Content

Editor's note

Volume 1 Editor's Note

Editorial Board and Committee

Articles

Comments

Content

Editor’s note

Volume 1 Editor’s Note

Editorial Board and Committee

Articles

Comments

ARTICLES

Implementation of ILO Wages Conventions in Pakistan
Author:
*Muhammad Amin
Can Ihsan be developed as a legal principal for establishing new era of human rights?
Author:
*Muhammad Amin
ISLAMISATION OF PENAL LAWS AND MISCARRIAGE OF JUSTICE
Author:
*Muhammad Awais Ikram
Human Rights Act and Changing Approach to Statutory Interpretation in UK
Author:
*Muhammad Awais Ikram
Trade infringement and passing off
Author:
*Tamoor Mughal
No Revision Competent Against an Order Which Is Challengeable in Appeals U/S 417(2),Why?Explanation With Reference to Case Laws
Author:
*Muhammad Tariq Anayat
SNIPER ATTACK ON ACCUSED / MURDER IN COURT : AN INCUMBANT NEED OF LIGISLATION.
Author:
*UZMA ASHRAF
CAUSES OF ACQUITTALS IN ATA CASES
Author:
*Muhammad Tariq Anayat

COMMENTS

Volume 1 Editor’s Note

Editorial Board and Committee

Implementation of ILO Wages Conventions in Pakistan

 Implementation of ILO Wages Conventions in Pakistan

 

*Muhammad Amin

____________________

* He is professor ( Islamic jurisprudence and philosophy ) as well as director research and development at Premier Law College, Gujranwala. Ph.D Scholar, Gift University, Gujranwala.

Abstract

This article views and assesses the implementation of ILO wages conventions in Pakistan. Before going into core discussion, two things are ascertained. First, the origin, nature and establishment of international labour organization as it is fundamental source of labour laws in the world. Second; the impact of ILO on the development of labour laws in Pakistan. ILO has passed proximately 8 basic wages conventions. It is particularly viewed in this article to what extent these conventions are complied with in Pakistan. As there are so many evidences from the reports of ILO committee of experts that ILO wages conventions have not been complied with in ratifying states. This situation is same with the Pakistan. Wages have not been specified and paid as up to the ILO wages conventions. In order to prove this statement, several quotations have been cited from the HRCP’s reports. The quotations from the reports of expert’s committee of ILO have also been given to evidence it.The wages of home based women workershave also been discussed.ILO reported that those women and children who are working in people’s homes in Pakistan are hidden workers. They are not paid their wages as up to the ILO wages conventions and have not been given legal benefits attached to their job and salaries under the labour laws. Pakistan has yet to ratify the ILO convention 177 on home based workers.Likewise, there is a large number of Pakistanis who migrate from Pakistan to other countries in search of jobs. The reason behind it that ILO wages conventions and standards have not been complied with in Pakistan. The labourers and employees are paid wages unstandardized at the minimum wages conventions of the ILO.

Keywords: international labour organizations, labour, wages, conventions, implementation, Pakistan.

 

This article views and assesses the implementation of ILO wages conventions in Pakistan. Before going into core discussion, it is necessary to ascertain two things; first; the origin, nature and establishment of international labour organization as it is fundamental source of labour laws in the world. Second; the impact of ILO on the development of labour laws in Pakistan.

In 1919, A labour commission detailed in Paris through a peace dialogue among League of Nations and this commission proposed to establish an international labour organization, the responsibility of which is to settle down the labour disputes and issues.Therefore, on the recommendations of the labour commission, in 1919, the ILO appeared as a world labour forum to structure internationally labour policies, conventions and recommendations.

Dr.Werner Sengenberger[1]Writes down about the purpose of international labour organization;

The International Labour Organization (ILO) was founded in 1919 as part of the Treaty of Versailles. It is approaching its centenary. In 1946, it became the first specialised agency of the United Nations. The ILO embodies a vision of universal, humane conditions of labour to attain social justice and peace among nations. The contemporary expression of this vision is the Decent Work Agenda.[2]

International labour organization has a history of one hundred years.It  comprises three characters; governments, employers and employees.[3]In 1946 ,ILO has become a constituent unit of united Nations.The basic function of ILO is

to protect the rights of labourers and maintain international labour standards.Until now, ILO has passed 189 conventions and 202 recommendations, which have been ratified by 185 states.[4]

What are basic principles of ILO? Chandra Roy writes about these principles.

The founding documents of the ILO included a Charter elaborated during the peace Treaty of Versailles based on the following principles. Abolition of Child labour, Adequatewages, Equality of treatment, Equalpay, Inspection systems, Labour should not be seen merely as a commodity or an article, of commerce, Reasonable working hours, Right of association.[5]

 

 

 

 

 

Dr Amit Kumar Singh[6] writes about the objective and purposes of ILO in his research article.

The primary objective of action in the ILO is the creation of the international labour standards in forms of Resolutions and Recommendations. Resolutions are international treaties and instruments, which generate legally binding responsibilities on the nations that ratify those nations. Recommendations are none –binding but better set out guidelines orienting countrywide policies, procedure and help in developing actions.Labour law control matters, such as, remunerations, labouremployment, and conditions of employment, tradeunion, industrialand labour management relations. They also include social legislations regulating such a characteristicas reimbursement for accident triggered to a worker at work place, maternity benefits fixations of minimum wages, and distributions of company’s profit for the organization’s workers etc. Most of these acts regulate rights and the responsibilities of employee.[7]

 

ILO has specified working time hours for labourers first time in history. It also gave labourers the right of making union. This right of Labour union generated the right of protest for labourers. Micheal Sommer[8]writes in this regard.

Many historic achievement are due to the ILO-including for example ,the 8 hours’ workday, the right to unionisation, and as a consequence thereof, the right to strike.[9]

ILO has made Wages and Labour standards and specified the rights of labourers. United nation and European social charterhave considedthese labour rights and standards as human rights. Dr Werner writes about these labour rights and standards.

The main subject  areas of the international labor standards in clued the fundamental  rights at work, which are contained  in the eight so-called core labors standards of the ILO.These are freedom of association  and the right to organise,the right to collective  bargaining, the abolition of child labor ,the prohibition of workplace discrimination ,as well as the mandate for equal  for men and women for work of equal value.[10]

 

Dr Sengenberger Werner writes more about labour rights and standards. 

The remaining ILO Convention are also part of international law  and refer to substantive (in ILO,jargon technical) standards for the labour  market, working hours and rest period ,workplace health  and safety, particularly vulnerable workers, and collective labour relations  and social dialogue.[11]

ILO consists of two parts, one is legislative and second is administrative. The legislative part is called international labour conference. Its session is held in every year in the month of june. ILCis also called the world parliament of labour. In both parts there are half seats reserved for member states and other half for employers and employees. The legislation of ILO appeared in the form of its conventions which are considered as a source of international labour laws and also international labour standards.[12]

ILO has passed different wages conventions. G.P Politakis[13]writes about wages conventions.

Labour Clauses (Public Contracts) Convention, 1949 (No. 94). Labour Clauses (Public Contracts) Recommendation, 1949 (No. 84) – Protection of Wages Convention, 1949 (No. 95) the Protection of Workers’ Claims (Employer’s Insolvency) Convention, 1992 (No. 173), which revises Article 11 of Convention No. 95. Protection of Wages Recommendation, 1949 (No. 85). Minimum Wage Fixing Convention, 1970 (No. 131). Minimum Wage Fixing Recommendation, 1970 (No. 135). Protection of Workers’ Claims (Employer’s Insolvency) Convention, 1992 (No. 173). Protection of Workers’ Claims (Employer’s Insolvency) Recommendation, 1992 (No. 180). Other instruments (This category comprises instruments which are no longer fully up to date but remain relevant in certain respects.) Minimum Wage-Fixing Machinery Convention, 1928 (No. 26). Minimum Wage Fixing Machinery (Agriculture) Convention, 1951 (No. 99). Minimum Wage-Fixing Machinery (Agriculture) Recommendation, 1951 (No. 89)[14]

ILO has an impact over the development of labour laws in the world as the ratifying states are bound to follow the policies of international labour organization. There are 185 member states of ILO. These states legislate their labour laws as up to the ILO labour conventions. The ILO labour conventions are so helpful in protecting the rights of labourers and employers.

 

 

Dr Amit Kumar Singh’s statement supports this view.

International labour organization supports countries to lure their own set of labour legislations for the well conduct of labour class, and the preservation of their rights.[15]

There are 8 basic wages conventions which protect labourers and their wages. These 8 wages conventions are actually the human rights of labourers. Dr Amit Kumar Singh says that these wages conventions have laid great positive effects on labour legislations in ratifying states.

The eight Core Conventions of the ILO (also called fundamental human rights conventions) are: Forced Labour Conventions (No.29), Abolition of Forced labour Convention (No.105),Equal Remuneration Convention(No.100),and Discrimination(Employment Occupation) Convention (No.111). Freedom of association  and protection of right to organized Convention (No.87),Right to Organized and Collective Bargaining  Convention(No.98).Minimum Age Convention (No.138),Worst Forms of Child Labour Convention (No.182).[16]

In subcontinent, the development labour laws started in the period of British colonization. The British political and economic movements and concepts have been basis for the development of these laws. In the binging it was very difficult for the British institution to manage and solve the problems of workers and their unions because of having no labour laws. Therefore, in order to overcome the labour problems, the labour laws beganto be developed. Likewise, the textile industry started to expand, the British Indian government has been forced to making labour laws for industrial units in India. Dr Amit Kumar Singh writes about the historical origins of labour laws.

In the initial phases it was very difficult to get adequate regular Indian workers to run British organizations and hence labour law became essential……………….The Factories Act was first time introduced in 1883 because of the pressure carried on the British parliament by then textile tycoons of Manchester and Lancashire. Thus we acknowledged the first requirement of eight hours of work for labor. The abolition of child labour.[17]

In the 19th century the small industrial units started its working in the hometowns and the possibilities of new jobs have risen. People started to migrate from rural areas to urban areas. The employers gave less wages to the employers and made for them prolong working hours.Therefore for this reason, the British Indian government had to make labour legislation. This labour legislation started in 1881. Dr Amit Kumar Singh confirms this statement in these words.

 

During time, in lack of any control on organization’s labour by the state, the employers were very less concerned   for the need of their workers: wages were very low, very long working hours and unsatsatisfactory the employee’s employment conditions. The situation led to the depiction of a large number of labour legislations beginning since the year of 1881.These labour.[18]

In subcontinent, these labour laws were developed. Factories act 1881, workmen’s compensation Act 1923, Payment of wages 1936, Employment of Children Act 1938, Trade Dispute Act 1929, Trade Union Act 1926, Benefit Maternity Act 1939. Dr Amit Kumar Singh says that ILO has great effect over the development of these labour laws.

Most of the labour legislations in India are before independence………….The ILO guidelines provided basic principles on which most of labour legislations were drawn. By observation on various amendments and enactments in labour laws it can be easily seen that the ILO have a countless impact on the Indian Labour Laws. A large number of Laws were passed to incorporate the guidelines of the resolutions of the ILO.[19]

As there are so many evidences from the reports of ILO Committee of experts that ILO wages convention have not been complied with in ratifying states. This situation needs also to be examined weather the ILO wages conventions have been fully complied with in Pakistan or not. Here it is also overviewed weather the wages in Pakistan have been specified and paid as up to the ILO wages conventions. Human rights commission of Pakistan writes in its report, 2015 that there are so many labourers and employees who have been deprived of their minimum wages. The report says as follows.

Due to weak regularity mechanisms and non-compliance of labor law, a large number of workers remained deprived of minimum wage in the year 2015.According to the latest Pakistan Labor ForceSurvey,the national average monthly wages were Rs13,154.The survey noted 17.17 per cent of workers getting Rs5,000 and 41.31 per cent between Rs 5,000 to Rs 10,000 per month as salary. Wages of a small percentage of workers_18.21 per cent _ranged between Rs10, 000 Rs to 15,000.About one –fourth (24.31per cent) earned Rs 15,000 or above.[20]

Labour force survey also describes the disparity in the wages.

Significant wage differential existed between sectors as reported in the LFS.Agriculure was the lowest paid occupation, with average monthly wages amounting to Rs.6, 327.The highest-paid sector was banking and financial services where a worker earned Rs 37,978 per month on a average.Wage differential for employment status was even greater: a manager earned Rs 52,300 per month compared to elementary occupation who earned Rs 8,228 _ about seven-fold difference. Gender wage differential and rural-urban difference were also very high, indicating growing inequality.[21]

There are so many complaints of nonpayment of wages. In this regard HRCP says in its report, 2015.

The most basic right at workplace is timely payment of wages. Violation of this right remained as rampant in 2015 as ever. In many instances, this violation was committed by the government agencies. Therewere report (February to October) from Bajaur Agency, Quetta, Hyderabad and Karachi above non-payment of wages to Lady Health Workers and workers engaged in polio vaccination campaigns. In June, more than 140 employees of the Punjab Revenue Authority protested against non-payment of their salaries. In July, the daily wages employees of the Capital Development Authority (CDA) protested non-payment of three months’ salaries.Thousands of employees of Karachi Metropolitan Corporation (KMC) had petitioned the Sindh High Court (SHC) in 2013 over not being paid their salaries and pensions on time. In July, the court directed the local government sectary and the KMC to ensure payment of salaries and pensions. In August, employees of the Karaka Municipal Administration staged a demonstration over delay in the payment of salaries. In August, the employees of Karachi Dental and Medical College boycotted work over non-payment of salaries for three months.[22]

Now here, certain quotations from the HRCP reports of 2017, are taken which tells us about the nonpayment of minimum wages rates in Pakistan. The industries and other institutions hesitate to pay the minimum wages rates to their labourers and employees. The report says as follows.

The minimum wage for unskilled workers, announced by the federal and provincial governments at the time of the annual budget presentation, was never implemented for the majority of employees as most industries and commercial establishments were still reluctant to pay even that wage. For the fiscal year 2017-18 this rate has been fixed at Rs.15, 000 per month, only Rs 1,000 above the last fiscal year. It is a known fact that the majority of industrial and commercial establishments do not pay the minimum wage and there is no effective government mechanism to enforce it.[23]

In the said report, it is mentioned that the women workers in health department, have not been paid their minimum wages rates which make up their bread.

In another research study on ‘Socio-economic impacts of delayed wages on lady health workers and their families ‘it was found that 68% of the households of LHWs reported having a member with a major disease. According to the findings of Salman Kazi,an assistant professor at PAF-Karachi Institute of Economics and Technology,the average reported family income of LHWs was Rs23,682 with an average budget deficit apparently standing at Rs5,885 per month, which necessitated borrowing from local retailers.[24]

Visually impaired people protested in support of their job and wage demands. The HRCP report, 2017 says as follows.

Visually impaired people from across the Punjab held a series of protests in support of their demands. In March, the visually impaired took out a protest rally in Dera Gazi Khan against non-payment of salaries which they said had been pending for four months. In Lahore, protest were held in October and December calling for the proper implementation of the three percent quota for employment, an increase in the quota, regularization of the jobs, and increase in salary.[25]

The employees of Pakistan steel mills have also faced the problem of nonpayment of their wages.

Current and retired employees of Pakistan Stills mills (PSM) remained on protest against non-payment of their salaries, dues and pensions.PSM has been virtually non-functional for over two years. The fate of over 12,000 employees hang in the balance as the management has been unable to pay salaries for months and Government of Pakistan is reluctant to cover those costs.[26]

In December 2017 the employees received their salaries for the month of August and September 2017.The release of salaries depends on decisions being taken by the federal cabinet. The Sindh High Court ordered that accumulated dues outstanding since 2013 for 850 retired employees, estimated to be around Rs3.43 billion, should be paid by 7 December.[27]

In May 2017, in Khaadi textile many employees have also been deprived of their jobs because they were protesting in favor of minimum wages.

In May 2017, social media was flooded with posts and new about the protests of workers who had been terminated by the textile garment manufacture Khaadi. The textile brand had allegedly fired 32 workers after they tried to from a union and demanded the minimum wage.[28]

ILO reported that home based woman workers are neither legally protected at their job place and nor they are paid their minimum wages rates. The ILO report says as follows.

Highlighted the vulnerability of home-based workers. The majority of them are women and they lack legal protections and access to collective bargaining. Their wage rates are generally set by middlemen and they are ‘chronically and sigficantly underpaid.[29]

ILO also reports that 5 million home based workers are also deprived legal benefits.

It is estimated that there are 5 million home-based workers and they are deprived of all legal benefits available under the labor laws. Pakistan has yet to ratify the ILO Convention 177 on Home-Based Work.[30]

There is an European union report which shows that ILO labour conventions have not complied with as yet in Pakistan.

The report says: Implementation remains a problem for all laws and policy areas in Pakistan. For the labour laws a system of a labour inspection has been put in place, with adoption of a labour inspection policy and labour protection policy in 2006, but result have been limited. Only about 340 labour inspectors cover the entire Pakistan and they have been accused of corruption and of collusion with employers.[31]

There is a large number of Pakistanis who migrate from Pakistan to other countries in search of jobs. The reason behind it that ILO Wages conventions and standards have not been implemented in Pakistan. The labourers and employees are paid wages unstandardized at the minimum wages conventions of the ILO. In this regard, a quotation from the report of ministry of labour and manpower to be noted down. 

According to the Export of Manpower analysis 2016 report, compiled by the Bureau of Emigration & Overseas Employment,a total of 946,571 Pakistanis went abroad for job purposes in 2015,which was the highest number in the history overseas workers in a particularly years. The half year emigration statistics indicate that the majority of the workforce (144,193 or 55%) went to the UAE, followed by Saudi Arabia (77,600 or 30%) and Oman (23,841 or 9%).[32]

Here to be noted down another important point weather the employees and labourers are paid their wages as up to the ILO minimum wages convention. ILO specifies a minimum wage as a wage which meets basic needs of labourer and his family. ILO report says as follows.

Minimum wage may be understood to mean the minimum sum payable to a worker for work performed or services rendered, within a given period, whether calculated on the basis of time or output, which may not be reduced either by individual or collective agreement, which is guaranteed by law and which may be fixed in such a way as to cover the minimum needs of the worker and his/her family, in the light of national economic and social conditions.[33]

The minimum wage is more explained in the ILO committee of experts.

As was observed by the 1967 Meeting of Experts, the concept of the minimum wage“contains three ideas: (a) the minimum wage is the wage considered sufficient to satisfy the vital necessities of food, clothing, housing, education and recreation of the worker, taking into account the economic and cultural development of each country […]; (b) the minimum wage represents the lowest level of remuneration permitted, in law or fact, whatever the method of remuneration or the qualification of the worker; (c) the minimum wage is the wage which in each country has the force of law and which is enforceable under threat of penal or other appropriate sanctions. Minimum wages fixed by collective agreements made binding by public authorities are included in this definition”.[34]

In the light of above two statements of the ILO committee of experts, it is envisaged that the standard of minimum wage is the wage amount is such as meets the basic needs of the labourer and his family. Now it is overviewed weather the ILO minimum wages standards are complied with in Pakistan or not. For this purpose, only twobasic pay scales (1st and 22) which are redesigned in Pakistan in 2017 are examined.

BPS      Minimum pay    INCR  Maximum pay

1                   9,130                290           17,830

     22               82,380               5,870          164,560[35]

The disparity and difference in wages for both basic pay scales (1st and 22) is about Rs. 146,670 while the employees of both basic scales purchased the wheat flour and medicine at the same rates.

In the financial budget, 2015 the minimum wage rate to be noted down. 

The minimum wages was raised from Rs.12000 to 13,000 in 2015 by the federal Government. The provincial governments of Punjab, Sindh and Baluchistan raise the minimum wage to Rs13, 000 in their budgets for 2015-2016.Sindh notified the raise in November, Punjab in August.[36]

 

In 2017 the minimum wage rate for unskilled workers was determined not more than Rs.15000.[37] in Pakistan the minimum wage rate in the basic pay scales are not determined as up to the ILO minimum wage standards and conventions. The supreme court expressed its discontent on the wages in labour sectors.

In April, a two-judge bench of the  Supreme Court, in a sou motu notice about the payment of minimum wages by the federal and provincial governments,sought reports from all the four provincial labor secretaries on the volume and the status of the complaints of non-payment of minimum wage and measure taken by the provincial governments.[38]

 

Conclusion

This article concluded with this point that ILO wages conventions have not been completely complied with in Pakistan. Wages are not specified and paid as up to the ILO wages conventions. The wages given to employees and labourers are not such that meet the basic needs of the labourer and his family. While the minimum wage criteria set out in the ILO minimum wage convention is wage which fulfill the basic needs of the labourer (housing, clothing, food, medicine and education). It is very dire need for Pakistan government to legislate wages laws and reconsider the labour laws in Pakistan and make them fully complied with the ILO wages conventions as the Pakistan is the ratifying state to the ILO conventions. Pakistan should also legislate on the home based working women and children asthey are not being paid their wages as up to the ILO wages conventions and have not been given legal benefits attached to their job and salaries under the international labour laws. Pakistan has yet to ratify the ILO convention 177 on home based workers. So the Pakistan should immediately moveto ratify the ILO convention on home based workers.

 

 

[1].Dr. Werner sengenberger has been Director for ILO employment strategy department, Geneva. He remained also director for ILO international institute for labour studies. In 2001 he retired from directorship of these institutions. after retirement, he joined UN labour agencies as adviser.

[2]. Sengenberger Werner, The International Labour Organization, Friedrich Ebert Stiftung Ed, 2012, p:9

[3]. Missions and Objectives, ILO, http://www.ilo.org/global/about-the-ilo/ mission-and-objectives/lang–en/index.htm

[4]. Alphabetical List of ILO Member Countries, ILO, http://www.ilo.org/ public/english/standards/relm/country/htm (last time Visited: 02/01/2019)

[5]. Roy,Chandra, The international labour organization, Minority Rights group international(MRG)2002, UK, p:4

[6]. Dr Amit Kumar singh has been head for business management department, Sri Vishwnath P.G College, Sultan pur, U.P India. He also remained professor in business management department, university of Mizoram, India.

[7].Amit Kumar Singh,Impact of ILO on Indian Labour Laws, International journal of research in management & Business studies(IJRMBS 2014)Vol:1 issue 1 jan March 2014

[8]. Micheal Sommer has been chairman for German confederation of trade union (DGB). He has written the foreword of Dr werner’s book “The International Labour Organization”.  

[9].Ibid, p:9

[10]. Ibid, p:9

[11].Ibid, p:9

[12].Ibid, p:9

[13]. G.P Politakis is an expert for international labour laws. He was a member of the experts committee of ILO for making and drafting labour standards which were published at the 75 years anniversary of ILO.

