned law and Rules were declared as not repugnant to the injunctions of Islam. This law and rules there under were made in the interest of general public and for the security of the Umma at large. In Federal Shariat Court all Hudood laws were defined. In which 10 Hudood were defined with the Verses of Quran and tradition of Prophet (saw.w) and tell about the punishments which were given in it. The scope of the term Hudood is very wide and covers not only all categories of offences relating to property, human body, human dignity and honor but also family matters of a civil nature. In this context it was urged that the categories of offences as well as civil matters relating to family life be also identified which fall within the ambit of the term Hudood. It was asserted that the purpose of creating Federal Shariat Court be also examined, and lastly it was maintained.

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2.2.

Hudood and Tazir:

The term Hadd and its plural Hudood, indicates that it has been employed in the sense of punishment prescribed by the Messenger of Allah (PBUH). The essence of the well known Hadith of the Holy Prophet (PBUH) reported in Sahih Bukhari, and other authorities is that: Earlier nations had perished simply because punishment (Hadd) was imposed only when a lowly commoner had committed a crime but influential persons were spared the agony of punishment. In this Hadith, the term Hadd very clearly refers to the general punishments for different categories of offences. This aspect establishes, in turn, that the word Hadd in the administration of criminal justice in an Islamic society includes (any) specific punishment awarded or prescribed under or in pursuance of an Injunction of Holy Quran or Sunnah. The Muslim jurists, during the period when the judicial system was evolving in the light of and on the foundation of the teachings of Islam, deemed it expedient to classify punishments on the basis of proof and the nature of proof for proper and effective administration of justice. This reasoning was based upon sacred text because Holy Quran in addition to prescribing penalty also made reference to the nature of proof. This classification provided guidelines to the judges who were assigned the task of holding trials of different kinds of offences. These offences entailed punishments prescribed by Holy Quran, Sunnah, as well as any punishment prescribed by State in matters related with Hudood or ancillary or akin thereto. The first category was called Hadd par excellence, while the latter came to be known as Tazir. The purpose of assigning a new title to the latter category of punishment was only to emphasize the standard and immutable nature of the punishments under the title Hudood, as ordained.

2.3

Offences Covered By the Term Hadood In Fsc:

It is therefore time to recapitulate the scope of the term Hudood. In the light of the foregoing discussion the following categories of offences are therefore covered by the term Hudood: a) Zina = in the all its forms including Adultery, Fornication and rape; * b) Liwatat = Sexual intercourses against the order of nature; c) Qazf = Imputation of Zina; * d) Shurb = alcoholic drinks/ intoxicants/ narcotics etc;

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e) Sarqa= theft simplicitor; f) Haraba = it includes robbery, highway robbery, dacoity and all other categories of offences against property; g) Irtudad = apostacy. It includes all offences mentioned in the chapter XV of the Pakistan Penal Code, namely: Of Offences Relating to Religion; h) Baghee= Treason, waging war against state; All categories of offences mentioned in chapter VI of the Pakistan Penal Code; i) Qisas = Right of retaliation in offences against human body; j) Human Trafficking

2.4.

Laws regarding Zina in FSC:

Zin is generally defined by Islamic Law as unlawful sexual intercourse, i.e. intercourse between a man and a woman who are not married to one another or in a state of lawful concubine age based on ownership (the relationship between the owner and his female slave). This encompasses extramarital sex and premarital sex. Indeed, the sin of zina (adultery) is so heinous and such an abomination that Allah and His Messenger (saws) has prescribed capital punishment for this evil act. But only the Federal Shariah Court has the right to exact this punishment from the doers of zina. 1) Laws in case of Unmarried: Allah (SWT) has prescribed Hadd punishment for adultery. According to the Qur'an, the punishment is Flogging with a 100 stripes (both for men and women), in case of unmarried person. The woman and the man guilty of illegal sexual intercourse, flog each of them with a hundred stripes. Let not pity withhold you in their case, in a punishment prescribed by Allh, if you believe in Allh and the Last Day. And let a party of the believers witness their punishment. (This punishment is for unmarried persons guilty of the above crime but if married persons commit it, the punishment is to stone them to death, according to Allh's Law). (24:2) The directives mentioned in these verses can be explained thus:

