This slide show explains the role of federal shariat court of Pakistan in the domain of Islamization of laws. The court has contributed in diversified ways in polity of Pakistan.

1. Role of Federal Shariat Court in
Islamization of Laws
Dr Shahbaz Ahmad Cheema
University Law College,
University of the Punjab, Lahore

2. Ijtihad & Islamization of Laws
• Individual Ijtihad
• Collective Ijtihad through Non-governmental
Organizations and Governmental
Organizations (e.g. IRI and CII)
• Ijtihad through Parliament by way of enacting
laws
• Judicial Ijtihad (e.g. Federal Sharial Court)

3. Federal Shariat Court (FSC)
• Shariat Benches in various High Courts
established in 1979.
• Establishment of FSC in 1980
• Eight Judges including three Islamic Scholars
• Three types of jurisdiction:
A.Original Jurisdiction
B.Appellate Jurisdiction
C.Revisional Jurisdiction

4. Original Jurisdiction
• Consistency or inconsistency of laws on
touchstone of ‘Injunctions of Islam’
• ‘Injunctions of Islam’ as embodied in the
Quran and Sunnah of the Holy Prophet (PBUH)
• Ouster of Jurisdiction
A.Constitution
B.Muslim Personal Law
C.Procedural and fiscal laws

5. Modes of Islamization by FSC
• Three Modes of Islamization:
A. Declaring inconsistent laws as repugnant to
‘Injunctions of Islam’
B. Declaring consistent laws as valid under
Islamic law
C. Filling the gaps in Laws by suggesting Islamic
alternative

6. Judgments of FSC on Muslim
Personal Law and Gender related
Issues

7. Allah Rakha Vs FOP (PLD 2000 FSC 01)
• History of Muslim Family Laws Ordinance 1961
• Sec. 4 relating to Inheritance of Orphaned
Grandchildren as un-Islamic (Islamic alternatives:
Compulsory maintenance by Uncles and Aunts
and Mandatory Will)
• Sec.5 with respect to Registration of Marriages as
Islamic (Suggestions: enhancement of
punishment for encouraging compliance and
clarification as to essence of marriage)

8. Allah Rakha Vs FOP (PLD 2000 FSC 01)
• Sec.6 dealing with Polygamy as Islamic (Polygamy
is a permission and not an obligation. Regulating
it through Arbitration Council does not violate
Islamic Law
• Sec. 7 relating to Divorce is Valid under Islamic
Law except provisions relating to duration of
Iddat (Iddat does not commence from serving
notice to Chairman Arbitration Council. Duration
is prescribed for all sorts of Iddats, hence 90 days
period is un-Islamic)

9. Saleem Ahmad Vs GOP (PLD 2014 FSC
43)
• Sec.10(4) of West Pakistan Family Courts Act
1964
• Decree for Khula if efforts of reconciliation fail
between spouses at pre-trial stage w/o
recording evidence held Islamic
• No specific prohibition for this provision in the
Quran and Sunnah of the Prophet
• ‘The most distasteful act’ but better than ‘holy
deadlock’

10. Ansar Burney Vs FOP (PLD 1983 FSC
73)
• Appointment of Women as Judges
• No prohibition in the Quran and Sunnah
• Objections: violation of purdah; never assigned
judicial function during Prophetic era; half
evidence; qawama and deficient in intellect.
• Main Hammad Murtaza Vs FOP (PLD 2011 FSC
117) : Above decision has attained finality as it
was not challenged before the Shariat Appellate
Bench of the Supreme Court

11. Muhammad Fayyaz Vs FOP (Shariat
Petition 6/1 of 2004)
• Sec. 3 of Majority Act 1875
• Age of Majority as 18 and 21 years
• Physical maturity and mental maturity
• Muslim Scholars rely on physical signs and
specific age
• The provision declared as Islamic as it brings
certainty instead of leaving matter on the
discretion of the courts in each case

12. In Re: Gender Equality (PLD 2008 FSC
01)
• Sec. 10 of the Citizenship Act 1951
• Foreign wife entitled to citizenship but not
foreign husband of Pakistani spouse
• Right of Citizenship for non-Pakistani husband
of Pakistani wife are equivalent to non-
Pakistani wife of Pakistani husband
• Objections were raised based on security
concerns and prevalent unemployment

13. Hafiz Abdul Waheed Vs Asma Jehangir
(PLD 2004 SC 219)
• Consent of wali for marriage of sui juris virgin
girl
• Divergent views of Lahore High Court
disregarding the Decisions of FSC
• FSC on various cases on alleged Zina held that
consent of wali not required for validity of
marriage, hence such couples could not be
booked under Hudood Ordinance 1979

14. Administration of Justice
• Period of limitation is in consonance with Islamic
law (PLD 1989 FSC 143)
• Charging court fee on value of subject
matter/property of a case is un-Islamic [Dr
Mahmood ur Rahman Vs FOP (PLD 1992 FSC
195)]
• Provisions of Law Report Act 1875 as to
prohibition of publication of cases w/o
permission is in accord with Islamic law [Dr Abdul
Malik Irfani Vs FOP (NLR 1993 S.D. 231)]

15. Politics of ‘Injunctions of Islam’
• Mohtrama Benazir Bhutto Vs FOP (PLD 2010 FSC
229)
• A trust was established by Bhutto family in 1974
and General Zia took over the trust with the help
of numerous legislative instruments
• Benazir Bhutto prayed for restoration of the trust
to its original trustees
• FSC during Zardari era relying on God’s attributes
of “hearing” and “seeing” and generic notions of
“justice” and “fair-play” held no law could
deprive anyone from appealing against it

16. Contemporary Issues and ‘Injunctions
of Islam’
• Muhammad Rasheed Rashid Vs GOP (PLC (CS)
2009 FSC 809)
FSC refused to hold un-Islamic the provisions
relating to leave preparatory to retirement of
government employees
• Federal Government Vs Provincial Governments
(PLD 2009 FSC 01)
Company Ordinance 1984 held Islamic tracing the
notion of ‘legal entity’ from Islamic institutions of
waqf and bait-ul-maal

17. Conclusions
• FSC is a novel experiment combining judicial
and legislative powers in one institution
• Approach of FSC is reformative as well as
imbedded in the tradition
• FSC has ignited a new pattern of legal
reasoning informed by Islamic sources
• FSC being a human institution not thoroughly
immune from political pressures and
occasional inconsistencies