[14].Politakis G.PInternational labours standards,International labour office CH.1211 Geneva.First addition 2002, p:232

 

[15].Singh, Kumar, Amit, Impact of ILO on Indian Labour Laws.International journal of research in management & Business studies(IJRMBS 2014)Vol:1 issue 1 Jan March 2014

[16].Ibid

[17].Op.cit

[18].Amit Kumar Singh, Impact of ILO on Indian Labour Laws.International journal of research in management & Business studies(IJRMBS 2014)Vol:1, issue 1 Jan March 2014

[19].Ibid

[20].See the Report on state of Human rights in Pakistan 2015, Published by Human Rights Commission of Pakistan (HRCP) Latiffi Printers, Lahore, March 2018, p:6

[21].Ibid, p:6

[22].Ibid, p:7

[23].See the Report on state of Human rights in Pakistan 2017, Published by Human Rights Commission of Pakistan (HRCP) Latiffi Printers, Lahore, March 2018, p:192

[24].Ibid, p:194

[25].Ibid, p:195

[26].Ibid,p:196

[27].Ibid, p:196

[28].Ibid, p:197

[29].See ILO report published in 2017, Pakistan’s Hidden Workers: Wages and conditions of home-based workers and informal economy

[30].Ibid

[31].See the EU’s first report released in 2016 expressed dismay over the non-implementation of ILO Conventions.

[32].See the Report on the Export of Manpower analysis 2016 , compiled by the Bureau of Emigration & Overseas Employment

[33]. See ILC, 79th Session, 1992, Report III (Part 4B), para:42, p:13

[34].See Schedule, 2017 for Basic Pay scales of the civil servants, Annexure -1 office Memorandum No.F.1(3) imp/2017-500, Dated 03-07-2017

[35]. See Schedule of wages Rates, 2017, (Annex-A) Vide Notification.Ro, (Tech) FD 2-2/2016, Dated 28th December 2017

[36]. Ibid

 

[38].See the Report on state of Human rights in Pakistan 2017, Published by Human Rights Commission of Pakistan (HRCP) Latiffi Printers, Lahore, March 2018, p:192

Can Ihsan be developed as a legal principal for establishing new era of human rights?

Can Ihsan be developed as a legal principal for establishing new era of human rights?

 

*Muhammad Amin

 ____________________

* He is professor ( Islamic jurisprudence and philosophy ) as well as director research and development at Premier Law College, Gujranwala. He has submitted his doctoral dissertation in Gift University, Gujranwala.

Can Ihsan be developed as a legal principal for establishing new era of human rights?

The concept of Ihsan has been studied in Islamic literature in two contexts, tassuwaff and morality. Although, it is related to the core of heart form where all the virtue emerge. However, the pure linking of the term “Ishan“with the tassuwuf departs it form rights perspective whichis a complete form of Islam. As we see in the tassuwuf history, the mutasuwufeenisolated form the society and they remained cut off from the society to solve theproblems facing in the social, economic and political structure. It is obvious form the prophet’s tradition that the Ihsan is used in the matter of right. Theangel Gabriel asked the prophet, what is Ihsan? The prophet replied:“you worship Allah with this belief that you are seeing Allah,if this belief does not exist, then you must have confirmed belief that Allah is seeing you”[1]

The worship of Allah is a matter of right. Allah has rights over men that   they worship him and not worship other than Allah. Likewise, people have rights amongeach other’s. So they are bound todispense with rights of Allah and rights of others with strong belief that Allah is overseeing their performing of duties and rights, if they don’t do so, Allah is fully overseeing them, and he is strongly able to punish them against the infringement of rights. That’s why the term “Ihasn “used in the Quran in rights perspective. Allah Almighty says in the Quran:

وَ قَضٰى رَبُّكَ اَلَّا تَعْبُدُوْۤا اِلَّاۤ اِيَّاهُ وَ بِالْوَالِدَيْنِ۠ اِحْسَانًا[2]

(And your Allah has decreed that you worship none but Him and that you be dutiful to your parents.)اَلطَّلَاقُ مَرَّتٰنِ١۪ فَاِمْسَاكٌۢ بِمَعْرُوْفٍ اَوْ تَسْرِيْحٌۢ بِاِحْسَانٍ[3]

(The divorce is twice, after that, either you retain her on reasonable terms or release her with kindness.)

In the above mentioned both verses, the term “Ihsan” is used in rights perspective. In the first verse, Ihsan is a right of parent and in the second verse; Ihsan is the right of wife.Taking the term”Ihsan “in purely isolation sense as it is linked with tassuwuf, it will not give the sense of right. By doing so, the people totally to be sit in isolation from the rights context as it has been happened in thetassuwuf history.

Imam samarqandi explains Ihsan in rights, duties and obligations perspective. He says that Ihsan is “performing duties,obligations and rights with sincerity for Allah deepen in the heart of a person”[4]

Secondly, the term“Ihasn”is used in moral perspective in Islamic literature. In Islamic literature, Ihsan morally means that people do something good in favor of others for which they are not bound to do. It means that Ihsan is their moral duty. It is an additional thing over rights. If a man does ihsan in favor of  someone. He must be thankful to the person doing Ihsan because he is doing an additional duty for which he was not bound to do. In this sense, Ihsan is a thing very additional to right. If we take Ihsan just in a moral perspective or a very additional thing to right or a moral right, then what are the basis other than ihsanbehind  the rights of weak class of people such as the rights of women, the rights of children and the rights of the persons with disabilities.Why a quota system legally reserved in employment for disabled persons, if ihsan is just a moral duty of society to provide disabled persons with jobs.Why do disabled persons demand their jobs as a legal right?What is the legislative ground behind the legalization of the rights of disabled persons in the Quran and sunnah.

Allah Almighty says in the Quran:

[5]اِنَّ اللّٰهَ يَاْمُرُ بِالْعَدْلِ وَ الْاِحْسَانِ

(Verily, Allah orders to do Al-Adl and Al- Ihsan.)

Here in this verse Allah orders people to do Al-Adl and Al-Ihsan. For performing these two acts, there would be two situations: Firstly,to do Al-Adl and Al –Ihsan simultaneously. Secondly, to do Al Adl and Al -Ihsanseparately. An example to understand first situation is that some one pays some one Rs. 15,000 as a wage payment for the services he rendered. It is Al–Adl and if he pays Rs.5000 more as an extra amount over the wages, it is Al-Ihsan. In this situation, Al–Adl and Al–Ihsan are being done simultaneously and Al-Ihsan is used in moral sense.

Seyyad Abual ala modudi elaborates Al-Ihsan as a great morality

To give someone more or extra over his right and remained selfly agreed and contended over receiving less than his right is an additional thing over Al-Adl that is called Al-Ihsan. Al-Ihsan hasgreater Importance than Al-Adl in the society. If Al-Adl is a foundation of society,Al-Ihsan is a beauty and complement of the society. Al-Adl saves the society from injustice; Al-Ihsan fills in the society the loving sweet. No society can be existed only on the basis that every manin the society all the way measures what he receives. All the time, he plans how to receive his right and ignores the right of other due to him. He receives more than his right and gives other less than his right.[6]

The example in second situation, it is an Al-Adl that all the people must compete on open merit for getting jobs and employment. No special seats can be reserved for any class of people. Disabled persons   are unable to compete on open merit because of their weakness in their bodies.According to Al –Adltheir employment needs cannot be fulfilled.Al–Adl is unable to help out the disabled persons in providing them with jobs. By acting upon Al-Adl, they would be left back in race of life. Now what should to do? By strictly sticking to Al-Adl, should they be left unhelpful? This difficult situation has been handled out in this verse, as the disabled persons should be provided with jobs and employment by reserving their seats from the open merit on the basis of Al-Ihsan. The rule extracting from this verse is“whatever cannot be given by Al-Adl,it should be given by Al-Ihsan” here in this case, Al-Ihsan can be used as a theory in legal context. 

As a statelaw or international labour law consider the allowances as a separate part of salary and wages.

“wages” means all remuneration, capable of being expressed in terms of money, which would if the terms of the contract of employment, express or implied, were fulfilled, be payable, whether conditionally upon the regular attendance, good work or conduct or other behavior of the person employed, or otherwise, to a person employed in respect of his employment or of work done in such employment, and includes any bonus or other additional rem- unration of the nature aforesaid which would be so payable and any sum payable to such person by reason of the termination of his employment, but does not include___ (a) the value of any house-accommodation, supply of light, water, medical attendance or other amenity, or of any service excluded by general or special order of the 4 * * * 5[Provincial Government]; (b) any contribution paid by the employer to any pension fund or provident fund ; (c) any travelling allowance or the value of any travelling concession ; (d) any sum paid to the person employed to defray special expenses entailed on him by the nature of his employment ; or (e) any gratuity payable on discharge.[7]

If Islamic jurists try to look out the basis for the allowances as a separate part of salary or wages of a person in the Quran.They may find that the allowances as a separate part of wages fall within the context of Al-Ihsan in the Quran.

[8]اِنَّ اللّٰهَ يَاْمُرُ بِالْعَدْلِ وَ الْاِحْسَانِ

(Verily, Allah orders to do Al-Adl and Al- Ihsan.)

The wages are the prices for the services the employee rendered,therefor, these are given on the basis of Al-Adl and allowances, an extra amount over wages for any additional need of an employee that are given on the basis of Al-Ihsan.

Women are physically weak in proportionate to the men’s physical structure. Therefore, Islam grants them rights over the men. The children’s rights exist because of their childhood weakness. They need too much focused attention of their elders and states toward their growth .Disabled people have also rights because of their disability which is a physical weakness and an obstacle in their normal living.  Now, the question arises, is their weakness a reason for granting them rights?Weakness on the basis of Al-Ihsan(if we take it in merely moral sense) can compel someone to give something to them.Weakness of a person or a class of persons may attract someone to give them something or not. It is totally depending upon kindness of a person, weather he gives or not. It cannot compel him to give. So the right of weak class of people does not fall under the heading of ihasn taken merely in moral sense. Inevitably, the concept of Al-Ihsan should be taken in the legal sense in order to assign the rights to weak class of people.

The Holy Quran itself categorizes the Ihsan in moral and legal domain. The Ihsan with mother is a moral and Ihsan with wife is legal. The mother cannot go to court to get a decree for maintenance and expenses demanding from her son because she has a moral Ihsan (moral right) while, on the other hand the wife can go to court to get a decree for maintenance and expenses demanding from her husband because Ihsan assists her in legal sense.

 

The sunnah establishes legal quality of Ihsan as establishing the rights of week class of people. The Holy Prophet ﷺdivided the khaiber lands into 36 parts, of which he set aside 18 parts for collective benefits and requirements of the Muslims and distributed the remaining 18 parts among the army.[9] In this case what rule was established? Seyyed abu ala modudi says: “actually here in this way theprophet ﷺ established a rule of Ihsan forthe ruler of the Muslims whenever a territory of non-Muslims comes under his control by fighting, he may let it kept with baitul mal to produce its fruits and benefits to the poor class of people on the basis of Ihsan, as the Holy Prophetﷺretained 18 parts of khaiber lands with baitul mal just to distribute its benefits to the poorclass of people”[10]

 

Now we see how the rights of week class of people have been established on the basis of the Ihsanduring the regime of the caliph Umar. It was the time when many countries were annexed to Islam, the Companions of the prophetﷺ were faced with the problem what should they do with the lands of Iraq and Syriaconquered by them? Shouldthese lands be considered in the nature of ghanimah or fai? After the conquest of Egypt, Zubair demanded distribution of the whole land of Egypt just as the Holy Prophetﷺ had distributed the khaiber’s lands. About the conquered landsof Syria and Iraq. Bilal insisted on the distribution of all the lands among the fighting forces just as the spoils are distributed. On the other hand ‘Ali gaveopinion to leave these lands in possession of the peasants so that they continue to remain a source of income for the Muslins. Mu‘adh bin jabal said: If you distributed these lands, these will pass into the hands of those few people, who have conquered them. Then when these people pass  way and their properties pass on to their heirs and there is left only one woman or only one man from among them, nothing might remain for the future generation to meet their needs and even to meet expenses of safeguarding the frontiers of the Islamic state. Therefore, you should so settle things that the interests both of the present and of the future generations are equally safeguarded. In the light of the companion’s opinion Umar calculated and found that if the lands of ‘Iraq were distributed, each individual would receive two or three peasants on the average as his share. Thereupon he arrived at the judicious opinion that those lands should not be distributed. Thus, the reply that he gave to those who demanded their distribution was as follows:Do you want that for the people who come afterwards there should remain nothing?[11]

 

He called on a meeting of the companions and said to them:I have given you this trouble so that you may join me in shouldering the trust that has been put in me for governing your affairs. I am one of you, and you are the people who affirm the truth today. Every one of you has the option to agree to or differ from what I say. I do not wish that you should follow my desire. You have the Book of Allah, which states the whole truth. By God, if I have said something which I want to enforce. I have no object in view except the truth. You have heard those who think that I am being unjust to them and want to deprive them of their rights, whereas I seek Allah‘s refuge that I should commit an injustice. It would be vicious on my part if I withheld from themsomething which actually belonged to them and gave it to another. But I can see that no other land after these conquered lands is going to fall. Allah has given the lands of the Persians and their peasants in our possession. I have distributed the booty taken by our armies among them after the deduction of the khums (one fifth), and I am hesitating to distribute the rest which yet remains. But as for the lands, my opinion is that I should not distribute them and their peasants, but should levy revenue on the lands and jizyah on the peasants, which they should always pay, and this should be the fai for the common Muslims and their weak class of people and the armies of today and for the generations yet to come.

                The debate went on for two or three days. The companions remained in discussion with the caliph Umar, but nothing could be decided. At last, Umar rose and said: I have found an argument in the Book of Allah, which is decisive in this manner. Then, he recited the following verse of Surah Al-Hashr,

وَ الَّذِيْنَ جَآءُوْ مِنْۢ بَعْدِهِمْ —————-[12]

 

“The people of this day only are not entitled to receive a share in these lands bestowed by Allah, but Allah has joined with them also those people who will come after them.”

After recitation of the verses from the surah Al-Hashr(6-10) the caliph Umar said to the companions:Then, how can it be that we should distribute the fai lands which are meant for all.

Actually, all this was the process of establishing rights of weak class of peopleon the basis ofIhsan.

The motive and fervor was the kindness and sentiments of mercies(Ihsan) for the weak class of people in the heart of caliph Umar which forced him to remain in the long discussion and consultation with the companions and ultimately he succeeded in the establishing the rights of the weak class of the people.

The concept ofIhsan can also be studied in the English legal system. In the Anglo- Saxon times, as well as in the early days of the development of common law, justice was administered by local Courts, presided over by laymen, who owing to their ignorance oflegal principles, had to depend blindly on precedents. They were thus incapable of coping with the progress of the nation. Thejudges instead of moving with the progress of the people, preferred to remain where their ancestors were, and opposed any attempt to introduce any new juristic idea.[13]

There was, moreover, no action of ejectment.The lack of remedies was felt chiefly in the class of personal actions. Torts were without any legal remedy, unless accompanied by violence. The judgment, given in favor of the plaintiff, was a recovery of the land, or a recovery of the chattels, or a recovery of a sum of money. There was no room for specific performance, injunction, appointment of receiver, or such other complete relief. At common law, there were a fixed number of forms andactions.A suitor could expect relief only if he could come in within any of these forms. The progress of society and civilization necessitated the recognition of new rights and remedies, for which a more elastic system was required. This led to the introduction of a separate jurisdiction for Equity. Lord Talbot summed up the relation between law and equity nicely; “equity is not part of the law, but a moral virtue, which qualifies moderates and reforms the vigor, hardness and edge of the law; and is a universal truth”[14] Equity is thus supplementary law. The Court of Chancery supplemented the Common law Courts, in three ways (i) by creating new rights, e.g., the right to enforce a trust. (ii) By inventing new remedies, e.g. specific performance of contracts, and injunctions to restrain or stay. (iii) By adopting a ‘new procedure e.g. compelling the defendant to give evidence, etc.[15]

In the days of Edward 1, there were three great Courts in existence-the Court of king’s Bench, the Court of Common Pleas and the Court of Exchequer. Of these three Courts the Exchequer Court was not only a Court of law, but was also the Secretariat Department of the Government called the Chancery. The head of the Chancery was the Chancellor who was what may be called the king’s Secretary of State for all departments, at that time he was not a Judge, but had a close connection with the administration of justice. The Chancellor came to be more directly connected with the administration of justice. From the earliest times, the king, who was conceived to be the foundation of justice, had an indefinite jurisdiction in extra ordinary cases. When a person did not expect a fair and impartial trial from the ordinary Tribunals, or where the law Courts were incompetent to grant relief, the only course open to the aggrieved party was to petition to the king, who decided the case with the help of his council. Afterwards, when, from the pressure of affairs of State, as well as from the large number of such petitions, it became inconvenient for the king personally to exercise this jurisdiction which was called “theprerogative of grace”the work of disposition of such petitions dispatched to the Chancellor, who was not only what may be called the king’s Prime Minister, but was also a very learned member of the council. The Chancellor decided such cases, not according to the technicalities of the Common law, but according to justice, equity and good conscience.[16]

Here having briefly studied the development of legal history in England, we are seeing that common law was unable to provide the people with complete relief.Therefore, they had to recourse to the king for getting relief. The king had no basis for granting them relief other thenequity and good conscience that is in the words of Lord Talbot “a high moral virtue”that can in comparative be seen as Al-Ihsan in Islamic law. The jurisdiction of the king for granting relief was “the prerogative of grace” that is Ihsan of the king for which he was not bound to grant but he did so as a grace(Ihsan) over his nation. As the equity introduced new rights and remedies, likewise the Ihsan in Islamic law could be basis for introducing andestablishing new rights and remedies extending to somewhat from morality into legality.

 

[1]

[2]Al-Isra 17:23

[3] Al-Baqarah 2:229

[4] Samarqandi ,Nasar  ibn Muhammad  ibn Ahmad, Tafseer Samarqandi baharul uloom, Darul kutab al- ilmia, Berut.V:2 P:241

[5] An-Nahl 16:90

[6] Modudi , abual ala, seyyed.TafheemulQuran, V:2 P:565

[7].See the Payment of Wages Act, 1936 , Section 2  (Definitions), Sub Clause VI

[8] An-Nahl 16:90

[9]Abu dawood

[10] Abul ala, modudi, seyyad, Tafheemulquran,V:5 P:398

[11] Yaqoob ibn Ibraheem,Abu Yosuf.kitabul khiraj.

[12] Al-Hashr 59:09

[13] Naveed,Abbas, Principles of Equity, Punjab law book house, Ed 2018,P:6-7

[14]Dudley v. Dulley (1705) 24 E.R. 118]

[15] B.M Gandhi, Equity, Trust Specific Relief ACT, Kausar Brothers, P:9-10

[16]Snell’s Principles of Equity, Ed, 27th P:6

ISLAMISATION OF PENAL LAWS ANDMISCARRIAGE OF JUSTICE

ISLAMISATION[1] OF PENAL LAWS[2] ANDMISCARRIAGE OF JUSTICE[3]

MUHAMMADAWAIS IKRAM[4]

 

 

 

Abstract

The processes of vigorous Islamisation of the penal laws of Pakistan took place in the era of General Zia-ul-Haq in 1979. The purpose was to bring major operative laws of the country in line with the injunction of Islam by following the road maps of Islamic nations like Saudi Arabia, Iran etc. The inclusion of Islamic provisions in the laws that were majorly influenced and drafted by the British drafters before the partition of the subcontinent resulted into running of two parallel systems of justice and hence created a conflict between the “traditionalists” and “non-traditionalists”. This amalgamation of Islamic provisions in a nation where almost all the laws have developed on secular lines resulted in to great human rights violations and miscarriage of justice by placing women victims in a very difficult position.

Shortly after coming into power, General Zia-ul-Haq 1979 took extensive measures to Islamize the legal system of Pakistan since then Islamisation[5] is a popular topic in Pakistan- the subject of newspaper, speeches and articles. But even way before since the establishment of Pakistan in 1947 there has been a conflict between the “traditionalists” and “non-traditionalists” over whether an Islamic order should be enforced in the country or whether it should be allowed to develop along the secular lines as a modern nation. Although being a difficult question for the purposes of “Islamisation” this research direct light on three central issues. Firstly the historical impact of Anglo-Saxon[6] laws on the development of Pakistani domestic laws. Secondly the Islamisation of criminal statutes resulted in miscarriages of justice and human rights violations. And lastly the possible reforms in this particular area.

 

It is difficult to understand the Islamisation process and phenomenon instability in Pakistan if we divorce the process from the historical perspective in which the domestic laws of Pakistan evolved. The inconsistency and instability in the application of law in last three decades has been considered of immense importance to relate legal system with political, economic and social processes especially with reference to the development in the third world countries.[7] Even way before British Empire the application of shariah law was not rigid and there was still a room for customs. British rule bring in the common law traditions but the common law they brought in was not in pure form it was intermixed with the Islamic traditions and came to be known as Anglo-Muhammadan law. The centralization and unification of the legal system was important for the British rule.

This was seen as a condition of progress toward a modern nationhood, and law and legal institutions were seen as the best mean to achieve this end. In start the British penetration in Islamic law was slow but during the latter part of the 18th century the Islamic criminal justice[8] was replaced by the British.[9]  Islamic law in this era was interpreted along the lines of British thinking.[10] This uniformity provided at the cost of imposing rigid Islamic rules but the British acted as if Islam consisted of universal rules negating their diversity.[11] In short their textual approach toward Islam was inadequate. The legal pathology results in to a gap between the ‘state law’ and ‘popular practice’ which underline the ineffectiveness of the legal system and presents two systems with different values.[12]

Having once been part of British Empire Pakistan inherited the British Anglo-Saxon legal traditions.[13] Islam in itself does not provide the concept of an Islamic state; it defines the concept of the society.[14] From the very beginning it was the plan of the ulema that Islamic law would be the law of land in Pakistan. This was the reason that all the three constitution of Pakistan contained clauses that all the laws of the country must be in accordance with Quran and Sunnah. In other words the controversy between the “traditionalist”[15]and “modernist” even affected[16] the framing of constitution of Pakistan (1947-1956). With the development of national states it becomes immensely important for the Muslims to define ‘Islam’ as the ideology of the state. Such a need can be seen in actions like changing the syllabus during Islamisation. Pakistan has been under a military dictatorship for more than half of its history. Every time when the government changes, dominant ideology changes which in turn result in to different attitudes of the courts[17]. But the era under General Zia-ul-Haq was important. In his rule he promulgated many Islamic laws under presidential orders and these were the first set of ‘Islamic’ statutes to be incorporated in to a previously mixed legal system of British common law and Muslim personal law. The 8th amendment in the constitution, made in 1985, validates all the laws made during this martial law. They cannot be challenged in any court of law. Thus the period of Islamic revivalism which popularly known as Islamisation started in 1977. Ideological conflicts were common in this era as to the application of criminal law. And Islamic law was interpreted by courts in various ways.