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a) The man or women who have committed fornication, both shall receive a hundred stripes. according to the methodology adopted by the Prophet (saws) and the Rightly. b) The criminal should be given this punishment publicly to humiliate him in front of the people, and to make him a lesson for those present. 2) Laws in case of Married: The Qur`anic punishment of 100 lashes is for the case of an unmarried person. For a married person we need to turn to the Sunnah/Hadith, which prescribes death by stoning (Rajam). A man came to Allah's Messenger (saws) while he was in the mosque, and he called him, saying, "O Allah's Messenger (saws)! I have committed zina (adultery)." The Prophet (saws) turned his face to the other side, but that man repeated his statement four times, and after he bore witness against himself four times, the Prophet (saws) called him, saying, "Are yodeu mad?" The man said, "No." The Prophet (saws) said, "Are you married?" The man said, "Yes." Then the Prophet (saws) said, "Take him away and stone him to death." Jabir bin 'Abdullah said: I was among the ones who participated in stoning him and we stoned him at the Musalla. When the stones troubled him, he fled, but we over took him at Al-Harra and stoned him to death. (Sahih Bukhari) 3) Laws for zina with dead person If a person has a sex with a dead person, the punishment for such an offender is also by way of hadd (stoning to death) it is the same if the person is muhsin or ghairu muhsin i.e. married or not. Zina falls under the Islamic sexual jurisprudence of Fiqh, which is an expansion of the Sharia code of conduct given in the Qur'an. Federal Shariat Court explains its punishments which were given in Quran and Sunnah of Holy Prophet (Saw).When someone commits zina the court have made laws according to Shariat to give them punishments. For example the punishment of having Illegal Sexual Intercourse is stoning to death in case to of married and hundred stripes in case of unmarried. The same punishment is implemented by FSC for cases bought to it.

2.5.

Law regarding Qadhf (false accusation) in FSC:

Qadhf (Lian) in its primitive senses simply means accusation, in the language of law, is understood to levy a charge of adultery against a married man and woman. Federal Shariat Court explained it in his laws according to Quran and Sunnah and tells the prescribed punishment
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Those who accuse honorable women and bring not four witnesses as an evidence [for their accusation], inflict eighty stripes upon them, and never accept their testimony in future. They indeed are transgressors. But those who repent and mend their ways, Allah is Ever-Forgiving and Most-Merciful. And those who accuse their wives but have no witnesses except themselves shall swear four times by Allah that they are telling the truth and the fifth time that the curse of Allah be on them if they are lying. But this shall avert the punishment from the wife if she swears four times by Allah and says that this person is a liar and the fifth time she says that the curse of Allah be on her if he is telling the truth. (24:4-9) This is the directive for qadhf, in accusing someone of fornication. Although, in these verses, only the accusation of women is mentioned, yet in the Arabic language this style is adopted because normally in society only women become targets of such allegations, and the society is also sensitive about them. Consequently, there is no doubt that on the ground of similarity of basis this directive pertains to both men and women and cannot be restricted to women only. In the above quoted verses, two forms of qadhf are stated: a) Firstly, a person accuses a chaste and righteous woman or man of fornication. b) Secondly, such an accusation takes place between a husband and wife. In the first case, the law of Islam is that the accuser shall have to produce four witnesses. Anything less than this will not prove his accusation. Mere circumstantial evidence or mere medical examination in this case is absolutely of no importance. If a person is of lewd and loose character, such things have a very important role, but if he has a morally sound reputation, Islam wants that even if he has faltered, his crime should be concealed and he should not be disgraced in the society. Consequently, in this case, it wants four eye-witnesses for the testimony to initiate the hearing, and if the accuser fails to produce them, it regards him as guilty of qadhf. Federal Shariat Court explains its punishments which are given in Quran and Sunnah of Holy Prophet (Saw).When someone accuses of lian the court have made laws according to shariat to give them punishments. For example the punishments are: a. The criminal shall be administered eighty stripes. b. His testimony shall never be accepted in future in any matter, and as such he shall stand defamed in the society. Administering eighty stripes and not considering a person eligible to bear witness is punishments of the Herein, while in the Hereafter he shall be counted among the transgressors except if he repents and mends his ways.

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In the second case, in if such an instance takes place between a husband and his wife, then according to the Qurn, if there are no witnesses, the matter shall be decided by pledging oaths. In Islamic law, this case is termed as ( lin).

2.6.