The Islamisation[18] of Criminal laws in Pakistan therefore resulted into miscarriage of justice. This issue will deal with the large scale Islamisation of penal laws in Pakistan that began from 1979. This includes the enactment of major criminal legislations[19]and creation of a Federal Shariat Court[20]. There is a great disagreement as to whether severe punishments under the hadood ordinances are Islamic or un-Islamic and also the Hadood Ordinances has been inconsistent in the application of hadd[21] punishment, and has not been effective in reducing crime.[22]

Women are especially affected by this Islamisation of law in Pakistan.[23] Women are no longer allowed to appear as witnesses in had cases and the law of evidence makes their testimony worth half a man.[24] Identification of few cases in this area can clearly illustrate the aspect of miscarriage of justice and human rights violations with regard to women. In 1982, fifteen year old Jehan Mina became pregnant as a result of a reported rape but due to lack of for eye witnesses she was convicted of zina because of illegitimate pregnancy.[25]Her child was born in the prison.[26] Again in 1985 a similar type of case evidences the outcry of the inefficiency of the new law. Safiabibi a sixteen year old, nearly blind domestic servant reported that she was repeatedly raped by her employer and his son as a result she got pregnant. When the case went to trial due to lack of evidence, as she was only witness against them, the case was dismissed. Safia at that time was unmarried and pregnant, was charged with zina and convicted on this evidence.[27] Short of conviction women have also been held under extended custody on charges of zina when they alleged rape.[28] As an example in July 1992 a women named Shamim, a twenty one year old mother of two children lived in Karachi reported that she was kidnapped and raped by three men. Instead of arresting the perpetrators police arrested her on the charge of zina when her family could not post the fee set for her release. In the custody she reported that she was repeatedly raped by two police officers and one unnamed person in six days.[29] A large number of women have reported these similar custodian rapes.[30] These police action and inaction in rape cases considered as an instrumental element led to miscarriage of justice and human rights granted under the constitution of Pakistan 1973. This also discourages women to report cases.[31]

These set of cases also include the situations in which the perpetrator himself was a police officer and the chances of perusing a case against him was impossible. This can be seen in ShahidaParveen case 1994.[32] Although the examination report evidenced the fact that she was raped by more than one person but even then police refused to file their case.[33] Cases such as these resulted from the natural and unfortunate application[34] of Zina Ordinance and widely covered by western media.[35] The issues are also a primary topic in women and human rights globally,[36] and stir up an expected share of frustration, anger, defensiveness, and arrogance from all sides. The questions over here are that, firstly, whether the Zina Ordinance serve the fundamental purpose of justice and, secondly, whether they accurately articulate the Islamic law on rape? It follows that by including other offenses within its ambit, such as rape, the Zina Ordinances had exceeded Islamic law. The threat of large scale demonstrations against any government willing to contemplate the repeal of the Zina Ordinance is, however, not the only reason for its continued application. An additional, powerful reason behind the resilience of the Zina Ordinance is rooted in the nature and legitimacy of the state of Pakistan itself.[37]

The women movements stated to take the issues at peak level. The women’s movement’s criticism of the Hudood Ordinances found support from an unlikely quarter, namely the Council of Islamic Ideology[38]. The first serious reform initiated by General Pervez Musharraf. At the end of 2006, he signed into law the Protection of Women (Criminal Laws Amendment) Act.[39] The reform does not abolish the ordinance therefore short fall of the human rights community demands but does much to address the injustices and hardships caused by the old Zina ordinance. Rape is therefore no longer governed by the Zina Ordinance or by any other Islamic criminal law. There is little doubt that much needs to be done in order to make Pakistani law responsive to the needs of women.[40] The Zina Ordinance has now been reduced to a largely symbolic measure[41], unlikely to wreak havoc with women’s lives.  Removing this last vestige of Islamic law from the area of sexual offenses would be difficult: Only a new constitution could free Pakistan from the obligation to have a legal system which is in accordance with the injunctions of Islam.

And lastly the misuse of laws concerning Qisas[42], Diyat and Zina offences frequently resulted in cases of miscarriage of justice. The concept has its roots in Sharia and can be traced from the injunctions in Quran in Surah 5:45 and Surah 4:92. The Arabic term qsas, as used in the Quran, is translated as retaliation[43] or equality. It can be described as “equality in retaliation”. It is derived from its verb root qassa, which means: he followed, after his track or footsteps. Another derivative is qassas, which means storyteller-one who follows the track of past generations. In Islamic law the expression retaliation is termed Qisas because it follows the footsteps of the offender, perpetrates on him an injury, as a punishment, exactly equal to the injury, which he inflicted upon his victim, but no more.[44] In Islamic and Arab traditions Diyat (blood money) is the fine paid by the killer or his family or clan to the family or the clan of the victim. In Quran and Hadith it has been directed to pay Diyat both for intentional and unintentional murders.  Although the Quran specifies the principle of Qisas but prescribe that one should seek compensation rather than retaliation. Although in pre-Islamic Arabia Diyat paid in any other form rather than cash, but after the advent of Islam and in Sharia it must be paid in cash.[45] This is to avoid possible fraud on the part of criminal. Pakistan had proclaimed itself an Islamic State after the formation of Sharia Courts in 1978.[46] These courts run parallel to the existing Supreme Court of Pakistan and Federal Shariat Courts this is to ensure the fact that no law should be contrary to Islam.[47] After the formation of the Shariat Courts, “various laws were challenged on the basis of their conformity with the Koran and Sunna, including those parts of the Penal Code dealing with murder and bodily hurt.”[48] Even though Islam do not allow murder (including honour killing) or the false accusation of adultery, the long held custom of killing women for honour combined with Islam’s “male-dominated interpretations of concepts like female chastity and male authority reinforce[d] an Islamic culture of male dominance.”[49] This dominance also having influence on the justice at lower court level mainly consisted of men.[50]

Hence following the Supreme Court Shariat Appellate Bench’s 1989 decision, Federation of Pakistan v. Gul Hassan, where the court found that certain sections of the Pakistan Penal Code (PPC)[51] and the Criminal Procedure Code (CrPC) concerning murder and bodily hurt contrary to Islam, the Qisas and Diyat Ordinance was introduced.[52] Here it is sensible to point out the fact that in English law there is a difference between civil wrong and criminal wrong but “Qisas and Diyat Ordinances essentially place the choice of prosecution wholly in the hands of the victim or her heirs, rather than the government”[53]. The passing of the Ordinance also affect the handling of the honour killings by the judiciary because most of the people involved in the murder were their heirs. Furthermore, the Qisas and Diyat Ordinance encompassed with exceptions and offense distinctions, particularly when it is known that the offender was a family member. As a result even now, the Ordinance is criticized within “Pakistani legal circles and in the press for being extremely confusing”[54].

Hence the ordinance gives a great influence to the honour crimes by providing the accused a way out. Human Rights Watch defines honour crimes as “acts of violence, usually murder, committed by male family members against female family members who are perceived to have brought dishonour upon the family”.[55] Women under this serve as a vessel of honour for their guardians however they do not possesshonour of their own.[56] A woman is not in the sole control of her honour but it is a combination of community norms and societal policing schemes. Typically, a close family member executes the honour killing. According to the Human Rights Commission of Pakistan, 1235 of the 1339 individuals accused of honour killings between 1998 and 2002 were members of the victim’s family: 462 brothers, 395 husbands, 217 relatives, 103 fathers, and 58 sons.[57] Common causes of honour crimes are the accusations of adultery or unchaste behaviour, termed Zina offences. The study start from April 1999, SamiaSarwar was shot and killed in her attorney’s office as she was filing for divorce from her abusive husband.[58] On several occasions court of the view that honour killers are murderers and violate the fundamental rights enshrined in art.9 of the Constitution of Pakistan.[59] The ordinance in short left the murderers to honour killing without the fear of punishment.

The ‘modernist’[60] sees the need for codifying Islamic criminal law in light of modern day developments, “[o]otherwise Islamic law is just a mockery as we know from the experience of Pakistan”[61]. This issue therefore discusses the need of reforms particularly in the area of remaining part of Zina Ordinance and role of Diyat in criminal prosecutions by the State.  Many reforms in light of this were instigated to cure these problems especially in the era of General Pervez Musharraf through Criminal (Amendment) Act 2005. Under section 311[62] of Pakistan Penal code the Criminal Amendment 2005 make the discretionary term of imprisonment not less than 10 years. Moreover a proviso was added in 2005 in s.302 clause (c) of PPC which make honour killing a crime and tried under clause (a) and (b) of the same section.[63] Although the statutory regime seem to be very effective but it does not correspond to the present situations in Pakistan. Recently in Raymond Davies case Diyat was accepted by the family and he was released.[64] Again the Shahzeb case brings the PPC provisions in limelight. The accused was pardoned by the family in the name of Allah and result into aggressive public debate on the pro and cons of this law.[65] PPC make honour killing a crime but the recent statistics not in line with this development.[66] In the light of above it can be concluded that Zina Ordinance and Qisas and Diyat Ordinance abolished in its entirety to have a uniform criminal justice system. And secondly S.311[67] and S.302 effectively enforced in the light of justice by the courts of law.

 

 

 

 

 

 

Bibliography

  1. The Constitution of the Islamic Republic of Pakistan 1973
  2. Pakistan Penal Code (Act XLV of 1860)
  3. Qisas and Diyat Ordinance 1990
  4. The Offence of Zina (Enforcement of hadd) Ordinance, 1979
  5. The Protection of Women (Criminal Laws Amendment) Act, 2006
  6. Jehan Mina v. The State, P.L.D. 1983 Fed. Shariat Ct.183
  7. SafiaBibi v. The State, P.L.D. 1985 Fed. Shariat Ct.120
  8. SafiaBibi v. The State PLD 1986 SC 132
  9. Federation of Pakistan v. Gul Hasan Khan, P.L.D. 1989 SC 633
  10. Muhammad Akram Khan v. The State, P.L.J. 2001 SC 29
  11. Butti Sultan Butti Ali AI-Muhairi, ‘Islamisation and Modernization within the UAE Penal Law: Sharia in the Modern Era’, Arab Law Quarterly, 35, 1997.
  12. International Law and Pakistan’s Domestic Legal Order by Jamshed A. Hamid; Citation: 4 Asian Y.B. Int’l L. 127 1994
  13. The Hudood Laws of Pakistan: A Social and Legal Misfit in Today’s Society by AARIJ S.WASTI; Citation: 12 Dalhousie J. Legal Stud. 63 2003
  14. Crime and Punishment in Islamic Law (theory and practice from the sixteenth to twenty-first century) by Rudolph Peters.
  15. The Islamisation of Criminal Law: A Comparative Analysis by Rudolph Peters; Die Welt des Islams, New Series, Vol. 34, Issue 2 (Nov., 1994), pp. 246-274, published by Brill; http://www.jstor.org/stable/1570932
  16. The Islamisation of the law in Pakistan by Rubya Mehdi; Richmond, Surrey: Curzon; 1994.
  17. The offence of rape in the Islamic law of Pakistan by Rubya Mehdi; International Journal of the Sociology of Law. Vol 18, Number 1, February. (1990).
  18. The Application of Islamic Criminal Law in Pakistan: Sharia in Practice by Tahir Wasti; Brill; 2009
  19. The Role of Islam in the Legal System of Pakistan by Martin Lau; Brill; 2006
  20. Her Honour: An Islamic Critique of the Rape laws of Pakistan from a Women Sensitive Perspective by AsifaQuraishi; 18 Michigan Journal of International Law 287 (1997)
  21. A Charade of Change: Qisas and Diyat Ordinance Allows Honour Killing to go Unpunished in Pakistan by Stephanie Palo; 15 U. C. Davis J. Int’l L. &Pol’y 93 2008-2009.
  22. Restorative Justice in Islam: Should Qisas Be Considered a Form of Restorative Justice? By Susan C. Hascall; 4 Berkeley J. Middle E. & Islamic L. 35 2011.
  23. The Application of International Human Rights Law in Islamic States by Donna E. Arzt; Human Rights Quarterly, Vol. 12, No. 2 (May, 1990), pp. 202-230; Published by: The Johns Hopkins University Press Stable URL: http://www.jstor.org/stable/762377.
  24. Twenty-Five Years of Hudood Ordinances-A Review by Martin Lau; 64 WASH. & LEE L. REV. 1291 (2007).
  25. Islamisation in Pakistan: A View from the Countryside by Richard Kurin; Asian Survey, Vol. 25, No. 8 (Aug., 1985), pp. 852-862; Published by: University of California Press Stable URL: http://www.jstor.org/stable/2644114.
  26. Rearguing the Principles of Qisas and Diyat in Criminal Jurisprudence of Islam by TasneemKausar; Pakistan Law Review, 2006, Vol.2 at 1.
  27. Islamic Law in Practice: The Application of Qisas and Diyat Law in Pakistan by Tahir Wasti; Citation: 13 Y.B. Islamic & Middle E. L. 97 2006-2007
  28. ‘Honour Killings’ and the Law in Pakistan by Sohail Akbar Warraich; Lynn Welchman& Sara Hossain eds., Zed Books; 2005.
  29. Take My Riches, Give Me Justice: A Contextual Analysis of Pakistan’s Honour Crimes Legislation by Mazna Hussain; 29 HARV. J. L. & GENDER 223, 233; 2006.
  30. http://www.amnesty.org/en/region/pakistan
  31. http://hrcp-web.org/hrcpweb/
  32. http://droitcultures.revues.org/2016

 

[1] For a detail reference as to the meaning of Islamisation form different perspectives see Richard Kurin work on it. In his research he explores the Islamisation from the perspective to various segments in Pakistan, its meaning, interpretation and application to different issues. He based his analysis on all these matters in light of his survey in Chakpurvillage.

[2] This refers to as the Islamisation process started from the era of General Muhammad Zia-ul-Haq in form of Hudood Ordinances, formation of Federal Shariat Court and later subsequent Islamisation in form of Qanun-e-Shahadat Order 1984.Sharia is Islamic law that establishes the criteria to regulate the overall governance of the state. See http://www.islamicsupremecouncil.org/understanding-islam/legal-rulings/52-understanding-islamic-law.htmlIslamic law is a collection of legal provisions revealed to Holy Prophet (PBUH). In words of Al.Shafei ‘for everything that affects the life of a Muslim, there is a prescribed guide in the Quran to lead him on the right way’. For more details on the application of sources in criminal legislation see Teymour Kemal, The Principle of Legality and its Application in Islamic Criminal Justice in CHERIF BASSIOUNI, ED., THE ISLAMIC CRIMINAL JUSTICE SYSTEM 150-57 (1982).

[3] This area contains a long history of cases that resulted in human rights violations especially in case of Islamic Penal Law and miscarriage of justice with regard to Qisas and Diyat Ordinance. With this respect the most highlighted cases was that of Mukhtaran Maihttp://www.humanrights.asia/news/forwarded-news/AHRC-FAT-017-2011/?searchterm, Raymond Davis http://tribune.com.pk/story/133737/blood-money-explained/, and, Shahzeb Khanhttp://dawn.com/news/1041654/shahzeb-khans-killers-pardoned-by-family

[4]DIL (U.K); LLB (HONS.) (U.K); Assistant Professor, University College Gujranwala.

[5] The phrase “Islamisation of law”, according to Al-Muhairi, is used in Islamic countries to refer to the official programme of replacing laws of ‘western origin’ with laws based on ‘Islamic’ sources. This term connotes wider meaning in case of Pakistan. It is not confined to the replacement of western codes with Islamic ones but includes the making of new institutions of state, laws, and even Constitutions, in consonance with the injunctions of Islam.

[6] These laws refer to as written rules and customs that existed during the Anglo-Saxon period in England. After the end of British rule in the subcontinent and partition (colonization) of Pakistan these laws become part of Pakistan Penal Code 1860 and Code of Criminal Procedure 1898.

[7] Dunn, 1971.

[8] Islamic legal rules were retained in the Personal status cases involving Muslims. However these rules interpreted by the by British judges or by indigenous judges with British training.

[9]Fisch, 1983.

[10]Liebesny, 1953: 502-3.

[11]Micheal Anderson (1989: 13) criticized their policy in the following words “The presumption that a single set of rules could apply to all persons professing adherence to Islam violated both Islamic theory and South Asian practice. Hasting had subsumed all indigenous legal arrangements under two categories Hindu and Muslim. From the outset this binary categorization was inadequate to contain the diversity of legal life on the subcontinent. Not only did it fail to acknowledge the distinction between Sunni and Shia – and the differences between the schools within each. It also fails to address adequately the practice of many groups that adopted an electric approach to Islam”.  

[12] Rudolph, L. & S., 1965.

[13] See Saeed Ahmad v. Mahmood Ahmad, PLD [1968] Lahore 520 at 524. In this case Justice ANWAR-UL-HAQ,  Judge of the Lahore High Court who pronounced the judgment, clearly with this regard submitted that “…as we in this country have inherited the  English judicial system and the English concepts of law,  both municipal and international,  the  practice obtaining in  England and other Anglo-Saxon countries should be held to prevail in Pakistan as well.”

[14] Engineer, 1980; 1984. 

[15] Like Ahmed Ishtiaq 1987 and MaulanaMaududi 1980.

[16]Fazrul Rahman says that such conditions led to ambiguity in the legislation and is dangerous in its consequences “because it affect the entire concept of ‘Islamic law’ which is to govern the lives of all citizens”. (1971:7).

[17]Hoebel, 1965.

[18] See Butti Sultan Butti Ali AI-Muhairi, ‘Islamisation and Modernization within the UAE Penal Law: Sharia in the Modern Era’, Arab Law Quarterly, 35, 1997. According to Al-Muhairi of ‘Islamisation of law’ is used in Islamic countries (Islamic states are those whose Constitutions declare it to be Islamic or Muslim) to refer to the official programme of replacing laws of ‘western origin’ with laws based on ‘Islamic’ sources. But according to Tahir Wasti in “Islamic Law in Practice: The Application of Qisas and Diyat Law in Pakistan” the term in Pakistan having a wider meaning. In Pakistan it not only means the exclusion of western laws but also tend the institutions to make laws in line with Islamic injunctions.

[19]Through certain presidential decrees regarding the Hadd crimes and the execution of penalty of flogging, in this regard particularly Offences of Zina (Enforcement of Hudood) Ordinance 1979 and  Offences of Qazf (enforcement of hudood) 1979. Lahore: Lahore Law Times Publications, n.d.87pp. The decrees are discussed in: Kennedy (1988), Kennedy (1991), and Patel (1986), 36-62.

[20] Formed under Article 203. This court in place to examine whether the laws of the country being in line with injunctions laid down in Sharia (Holy Quran and the Sunna). Article 203D of the Constitution of Pakistan stipulates that ‘the court, at the request of the citizen or the government, must carry out this examination and can rescind any law or provision which it finds repugnant to the injunctions of Islam’.

[21] See ABDUL REHMAN I. DOI, SHARI’AH: THE ISLAMIC LAW 220 (1984). He explained the word had as an Arabic expression which means prevention, restraint or prohibition, and for this reason, this is a restrictive or prohibiting Ordinance or a statute of God concerning the lawful and unlawful things.

[22]Rubya Mehdi points out that Hadd punishments are merely symbolic, but “their very existence has a negative effect “(p.155). Moreover she clarifies the opposition to this law on the part of modernists and especially women.  The latter, as evidenced by the review of the rape and zina punishments, end up with every rough of the Islamic criminal law stick.

[23]In case of honor crimes this can be seen in the famous school teacher Mukhtara Mai case in Pakistan. In 2002 she was repeatedly gang raped by four men in the village of Meerawalla and then forced to walk home naked after the horrifying ordeal. And the whole of the village witnessed the rape outside the hut while she was screaming for help and mercy. The Mastoi tribal council allegedly ordered the rape for the punishment of a crime committed by her brother; he was accused of having sexual relations with a woman of the higher Mastoi tribe.  Deciding that the boy had impugned the honor of the tribe by engaging in sexual relations with its female member, the tribal council ordered that Mai be raped in order to restore its honor. It was later discovered that the accusation against Mai’s brother was fabricated by members of the Mastoi tribe in order to cover up their own sodomization of the boy. In 2005 all the accused with the exception of one got acquittal on the basis of lack of evidence. And these acquittals clearly and shockingly against the principles of criminal justice system and fundamental rights enshrined in the constitution of Pakistan, 1973.

[24] It can further be argued that the government also shown an inconsistent approach as regarding to the fact that when to appeal to ijtehad and when apply a strict interpretation of law.

[25]Jehan Mina v. The State, P.L.D. 1983 Fed. Shariat Ct.183 (Pak)

[26] See Rubya Mehdi, The offence of rape in the Islamic law of Pakistan, 18 INT’L J. Soc. & L.19, 26 (1990).

[27] See SafiaBibi v. The State, P.L.D. 1985 Fed. Shariat Ct.120 (Pak) she was sentenced to fifteen lashes, three years imprisonment and a fine. Public outrage led the appellate court to set aside the punishment. See Rashida Patel, SOCIO-ECONOMIC POLITICAL STATUS AND WOMEN AND LAW IN PAKISTAN 25-26 (1991); Ayesha Jalal, THE CONVENIENCE of SUBSERVIENCE: WOMEN AND THE STATE IN PAKISTAN, IN WOMEN, ISLAM AND THE STATE 102 (DenizKandiyoti ed., 1991); Mehdi supra note 25 at 19, 24-26; ShahidRehman Khan, UNDER PAKISTAN’S FORM OF ISLAMIC LAW, RAPE IS A CRIME – FOR THE VICTIMS, L.A. TIMES, 25 MAY 1986, at 27 (reporting bibi case and other similar cases).

[28] See ASIA WATCH AND WOMEN’S RIGHT PROJECT, HUMAN RIGHTS WATCH, and DOUBLE JEOPARDY: POLICE ABUSE OF WOMEN IN PAKISTAN 41-60 (1992).

[29] See AMNESTY INT’L PAKISTAN: TORTURE, DEATHS IN CUSTODY AND EXTRAJUDICIAL EXECUTIONS 11-12 (1993).

[30] Supra note 25, at 27 (1990) citing report by attorney Asma Jahangir of the 15 incidents in which the police rape the women in detention between 1988/89; Seminar Adultery and Fornication in Islamic Jurisprudence: Dimensions and Perspectives, 2 Islamic and Comp. L.Q. 267, 286-87 (1982), Tahir Mahmoud the conveyer noting that the “case of rape…..in private (include that committed by the policemen) are alarming on an increase in the [Indo-Pak] subcontinent.”

[31] See Amnesty Int’l, Pakistan the pattern persists: Deaths in Custody, Extrajudicial executions and Disappearance under the PPP Government 35 (1995) (reporting an incident from January 17, 1994, gang rape of five women, stating that the police pressured the women to file the case for robbery rather than of rape and conceal it; Supra note 27 at 11-12 (citing Shamim and similar ImamatKhatoon case) indicated that in 1992 2000 women were in the jail awaiting for the trial of Zina. Also see supra note 26, at 69 it has been indicated that many women acquitted after long trials.  