Laws of drinking wine in FSC:

The drink prohibited in Islam is described as Khamr. Khamara originally means t veiled or covered or concealed a thing and wine is called Khamr because it veils the intellect and obscures the moral sensibilities of a man. Khamr is differently explained as meaning what intoxicates, of the expressed juice of grapes, or the juice of grapes when it has effervesced and thrown up forth, and become freed there form, and still, or it has a common application to intoxicating expresses juice of anything, or any intoxicating thing that clouds or obscures the intellect. Wine under the term Khamr ( ,)which is generally held to imply all things which intoxicate, is forbidden in Holy Quran in the following verses: They ask you about intoxicants and games of chance. Say: in both of them there is a great sin and some benefit for men; and their sin is greater than their benefit. O you who believe! intoxicants and games of chance and (sacrificing to) stones set up and (dividing by)arrows are only an uncleanness, the Shaitan's work; shun it therefore that you may be successful. The Shaitan only desires to cause enmity and hatred to spring in your midst by means of intoxicants and games of chance, and to keep you off from the remembrance of Allah and from prayer. Will you then desist? The Holy Prophet (SAW) laid down the general principle: if a large dose of something is intoxicant, then even its smallest dose is also unlawful, and if a cup of anything is intoxicant, then even a drop of it is also unlawful. According to tradition reported by Ibn Umar, the Holy Prophet (SAW) declared, Allah has cursed wine and the one who drinks it and the one who serve it and the one who sells it and the one who buys it and the one who extracts it and the one who has it extracted and the one who carries it and the one for whom it is carried. Whoever drinks alcohols or any intoxicant voluntary shall be punished with eighty (80) lashes no matter the quantity.

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Proof 1) Two witnesses with unquestionable characters testified that they saw the offender drinking alcohol or any intoxicant. 2) If two witnesses testified that they smelt the odor of alcohol (wine) from the mouth of the person who was said to have drunk alcohol. 3) Confession by an offender. The punishment for the following people is 15 lashes or imprisonment for six months: (1) Brewers (of alcohol) (3) Sellers (2) Loaders (4) Brewery owners

Federal Shariat Court implements its punishments which were given in Quran and Sunnah of Holy Prophet (Saw).When someone take Alcohol the court has made laws according to Shariat to give them punishments. For example the punishment of drinking alcohol is 80 lashes and for selling and borrowing Shariah implies the punishment of 15 lashes.

2.7.

Laws for Theft in FSC:

Theft literally means the secretly talking away of anothers property. In the language of law, theft signifies the talking away the property of another in a secret manner, at time when such property is custody. Concerning theft, Islam legislates cutting the thief's hand off as a maximum punishment and under certain conditions. The prescribed punishment for theft appears in the Quran: As to the thief, male or female, cut off his or her hands as punishment by way of example from Allah for their crime (5:4). Narrated 'Urwa bin Az-Zubair: A lady committed theft during the lifetime of Allah's Apostle in the Ghazwa of Al-Fath, ((i.e. Conquest of Mecca). Her folk went to Usama bin Zaid to intercede for her (with the Prophet). When Usama interceded for her with Allah's Apostle, the color of the face of Allah's Apostle changed and he said, "Do you intercede with me in a matter involving one of the legal punishments prescribed by Allah?" Usama said, "O Allah's Apostle! Ask Allah's Forgiveness for me." So in the afternoon, Allah's Apostle got up and addressed the people. He praised Allah as
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He deserved and then said, "Amma ba'du ! The nations prior to you were destroyed because if a noble amongst them stole, they used to excuse him, and if a poor person amongst them stole, they would apply (Allah's) Legal Punishment to him. By Him in Whose Hand Muhammad's soul is, if Fatima, the daughter of Muhammad stole, I would cut her hand." Then Allah's Apostle gave his order in the case of that woman and her hand was cut off. Afterwards her repentance proved sincere and she got married. 'Aisha said, "That lady used to visit me and I used to convey her demands to Allah's Apostle. Federal Shariat Court implements its punishments which were given in Quran and Sunnah of Holy Prophet (Saw).When someone take Alcohol the court has made laws according to Shariat to give them punishments. For example the punishment of theft thatvfor first time thief should lose his right hand and second time on stealing offender is to lose his left foot. In the case of further thefts, the thief will be imprisoned until he shows repentance.

2.8.

Laws of Highway Robbery according to FSC:

Robbery is the crime of taking or attempting to take something of value by force or threat of force or by putting the victim in fear. At common law, robbery is defined as taking the property of another, with the intent to permanently deprive the person of that property, by means of force or fear. Precise definitions of the offence may vary between jurisdictions. Robbery differs from simple theft in its use of violence and intimidation. All conceivable offences against the state, such as treason or willful defiance of the law of Allah and of constituted authority are made punishable by the Holy Quran as under: The punishment of those who wage war against Allah and His Apostle, and strive with might and main for mischief through the land is ; execution, or crucifixion, or the cutting off of hands and feet from opposite sides, or exile from the land ; That is this disgrace in this world, and a heavy punishment is there in the Hereafter. Except for those who repent before they fall into your power; In that case, know that Allah is Oft-forgiving, Most Merciful. Federal Shariat Court explains its punishments which were given in Quran and Sunnah of Holy Prophet (Saw).When someone do highway robbery the court has made laws according to Shariat to give them punishments. For example such offences are made punishable with any one of the four punishments, that is a) Beheading- if the offender kills the victim but does not take property b) Crucifixion-if the offender kills the victim and takes property

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c) Cutting of hand and feet from opposite sides if the offender takes property with violence but does not kill the victim d) Exile from land- if property is not taken and the victim is not killed, but the road is made unsafe.

2.9.

Laws regarding Apostasy in FSC:

Apostasy is disassociation from either with the intention of atheism (kufr) or with the words of atheism or with an act of atheism. It is said that someone who believes and then recants that belief. The only punishment that is articulated is that God will not forgive or guide that person "Those who believe then reject Faith, then believe (again) and (again) reject Faith and go on increasing in unbeliefAllah will not forgive them, nor guide them on the way."(4:137) "And they will not cease from fighting against you till they have made you renegades from your religion, if they can. And whoso from among you turns back from his Faith and dies while he is a disbelieves : such are they whose works shall be vain in this world and in the Hereafter. These are the inmates of the Fire and therein they shall abide" (2: 217). This hadith below says that some "atheists" were brought to Hazrat Ali,(RA), and he burned them alive. . . . The news of this event reached Ibn Abbas (Muhammads cousin and highly reliable transmitter of traditions) who said, "If I had been in his (Alis) place, I would not have burnt them, as Allahs Messenger forbad it, saying, Do no punish anybody with Allahs punishment (fire). I would have killed them according to the statement of Allah Messenger, Whoever changes his Islamic religion, then kill him." "...The Prophet said, 'If somebody (a Muslim) discards his religion, kill him.' Federal Shariat Court explains its punishments which were given in Quran and Sunnah of Holy Prophet (Saw).When someone apostate the court implements laws according to Shariat to give them punishments. For example the hadd punishment for all apostates is death after giving him a reasonable opportunity to repent. The Holy Prophet (SAW) said "Kill the person (Muslim who abandons his religion)" According to Islamic law a male apostate is killed with sword and same is implemented by Shariah Court.

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2.10. Laws regarding Rebellion in FSC:

Rebellion is an open, organized, and armed resistance to one's government or ruler. The Quran states: "If two parties among the Believers fall into a quarrel, make ye peace between them: but if one of them transgresses beyond bounds against the other then fight ye (all) against the one that transgresses until it complies with the command of Allah; but if it complies then make peace between them with justice and be fair: for Allah loves those who are fair (and just)." (4:59) The Holy Prophet (SAW) said" The best rulers are those whom you people love and who love you (people) and who pray for you and you pray for them" The Prophet (SAW) said He who dislikes any act of the ruler, should be patient (and should not aggress). He who opposes the order of consensus (Ummah) even a hand span, he shall die as one die in day off ignorance (Jahliyyah). Muslim reported on the authority of Umm Salama that the Messenger of Allah (SAW) said: "Ameers will be appointed over you, you recognize some of what they do and you disown some. Whoever recognized he is absolved from blame. Whoever disapproved (of their bad deeds) he is safe, but whoever consented and followed them (he is doomed.)" They said: "Should we not fight against them?" He (SAW) replied: "No, as long as they prayed." Federal Shariat Court implements its punishments which are given in Quran and Sunnah of Holy Prophet (Saw). When someone become rebellious the court implements laws according to Shariat to give them punishments.