[32] In which two police officers broke into the house locked the children in a separate room and rape their mother.

[33] Supra note 30 PATTERN PERSIST’S article at 14.

[34] The  change of membership  of  the  Federal  Shariat  Court  has  not prevented  it  from  exercising a moderating  influence  on  the  application  of  the  Islamic  criminal  laws.  This  is  one  of  the  conclusions  of a study  of  the  decisions  of  the  Federal  Shariat  Court. [Kennedy (1988)].

[35] See e.g. Mary Curtius, Report Blasts Global Abuse of  Women’s Rights; ‘Conflict Zone’ Governments Found to be Worst Offenders, BOSTON GLOBE, Mar. 8, 1994 at 2; Mark Fineman, Pakistan Women Fear New Islamic law May Blunt Struggle For Rights, L.A. TIMES, July 2, 1988, at pt.1, 5.

[36] See e.g. U.S. DEP’T OF STATE, COUNTRY REPORTS ON HUMAN RIGHTS PRACTICES for 1993 1370, 1382 (1994); Amnesty Int’l, Amnesty International Report 1994 232-233 (1994).

[37] A complete repeal of the Zina Ordinance would be tantamount to the removal of an Islamic law from the legal system, thus violating the constitutional duty to enable all Muslims to order their lives individually and collectively in accordance with Islam. See CONST. OF THE ISLAMIC REPUBLIC OF PAK. Arts. 227-3, http://www.pakistani.org/pakistan/constitution/part9.html

[38] Initially called the “Islamic Advisory Council,” it became the Council of Islamic Ideology under Article 228 of the 1973 Constitution. Article 230 defines the functions of the Islamic Council as follows:  To make recommendations  to the  National Parliament and the  Provincial Assemblies “as to the ways and means of enabling  and encouraging the  Muslims of  Pakistan to order their lives individually and collectively in all respects in accordance with the principles and concepts of Islam as enunciated in the Holy Quran and Sunnah,” to advise the  legislature  and the  executive on the Islamic vires of any proposed legislation, to make recommendations as to the measure for bringing existing laws into conformity with Islam, and finally to “compile in a suitable form, for the guidance of [Parliament] and the Provincial Assemblies, such Injunctions of Islam as can be given legislative effect.”

[39] Protection of Women (Criminal Laws Amendment) Act (2006) (Pak.).  Writing in 2005, Rudolph Peters concludes a chapter on Pakistan’s Islamic criminal laws as follows: [T]he Pakistani way of enforcing Islamic criminal law has been careful and controlled, except with regard to the blasphemy laws directed against the Ahmadiyya sect.  Mutilating punishments and death by stoning have not been inflicted; only flogging was frequently practiced….  We must conclude [t]hat in Pakistan, as in Libya, the introduction of the hudood had a highly symbolic character and did not result in a drastic change of the penal system. [RUDOLPH PETERS, CRIME AND PUNISHMENT IN ISLAMIC LAW: THEORY AND PRACTICE FROM THE SIXTEENTH TO THE TWENTY-FIRST CENTURY 160 (2005)]

[40] Nevertheless, the Protection of Women (Criminal Laws Amendment) Act cannot be dismissed as a mere window dressing undertaken to satisfy a Western audience.

[41] But see Jahangir, Asma (2006) What the Protection of Women Act does and what is left undone, In State of Human Rights in 2006, Human Rights Commission of Pakistan, Lahore, Pakistan. In which she argued that Protection of Women Act 2006 is an important step in minimizing the injustice done by General Zia’s Islamisation drive. However, the Act retains the overall framework introduced by Zia. And also Justice Majida Rizvi, Interview July 2008, Herald. In which he points the three major shortcomings in the Protection of the Women Act of 2006.

[42] See M.CHERIF BASSIOUNI, Quesas Crimes in CHERIF BASSIOUNI, ED., THE ISLAMIC CRIMINAL JUSTICE SYSTEM 203 (1982) The word derived from an Arabic word qassa meaning ‘he cut or he followed his track in pursuit, and it comes therefore to mean the ‘law of equality’ or equitable retaliation for the murder already committed’.

[43]Pickthall, Mamaduke, The Meaning of the Glorious Quran: An Explanatory Translation, London, 1930.

[44] There are two types of qisas crimes.  The first is the penalty inflicted for intentional homicide, while the second refers to the penalty for inflicting intentional personal injury. The later form is sometimes referred to as qawad. See MOHAMED S. ELAWA, PUNISHMENT IN ISLAMIC LAW: A COMPARATIVE STUDY 71 (American Trust Publications 1982). However, for the purposes of this research, which focuses mainly on the penalties available for intentional wounding, the term qisas will be used to refer to both types of crimes and their respective punishments.

[45] There is also a debate in Sunni schools as to the amount of Diyat in case of Dhimmi (non-Muslims). Under Shafi school of law it must be 1/3rd of a Muslim and under Maliki school it must be ½ of a Muslim. But noticeable point over here is that this position is not retained by the Ordinance. 

[46] Are Knudsen, License to Kill: Honour Killings in Pakistan 10 (Chre Michelson Institute Development Studies and Human Rights, Working Paper No. 1, 2004), available at

http://www.cmi.no/publications/file/?1737=license-to-kill-honour-killings-in-pakistan

[47] See also ASIA PACIFIC FORUM ON WOMEN, LAW AND DEVELOPMENT [hereafter APWLD], An Asia Pacific Regional Overview on Harmful Traditional and Cultural Practices related to Violence against Women and Successful Strategies to eliminate such Practices, at 5(2005), available at

www.unescap.org/esid/GAD/Events/EGM-VAW2007/Background%20Papers/Regional%20Overview%20on%20HTCP.pdf

[48]Sohail Akbar Warraich, ‘Honour Killings’ and the Law in Pakistan (Lynn Welchman& Sara Hossain eds., Zed Books 2005) at 83-84.

[49]Mazna Hussain, “Take My Riches, Give Me Justice”: A Contextual Analysis of Pakistan’s Honor Crimes Legislation, 29 HARV. J. L. & GENDER 223, 233 (2006) at 237.

[50] Supra note 43,         Knudsen, at 10. They often reached discriminatory verdicts that punished women while absolving men in situations where murder victims were accused of offenses like adultery or promiscuity.

[51] Chapter 16 related to offences affecting human body.

[52] See Federation of Pakistan v. Gul Hasan Khan, P.L.D. 1989 SC 633.

[53] Supra note 46, Hussain, at 232.

[54] See HUMAN RIGHTS WATCH, CRIME OR CUSTOM?  VIOLENCE AGAINST WOMEN IN PAKISTAN (1999), available at http://www.hrw.org/reports/1999/pakistan/.

[55] Human Rights Watch, Integration of the Human Rights of Women and the Gender Perspective: Violence against Women and “Honor” Crimes, Intervention Before the 57th Session of the U.N. Commission on Human Rights (Apr. 6, 2001), available at http://www.hrw.org/press/2001/04/unoral 12_0405.htm.

[56]RadhikaCoomaraswamy, Violence Against Women and ‘Crimes of Honour’, Preface to HONOUR, at xi, xi (Lynn Welchman& Sara Hossain eds., Zed Books 2005).

[57] U.N. Econ. & Soc. Council  [hereafter ECOSOC], Commission on Human Rights, Integration of the Human Rights of Women and the Gender Perspective: Violence Against Women, E/CN.4/2005/NGO/12, at 3 (Jan. 27, 2005) (written statement submitted by the Asian Indigenous and Tribal Peoples Network, a NGO in special consultative status), available at http://aitpn.org/UN/61st-G0510559.pdf.

[58] The murder was perpetrated by her own parents, who felt that she had tarnished their honor by seeking a divorce, even though they knew that her husband had violently abused her throughout their marriage. [Yolanda Asamoah-Wade, Women’s Human Rights and “Honor Killings” in Islamic Cultures, 8 BUFF. WOMEN’S L.J. 21, 21-22 (1999)].

[59] Muhammad Akram Khan V. The State, P.L.J. 2001 SC 29.

[60] Such as Rubya Mehdi.

[61] P.155 Rubya Mehdi

[62] Notwithstanding anything in s.309 or s.310, where all the wali do not waive or compound the right of Qisas court may having regard to the facts and circumstances of the case, punish an offender with death or imprisonment for life or for a term of imprisonment up to 14 years as tazir.

[63] Even if the accused acquitted under the exceptions of s.306, 307 and 308 of PPC court have the discretion under s.311 to impose discretionary term of years up to 14 years and not less than 10 years.

[64] Several write ups appeared on it in national and international media.

[65] The offender is still in jail and tried under S.7A of Anti-Terrorism Act. But the noticeable point over here is that their continuous appeals to transfer their case (see: http://www.dawn.com/news/1050830/sc-rejects-jatois-appeal-for-transfer-of-shahzeb-murder-case) from Terrorism to PPC can arguably see as an evidence of a loophole or a leeway in the present PPC laws.

[66] See http://tribune.com.pk/story/309279/675-honour-killing-victims-in-pakistan-hrcp/. According to Human Rights Commission Pakistan 2010 710 women were killed in the name of honour and 960 by Amnesty international see http://www.amnesty.org/en/region/pakistan/report-2010. In its annual report, the Human Rights Commission of Pakistan said at least 943 women were killed in 2011 for damaging their family name (http://www.telegraph.co.uk/news/worldnews/asia/pakistan/9160515/1000-Pakistani-women-and-girls-honour-killing-victims.html). The number marks an increase of more than 100 on 2010. In 2012 the number goes up to 913 honor killings in Pakistan (http://hrcp-web.org/hrcpweb/wp-content/pdf/AR2012.pdf).

[67] Application of s.311 of PPC with regard to Diyat see http://dawn.com/news/1043236/pros-and-cons-of-qisas-and-diyat-law

The Law of Khul‘ in Islamic Law and the Legal System of Pakistan

 

Dr Muhammad Munir*

 

This article argues that according to the majority of Muslim jurists, a woman cannot obtain khul‘ without the consent of her husband. However, Imām Mālik and his disciples are of the opinion that the decision of arbitrators chosen by the state authority, court or the spouses for resolving dispute between the husband and wife can decide separation or union and such outcome is valid without specific delegation by the spouses and without their consent. The decisions of the Superior Courts in Pakistan are partially based on the Mālikī view and legislation has endorsed the position adopted by the Courts. It is argued that both the legislation as well as case law in Pakistan are based on the precedent set by the Prophet (peace be upon him). The Federal Shariat Court has also endorsed the existing Pakistani law on khul‘. The Recommendations of the Council of Islamic Ideology regarding khul‘ are partially in conformity with the Qur’ān and the Sunnah.

 

Introduction

 

Islamic law provides numerous remedies to a Muslim wife in cases where harm (ḍarar) to her has been established to the satisfaction of a judge. In the subcontinent, under section 2 of the Dissolution of Muslim Marriages Act 1939 (‘DMMA’), a Muslim woman can obtain a divorce in case of her husband’s disappearance for four years, her non-maintenance for two years, imprisonment of the husband for seven years or more, failure of the husband to perform his marital obligations for a period of three years, the husband’s impotence, his insanity, and her maltreatment by the husband.1 However, these grounds do not seem to have brought any positive change to the affected women in India, Pakistan, and Bangladesh. The primary reason for this is that grounds for divorce available under the DMMA are fault based. The complainant wife has to prove the offence. Matrimonial offences such as ill

                                                    

* PhD (Karachi University); LL.M (Stockholm University); LL.M & LL.B (Hons) International

Islamic University. Currently he is serving as Director General Shari‘a Academy, International Islamic University Islamabad.

1 There are two additional grounds available to a Muslim woman in Pakistan, i.e., that the husband has taken an additional wife in contravention of the Provisions of the Muslim Family Laws Ordinance 1961. This ground is also available to such a woman in Bangladesh but not in India.

Another ground available to women in Pakistan is li‘ān, when a husband accuses his wife of zinā (adultery) the marriage is terminated by the court through a special procedure.

treatment and cruelty by the husband or his family are hard to prove, because such offences take place within the privacy of homes and those accused of wrongdoing tend not to testify for the women. For these reasons, a no-fault based remedy was badly needed in the subcontinent and elsewhere in the Muslim world. Khul‘ seems to provide an answer, but the issues surrounding khul‘ in Islamic law are complicated, as shall be explained below. As far as the judiciary is concerned the Lahore High Court ruled for the first time in the Balqis Fatima case in 1959,[1] that khul‘ should be available to a woman as of right and without the consent of the husband. This position was endorsed by the Supreme Court in the Khurshid Bibi case of 1967.[2] In Egypt, Law No. 1 of 2000 did exactly the same as was done by the Superior Judiciary in Pakistan.

 

This article gives special attention to the opinions of Mālikī exegetes and jurists in their interpretation of verse 4:35 of the Qur’ān. It examines the Ḥabība’s episode[3] and asks whether it has precedential value. Furthermore, it evaluates the arguments of fuqahā’ of various schools of thought regarding the issue of (in)validity of khul‘ without the consent of the husband and examines the Islamic nature of legislation on khul‘ in Pakistan as well as in Egypt. In terms of methodology, the opinions of Muslim exegetes are discussed in Part I, followed by an analysis of the Ḥabība’s ḥadith in Part II. This is followed by an analysis of the opinions of Muslim jurists of various schools of thought and the reasons for their respective positions in Part III. Part IV evaluates selected decisions of high courts and the Supreme Court of Pakistan on khul‘ and asks whether these amount to judicial ijtihād. Part V discusses the Islamicity of section 10(4) of the West Pakistan Family Courts Act 1964 as amended in 2002. Part VI evaluates the views of the Council of Islamic Ideology (CII) and asks whether the CII has exceeded its mandate. Finally, Part VII provides a conclusion.

 

PART I: Khul‘ and the Qur’ān

 

Literally, the term khul‘ means ‘extracting oneself’.5 According to ‘Alāuddīn Mas‘ūd al-Kasānī, ‘[t]he khul‘ is lexically, ‘al-naz‘’ and ‘al-naz‘’ is to pull out/extract something from something.’6 Thus, ‘khala‘ha means that he has removed her from his marriage.’7In the technical sense, it is used for marital ‘extraction’,[4] and is the act of accepting compensation from the wife in exchange for her release from the marital tie. Ibn Ḥajr defines it as ‘[s]eparation of the husband from his wife for money consideration to be given to the husband.’[5] According to Ibn Rushd, ‘the terms khul‘, fidya, ṣulḥ and mubara’a refer to the same meaning, which is a transaction in which wife pays compensation for obtaining her divorce.’[6]

  • According to Ibn Manzur, the root of khul‘ is khal‘. The verbal noun khal‘ refers to the act of extraction, removal, detaching or tearing out. In its real sense, khal‘ is generally associated with things or object, such as garments. See, Ibn Manzūr Muḥammad b. Mukarram, Lisān al-‘Arab (Beirut: Dār Sadir 1955-56) 8:76-79. Jurjanī defines it as ‘dissolution of marriage through taking money [by the husband].’ See, ‘Ali b. Muḥammad al-Jurjanī, Kitāb al-T‘arīfat (Beirut: Dār alSurur n.d.) 45.
  • Kāsānī refers to two Qur’ānic verses, i.e., 7:43, 108, to explain the lexical meaning of khul‘. The meanings of these verses are: ‘We shall have removed all ill feeling from their hearts’, and ‘then he pulled out his hand.’ ‘Alauddīn Masu‘d al-Kāsānī, Badā’i‘ al-ṣanā’i‘ fī tartīb al-sharā‘i‘ (Muḥammad Yāsīn Darvīsh ed, Dār Ihyā’ al-Turāth al-‘Arabī, 2000) 3:227.
  • The controlling role of the husband is clear from the lexical and technical words used by Kāsānī.

 

While discussing khul‘, fuqahā’ and commentators of the Qur’ān refer to the Qur’ānic verse 2:229, which states:

 

Divorce can be pronounced twice: then, either honourable retention or kindly release should follow. (While dissolving the marriage tie) it is unlawful for you to take back anything of what you have given to your wives unless both fear that they may not be able to keep within the bounds set by Allah. Then, if they fear that they might not be able to keep within the bounds set by Allah, there is no blame upon them for what the wife might give away of her property to become released from the marriage tie.

 

The crucial question on which exegetes differ concerns who is being addressed in the verse through the use of the term ‘fa in khiftum’: Is it addressed to the Ḥukkām (state authority), which is represented by the courts, or is it addressed to both the partners? In other words, who will determine whether the two partners can or cannot live within the bounds set by God? Should the determination of that important point be the responsibility of a court, acting on behalf of the state, or should it be determined by the partners themselves? Moreover, what constitutes ‘khawf’ (fear), mentioned in the verse? According to Imām al-Shāfi‘ī, ‘when one of them cannot keep within the bounds set by God, so both [are considered] unable to keep within the bounds of God.’11According to Abū Bakr al-Jaṣṣāṣ, ‘illa un yakhāfā’ means ‘if both of them thought’.12 The fear that the ‘two may not be able to keep within the bounds set by God’, arises when either of them violates their marital duties13 and/or transgresses upon mutual rights, or the rights of one or both of the partners are denied. The Qur’ānic verse provides, ‘Women have the same rights against their men as men have against them.’14 ‘Ali b. Abī Ṭālib (May Allah be pleased with him) is reported to have said, ‘[There are three] phrases when uttered by the wife [to the

                                                   

obtains khul‘ after consummation of marriage, and ‘al-muftadiyatu’ is to redeem herself by paying some of her money, however, these terms are used interchangeably.’ Abū Bakr Muḥammad Ibn al-‘Arabī, Aḥkām al-Qur’ān (‘Emād Zakī al-Baroudī ed, Al-Tawfikia n.d.) 1: 251.

  • Muḥammad b. Idrees al-Shāfi‘ī, Kitāb al-Umm (Aḥmad Badruddīn Ḥasun ed, Dār Kotaiba, 2003) 11:178.
  • Abū Bakr Aḥmad al-Jaṣṣāṣ, Aḥkām al-Qur’ān, ed. Sidqi Muḥammad Jamīl (Dār al-fikr, 2001) 1:533. 13 Violating marital duties is called ‘nushūz’, and contrary to the popular belief, is also committed by men. Jaṣṣāṣ, Aḥkām al-Qur’ān, 1: 534; Manṣur b. Yūnus al-Buhūṭī, Kashshāf al-Qina‘ (‘Alam al-Kutub, 1983) 5:209; ‘Abdus Salām Saḥnūn, al-Mudawwana al-Kubrā (Dār al-Kutub al-‘Ilmiya, 1994) 2:241; Muḥammad Amīn Ibn ‘Abidīn, Radd al-Muḥtār (Dār al-Fikr, 1979) 3: 445.

14 Qur’ān 2:228.

man], it becomes legal for him to take ‘al-fidya’ (the compensation): When she tells him that I will not obey you, that I will not fulfil your promise on oath, and I will not purify myself after sexual intercourse with you.’[7] It is reported from ‘Abdullah b. ‘Abbās that ‘her omission to keep within the bounds set by God is [treated as] disdain for the husband and a bad nature on her part.’16 Jaṣṣāṣ has mentioned the full statement of Ibn ‘Abbās as:

 

Thus, if she says, “I swear by God [that] I will not fulfill your oath, and I will not agree to your request of sleeping with you in the bed, and I will not obey you. If she did this, it is allowed for him to take from her

al-fidya’ but he should not take more than what he gave her (i.e., the dower) and let her go [provided] she caused the harm.” Then, he [Ibn

‘Abbās]  recited, “but if they, of their accord, give up unto you aught thereof, then enjoy it with pleasure and good cheer,” (4:4) and it is said, that when there is no harm or cheating [in obtaining it], then it is pleasure and good cheer as God described it.[8]

 

Qurtubī mentions that according to ‘Attā b. Abī Rabāḥ, ‘Khul‘ and taking (compensation for the husband) become legal when the woman says to her husband: I hate you and do not like you or something similar.’[9]

 

Muḥammad Abū Zahra (d. 1974) argues that the situation in which both the partners cannot keep within the bounds set by God, arises in two ways: first, if the woman is nāshizah (violates her marital duties), disobedient, or coerced, such as the wife of Thābit b. Qays b. Shamas Al-Anṣārī (d. 11/632); second, when the man has a problem such that marital life with him is not possible anymore.[10]

Qurtubī argues that ‘the majority of jurists are of the opinion that the addressees in the words of the Exalted ‘wa in khiftum’ (And if you fear)[11] are the ḥukkām (state authorities). And the statement [of the Exalted] ‘if they both want to set things right’ [4:35] means the arbitrators according to [‘Abdullah] Ibn ‘Abbās, Mujāhid and others; that is, if the arbitrators wanted reconciliation, Allah will bring about reconciliation between the spouses.’[12]

 

The Tunisian scholar Muḥammad al-Ṭāhir b. ‘Ashur (1879-1973) argues that ‘if the spouses would be addressed [by ‘tum’], then the wording would be: ‘fa in khiftum āullātuqimu aw ullātuqima’ (if you feared that you cannot keep or you [two partners] cannot keep…’22 Abū Zahra argues that the addressees are either ‘the group of Muslims because they cooperate with each other, as they got discord between the spouses, or it is to the group of women and men’, and his preference is for the first meaning.23

 

Jurists differ in their opinions on the matter of whether khul‘ ought to be adjudicated or not; a topic which will be elaborated upon later when the various schools of thought come under discussion. In Pakistan, the Lahore High Court accepted the interpretation that the ‘you’ in the phrase ‘if you fear’ must be addressed to the state and the judicial officers of the state in the Balqis Fatima case. It clearly was not addressed to the two spouses, who are in this section referred to in the third person as ‘they’ and ‘them.’[13]

 

Exegetes from the Mālikī school of thought discuss khul‘ under verse 4:35 which reads, ‘If you fear a breach between the two, appoint an arbitrator from his people and an arbitrator from her people. If they both want to set things right, Allah will bring about reconciliation between them. Allah knows all, is well aware of everything.’ Qurtubī argues that ‘the arbitrators chosen by the state authority should see who is the cause of discord and once this is established they should dissolve the marriage through khul‘.’[14] He further asserts that one arbitrator should be from the man’s side and one from the woman’s side because they know their problems better. However, ‘if there is no one from the spouses’ people who could be appointed as arbitrators, so other suitable persons may be appointed by the state authority.’[15] He argues that the arbitrators should remind the spouses about their union, so that they agree to remain together as husband and wife. And if they refuse to live as husband and wife and ‘the arbitrators consider [sic] it appropriate to decree separation they may decree separation. And decree of separation by them [arbitrators] is binding for the spouses whether it [the decree] coincided with or was against the decree of the local court and whether the spouses delegated them [the arbitrators] the authority to do so or not.’[16]

 

Ibn ‘Ashur argues that verse 4:35 makes it obligatory to appoint arbitrators in case of a continuing dispute between the spouses which is denoted as ‘shiqāq’ (breach or discord). Apparently the appointing authority is the ruler and state authority, and not the spouses because the verb ‘ib‘athu’ (appoint) is not addressed to the spouses. If they are appointed by the spouses, then the word ‘al-ba‘th’ would have no meaning in the verse.[17] He asserts that ‘[w]hatever decree is issued by the arbitrators is binding whether it be separation or union or khul‘. And there is no say for the spouses in it because this is what arbitration is meant for.’29

 

In a nutshell, the Qur’ānic concept of khul‘ is: first, either of the partners may initiate it if he or she thinks that marital rights cannot be upheld in the marriage. Second, according to the preferred opinion of the majority of exegetes, the court has to determine the extent of discord, harm, aversion, coercion, etc. Third, and this is very crucial, the court must ascertain whether it can grant khul‘, especially when the discord or harm is attributed to the woman and she is ready to pay compensation to her husband without the husband’s consent, or is it conditional upon the consent of the husband? In other words, is khul‘ a consensual act or can the court put an end to the marriage by khul‘ without the husband’s consent? The answer is not clear from the wording of the Qur’ān in verse 2:229 and this is why exegetes had to resort to aḥādīth regarding khul‘. Fourth, Mālikī jurists also discuss khul‘ under the Qur’ānic verse 4:35 and conclude that khul‘ can be affected by the arbitrators and their decision shall be binding without the consent of the husband and the wife. Fifth, in case khul‘ is consensual (or even if it is not consensual or the consent of the husband is not required), then the court may put an end to the marriage and ask the wife to return the dower or what is agreed upon by both the partners as compensation for her freedom. Finally, there is no sin on the part of the spouses to receive such compensation. The apparent language of the verse 2:229 indicates that it is the wife who has to pay compensation to free herself, ‘fima’fdatbehi’ (what the wife may give up [to her husband]).30 To answer the remaining questions, we have to resort to aḥādīth of the Prophet (peace be upon him).