2.11. Laws for treason in FSC:

In law, treason is the crime that covers some of the more extreme acts against one's sovereign or nation. Historically, treason also covered the murder of specific social superiors, such as the murder of a husband by his wife. Treason against the king was known as high treason and treason against a lesser superior was petty treason. A person who commits treason is known in law as a traitor. Federal Shariat Court explains its punishments which were given in Quran and Sunnah of Holy Prophet (Saw).When someone do treason in the land the court implements laws according to Shariat to give them punishments. For example the prescribed punishment ranged from imprisonment to the severing of limbs and the death penalty depending on the severity of the
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crime. However, even in cases of treason the repentance of a person would have to be taken into account. Currently, the consensus among major Islamic schools is that apostasy (leaving Islam) is considered treason and that the penalty is death; this is supported not in the Quran but in the Hadith.19

2.12. Laws for Liwatat in FSC:

A person is said to commit zina-bil-jabrif he or she has sexual inter-course with a woman or man, as the case may be, to whom he or she is not validly married, in any of the following circumstances, namely: a) against the will of victim; b) without the consent of the vivctim c) with the consent of the victim, when the consent has been obtained by putting the victim in fear of death or of hurt; or d) with the consent of the victim , when the offender knows that the offender is not validly married to the victim and that the consent is given because the victim believes that the offender is another person to who the victim is or believes herself or himself to be validly married.20 Federal Shariat Court implements its punishments which are given in Quran and Sunnah of Holy Prophet (Saw). When someone does illegal sexual intercourse the court implements laws according to Shariat to give them punishments. For example the punishment of rape or Zina bil Jabr (lit: "forced adulterous sex") carries the death penalty.21

19

http://en.wikipedia.org/wiki/Treason http://www.pakistani.org/pakistan/legislation/zia_po_1979/ord7_1979.html http://www.pakistani.org/pakistan/legislation/zia_po_1979/ord7_1979.html

20

21

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2.13. Laws of Human Trafficking in FSC:

Human Trafficking is a crime against humanity. It involves an act of recruiting, transporting, transferring, harboring or receiving a person through a use of force, coercion or other means, for the purpose of exploiting them. Every year, thousands of men, women and children fall into the hands of traffickers, in their own countries and abroad. Every country in the world is affected by trafficking, whether as a country of origin, transit or destination for victims. Federal Shariat Court implements its punishments which are given in Quran and Sunnah of Holy Prophet (Saw). When someone does human trafficking the court implements laws according to Shariat to give them punishments. For example the punishment of kidnapping a woman with intent to commit a sexual crime against her carries the death penalty.

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Chapter 3
3.1 Implementation of Federal Shariat Court in Pakistan
Pakistan was liberated in the name of Islam on the basis of the two nation theory. Before the creation of Pakistan, the Muslims of the Subcontinent were right in thinking that by achieving independence and creation of a separate home land they would be able to order their lives in accordance with the dictates of the Holy Quran and the Sunnah of the Holy Prophet (PBUH). They were also sanguine that their lives, properties and rights would be protected in the Islamic State and no one would dare to transgress there on. The FSC was passed under Ziaul Haq to implement punishments as stipulated by the Sharia law for extramarital sex, theft and prohibition and etc. The Federal Shariat Court decides various issues related to Hadood Crimes brought before it, in the Light of Holy Quran and Sunnah. These capital punishments were given in the life of holy Prophet (PBUH) and in the period of rightly guided Khalif. Scholars can find only two instances in which this capital punishment was implemented during the Holy Prophets (PBUH) life. It was also noted that in the history of Pakistan, no woman has ever been stoned or lashed (as a legal punishment). Pakistan government made these laws in the constitution of 1979. But there is no implementation of FSC laws in Pakistan. For the knowledge about implementing the Laws of FSC, we researched different book, met many lawyers etc but the result was not in positive. Researches show that, Pakistan only made the laws of FSC but there is no implementation of these laws. One of our research shows the result as:

The most obvious findings of the research are that the bulk of cases (88%) heard on appeal by the FSC were zina ordinance related; and that around 60% of these were concerned with appeals against adultery/ fornication tazir and rape tazir cases. Conversely, the court heard very few appeals against prohibition or property cases, and in the sample only one case dealing with gazf. Second, the FSC dealt predominantly with tazir crimes. There were only six cases of hadd appeals in the sample. A very significant and important finding of our analysis is that the FSC accepts or partially accepts an extraordinarily high percentage of the appeals brought before it.
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Another important finding disclosed by the analysis is that the Hudood Ordinances are enforced disproportionately among the provinces. Several factors may be suggested to help explain this phenomenon. Perhaps the most compelling recognizes the profound cultural differences among the regions of Pakistan.22

3.2.