 

Part II: Khul‘ in ḥadīth literature

 

Many collections of ḥadīth have referred to the case of Ḥabība bint Sahl–wife of Thābit. The incident is described in four of the six authoritative compendia of the Prophetic reports. According to the report of Al-Bukhārī in his al-jāmi‘ al-ṣaḥīḥ (The Authentic Collection) section on khul‘:

 

It is reported from Ibn ‘Abbas that the wife of Thābit b. Qays came to the Prophet (peace be upon him), and said: “I see no fault with Thābit’s conduct or his religious demeanour, but I dislike ingratitude in Islam.” The Prophet (peace be upon him) said: “Will you return his garden to him?” “Yes”, she answered. The messenger of Allah said: (to Thābit): “Accept (iqbil) your garden and divorce her [ṭalliqha (once)].”31

 

In the second and third versions of the same incident, the Prophet (peace be upon him) is reported to have ordered Thābit (‘amarahu) to divorce her in return for his garden.32

 

In the first version in Al-Bukhārī, the words ‘iqbil’ (accept) and ‘ṭalliqhā’ (divorce her) are used in the imperative form by the Prophet, but in the second one the indirect speech is very clear that Thābit’s approval was not sought but the Prophet had ordered him.  According to the report of Imām Al-Nasā’ī:

 

Thābit b. Qays b. Shamas hit his wife and broke her limb and she was

Jamīla bint ‘Abdullah b. Uby. She complained to her brother who took her to the Prophet (peace be upon him) and the Prophet (peace be upon him) summoned Thābit and told him, “take (khudh) [from her] what

                                                    

is essential for khul‘. See, Oussama Arabi, ‘The Dawning of the Third Millennium on Shari‘a: Egypt’s Law no. 1 of 2000, or Women May Divorce at Will’ (2001) 16(1) Arab Law Quarterly 17-8. This interpretation seems to be against the Ḥabība’s episode described in the text above in which the consent of the husband Thābit b. Qays was not sought by the Prophet (peace be upon him).   31Muḥammad Ismā‘il al-Bukhārī, al-Jāmi‘ al-Ṣaḥīḥ (Ḥadīth 4971, People’s Edition n.d.). The ḥadīth is also available at <http://www.sunnipath.com/library/Hadith/H0002P0071.aspx> accessed 20 June 2011; also available at <http://hadith.alislam.com/Page.aspx?pageid=192& BookID=24&TOCID=2943> accessed 20 June 2011.

32 Ibid, ḥadīth no. 4972 and ḥadīth no. 4973 available at <http://www.sunnipath.com/library/ Hadith/H0002P0071.as px> accessed 20 June 2011). In these two narrations the reporter is,

‘Ikramah, who described her name as Jamīla but in all the versions in Al-Bukhārī she is simply Thābit’s wife.

you have given her and let her go (free) (khalli sabilaha). He said:

“Yes.”[18]

 

According to the collection of Abū Dāwūd, in which Ḥabība’s case is reported:

 

‘A’isha (the Prophet’s wife) relates that Ḥabība bint Sahl was married to Thābit b. Qays b. Shamas, who hit her and broke a limb of hers. She approached the Prophet (peace be upon him) after dawn, and he summoned Thābit and told him: “Take (khudh) some of her money and separate from her.” Thābit said: “Is this permissible, Prophet of God?” The Prophet said: “Yes.” Thābit: “I gave her two gardens as dower and they are her property.” The Prophet (peace be upon him) said: “Take them and separate from her (fariqha)”, which he did.[19]

 

Ibn Māja, in his collection of aḥādīth, narrates on the authority of Ibn ‘Abbās that this case is similar to Al-Bukhārī’s first version of the case, with the difference that the Prophet (peace be upon him) ‘has ordered Thābit to take only the garden and not more (than the garden).’[20]

 

According to the report of Aḥmad b. Ḥanbal:

 

Sahl b. Abī Hathma related that Ḥabība bint Sahl was married to Thābit

  1. Qays Al-Ansari, who was an ugly man. She said: “Messenger of Allah: O, by Allah, were I not to fear God, I would spit in his face whenever he touches me.” The Prophet (peace be upon him) said: “Would you give him back his garden?” She said: “Yes”, and she gave it back. Then the Prophet (peace be upon him) separated them (farraqa baynahumā).[21]

 

In the report of Ibn Māja, as well as Abū Dāwud, Thābit – the husband – does not play any decisive role (as assigned to him by the legists) as the Prophet never asked for his consent for the separation. The crux of the matter is that according to the above reports, which are different versions of the same incident, khul‘ is not consensual and the consent of the husband is not essential. As will be explained below, however, the majority of fuqahā’ of Ḥanafī, Shāfi‘ī, Ḥanbalī as well Shī‘a schools of thought purport that khul‘ cannot be granted by the court without the consent of the husband. The four compilers of aḥādīth collections who narrate Ḥabība’s episode ‘neither mention nor allude to her husband’s approval as a condition for her divorce; on the contrary, what they all have in common is the command aspect of the Prophet’s order to Thābit to take the compensation and separate from Ḥabība.’37 Despite this ‘imposed’ passivity on the part of Thābit, the majority jurists have unanimously assigned a decisive role to the husband in khul‘. According to Jaṣṣāṣ of the Ḥanafī school, the fact that both Thābit and Ḥabība were asked by the Prophet (peace be upon him) implies that khul‘ is consensual because the husband has been placed at the center point in this episode, otherwise the Prophet could have dismissed him completely and divorced Ḥabība entirely on his own.38

 

The conclusion that can be derived from this narrative is that the majority of legists differ from the ḥadīth, and to some extent from the Qur’ān, regarding khul‘, especially regarding the approval of the husband. There is no doubt that the Qur’ānic verse was further explained by the Ḥabība’s episode and that the Prophet’s ruling has precedential value. Oussama argues that Muslim legists seem to allow the

Qur’ānic implication of a consensual transaction to overrule the Prophetic ruling in the Ḥabība’s khul‘ separation case.39 However, Mālikī jurists differ from most Sunnī scholars on the issue of the consent of the husband. In addition, as explained above, there is no unanimity on the issue that the Qur’ānic verse 2:229 only allowed a consensual bargaining-based negotiated settlement as some exegetes have expressly mentioned that the word ‘tum’ (you) is addressed to the state authority. The Ḥabība incident stands on its own and has not been overruled by the Qur’ān. Moreover, one has to analyse the opinions of jurists regarding verse 4:35 to reach a clear conclusion.

                                                   

throughout their discussion regarding the khul’s incident, referred to her as Jamila and, in some cases, the Courts mentioned that Thābit b. Qays had two wives. In this work the name, Ḥabība, has been used while referring to Thābit’s wife.

  • Arabi, The Dawning of New Millennium, 17.
  • Jaṣṣāṣ, Aḥkām al-Qur’ān 1:539.
  • Arabi, The Dawning of New Millennium, 17.

It is this precedent that provided the basis for the new law of khul‘ in Pakistan, as well as in Egypt.[22]

 

Part III: Khul‘ in Fiqh Literature

 

Khul‘ in the Ḥanafī School

 

Ḥanafī jurists fully acknowledge the ḥadīth of Ḥabība but unanimously assign the husband a decisive and controlling role in the process of khul‘. Jassas points out that the fact that the Prophet had sought the opinions of both Ḥabība and Thābit, places the latter at the centre stage of the debate since the Prophet could have dismissed him completely and granted a divorce to Ḥabība himself.41 Ḥanafī jurists insist that the consent of the husband is necessary for the validity of khul‘. Abū Bakr al-

Sarakhsi argues that khul‘ ‘is a transaction that requires the consent of the [parties] like all other transactions.’[23] Kāsānī states that the basic element of khul‘ is ‘offer and acceptance because it is ṭalāq for compensation, thus, there cannot be any separation without acceptance.’[24] In other words, for Kāsānī, a court cannot force anyone to enter into contractual relations, and therefore, it cannot grant khul‘ without the husband’s consent. There is no disagreement among Ḥanafī jurists on this issue,[25]

all of whom consider khul‘ an irrevocable ṭalāq45 and agree that adjudication is not necessary for affecting it as it can be concluded outside the court.46 According to Abū Ḥanīfa, a man cannot retract his offer should he initiate khul‘, as he is governed by the rules of oaths; he has to wait for his wife to accept or reject his offer. She has to submit to the rules of compensation and is allowed to retract her offer before his response. Abū Ḥanīfa bases his reasoning on the principle that khul‘ is bay‘ (sale transaction) on the part of the wife, as she is buying back control over herself.47 If the discord emanates from the husband, ‘then it is not permissible for him to take any compensation in return for khul‘.’48 The apparent wording of the Qur’ān presumes that the woman pays compensation to free herself (fimaaftadat behi), so the discord is always assumed to be because of her. Kāsānī argues that:

 

If the matter is resolved by a stranger, then he is allowed to order [her to pay] the equivalent of the dower, and if he ordered [her to pay] more or less [than the amount of dower], then, in case of more [amount], it is not binding without the consent of the woman and in case it is less, then [it is not binding] without the consent of the husband.49

 

Thus, Kāsānī – referred to as the king of ‘ulamā’ (malak al-‘ulamā) within the Ḥanafī school of thought – considers the consent of the husband necessary even if the amount of compensation to be given to him is less than the amount of dower. In other words, the husband according to the Ḥanafī school of thought, seems to have the equivalent of a veto regarding ṭalāq and khul‘.

 

                                                    

ed, Dār Iḥyā’ al-Turāth al-‘Arabī 2003) 3:501; Ibn ‘Abidīn, Radd al-Muḥtār 3:439-41; Zayn al‘Abidīn Ibn Nujaym, al-Bahr al-Rā’iq (al-Matba‘a al-‘Ilmiyya, 1894) 8 4:77-78.

  • Al-Jaṣṣāṣ, Aḥkām al-Qur’ān 1:538; Al-Sarakhsī, Kitāb al-mabsūṭ 6:168; Kāsānī, Badā’i‘ 3:228. Kāsānī argues that khul‘is ‘a single irrevocable ṭalāq because it is divorce by using metaphorical words which is irrevocable in our school and because it is divorce for compensation (ṭalāqbi al‘iwad) and when the man accepted the compensation it is necessary that she should own herself as a result of paying compensation and she cannot redeem herself without irrevocable ṭalāq therefore it (khul‘) is irrevocable ṭalāq’. At 228.
  • Jaṣṣāṣ, Aḥkām al-Qur’ān 1:539; Al-Sarakhsī, Kitāb al-mabsūṭ 6:168-69; Kāsānī, Badā’i‘ 3:229. Kāsānī mentions that only al-Ḥasan and Ibn Sīrīn argue that khul‘ can be affected without the Sulṭān (state- authorized court).
  • Al-Zayla‘i, Tabyin 3:182; Kāsānī, Badā’i‘, 3:228.
  • Kāsānī, Badā’i‘, 3:235.
  • According to Margīnānī, ‘If the discord is because of her, we consider it disapproved that he takes from her more than he had given her.’ However, ‘If he takes back in excess (of what he gave her) it is valid for the purposes of adjudication. Likewise If he takes more when the discord is due to him.’ Margīnānī, Al-Hidāya, 2:30.

Khul‘ in the Mālikī School

 

The linguistic formulations of the Mālikī jurists on khul‘ are not easy to understand and need an in-depth analysis to reach a clear conclusion on whether the consent of the husband is necessary for khul‘. The confusion is mainly whether the Mālikīs consider the consent of the husband a legal necessity by implication or not. Imām Mālik has discussed the Qur’ānic verse 4:35, Ḥabība’s ruling, and two cases involving neglectful husbands, and his legal formulations suggest that he gives the two arbitrators the main role in the dissolution of marriage, either by ṭalāq or khul‘. In addition, he also presumes a negotiated settlement.[26] Certain points within the Mālikī school are clear and these are mentioned below.

 

In circumstances where it is difficult for a woman to live with her husband and she approaches the court, it must be clear that which one of the two is the cause of discord. When it is known to the court that the husband or the wife has caused the discord, the court shall attempt to bring about reconciliation. If this is not possible, then the court may dissolve the marriage.[27] The court shall order khul‘ if it finds that the husband was the cause of the discord. In this situation, the wife will be ordered to return the dower given to her by the husband. However, if it comes to the conclusion that the wife was the cause of the discord, it shall dissolve the marriage by divorce and shall order the husband to pay the dower if not yet paid. The court under the Mālikī school can issue a decree of ṭalāq or khul‘ without the consent of the husband and wife.[28]

 

If the court does not know which one of the two is to blame for the dispute, it has to appoint two arbitrators: one to represent each the husband and the wife. Mālikī jurists have elaborated on the role assigned to the arbitrators.[29] In general, they agree that the arbitrators may dissolve the marriage either by ṭalāq or khul‘ depending upon who is to blame for the dispute. Some Mālikī jurists have even stated that the court or the arbitrators can dissolve the marriage through ṭalāq or khul‘ without the consent of both the husband and the wife. This is evident from many classical Mālikī texts (mutūn), as well as commentaries on the main texts. While commenting on Qur’ānic verse 4:35, which reads ‘If you fear a breach between the two, appoint an arbitrator from his people and an arbitrator from her people. If they both want to set things right, Allah will bring about reconciliation between them. Allah knows all, is well aware of everything’, Ibn Juzī al-Kalbī al-Garnāti states:

 

Allah has mentioned what to do with a disobedient wife and how to deal with an obedient one, then he mentioned another situation, that is, when there is discord between the two which they cannot reconcile themselves and it is not known who caused it. So [in this situation the court] should appoint two Muslim arbitrators to investigate the matter between the two. And their decision has to be implemented whether it is the dissolution of marriage through ṭalāq or khul‘ without the consent of the husband.[30]

 

Ibn ‘Abdul Bar – another leading Mālikī jurist – has said something similar. He argues:

 

The spouses may appoint one arbitrator each without the intervention of the State authority. If the husband is the cause of discord they shall dissolve the marriage without anything. The arbitrators should not take anything from the wife [in this situation] with the condition that she is divorced [by the husband]. And it is said that it is allowed [to take something from the wife in this situation]; and if she was the cause of discord, they [the arbitrators] should take [money or compensation] from her as they think appropriate and it [the resultant separation] will be khul‘ and the two should be separated [their marriage be dissolved].[31]

 

Mālikī jurists have also explained the situation in which both the husband and the wife are equally blameworthy for the discord. According to ‘Abdarī, ‘the husband shall not be given anything if both the husband and the wife were equally guilty of discord.’[32]

 

Imām Mālik discusses three different versions of Ḥabība’s case and seems to introduce the husband’s consent in the third version, in which the Prophet (peace be upon him) invited Thābit and told him about his wife and about her willingness to return him the garden to which Thābit said: ‘This is to my liking; Yes.’ The Prophet said: ‘Then she gives it back.’[33] Unfortunately, Imām Mālik is not very specific about whether the consent of the husband is necessary for khul‘. Imām Mālik is more specific in the chapter on ‘Hakamayn’ (the two arbitrators), where he gives an interesting opinion. On the role of the two arbitrators, Mālik states,

 

If the arbitrators could bring in reconciliation [between the two], they should reconcile between the two [the husband and the wife]; then, it is lawful [for the two arbitrators] if the two [arbitrators] decided to dissolve the marriage between the two [the husband and the wife] without the [permission] of the state authority. And if the two [arbitrators] decided to take [compensation] from her [and give it to the husband] so that it becomes [separation by] khul‘, they [the arbitrators] can do that.[34]

 

Imām Mālik’s opinion gives the impression that the consent of the husband is not necessary for the validity of khul‘. Above, we have given more precise opinions of other Mālikī jurists to clarify this issue. Since Imām Mālik does not mention his opinion in precise words on whether the consent of the husband is necessary for khul‘, this made the issue confusing. However, the assertion of other Mālikī jurists clarifies the issue that the consent of the husband is not necessary in khul‘ and that it can be implemented without his consent.

 

According to ‘Abdul Wahāb Baghdādī:

 

In case of a dispute and eruption of a discord, if it is known that harm is caused by one of them it should be eliminated. However, if it is unknown which one of the two have caused the discord the State authority [court] shall send in two arbitrators one from the husband’s side and one from the wife’s side. The arbitrators should be jurists and fair and should investigate the matter and should do whatever they think is better for the husband and wife ranging from reconciliation to separation between the two regardless of the consent of the two [husband and wife] and whether the State authority [court] agrees or disagrees with their decision.[35]

 

Ibn Rushd has an interesting opinion regarding khul‘. He states that, ‘yet, the juristic reasoning is that fida (ransom) granted to a woman is something equivalent to what is possessed by the man; namely, (the right to) divorce. A man possesses repudiation when he pressurises a woman, while a woman possesses khul‘ when she wants to pressurise a man (her husband).’[36] It can be construed from this passage that Ibn Rushd treats khul‘ as a right possessed by a woman that is the equivalent of a man’s right to divorce and that khul‘ is not dependent upon the consent of the husband. This passage is not clear about Ibn Rushd’s opinion or the opinion of Mālikī school on the issue of consent of the husband. However, mentioning the crucial role of arbitrators, Ibn Rushd says:

 

They [the jurists] disputed the agreed decision of the arbiters to separate them [the husband and wife], whether it would require the consent of the husband. Mālik and his disciples said that their decision about separation and union is valid without specific delegation by the spouses and without their consent. Al-Shāfi‘ī, Abū Ḥanīfah and their disciples said that they have no right to separate them, except when the husband delegates such authority to them.61

 

Taqīuddīn al-Ḥilālī, a leading 20th century Mālikī scholar argues:

 

Jurists differ regarding the issue of arbitrators; are they appointed by the state authority so that their ruling is binding without the consent of the spouses or are they proxies for the spouses? There are two opinions regarding this issue: the majority of scholars prefer the first opinion [i.e. their ruling is binding without the consent of the spouses] because of the Qur’ānic verse, ‘appoint an arbitrator from his people and an arbitrator from her people’, so they are named as ‘hakamayn’

(arbitrators) and an arbitrator is allowed to rule without the consent of the disputant and this is the apparent meaning of the Qur’ānic verse [4:35].[37]

 

It is very clear from the above that Mālikī jurists have given a crucial role to arbitrators and they may decide to dissolve the marriage by khul‘ without the consent of the husband as well as the wife. In addition, Mālikī jurists consider khul‘ as ṭalāq.[38] As far as the amount of compensation is concerned, Ibn Rushd argues that according to Imām Mālik and a group of jurists, ‘it is permitted to a woman to secure freedom with more than what has come to her from the husband, by way of dower.’[39] Khul‘ in the Shāfi‘ī School

 

According to Imām al-Shāfi‘ī, khul‘ just like ṭalāq, can only be affected by the husband.[40] He argues that:

 

Where a man wants to separate from his wife and he intends divorce but does not intend a specific number, then the separation is a single irrevocable divorce (fa al-khul‘ ṭatliqatan la yamliku fihi al-ruju‘); this is so because it is a sale (bay‘) like other sales and it is not allowed for him to take possession of her money while continuing to possess her.[41]

 

Al-Shāfi‘ī has narrated two versions of Ḥabība’s incident: one from Imām Mālik and the other one from Ibn ‘Uyayna. In the second version, Ḥabība complains of some ‘harm’ done to her person, which probably implies that the harm was of a physical nature. The Prophet (peace be upon him) ordered her husband, Thābit, to ‘[t]ake what she is giving you (khudh minhā)’, which is repeated in both versions by alShāfi‘ī.[42] Imām al-Shāfi‘ī treats khul‘ as ṭalāq[43] and allows for it to be settled in or outside of a court ‘as the paying of compensation and ṭalāq are permissible in the court as well as outside it.’69

 

Khul‘ in the Ḥanbalī School

 

While discussing the Prophet’s ruling in the case of Ḥabība,[44] Ibn al-Qaiyam of the Ḥanbalī school of thought refers to the versions of Al-Bukhārī, Al-Nasā’ī, Abū Dāwūd, and Al-Dār Quṭnī, and derives various rules pertaining to khul‘. He argues that khul‘ is legal as stated in the Qur’ān in verse 2:229, and that the verse allows it with or without the permission of the sulṭān (state authority). The verse indicates that the resultant separation will be an irrevocable ṭalāq because God has named it ‘fidya (ransom) and if the (separation) would be revocable, as thought by some people, there would be no ransoming for the woman after paying him.’71 The Qur’ānic verse ‘fa lā junāhā ‘alīhīmā fīmā aftadat bihi’ (there shall be no sin upon either of them for what the wife may give up [to her husband] in order to free herself), ‘also indicates that taking more or less (than the amount of the dower) is allowed and that he can take more than what he gave her.’ Ibn al-Qaiyam produces a ruling given by ‘Uthmān b. ‘Affān (d. 35/656) in which a woman paid as her khul‘ settlement everything she owned and ‘Uthmān ordered the husband to take even her hair-band (‘Iqās),72 and that ‘Umar b. Al-Khaṭṭāb was reported by a man whose wife had violated her marital duties (nāshīza) and ‘Umar said (to him): ‘separate from her (ikhla‘ha) even if she gives (you) her earrings (qirat) [in compensation].’73 Ibn alQaiyam discusses details of the difference of opinions of jurists and mentions that taking more than the amount of dower is reprehensible (makrūh) according to Imām Aḥmad b. Ḥanbal.74 Ibn al-Qaiyam argues that ‘khul‘ is called fidya (ransom) because it involves the paying of the compensation (al-mu‘āwaḍa) and therefore it is consensual.’75

 

According to Muḥammad b. Ḥazam (d. 456A.H.), if a woman thinks that she cannot obey her husband and fulfill his demands, then ‘she may free herself if he agrees.’ However, ‘if he refuses (to divorce her), he cannot be forced (to do so).’76 He goes on to say that a woman cannot be forced to free herself. ‘[A]nd the consent of both (the husband and wife) is essential for its legality (i.e., khul‘). And if it (i.e., khul‘) was affected without these two conditions (i.e., compensation from the wife and the consent of the husband), then it is invalid.’77

 

                                                   

similar to a sale or a marriage contract, it does not require a judge, and also because it is a dissolution of contract by mutual consent (qaṭ‘ ‘aqd bi al tarāḍī).’ At 8:174.

71 Shamsuddīn Ibn al-Qaiyam al-Jawziyah, Zād al-Ma‘ād fī hadī e khayr al-‘Ibād (Aḥmad Alī Sulaymān ed, Mansūra, Dīr al-Ghad, 2009) 4:86. 72 Ibid, 4:87.

  • 75 Ibid.
  • Muḥammad b. Ḥazam, Al-Muḥallā (Aḥmad Muḥammad Shakīr ed, Dār al-Turāth n.d.) 10:235.

The Ahl al-Ḥadīth in Pakistan also allow khul‘ if the wife abhors the man and has a natural hatred for him. ‘Abdullah Roprī produces two versions of Ḥabība’s case and concludes that mere aversion or abhorrence is enough for a woman to obtain khul‘.[45] Although, Roprī does not explicitly mention whether the consent of the husband is necessary for khul‘, he advises that ‘in such a situation the wife has the option of dissolving her marriage (faskh e nikāḥ) through ‘Panchayat’, etc.’[46]

 

Khul‘ in the Shī‘aschool

 

According to Ḥillī of the Ithna ‘asharīa (twelver) Shī‘a school of thought, the specific words used for khul‘ are: when the husband says, ‘you are redeemed for so much (khala‘tuki ‘alā al-kazā).’[47] Khul‘ is also allowed if the husband used the word khul‘ only without mentioning the word ṭalāq. But according to another opinion, the word khul‘ must be followed by the word ṭalāq to be valid.[48] Khul‘ is defined by the editor of Ḥillī’s book as ‘[p]utting an end to marriage when the woman abhors her husband only in return for compensation from the woman.’82 This means that if she abhors him she has to make an offer, which may be accepted or rejected by the husband. This makes the consent of the husband mandatory. The preferred view is that separation through this way is irrevocable ṭalāq and not faskh. ‘If they agreed on khul‘, then the husband cannot retract but she can retract in paying fidya during her ‘iddat’ (waiting period) and he can retract if she offers to do it.’[49]

 

After discussing the opinions of the fuqahā’ belonging to the various schools of thought, the picture that emerges is as follows: 1) all of the schools of thought permit khul‘ and cite verse 2:229[50] and Ḥabība’s incident; 2) according to the Mālikī school, if the husband is the cause of the discord then he should not take or be given any compensation, but if the wife is the cause of the discord then she must pay compensation to the husband; 3) all the fuqahā’ agree that the resultant separation will be irrevocable, that is, a ṭalāq;[51] 4) the compensation to be paid may be the equivalent of, or more or less, than the amount of dower; 5) if they settled on more than what he gave her, it is morally reprehensible but legally binding; 6) the majority of schools disregard the ruling in Ḥabība’s case and require the consent of the husband for khul‘, however, the Mālikī jurists have reached a different conclusion based on verse 4:35 by allowing the arbitrators authority to put an end to marriage without the consent of the husband, even if the spouses have not delegated them the authority to do so; 7) the majority agree that khul‘ is consensual and the consent of both spouses is necessary, whereas the Mālikīs allow the arbitrators to dissolve the marriage by khul‘ without the consent of the husband or wife; 8) khul‘ can be settled between the partners with or without the intervention of state authority; 9) fuqahā’ of all Sunnī schools have referred to the Prophet’s ruling in the case of Ḥabība, in which in some narrations, the Prophet prohibited her from paying more than her dower but they (fuqahā’) consider paying more by the wife to be legally permissible.

 

The majority of jurists grant the husband an absolute right at the expense of his wife because of the notion of qawāma.[52] However, resort to a court in case of khul‘ seems unavoidable and the court must have a role to determine the issue of harm to the wife or hatred between the two parties in addition to determining the amount and extent of compensation. If a husband claims that they can live within the boundaries fixed by Allah but the wife says that they cannot, then whose claim should be accepted? It would require a third person to determine whether the wife cannot live with the husband and whether the level of hatred and aversion has reached the point of no return (irrevocable breakdown of marriage).

 

Part IV: Khul‘ and the Superior Courts in Pakistan: Interpreting Islamic Law

or Judicial Ijtihād?

 

The Traditional View

 

The earliest reported case on khul‘ in the subcontinent– now India, Pakistan, and Bangladesh, is that of Munshi Buzul-ul-Raheem case,[53] in which the Judicial Committee of the Privy Council ruled that khul‘ was not available without the consent of the husband under Islamic law. Unfortunately, this case is applicable in India even today where it has not been overruled, however, the situation in Pakistan and Bangladesh is different. Gangrade argues that in India, it is uncertain whether a wife can ask for khul‘ against the wishes of the husband.[54] In Umar Bibi v Mohammad Din,[55] a Divisional Bench of the Lahore High Court rejected appeals by two women who were seeking divorce on the basis of khul‘ against the consents of their husbands and on the basis of incompatibility of temperament as grounds for their divorces. This view was upheld by a full bench of the same Court in Sayeeda Khanam v Muhammad Sami[56] in 1952. The questions before the Court were: 1) whether incompatibility of temperament constitutes a ground for divorce under Islamic law; and 2) whether discord (shiqāq) constitutes a ground for divorce under Islamic law. The Court answered both the questions in the negative. The Court held that the crucial role of the Prophet (peace be upon him) in the Jamīla episode discussed above, was that even the Prophet (peace be upon him) did not take it upon himself to dissolve the marriage; he had only ordered the husband to do so and the Prophet’s role in this case was not that of a judge at all, but of a law-giver.91 As explained above, the Court merely endorsed the traditional view of the Ḥanafī jurists.

 

Part V: Judicial Ijtihād?: Islamic Law (Re)-Interpreted

 

In 1959, a Full Bench of the Lahore High Court revisited the established law of khul‘ in Islam. In Balqis Fatima v Najm-ul-Ikram Qureshi,[57] the main question before the

Court was ‘[whether] the wife [was] entitled to dissolution of marriage on restoration of what she has received from the husband in consideration of the marriage?’ The Court answered the question in the affirmative by giving a fresh interpretation to verse 2:229, and held:

 

This verse [2:229] admittedly permits the termination of a marriage by the wife passing consideration to the husband. The question for consideration is whether this termination can be affected only by agreement between the husband and wife or whether the wife can claim such termination even if the husband was not agreeable.[58]

 

Justice Kaikaus argued that the ‘you’ in the phrase ‘if you fear’ [khiftum] must be addressed to the state and the judicial officers of the state but it clearly was not addressed to the spouse. In his view, a reference to the judge could possibly arise in circumstances where the wife wanted a divorce but the husband had refused his assent. Thus, it was for the judge to determine whether the parties would keep within the limits of Allah if the marriage were to continue. There is no point in referring the matter to a judge and in requiring him to make a determination if, in the end, he is powerless to do anything should he be convinced that the spouses could not remain within the bounds set by God. The Court concluded that the reference to the judge under the verse can only mean that he is entitled to pass an order dissolving the marriage even though the husband is not ready to divorce.[59]

 

In its understanding of verse 2:229, the Court deviated from the interpretation of this verse by Muslim exegetes discussed above. In this case the judges themselves interpreted verse 2:229 by directly relying on the Qur’ān itself and aḥādīth of the Prophet (peace be upon him), and by ignoring the opinions of the classical and the medieval jurists. In addition, the Court considered khul‘ as ṭalāq (divorce) rather than fasakh (dissolution of marriage). Thus, in the Court’s view in khul‘, the wife has to redeem herself in return for some consideration and a Court can dissolve the same if it was convinced that the spouses would not be able to live within the bounds set by God, and that the consent of the husband for the validity of khul‘, in such cases, was not necessary. The Court also argued that in the Jamīla’s case discussed above the dissolution was directly ordered by the Prophet (peace be upon him) acting as a judge (rather than as a social or a political leader, as viewed by some authors), without commenting on the reasonableness of the attitude of the wife, and without seeking the consent of the husband.[60]

 

The Court relied upon the opinion of Maulānā Mawdūdī, who has deviated from the opinions of the majority of fuqahā’ and has explicitly given the opinion:

 

[A] Wife’s right to khul‘ is parallel to the man’s right of talāq. Like the latter the former too is unconditional. It is indeed a mockery of the Shariat that we regard khul‘ as something depending either on the consent of the husband or on the verdict of the qazi. The law of Islam is not responsible for the way Muslim women are being denied their right in this respect.[61]

 

The Supreme Court of Pakistan endorsed Balqis Fatima and rejected Sayeeda Khanam[62] when it decided the Khurshid Bibi case.[63] Commenting on verse 2:229, the Court gave its own interpretation while ignoring the opinions of the exegetes, and held:

 

[W]here the husband disputes the right of the wife to obtain separation by khula [khul‘], it is obvious that some third party will have to decide the matter and, consequently, the dispute will have to be adjudicated upon by the Qazi, with or without assistance of the Hakams. Any other interpretation of the Qur’ānic verse regarding khula [khul‘] would deprive it of all efficacy as a charter granted to the wife. It is significant that according to the Qur’ān she can “ransom herself” or “get her release” and it is plain that these words connote an independent right in her.[64]

 

However, the Supreme Court put some limits on the wife’s right to obtain khul‘. The Court opined, ‘[T]he Qur’ānic condition must be satisfied that it is no longer possible for the husband and the wife to live together in harmony and in conformity with their obligations.’[65] The Lahore High Court in Balqis Fatima case had already observed:

 

There is an important limitation on her right of khul‘. It is only if the judge apprehends that the limits of God will not be observed, that is, in their relation towards one another, the spouses will not obey God, that a harmonious married state, as envisaged by Islam, will not be possible that he will grant a dissolution. The wife cannot have a divorce for every passing impulse.[66]

 

Carroll argues that the ‘apprehension’ or ‘satisfaction’ of the judge is ‘essentially a subjective evaluation.’[67] It has to be supported by some material evidence. Justice Javed Iqbal of the Lahore High Court, tried to clarify the law for the lower courts, when he observed:

 

If the Judge Family Court arrives at the conclusion that no reconciliation was possible, that the wife was determined to get the marriage dissolved, and that not dissolving the marriage would amount to forcing or compelling her to live in a hateful union with the husband, then he must dissolve the marriage on the basis of khula [khul‘].[68]

 

The method used by the Courts in Pakistan to arrive at this new law of khul‘, which is not based on the formulations of the various schools of thought in Islam, should be discussed here. In Balqis Fatima,[69] the Full Bench of the Lahore High Court ruled that the court can adopt a course different from that laid down by the classical jurists. Further, the Court opined:

 

We are dealing with the interpretation of the Holy Qur’ān and on a question of interpretation we are not bound by the opinions of jurists. If we be [sic] clear as to what the meaning of a verse in the Qur’ān is, it will be our duty to give effect to that interpretation irrespective of what has been stated by the jurists…. Similar considerations apply to the interpretation of the traditions of the Prophet.[70]

 

The Supreme Court affirmed this principle in the Khurshid Bibi case, when it observed:

 

The opinions of Jurists and Commentators stand on no higher footing than that of reasoning of men falling in the category of secondary sources of Muslim law, and cannot, therefore, compare in weight or authority with, nor alter the Qur’ānic law or the Aḥādīth. If the opinions of the jurists conflict with the Qur’ān and the Sunnah, they are not binding on Courts, and it is our duty, as true Muslims, to obey the word of God and the Holy Prophet (ati-ullah-waati-ur-Rasool).[71]

 

In 2002, the legislature amended section 10(4) of the Family Courts Act 1964 to provide summary dissolution of marriage in cases of khul‘ by requiring that ‘the Family Court in a suit for dissolution of marriage, if reconciliation fails, shall pass decree for dissolution of marriage forthwith and also restore the husband the Haq Mehr [dower] received by the wife in consideration of marriage at the time of marriage.’ The Islamicity of the above section, especially the new provision, was challenged in Saleem Ahmad v The Government of Pakistan[72] in the Federal Shariat Court. The Court observed:

 

With great regard and utmost respect for the scholarship, ‘Taqwa’ and deep insight of  the  eminent  Aimma Ezam and Ulema kiram this Court cannot declare any law or provision of law merely on the basis of views, verdicts and Fatawa issued by the honourable scholars whosoever they might be.[73]

 

The Court held that ‘[t]he impugned provision of law [i.e., S. 10(4)] was not found to be in conflict with any specific injunction contained in the Holy Qur’ān and Sunnah of the Holy Prophet (peace be upon him).’[74] The Court further observed:

 

The courts are there to dissolve [sic resolve] the disputes that arise between the parties. They can decide all type of matters including, admittedly, dissolution of marriage on certain grounds. One wonders why they are not authorized to decide the case of Khula [khul‘], if a husband does not at all agree to the divorce of his wife and all the reconciliatory efforts fail.[75]

 

After discussing the various arguments, verses of the Qur’ān, aḥādith, and opinions of jurisprudents, the Court came to the conclusion that ‘there is no specific verse or authentic Aḥadith that provides a bar to the exercise of jurisdiction by a competent Qazi to decree the case of Khula agitated before him by a wife after reconciliation fail.’[76] This was indeed a very bold decision and must be appreciated.

 

Under the above section, i.e., 10(4), obtaining khul‘ has become easier for women, but the problem is that khul‘ is availed as an alternative remedy. Usually, a complainant woman requests dissolution of her marriage on the basis of cruelty of her husband or in-laws or non-maintenance by her husband or any other remedy under the DMMA 1939, and requests khul‘ only as an alternative remedy. It is very unfortunate that in some cases, the judges only grant khul‘ and ignore all other remedies and order the wife to return her dower to the husband.[77] However, there are many cases in which the courts have corrected these aberrations and laid down the true exposition of the law of khul‘.[78]

 

The Superior Courts in Pakistan have not considered themselves bound by taqlīd and, by seemingly resorting to ijtihād,[79] have asserted three rights: first, their right to independent interpretation of the Qur’ān and Sunnah, where necessary; second, their right to differ from the doctrines of traditionally authoritative legal texts of the various schools of thought in Islam, especially the Ḥanafī;[80] and third, their right to not follow the decisions of the Privy Council in this regard.[81] It is generally thought that the Superior Courts in Pakistan seem to have exercised ijtihād rather than takhayur[82] or talfīq[83] and have mainly relied on the Qur’ān and the Sunnah and not on the opinions of jurisprudents. However, section 2 of the

Enforcement of Shari‛ah Act, 1991 seems to be have added another source that Courts may take into consideration. Section 2 of the Act states that ‘Shari‛ah’ means the injunctions of Islam as laid down in the Qur’ān and [the] Sunnah. The explanation provided for section 2 states that:

 

While interpreting and explaining the Shari‘ah the recognized principles of interpretation and explanation of the Holy Qur’ān and Sunnah shall be followed and the expositions and opinions of recognized jurists of Islam belonging to prevalent Islamic schools of jurisprudence may be taken into consideration.[84]

 

It is noteworthy that the words ‘may be taken into consideration’ in section 2, are recommendatory only and not mandatory. Moreover, it is unclear what is meant by the word ‘prevalent’; it apparently allows the judges to resort to takhayur or choosing the opinion of one school over that of the other(s), and not to strictly adhere to the interpretation of only one school of thought.

 

A closer look, however, reveals that in the case of khul‘, the Courts in Pakistan did not resort to ijtihād per se but rather applied the Sunnah of the Prophet (peace be upon him) in preference to the interpretations of Muslim jurists. In other words, the Courts deviated from the opinions of the majority of Muslim jurists only thinking that these opinions were not based on the Qur’ān and more specifically, the Sunnah of the Prophet. Since the topic of ijtihād and the modes of ijtihād are complex, any statement to the effect that the Pakistani Courts resorted to ijtihād regarding khul‘ would be a sweeping one.[85] Balqis Fatima and Khurshid Bibi are indeed very bold decisions, but these have deviated from the settled opinions of the majority of fuqahā’ of Ḥanafī, Shāfi‘ī and Ḥanbalī schools as well as the Shī‘a school of thought. Moreover, in both cases, the judges have given the opinions of some scholars to support the view that the consent of the husband is not required in khul‘, but the Courts needed to mention the vast literature within the Mālikī school to support its stance. This is why the ‘ulamā in Pakistan have managed to level a scathing attack on the precedent repeatedly upheld by the Superior Courts regarding khul‘.[86] It is worth noting that the Superior Courts in Pakistan have repeatedly granted khul‘ to women summarily, especially after the 2002 amendment in the Family Courts Act

1964.[87]

 

Part VI: Recommendations of the Council of Islamic Ideology: The Return of Traditional View

 

The Council of Islamic Ideology makes recommendations to the Parliament, Provincial Assemblies, the President, or any Governor, on whether a proposed law is repugnant to the injunctions of Islam.[88] The Council’s duties are only of an advisory and recommendatory nature. The Council has no independent power of enforcement. Articles 227-231 of the Constitution of Pakistan only established a process by which the Council may have advisory input on the ‘Islamic’ credentials of existing and proposed laws.[89] The Council made its recommendation regarding khul‘ to the Government of Pakistan, which is reproduced below:

 

Therefore, in our opinion, a law should be enacted at the level of the state that, after a woman’s written request for divorce, the husband must have an obligation to divorce her within 90 days. If the husband refuses to divorce her, the marriage shall stand dissolved after the passage of this time [90 days] except if the wife revokes her request. The husband should have no right to revoke after this. The wife must return assets and property given to her by the husband except dower and maintenance if demanded by the husband or else approach a court of law for the resolution of the conflict (of return of assets/valuables).[90]

 

There are several points to note. First, the Council’s Recommendation seems to be a deviation from the apparent words of verse 2:229 of the Qur’ān,[91] according to which the wife pays something to free herself. Second, the Recommendation also seems to deviate from the precedent laid down by the Prophet in the Ḥabība’s case, discussed above, in which she was asked by the Prophet to return her dower to her husband in return for her freedom from marriage. Third, the Recommendation is in accord with Islamic law, especially the Qur’ān and the Sunnah, in cases when the husband is the cause of discord. Finally, the Recommendation overlaps with section 10(4) of the West Pakistan Family Court Act 1964 as amended in 2002, which governs the existing law on khul‘. However, the view of the Council seems to change with the change of its Chairman. On 27 May 2015, Mawlana Muhammad Khan

Shirani, Chairman CII, opined that ‘courts should refrain from dissolving ‘nikāḥ’ (marriage contract) in the name of ‘khula’ or separation.’ He argued that ‘[k]hula is an agreement between two parties and it should not be granted until the husband agrees to it.’[92] Mawlana Shirani wishes to impose the views of the Ḥanafī school on Pakistani society, forgetting that the Council has to render advise according to the Qur’ān and the Sunnah of the Prophet (peace be upon him) only.

 

Conclusion

 

The main argument of the article may be reiterated here. The jamhoor (majority) of schools of thought argue that khul‘ is consensual between the husband and the wife. In their view, a judge cannot dissolve a marriage by khul‘ on the request of the wife without the consent of the husband. On the other hand, Mālikī jurists argue that the decree of the arbitrators is valid whether they order separation or union between the two, and it neither requires the consent of the husband nor of the wife. Mālikī jurists and exegetes focus on verse 4:35 of the Qur’ān rather than verse 2:229. The Superior Courts in Pakistan have been more sympathetic towards helpless women demanding khul‘ as compared to courts in India. The Federal Shariat Court has upheld section 10(4) of the Family Courts Act 1964 as not violative of the Injunctions of Islam. In addition, it ruled that it is not bound by the opinions of Muslim jurists. The Council of Islamic Ideology changed its views on the law of khul‘. The Council had a radical view in 2008-9 about khul‘ under Dr Khalid Mas‘ud, but it returned to the traditional view in 2015 under Mawlana Shirani. It is surprising that neither the Superior Courts, nor the Federal Shariat Court have dug deeper into the interpretation of verse 4:35 of the Qur’ān as understood by numerous Mālikī jurisprudents and exegetes who do not give the husband any controlling power in khul‘. The CII has ignored verse 4:35, along with the Ḥabība/Jamīla precedent as well as the views of Mālikī jurists.

 

 

The Law of Khul‘ in Islamic Law and the Legal System of Pakistan

 

 

 

[1] Mst. Balqis Fatima v Najm-ul-Iram Qureshi, PLD 1959 Lahore 566. For analysis of these and other cases on judicial khul‘ see Dr Muhammad Munir, ‘Judicial Law-Making: An Analysis of Case Law on Khul‘ in Pakistan’(2014) 1(1) Islamabad Law Review 7 <http://www.iiu.edu.pk/wpcontent/uploads/downloads/journals/ilr/volume1/ILRVOL11Full. pdf> accessed 12 September 2015.

[2] Mst. Khurshid Bibi v Muhammad Amin, PLD 1967 SC 97. For criticism of Khurshid Bibi, see

Doreen Hinchcliffe, ‘Divorce in Pakistan: Judicial Reform’ (1968) 2 Journal of Islamic and Comparative Law 19.

[3] Ḥabība bint Sahl was married to Thābit b. Qays b. Shamas. Other reports mention her name as Jamīla. Whatever her exact name she is reported to have obtained khul‘ from her husband. Details are given below.

[4] Badruddīn Maḥmud al-‘Aynī, al-Bināyh (Muḥammad ‘Umar ed, Dār al-Fikr, 1990) 5: 291.