Methodology:

There is no available definitive data that addresses this issue. The study is the first research endeavor to assess the impact on FSC and is based on secondary data. The search for the implementation of FSC in Pakistan on the subject revealed that there was a paucity of research on it. In this respect this is a pioneer study that seeks to make a systematic research based assessment on the implementation on Laws of FSC in Pakistan. Data was gathered on implementation on Laws of FSC in Pakistan using single source of information. Besides analysis the existing literature on the subject, in-depth interviews were conducted with lawyers to seek their views on implementation of FSC. The instrument used for our research is Questionnaire method. We filled questionnaire from teachers and lawyers, including both male and female. Both were highly educated and have much knowledge about FSC. They give their free opinion on implementation of Laws of FSC in Pakistan.

3.3.

Instrument:

The instrument used for our research is Questionnaire method. That is given at the end of project.

3.4.

Result:

Quantitative overview of project through graph,

22

Charles H. Kennedy(1988). Islamization in Pakistan: Implementation of the Hudood Ordinances. London. University of California Press

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Q1: Are the laws given by Federal Shariat Court (FSC) according to Shariat?

0% 10%

30% 60%

Yes No Somehow

Q2: According to your opinion do the people of rural areas take their decisions to FSC?

0% 18%

Yes 51% 31% No Somehow

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Q3: Is FSC implementing the laws related to Hudood Crimes?

0%

30% Yes 50% No Somehow

20%

Q4: Do people nowadays take their cases in FSC?

0%

20%

Yes No 60% 20% Somwhow

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Q5: Are the people following the decision of FSC in Pakistan?

30%

30%

Yes No Somehow

40%

Q6: Does the present Government in Pakistan give motivation to the decision of FSC?

10%

40%

Yes No Somehow 50%

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Q7: Do all provinces of Pakistan give equal preference to the decision of FSC?

20%

20%

Yes No Somehow

60%

Q8: Is gender biasness shown in the decision of FSC?

10%

Yes 30% 60% No Somehow

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3.5.

Quantitative explanation:

From this study we came to know that 60% people think that FSC has given the law according to Shariat and 50% people think that FSC somehow implement the laws related to Hudood Crimes. While 60% observed that somehow people take their cases to FSC nowadays and 51% in rural areas in Pakistan. 40% agreed that people of Pakistan did not follow the decisions of FSC. 60% said that all provinces of Pakistan did not give equal preference to FSC and also 60% said that decisions of FSC were gender biased. 50% think that Government of Pakistan does not motivate the decision of FSC. Nine years after the promulgation of the Hudood Ordinances, one main conclusion emerges: the implementation of the Hudood Ordinances has had only unimportant impact on Pakistan's criminal law system. Similarly, the implementation of the Hudood Ordinances has not had a significantly adverse impact on the status of women in Pakistan, as has been often alleged; nor has the implementation of the law significantly altered the relationship between judicial and political institutions; nor has it significantly changed judicial procedure in Pakistan. People of rural areas, as they are uneducated and hardly know about FSC did not take their cases to FSC. So for this cause the implementation rate of laws of FSC in Pakistan is very low. Also is prove that the decisions of FSC are gender biased as in 2000, out of the total appeal cases in the Federal Shariat Court, 15 were moved by women and 73 by men. In 2001, only 23 cases were appealed by women in the Shariat Court as compared to 152 by men. So, clearly, women are not the only ones being punished under this law. But, still, whenever there is a mention of Hudood Ordinance it is only in the context of exploitation of women.23 Another important finding disclosed by the analysis is that the Hudood Ordinances are enforced disproportionately among the provinces. Fully 80% of the cases tried under the Hudood statutes originated in the Punjab, 12% in the Northwest Frontier Province (NWFP), only 7% in Sind, and less than 1% in Baluchistan. Further, in the latter provinces Hudood convictions are usually linked to urban settings. When one controls for population such distinctions become even more apparent. For instance, it is ten times more likely for a Hudood conviction to occur in Sargodha Division (Punjab) than in Hyderabad Division (Sind).24 It is also observed that the government of Pakistan did not motivate to the implementation of the laws of Federal Shariat Court. The FSC did not have much power anyway, not being allowed to touch any important aspect of the law in Pakistan. The FSC spend most of the time examining what was within its jurisdiction and what was not.25
23 24