[5] Aḥmad b. ‘Ali b. Ḥajr al-‘Asqalānī, Fataḥ al-Bārī (‘Abdul ‘Azīz b. Bāz & Muhībuddīn al-Khaṭīb ed, Dār al-Fikr n.d.) 9:396. Kamāl b. Al-Humām (d. 861) has defined khul‘ as ‘putting an end to marriage for compensation by using the word khul‘ (izalāt milk al-nikāḥ bi badalin bi lafz alkhul‘).’ Kamāluddin b. Al-Ḥumām, Sharḥ Fataḥ al-Qadīr (Ghālib Al-Mahdī ed, Dār al-kutub al‘Ilmiyah, 2003) 4:188. Jurjānī shortened Ibn al-Humām’s definition, when he stated ‘putting an end to (the ownership of) marriage contract (izalat milk al-nikāḥ).’ ‘Alī b. Muḥammad al-Jurjānī, Kitāb al-T‘arīfāt (Dār al-Surur n.d.) 45. Haskafī has attributed this definition, i.e., ‘izalat milk alnikāḥ’ to Ibn Nujaym. Muḥammad ‘Allāuddīn al-Haskafī, Al-durr al-mukhtār sharḥ Tanvīr alabṣār (Dār al-Fikr Press n.d.) 3:383. But Ibn Nujaym has himself attributed it to Kamāl b. AlHumām. Sirājuddīn Ibn Nujaym, Al-Nahar al-fā’iq (commentary on ‘Abdullah b. Aḥmad AlNasafī’s Kanz al-daqā’iq, Aḥmad ‘Izzu ‘Inayāt ed, Dār al-Kutub al-‘Ilmiya, 2002) 2:435. According to Al-Nasafī (d. 710 A.H.), ‘It is to separate from marriage (huwa al-fasl min al-nikāḥ).’ Ibn Nujaym adds to this by saying that although ‘Separation [in this definition] is absolute whether compensation was paid or not but it is necessary to use the word khul‘ [for this transaction].’ At 2:434.

[6] He then differentiates the term khul‘ in which she has to return all that the husband has spent on her, from ṣulḥ where she pays only partially, fidya where she pays more than she received, and mubara’a where she writes off her claim against the husband. Muḥammad b. Aḥmad Ibn Rushd, Bidāyat Al-Mujtahid (The Distinguished Jurist’s Primer, Imran A. K. Nyazee tr, Centre for Muslim Contribution to Civilization 1996) 2: 79. Ibn al-‘Arabī mentions that according to Imām

Mālik, ‘al-mubari’a is khul‘ before consummation of marriage, and ‘al-mukhli‘atu’ is when she

[7] Jaṣṣāṣ, Aḥkām al-Qur’ān, 1:534. 16 Ibid.

[8] Jaṣṣāṣ, Aḥkām al-Qur’ān, 1: 534.

[9] Muḥammad b. Aḥmad al-Qurṭubī, Al-Jāmi‘ li Aḥkām al-Qur’ān (Samir al-Bukhārī ed, Riyādh: Dār ‘Alam al-kutub 2003) 3:136.

[10] Muḥammad Abū Zahra, Zahrat al-Tafāsir (Cairo: Dār al-Fikr al-‘Arabī n.d.) 2:777. He asserts that the verse is general and allows nushūz to be from either side. Moreover, when nushūz is from the man it is called ‘zulm’ (cruelty) because he can divorce her and taking compensation in such a situation would be illegal. At 2:777-78.

[11] Qur’ān 4:35.

[12] Qurṭubī, Aḥkām al-Qur’ān, 5:175.  22 Muḥammad al-Ṭāhir b. ‘Ashur, Tafsīr Al-Taḥrīr wa Al-Tanvīr (Dār Saḥnūn, 1997) 2:408. 23 Abū Zahra, Zahrat al-Tafāsir, 2:779. According to the Zāhiriyah school, khul‘ can only be affected if discord is from the wife, because when discord is from the husband taking of compensation is prohibited. Abū Zahra, Zahrat, 2:781.

[13] Balqis Fatima v Najm-ul-Ikram Qureshi PLD 1959 Lahore 566, 573.

[14] Qurṭubī, Aḥkām al-Qur’ān, 5:175.

[15] Ibid.

[16] Ibid, 5:176.

[17] Ibn ‘Ashur, Al-Taḥrir, 5:46. 29 Ibid. 30 This has been interpreted by Oussama Arabi that the ‘woman to ransom (taftadī) herself from her husband by means of a negotiated settlement’, thereby meaning that the consent of the husband

[18] Abū ‘Abdur Raḥmān al-Nasā’ī, ‘al-Sunan’ (hadith.islam) ḥadīth no. 3497, available at <http://hadith.alislam.com/Page.aspx?pageid=192&BookID=27&TOCID=1774> accessed 20 June 2011.

[19] Sulayman Abū Dawūd, al-Sunan, 4 vols (Muṣtafā Muḥammad Press n.d.) no. 2228.

[20] Abū ‘Abdallah Ibn Māja, al-Sunan, ed. M. ‘Abd al-Baqī, ḥadith no. 2056 available at http://hadith.alislam.com/Page.aspx?pageid=192&BookID=29&TOCID=688 (last accessed 20 June 2011).

[21] Aḥmad b. Ḥanbal, al-Musnad, ḥadith no. 15663; also available at <http://hadith.alislam.com/ Page.aspx ?pageid=192&BookID=30&PID=15513> accessed 21 June 2011). Ibn Ḥanbal comments on this ḥadith that ‘It was the first khul‘ in Islām.’ Thābit’s wife in the report surveyed is referred to as Ḥabība or Jamila, while in other reports she is simply Thābit’s wife. Al-Bukhārī mentioned her as Thābit’s wife in two narrations but in one report her name was mentioned as Jamīla. Ibn Ḥanbal, Abū Dāwūd, and Imām Mālik in his Muwaṭṭā, mention her name as Ḥabība, whereas Ibn Māja and Al-Nasā’i mention her name as Jamila. The Superior Courts in Pakistan,

[22] The Egyptian Law No. 1 of 2000 declared that a married couple may mutually agree to separation (khul‘); however, if they do not agree and the wife sues demanding it, and separates herself from her husband by forfeiting all her financial legal rights, and returns to him the dower he gave to her, then the court is to divorce her from him. Article 20 of ‘Law No. 1 of the Year 2000: Regarding the Promulgation of a Law to Organize Certain Conditions and Procedures of

Litigation in Matters of Personal Status’, Al-Jarīda al-Rasmiyya (The Official Gazette), The Arab Republic of Egypt, No. 4, 22 of Shawwal, 1420 AH; 29 January 2000, p. 14. However, the court does not decree divorce (ṭaṭlīq) via khul‘ except after attempting reconciliation between the married couple, and after appointing two mediators to attempt conciliation between them for a period that may not exceed three months, … and after a wife decides explicitly that she abhors living with her husband and there is no way to continue the married life between them, and that she is also afraid of transgressing the bounds set by God, because of this discord. The separation affected under Article 20 is an irrevocable divorce (ṭalāq bā’in); and the court’s decision is, under all circumstances, not subject to appeal in any of the form and in any forum. At p. 15.  41 Jaṣṣāṣ, Aḥkām al-Qur’ān, 1:539.

[23] Muhḥammad b. Aḥmad al-Sarakhsī, Kitāb al-Mabsūṭ (Samīr Mustāfa Rubāb, Dār Iḥyā’ alTurāth al-‘Arabī 2002) 6: 169.

[24] Kāsānī, Badā’i‘, 3:229.

[25] Kamāl b. al-Ḥumām, Fatḥ al-Qadīr 3:199; Fakhr al-Din ‘Uthmān  al-Zayla‘i‘, Tabyin alHaqā’iq (Aḥmad ‘Azzu ‘Ināya ed, Dār al-Kutub al-‘Ilmiya, 2000) 3:182-83; al-‘Aynī, al-Bināya, 5:291; Aḥmad al-Qudūrī, Mukhtsar al-Qudūrī (Kāmil Muḥammad Muḥammad ‘Uwayda ed, Dār al-Kutub al-‘Ilmiyya 1997) 163; Maḥmud Ibn Mazā, al-Muhīṭ al-Burhānī (Aḥmad ‘Azzu ‘Ināya

[26] Saḥnūn b. Sa‘īd, Al-Mudawwana al-Kubrā li’l Imām Mālik b. Anas (Khayriyya Press, 1325 A.H.) 2: 231-232.

[27] Ibn ‘Abdul Bar al-Qurtabī, Al-Kāmil fī Fiqh Ahl Al-Madīna (Makatabat al-Riyādh al-Ḥadītha, 1980) 2: 596.

[28] Ibn Juzī, Al-Tashīl, 1: 190-191.

[29] Ibid.

[30] Ibid.

[31] Yūsuf b. ‘Abdullah b. ‘Abdul Bar al-Qurṭubī, Al-Kāfī fī Fiqh Ahl al-Madīna al-Mālikī (Maktaba al-Riyādh al-Ḥadītha, 1980) 2: 596.

[32] Muḥammad b. Yūsuf ‘Abdarī, Al-Tāj wal Iklil li Mukhtaṣar Khalīl (Dār al-Fikr n.d.) 4: 17.

[33] Saḥnūn, Al-Mudawwana, 2: 235.

[34] Ibid, 2: 266.

[35] ‘Abdul Wahab Baghdādī, Al-Talqīn (Dār al-kutub al-‘Ilmiyah, n.d) 1:131.

[36] Ibn Rushd, Bidāya, 2:81. 61 Ibid, 2:119.

[37] Taqīuddin al-Ḥilālī, Aḥkām al-Khul‘ fī al-Islām (Al-Maktab al-Islāmī n.d) 12.

[38] Ibn al-‘Arabī, Aḥkām al-Qur’ān, 1:250.

[39] Ibn Rushd, Bidāya, 2:80.

[40] Al-Shāfi‘ī, Kitāb al-umm, 11:183.

[41] Ibid. The wording used by al-Shāfi‘ī gives the impression that a married woman is possessed by a man and, therefore, he is the controlling authority.

[42] Ibid, 11:177.

[43] Ibid, 11:180. 69 Ibid, 11:179.

[44] Al-Khirāqī (d. 945), who is a classical authority of the Ḥanbalī school, has given three principles of khul‘: first, ‘If the woman loathes the man, and does not want to disobey God in preventing him from coming to her, it is presumed that she ransom herself from him’; secondly, ‘The compensation ought not to exceed the amount he originally paid to her as dower’; finally, ‘Were she is to separate from him otherwise [i.e., by paying him in excess of the dower], this would be reprehensible, but the separation would nevertheless be legally effective.’ Abū ‘Ali Ḥasan Ibn alBanna’s Commentary on al-Khiraq’s Digest, Kitāb al-Muqnī‘ fī Sharḥ Mukhtaṣar al-Khirāqī (‘Abd al-‘Azīz al-Bu‘aymī, Maktabat al-Rushd, 1993) 3: 952-953. Ibn Qudāma (d. 1223) has reproduced Al-Khirāqī’s three principles verbatim. Muwāffaq al-Dīn Ibn Qudāma, Al-Mughnī (Manar Press, 1348) 8:173-176. Ibn Qudāma argues that since khul‘ ‘is a transaction (mu‘āwāḍa),

[45] ‘Abdullah Roprī, Fatawa Ahl al-Ḥadīth (Muhammad Siddique ed, Idāra Ihyā’ al-Sunna alNabawiya n.d.) 2:523.

[46] Ibid 2:522. Roprī has described such a separation as ‘faskh e nikāḥ’ (at 2:522) and ‘khul‘‘ (at 2:523). Panchayat is a council of elders in villages of Punjab in Pakistan and India for settling local civil disputes.

[47] Thus it is the husband who has to say it.

[48] Najmuddīn al-Muhaqiq al-Ḥillī, Shar‘ā‘i al-Islām (Al-Syad Ṣādiq Al-Shīrāzī ed, Dār al-Qārī 2004) 2:42.  82 Ibid, fn 1.

[49] Ibid, 2:49.

[50] The Mālikīs also cite verse 4:35 of the Qur’ān as discussed above.

[51] Ṭalāq in which revocation is allowed but the couple can remarry with a fresh nikāḥ without the wife’s intervening marriage (ḥalāla).

[52] The Qur’ān 4:34 states, ‘Men are protectors and maintainers of women because Allah has made one of them excel over the other, and because they spend out of their possessions (to support them).’

[53] Munshi Buzul-ul-Raheem v Luteefutoon-Nissa (1861) 8 MIA 397.

[54] K. D. Gangrade, Social Legislation in India (New Delhi: Concept Publishing Co. 1974, reprint 2001) 26.

[55] AIR 1945 Lahore 51.

[56] PLD 1952 Lahore 113. 91 Ibid, 123.

[57] PLD 1959 Lahore 566.

[58] Ibid, 573.

[59] Ibid, 573. The Court relied on Syed Abū al ‘Alā Mawdūdī’s Huqooq-uz-Zawjain for its interpretation of the verse. Carroll argues that, ‘It is extremely unusual for the opinions of a living person not examined in the Court to be cited in a judicial decision.’ Carroll, ‘“Qur’ān 2:229” A Charter Granted to the Wife? Judicial Khul‘ in Pakistan”’ (1996) 3(1) Islamic Law and Society 103.

[60] PLD 1959 Lahore 566, 574, 586.

[61] Syed Abū al ‘Alā Mawdūdī’s Huqooq-uz-Zawjain (9th edn, Lahore, 1964) 61, 71–79. This opinion is based on Ibn Rushd’s view. See, Ibn Rushd, Bidāya 2:81. In his book Islami Riyasat (Islamic State) Moududi asserts that in a Muslim State ‘a Muslim woman can obtain khul‘ through the Islamic judiciary.’ Syed Abūl ‘Alā Mawdūdī, Islami Riyasat (Lahore: Islamic Publisher 2010) 462.

[62] Both were conflicting decisions from equal Benches of the Lahore High Court.

[63] Mst. Khurshid Bibi v Muhammad Amin PLD 1967 SC 97.

[64] PLD 1967 SC 97, 117-118 (per S.A. Rahman, J).

[65] Ibid, 121.

[66] PLD 1959 Lahore 566, 593.

[67] Carroll, ‘Qur’ān 2:229: “A Charter Granted to the Wife? Judicial Khul‘ in Pakistan”’ (1996) 3(1) Islamic Law and Society 110.

[68] Muhammad Yasin v Rafia Bibi PLD 1983 Lahore 377, 382. Justice Iqbal re-affirmed this principle in Rashidan Bibi v Bashir Ahmad PLD 1983 Lahore 549, 551. This principle was later approved by the Supreme Court in Abdul Rahim v Shahida Khan PLD 1984 S C 329, 332.

[69] PLD 1959 Lahore 566.

[70] Ibid, 584. See also, Khurshid Jan v Fazal Dad PLD 1964 Lahore 558; Justice Anwarul Haq was more specific on this point when he observed that ‘the views of early jurists must be treated with utmost respect but the right to differ from them cannot be denied to the present-day courts, as such a denial will not only be a negation of the true spirit of Islam, but also of the constitutional and legal obligations of the courts to interpret the law they are asked to administer and apply in cases coming before them.’ At 612. See also, Rashida Begum v Shahab Din PLD 1960 Lahore 1142 and Zohra Begum v Sh. Latif Ahmad Munawar PLD 1965 Lahore 695.

[71] Khurshid Bibi v Muhammad Amin PLD 1967 SC 97, 141.

[72] PLD 2014 FSC 43.

[73] Ibid, 50 (per Fida Muhammad Khan, J for the full Bench). The judgment was delivered on 25 August 2009, but was reported in 2014. At the time of writing this work the decision was pending in the Shariat Appellate Bench of the Supreme Court as Civil Shariat Appeal No. 1 of 2009 and Civil Shariat Appeal No. 2 of 2009.

[74] Ibid, 55.

[75] Ibid, 61.

[76] Ibid, 62-63.

[77] See for example Hakimzadi v Nawaz Ali PLD 1972 Karachi 540; Bashiran Bibi v Bashir Ahmad PLD 1987 Lahore 376; and Bibi Anwar v Gulab Shah PLD 1988 Karachi 602.

[78] See also Zahida Bi v Muhammad Maqsood 1987 CLC 57, it was held that the husband should not be given anything when he is the cause of dissolution of a marriage; see also, Khalid Mahmood v Anees Bibi PLD 2007 Lahore 626; Munshi Abdul Aziz v Noor Mai 1985 CLC 2546 Lahore; Anees Ahmad v Uzma PLD 1998 Lahore 52; Karim Ullah v Shabana PLD 2003 Peshawar 146. Haseeb

Ahmad v Shaista PLJ 2008 Peshawar 205. The Court gave an interesting interpretation to section 10(4) of the Family Courts Act 1964 and held that dissolution of marriage on the basis of khul‛, when other grounds exist would make khul‛ a ‘mechanical process’ and will deprive the wife to all other grounds of dissolution of marriage, other than khul‛, and ‘we cannot imagine that the proviso has been legislated to indirectly deprive women, of their all legally recognized grounds of dissolution of marriage, excepting khul‛.’ At 207.

[79] Ijtihād is the effort of the jurist to derive the law on an issue by expending all the available means of interpretation at his disposal and by taking into account all the legal proofs related to the issue. Imran A.K. Nyazee, Theories of Islamic Law (Islamabad: Islamic Research Institute, 1995, 3rd reprint 2009) 307.

[80] There are two important decisions on this point and both relate to the custody of children. Rashida Begum v Shahab Din PLD 1960 Lahore 1142 and Zohra Begum v Sh. Latif Ahmad Munawar PLD 1965 Lahore 695.

[81] See for example Khurshid Jan v Fazal Dad PLD 1964 Lahore 558 in which the Lahore High

Court overruled Aga Ali Khan v Altaf Hasan Khan ILR (1892) 14 Allahabad 429, stating that ‘The dictum of the Judicial Committee [of the Privy Council] in Agha Mahmood Jaffar Bindanium v Koolsoom Beebee, therefore, did not hold good for if a rule in a text book of whatever antiquity and high authority is in opposition to a clear injunction in [the] Qur’ān or an authentic ḥadīth of the Prophet (may peace be upon him), then undoubtedly the latter shall prevail and it is the bounden duty of the Courts to ascertain the correct rule of decision in all the matters enumerated above.’ At 567 (per Muhammad Yaqub Ali, J).

[82] Literally favoring or choosing a position from one of the schools to the practical exclusion of the other three schools, as was done in 1939 when the DMMA was legislated where the Mālikī doctrines for dissolution of marriage were adopted so that a Muslim woman could get her marriage dissolved on the basis of various grounds.

[83] Literally ‘patchwork’, it is combining or mixing the positions of two or more schools to produce a hybrid ruling which does not belong, exclusively, to any of them.

[84] See section 2 of Shari‛ah Enforcement Act 1991 (Act X of 1991).

[85] Under Islamic law there can be no ijtihād in texts that are definitive with respect to transmission as well as meaning. The Shāfi‘ī jurists mention that: ‘lā ijtihāda ma‘ al-naṣṣ’, i.e., there is no ijtihād with the naṣṣ. But the Arabic word naṣṣ in this principle does not mean ‘text’. Instead, it is the name for a word or text that gives a single or definitive meaning. Nyazee argues that ‘some writers have incorrectly interpreted this word to mean text for the purposes of this rule, which has the effect of eliminating a major part of the activity called ijtihad.’ Imran A.K. Nyazee, Islamic Jurisprudence: Usul al-Fiqh (Islamabad: International Institute of Islamic Thought 2000) 266.

[86] Muḥammad Taqī ‘Uthmānī, ‘Islam me khul‘ kihaqiqat’, in Fiqi Maqalāt (Karachi: Maiman Publishers 1996) 2:137-194. This is the most critical attack on any decision of the Supreme Court by a man of very high caliber, who himself served as judge of the Shariat Appellate Bench, Supreme Court for about two decades. ‘Uthmānī argues that the Prophet (peace be upon him) was acting as a muṣliḥ (conciliator) and was giving only his advice; that he was not acting as a judge; that he was a political and social leader and people used to bring to him their social problems and so on. These arguments cannot be accepted, however, because if we agree that the Prophet was acting as a muṣliḥ in the case of Jamīla/Ḥabība, then it can be said that in all other civil cases brought to him he was acting as a muṣliḥ and not as a qāḍī (judge). This would mean that in all those the Prophet gave only his non-binding opinion. This is a thesis of dangerous proportion. A full rebuttal of ‘Uthmānī’s thesis is beyond the scope of this article.

[87] Some notable cases are: Parveen Begum v Muhammad Ali PLD 1981 Lahore 116; Syed Dilshad Ahmed v Sarwat Bi PLD 1990 Karachi 239.

[88] See Articles 229 and 230 of the Constitution of the Islamic Republic of Pakistan (Islamabad: Ministry of Law, Justice and Parliamentary Affairs, 2010) 130-131.

[89] See Jeffrey A. Redding, ‘Constitutionalizing Islam: Theory and Pakistan’ (2004) 44:3 Virginia Journal of International Law 760, 770.

[90] Council of Islamic Ideology’s meeting 171, Annual Report, 2008-9 (Council of Islamic Ideology 2009) 170. At that time, the CII was headed by Dr Khalid Mas‘ud, the follower of Dr Fazlur Rahman.

[91] That is there shall be no sin upon either of them for what the wife may give up [to her husband] in order to free herself.

[92] ‘Don’t annul marriages in the name of Khula, CII Chief urges Courts’ The Express Tribune (28 May, 2015) <http://tribune.com.pk/story/893494/dontannulmarriagesinthenameofkhulaccichiefurgescourts/> accessed 8 August 2015.

Human Rights Act and Changing Approach to Statutory Interpretation in UK

Human Rights Act  and Changing Approach to Statutory Interpretation in UK

 

*Muhammad Awais Ikram

 ____________________

1 Dil (UK); LLB (HONS) (UK); Assistant Professor, University College Gujranwala.

 

HUMAN RIGHTS ACT ANDCHANGING APPROACH TO STATUTORYINTERPRETATION IN UK

MUHAMMAD AWAIS IKRAM[1]

 

Abstract

Common law along with statutes are the fundamental sources of law in United Kingdom. The interpretation of these statutes follow certain rules and guidelines developed by the Law Lords to overcome the problem of open texture of the language which prone to wide interpretations and to create certainty. Human Rights Act incorporated in the domestic law in 1998 and become part of the existing law on the subject matter. However the approach of law lords to statutory interpretation have been radically changed after the incorporation. Although their changing approach have raised questions on their legislative roles but this is debatable but judges now see themselves as legislating human rights through their interpretation of Acts of Parliament.

Statutes are a fundamental source of law. Common law rules of interpretation have been developed by judges and have been effectively used. The main focus of this research is based upon the changing judicial attitude toward the interpretation of statutes by the incorporation of Human Right Act (HRA) 1998 in to domestic law and interpretative provisions included in it. In addition, the idea that how it redefines new parameters and limits of judicial interpretationwill also be discussed. Review of the case law shows that the incorporation of HRA 1998 has changed the approach of Law Lords to statutory interpretation to a great extent. Whether this has also created a legislative role for the judiciary however is a debatable issue.