Ibid Ibid 25 M. Rubya (1994). The Islamization of the Law in Pakistan. Richmond. Curzon published Ltd

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Chapter 4
4.1. Conclusion:

The Federal Shariat Court was established by virtue of the Presidents Order No.1 of 1980 with effect from 27th May, 1980. It is located in Constitution Avenue, opposite Prime Minister's Secretariat Pakistan Islamabad. It consists of 8 Muslim judges appointed by the President of Pakistan after consulting the Chief Justice of this Court, from amongst the serving or retired judges of the Supreme Court or a High Court or from amongst persons possessing the qualifications of judges of a High Court. Justice Agha Rafiq Ahmed Khan is the current Chief Justice of the Court. Of the 8 judges, 3 are required to be Ulema who are well versed in Islamic law. The judges hold office for a period of 3 years, which may eventually be extended by the President. It is authorized by Constitution of Pakistan. This establishment order was incorporated in the Constitution of Pakistan, 1973 Chapter 3-A entitled Federal Shariat Court.

In Federal Shariat Court all Hudood laws were defined. In which 10 Hudood were defined with the Verses of Quran and tradition of Prophet (saw.w) and tell about the punishments which were given in it. The scope of the term Hudood is very wide and covers not only all categories of offences relating to property, human body, human dignity and honor but also family matters of a civil nature. In this context it was urged that the categories of offences as well as civil matters relating to family life be also identified which fall within the ambit of the term Hudood. It was asserted that the purpose of creating Federal Shariat Court be also examined, and lastly it was maintained. As for the correct method for the implementation of the FSC in Pakistan is concerned, following points are considered to entail basic importance in this regard: Before the practical implementation of the prescribed laws, the ground should be adequately prepared. This really implies that the laws should be implemented when the public is first prepared for these laws. A thorough study of the groundwork and the sequence of implementation of the laws by the Qur'an, during the times of the Prophet (Pbuh) should itself provide adequate guidance, in this regard; As in the first point, any implementation of the laws of the FSC should be preceded by the education and the promotion of the idea that Muslims are only bound to remain obedient to the directives entailed in the Qur'an and the Sunnah. Muslims are not bound to remain faithful to the opinions of any particular scholar, jurist or school of thought. In all such cases, where the Qur'an and the Sunnah have not given any express directives for the collectivity, the representatives of that collectivity may pass any legislation, which, in
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their opinion, best serves the collectivity and is not against any of the directives entailed in the two basic sources of the Shari`ah; Only that interpretation of the directives of the Qur'an and the Sunnah should be implemented in the collectivity, which is ascribed to by the majority of the members of that collectivity; The implementation of the FSC laws must not, in any way, hinder the freedom of speech and expression in the society. People should be allowed a chance to convince the majority of the members of the collectivity regarding their opinions and subsequently amend any existing laws.26

4.2.

References:

Chauhary.G,(2010),Constitution of Pakistan 1973,Lahore,Federal Law House,The ideal Publishers Q. L Cian (2009), Powers, Jurisdiction and Function of the Federal Shariat Court Rabbani,I.(2003).Introduction to Pakistan Studies.Lahore,The Carvan Press Ilyas.M(1998) Updating the Constitutio Of Pakistan, Islamic Vanguard books(Pvt) Patel. R,(1986) Islamization Of Law,Karachi Saad Publications. Charles H. Kennedy(1988). Islamization in Pakistan: Implementation of the Hudood Ordinances. London. University of California Press M. Rubya (1994). The Islamization of the Law in Pakistan. Richmond. Curzon published Ltd www.federalshariatcourt.gov.pk
http://en.wikipedia.org/wiki/Treason

http://www.pakistani.org/pakistan/legislation/zia_po_1979/ord7_1979.html
http://www.pakistani.org/pakistan/legislation/zia_po_1979/ord7_1979.html http://www.understanding-islam.com/q-and-a/history/hudood-ordinance-in-pakistan-and-the-recommended-methodof-implementing-islamic-laws-5721

26

http://www.understanding-islam.com/q-and-a/history/hudood-ordinance-in-pakistan-and-the-recommendedmethod-of-implementing-islamic-laws-5721

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