The interpretation of statutes requires certain guidelines and in a common law setup this task is entrusted to the judiciary.[2]To overcome the problem of open texture of language judges have adopted certain rules so-called rules of statutory interpretation; the literal rule, mischief rule, golden rule). These rules demand interpretation within certain parameters[3] but where the language of the statute is ambiguous, capable of different interpretations, the European teleological approach of interpretation is adopted in line with the interpretative provisions of HRA. For complete analysis of the contemporary judicial practice the European ‘purposive’ method of interpretation must be taken into account.[4]

It was therefore stated to firstly apply the literal approach to ascertain the intention of the Parliament, if the application results in the ambiguity then the statutes should be read in their natural, primary and technical context.[5] Modern judges also appreciate the fact that ‘mischief approach’[6] of judicial interpretation is more near to ‘golden approach’. Law commission[7] in its analysis stated that ‘mischief approach’ is more satisfactory[8]. It has been suggested that the increasing work load upon the Parliament’s draftsman and the demand of rule of law[9] creates a growing influence of judiciary to adopt ‘purposive approach’[10]. It is pertinent to discuss the basic structure of the HRA to have an understanding of the impact that HRA has had onstatutory interpretation. Section 3(1) of HRA puts an obligation on the judiciary to interpret the statutes as near as possible compatible with HRA. This demands a judicial move from ‘literal approach’ toward ‘purposive approach’. In Picstone v Freeman’s plc[11] it was held that it was permissible for the court to read the words of the domestic legislation in a way to give effect to the community law.[12]  Lord Griffiths put this in another way in Pepper v Hart[13] where he stated “the time goes when the courts adopted the strict literal approach the courts now adopt the purposive approach to give effect to the true purpose of the legislation”.

It is required under section 3 (1) of HRA that a legislation is to be read in a way so that it is compatible with the convention so far as it is possible to do so; judges have to keep this in consideration when adopting purposive approach and where it is not possible to give an interpretation that is compatible with the convention, higher courts may issue a declaration of incompatibility[14]. This now places an obligation on the judges to interpret primary and subordinate legislations in a manner consistent with conventional rights. This also applies to the legislations enacted before incorporation of HRA. But a question arises whether it’s a general duty or is it leverage to be used in case of absurdity in the language of an act?[15]  Another question arises as to what actually amounts to absurdity? And if it is a general duty then what level of duty is required? To achieve this interpretative consistency is not easy and ascertainable due to certain reasons. The whole statement “compatible in so far as it is possible” is subject to judicial and academic debate as to whether it is restrictive or expansive? [16] As far as possible this is an ambiguous part because it gave to judges the discretion to decide the level of ambiguity. In this regards Lord Nicholls argued[17] “what is not clear is a test to be applied in separating sheep from the goats. What is the standard of ‘possibility’? And it is hard to characterize its answer”.

The case of Ghaidan v Godin-Mendoza[18](relating to rights of same sex couples and breach of Article 14 of the Convention read with Article 8) provides an example of this ambiguity as to how far courts can go in interpreting legislations. The House of Lords reinterpreted the provisions of the Rent Act 1977 to include the tenant of same sex relationships, thus protecting tenancy of the claimant. In his dissenting judgment Lord Nicholls state that the effect of s.3 (1) which stated that the court may depart if the word used in the statute is ambiguous but, the difficulty lies in the fact that how far should they go. On the basis of this decision it may therefore be stated that the incorporation of HRA has had a great impact on statutory interpretation and the concepts thereto.

Even authors like Francis Bennon is of the view that incorporation of HRA in domestic law revolutionized UK’s constitution. It was also argued that UK is now moving from ‘agency model’ toward a ‘dynamic model’.[19] So where the question of compatibility arises courts no more have to take in to account the intention of the Parliament and can go beyond sometimes called ‘strained construction’ but rather it seems a more dynamic approach toward a dynamic model.

In R v A[20] the Youth Justice and Criminal Evidence Act 1999 s.41 (1) and (3) opposedthedefendant’s argument to bring about pre consensual relationship’s evidence. This restrained his conventional right under ECHR Article.6. Lord Steyn in this regards argued that although using the ordinary method of interpretation does not solve the problem but by using s.3 (1) ‘to subordinate the niceties of language’[21]the problem can be solved. Regardless of the House of Lord’s decision in R v A and R v Lambert[22] , Lord Steyn showed his hesitation in doing so. He was ofthe view that it is better for the courts to give ‘declaration of incompatibility’ under s.4 of HRA rather than going too far in interpreting the statutes[23]. But even then he argued that judges have to be prepared to override the intention of parliament in ascertaining the requirements of ECHR[24]. Lord Hope later in Lambertstated that sometimes it seems to be necessary to ‘read in’ to the words of legislation.The cases ofReS[25] and Bellinger v Bellinger[26]represents a more restrictive approach of the law lords toward the use of s.3 (1) and their increasing inclination toward the use of s.4, declaration of incompatibility. Lord Nicholls also made clear the boundary between interpreting and legislating.[27]However, it may be noted here that seems to be a last resort for the courts to give declaration of incompatibility. On the basis of these judgments it has been argued that the plain meaning of words of the statutes cannot be ignored by raising its compatibility issues[28]. This in turn supports the statement in question, that whethers.3 (1) or s.4 is applied, the judges eventually see themselves as legislating under these HRA 1998.

In connection with the above discussion, Richard Ekins and Philip Sales[29] argued that HRA mandates rights, consistent interpretation, and does not displace the traditional understanding of interpretation that is to uphold the intention of Parliament. They went further on to state that s.3 only refers to the point as to how to confer that intention. It seems that they are reluctant to support the idea of extra discretion given in the hand of judiciary. In their view these are only the rules to bring statutes to law. They hold these as presumptions that the interpreters only adopt to infer the intention of the legislature.

In Secretary of State for home Department v MB[30] the importance of s.3 stressed and it was discussed as to why application of section 3 is preferred over s.4.It was held that the Prevention of Terrorism Act 2005 was widely drafted and infringes article 6 of HRA, hence the House of Lords using s.3 ‘read in’ to the words of the statute. This seems to be a counter argument to what Richard Ekins and Philip Sales argued, and it seems that s.3 gives more leeway to courts then what they thought. Lord Steyn argued that they know that s.3 demands a more teleological approach but courts must be mindful of a demarcation between legislator and interpreter. Nevertheless rightly or wrongly s.3 gives a greater insight of interpretation to judges. Cases likeGoode v Martin[31]even authorized the use of ‘read in’ rules also into Civil Procedure Rules. This suggests the infringement of Lord Steyn’s test in judicial practice. Moreover s.3 (2) (b) stated that use of s.4 (declaration of incompatibility) does not effect the validity of the statute, its continuing operation or enforcement[32]. One of the commentators argued that a refusal to apply s.3 as it effects parliamentary sovereignty does not constitute a good argument because it’s itself the intention of parliament to protect the fundamental rights of the individual[33]. The approach in Ghaidan[34] therefore seem to be legitimate because the decision was consistent with fundamental policy, but where they move beyond the scope of interpreting the policy of the legislation, court would not take the place of Parliament.

In light of the above, it appears that HRA has had a great impact on the manner in which judges approach interpretation of statutes, however this does not affect the Parliament’s primary role of legislation making. Also, since it is the Parliament itself that has enacted the HRA, hence the role of legislation making is still that of the Parliament. In addition, section 3 of the HRA caters to arguments regarding the same. Nevertheless it may be stated that HRA has radically changed the previous approach of courts to interpretation; however, the fact that HRA is itself a product of UK Parliament the argument that the sovereignty of Parliament has somehow been replaced holds no weight.

 

 

 

 

 

 

 

 

 

 

 

 

 

Bibliography

  1. James Holland and Julian Webb. (2010). Learning Legal Rules. Seventh Edition. Oxford University Press.
  2. Adam Gearey, Wayne Morrison and Robert Jago. The Politics of Common Law. Routledge Cavendish Taylor and Francis Group.
  3. Slapper and D.Kelly. (2010-2011).The English Legal System. Eleventh Edition. Routledge Cavendish Taylor and Francis Group
  4. Barnett. Constitutional and Administrative Law. ninth edition
  5. Cownie, Bradney& Burton (2007). English Legal System in Context. Third edition. Oxford university press
  6. Michael Zander (2004). The Law Making-Process. Sixth edition. Cambridge university press
  7. Kate Malleson (2010). The legal system. Second edition. Oxford university press

References

  1. Dame Mary Arden. (2008).The Changing Judicial Role: Human Rights, Community Law and Intention of Parliament,Cambridge Law Journal.
  2. Richard Ekinsand Philips Sales. (2011).Rights-consistent interpretation and the Human Rights Act 1998, Law Quarterly Review
  3. http://en.wikipedia.org/wiki/Human_Rights_Act_1998
  4. F Klung and C O’Brien. (2002).The first two years of the Human Rights Act, public law 649
  5. Klug, F. (2003).Judicial deference under the Human Rights Act, European Human Rights Law Review 2
  6. Lord Irvine. (1999).Activism and restraint: human rights and the interpretative process, European Human Rights Law Review 4
  7. Lord Steyn. (2004).Dynamic interpretation amidst an orgy of statute, European Human Rights Law Review 3

 

[1]DIL (U.K); LLB (HONS.) (U.K); Assistant Professor, University College Gujranwala.

[2] Lord Steyn (2004:248)

[3] Lord Searman in Duport steels ltd v Sirs(1980) stressed that judges must give thought to the intention of the legislature while interpreting the words of statutes. They are not entitled to change law to meet the idea of what justice required.

[4] The literal approach refers to the dominance of the Parliament over the courts after the establishment of doctrine of sovereignty of parliament.

[5] Twining(1992:368)

[6] An interpretative technique in which the courts see the mischief behind the enactment of particular act to ascertain the ambiguity in the given scenario.

[7] 1996

[8] Which is being very close to the European mode of interpretation ‘purposive approach’

[9] Law must be assessable and clear to all

[10] Also see Lord Wilber force’s decision in Royal College of Nursing of the UK v Department of health and social security [1981]HL

[11] [1998]HL

[12] Also see Litster v Forth Dry Dock [1989] HL and Three river DC v Bank of England (NO.2) [1996] for the illustration of the same point.

[13] [1993]1AllER42 at 50

[14] Section 4, HRA 1998.

[15] Compare the judgments of Scarman LJ in Ahmad v ILEA [1977]1CR490 and Lord Lowry in R v Brown [1994]1AC212

[16] Marshall’s arguments (1998) and hunt’s arguments (1999:97-8)

[17] In Ghaidan v Godin-Mendoza[2004]UKHL30,at[27]

[18] [2004]UKHL

[19] Dame Mary Arden in his article ‘The changing judicial role : Human Rights, community law and intention of parliament.2008 

[20] [2001]UKHL;[2001]2AC42

[21] Para.45

[22] [2001]UKHL37

[23] As it further stated in R v A: “S.3 does not entail the court to legislate, it task is still one of interpretation. Compatibility is to be achieved as only so far as this is possible. Plainly this will not be possible if the legislation contain provisions which expressly contradict the meaning which the enactment would have to be given to make it compatible. It seems to me that same result must follow if they do so necessary implication, as this too is a means of identifying the plain intention of parliament’’. (at 86).

[24] The Law-Making Process by Michael Zander; sixth edition; Cambridge publishing press

Page185

[25]  Ex p Anderson,[2002]UKHL

[26] [2007]UKHL46

[27]Re S [2002]2 AC 291 at p 313.He argued that ‘the greater the latitude with which courts construe documents, the less readily defined is the boundary. What one person regards as sensible……other regards as impermissibly creative. For present purposes it is sufficient to say that a meaning which departs substantially from a fundamental feature of an act of parliament is likely to have crossed the boundary between interpretation and amendment’.

[28] F Klung and C O’Brien ‘The first two years of the Human Rights Act’ [2002] Public Law 649 at p 654

[29] Richard Ekins and Philip Sales. (2011).”Rights-consistent interpretation and the Human Rights Act 1998”.Law Quarterly Review.

[30] [2007]HL46

[31] [2002]1AllER620

[32] Also see R V Secretary of state for transport ex parte Factortame(No.2)(1991)

[33] Ibid.,p.566.

[34]Supra

Trade infringement and passing off

Trade infringement and passing off

 

 

*Tamoor Mughal

_______________________

*He is a master degree holder (in law). He is currently working as lecturer in law at Premier Law College, Gujranwala

 

Abstract

This article views and assesses the trademark rights protection in Pakistan. Trademark is the identification mark of any company or organization. A customer relates any trademark with the quality of products and reputation of the company that is using it. It is a distinctive name, word, phrase, symbol, logo, design, image, or a combination of these elements that identifies a product, service or firm that has been legally registered as the property of the firm. Trademarks grant the owner the right to prevent competitors from using similar marks in selling or advertising.A trademark can be used for identifying and distinguishing a particular seller’s goods from others. Trademark also shows the origin of the goods i.e. a customer can identify the manufacturer and also assume about the quality of goods that all goods bearing the particular trademark are of a particular quality desired by the customers. Trademarks are widely used for the advertisement purposes also which helps to customers in associating any good with the quality, reputation and goodwill of any company. So it is very important for any organization to take precautions while allowing any one to use its trademark because the name and reputation of the company is directly associated with the trademark.

If any organization is using the registered trademark of another company without permission, that means it is not only committing a crime but also causing damage to the business of the company and damaging the brand name of that company. The organization might be using others trademark to use its market reputation and market stake to enhance its own business without extra efforts. These kind of activities mainly fall under two heads Infringement and Passing Off.

 

 

 

 

 

 

 

INTRODUCTION

Trademark is the identification mark of any company or organization. A customer relates any trademark with the quality of products and reputation of the company that is using it. It is a distinctive name, word, phrase, symbol, logo, design, image, or a combination of these elements that identifies a product, service or firm that has been legally registered as the property of the firm. Trademarks grant the owner the right to prevent competitors from using similar marks in selling or advertising.[1] There has been various new concepts have emerged in relation to trademark due to the technological revolution in the communication, media and other areas and due to the increased knowledge and perception of individuals, business enterprises are showing more interest in registering non conventional marks such as colour marks, shape marks, smell marks, sound marks, advertisement slogans, trade dress etc. to capture the market.

A trademark can be used for identifying and distinguishing a particular seller’s goods from others. Trademark also shows the origin of the goods i.e. a customer can identify the manufacturer and also assume about the quality of goods that all goods bearing the particular trademark are of a particular quality desired by the customers. Trademarks are widely used for the advertisement purposes also which helps to customers in associating any good with the quality, reputation and goodwill of any company. So it is very important for any organization to take precautions while allowing any one to use its trademark because the name and reputation of the company is directly associated with the trademark.[2]

If any organization is using the registered trademark of another company without permission, that means it is not only committing a crime but also causing damage to the business of the company and damaging the brand name of that company. The organization might be using others trademark to use its market reputation and market stake to enhance its own business without extra efforts[3]. But such companies are not using the exact trademark of other company but they generally go for use of similar marks and here the problem came in to existence. These kind of activities mainly fall under two heads Infringement and Passing Off.

 

 

VIOLATION OF TRADE MARK

  1. By infringement
  2. By passing off

INFRINGEMENT

Section 29 of the Trademark Act-1999 talks about various aspects related to infringement as given in S.29(1) that a registered trade mark is infringed by a person who, not being a registered proprietor or a person using by way of permitted use, uses in the course of trade, a mark which is identical with, or deceptively similar to, the trade mark in relation to goods or services in respect of which the trade mark is registered and in such manner as to render the use of the mark likely to be taken as being used as a trade mark.

Other subsections describes that in course of the use of the trademark it is said to be infringing the rights of other company due to use of similar or identical trademark using for marketing of similar kind of goods and services or use of identical or deceptively similar trademark for any other kind of goods and services. It is further given in the Sub Section (9) of this section that the infringement can also be done by the spoken use of those words as well as by their visual representation.[4] There are certain elements of infringement of a trade mark:

  • Some one else use one’s trade mark
  • Registered trade mark
  • Dilution of mark
  • Mislead others

Infringement occurs when someone else uses a trademark that is same as or similar to your registered trademark for the same or similar goods/services. Trademark infringement claims generally involve the issues of likelihood of confusion, counterfeit marks and dilution of marks. Likelihood of confusion occurs in situations where consumers are likely to be confused or mislead about marks being used by two parties. The plaintiff must show that because of the similar marks, many consumers are likely to be confused or mislead about the source of the products that bear these marks.[5]

Dilution is a trade mark law concept forbidding the use of a famous trade mark in a way that would lessen its uniqueness. In most cases, trade mark dilution involves an unauthorized use of another’s trade mark on products that do not compete with, and have little connection with, those of the trade mark owner. For example, a famous trade mark used by one company to refer to hair care products might be diluted if another company began using a similar mark to refer to breakfast cereals or spark plugs.[6]

The concept of infringement can be explained with the help of the following case laws:

In the caseCastrol Limited Vs P.K. Sharma

Facts of the case: Plaintiff is the registered owner of the trade marks Castrol, Castrol GtxAnd Castrol Gtx 2 in respect of oils for heating, lighting and lubricating. During the month of December 1994, plaintiffs came to know that the defendant was carrying on business of selling multigrade engine oil and lubricants under the trade mark ‘Castrol Gtx& Castrol Crb’ IN IDENTICAL containers as used by the plaintiffs. Plaintiff filed a suit for perpetual injunction.

Held: The user of the said trade marks by the defendants, who have no right whatsoever to use the same is clearly dishonest and is an attempt of infringement. The prayer of the plaintiff is accepted.

In Ranbaxy Laboratories Ltd. Vs. Dua Pharmaceuticals Ltd.the plaintiff company manufactured drugs under the trade name “Calmpose”. The defendant company subsequently floated its similar product under the trademark “Calmprose”. The said two trade marks having appeared phonetically and visually similar and the dimension of the two strips being practically the same including the type of packing, the colour scheme and manner of writing, it was found to be a clear case of infringement of trade mark and the ad interim injunction granted in favour of the plaintiff was accordingly made absolute.

PASSING OFF

The specific description of passing off is not given in the trademark act but the courts have drawn its meaning from common law that if the infringement of trademark done in such a manner where the mark is not only deceptively similar to the trademark of other company but also creating confusion for the customers, which ultimately results in damage for business of the company.

Taking business by presenting goods or services as someone else’s is actionable at common law. The tort is known as “passing off” in the British Isles and most of the Commonwealth, “palming off” in the USA and unfair competition elsewhere. The usual remedies are injunctions, delivery up of offending items and inquiries as to damages or accounts of profits. There is an international obligation to assure effective protection against unfair competition under art 10bisof the Paris Convention.[7]

Passing off is judge made law. The modern law is to be found in a handful of cases of which the most recent are the decisions of the House of Lords in Reckitt & Colman Products Ltd. v Borden Inc[1990] RPC 341 and ErvenWarnink BV v J Townend& Sons (Hull) Ltd [1979] AC 731. In the first of those cases, Lord Oliver said, at page 406, that a claim may be brought where:

1)      the claimant’s goods or services have acquired a goodwill or reputation in the market and are known by some distinguishing feature;

 

 

 

2)      there is a misrepresentation by the defendant (whether or not intentional) leading or likely to lead the public to believe that goods or services offered by the defendant are goods or services of the claimant; and

 

3)      the claimant has suffered, or is likely to suffer, damage as a result of the erroneous belief engendered by the defendant’s misrepresentation.

This restatement of the elements of passing off is often referred to as the “classic trinity”.

 

RELATED CAUSES OF ACTION

The action of passing off is closely allied to the law of trade marks, the Trade Descriptions Act 1968 and Community legislation on the protection of geographical designations of origin. Claims for passing off are usually brought at the same time as actions for infringement of a registered trade mark.[8]

 

ENFORCEMENT

Claims for passing off are brought in the Chancery Division of the High Court of Justice. The vast majority of such claims are disposed of upon an application for interim injunction. The reason for that is that the losing party either has to change its packaging or quit the market. Either way, it has much less interest in the brand by the time the action comes on for trial.

An actionable misrepresentation may also be an offence under the Trade Descriptions Act 1968. Prosecutions are brought by local authority trading standards officers. [9]ss

 

RISK FACTORS

Brands are among the most valuable assets of a business and the action of passing off is indispensable for their protection for two reasons. First, not every type of branding qualifies for registration as a trade mark. Secondly, no action may be brought on a mark until after registration.[10] If goodwill, misrepresentation and damage can be proved an action will lie regardless of whether the wrongdoing was intended and there is no threats action to protect those accused of passing off from intimidation of their customers.[11]

 

KINDS OF PASSING OFF

 

These are as follows

 

1.      Extended passing off

One of the instances where passing off is actionable is the extended form of passing off, where a defendant’s misrepresentation as to the particular quality of a product or services causes harm to the plaintiff’s goodwill. An example of this is ErvenWarnink v J Townsend & Sons (Hull) Ltd[12][1979] AC 731, in which the makers of advocaat sued a manufacturer of a drink similar but not identical to advocaat, but which was successfully marketed as being advocaat.

The extended form of passing off is used by celebrities as a means of enforcing their personality rights in common law jurisdictions. Common law jurisdictions (with the exception of Jamaica) do not recognise personality rights as rights of property. Accordingly, celebrities whose images or names have been used can successfully sue if there is a representation that a product or service is being endorsed or sponsored by the celebrity or that the use of the likeness of the celebrity was authorised when this is not true.

2.      Reverse passing off

Another variety, somewhat rarer is so-called ‘reverse passing off’. This occurs where the defendant markets the plaintiff’s product as being the defendant’s product (see John Roberts Powers School v Tessensohn[13] [1995] FSR 947. It will be recalled that orthodox passing off entails the defendant representing that his product is the plaintiff’s product. In many cases, reverse passing off can be explained under the ordinary rules: for example where a defendant may represent that he or she made goods which were in fact made by the plaintiff so as to pass off his own business as a branch of the plaintiff’s.

WHAT PROBLEMS CAN PASSING OFF CAUSE?

There are a number of problems that passing off can cause your business; depending on the type of business and the extent of passing off taking place.

1.      Missing Customers

If your customers are led to believe that another business is yours (or associated with you); then you may find that your customers simply vanish, using the other business by mistake. If you obtain a lot of your custom by word of mouth, then new customers searching for you may never realise that the business passing off is not you.

2.      Future Custom

If your customers realise that another business has gained their custom inappropriately, they may lose trust in you and feel hesitant about using your services again. If the other business treated them badly they may go elsewhere altogether, and (If they do not realise they have used a different business) could even tell other people of their disappointment with your business.

3.      Reputation

If your business is respected in your marketplace, the appearance of a business passing off as you could cause customers to think less of your business; especially if the passing off business provides poor quality products or services.

If the passing off business causes bad word of mouth publicity, this can cause serious damage to your image and reputation.

4.      Finances

If a business is passing off as you, then your financial damage is not limited to the money from customers you lose to them and through bad publicity. Any money you spend on advertising or other promotions (e.g. Leaflets, web banners, ‘pay per click’ listings) becomes less effective as some of the customers you can gain may end up using the passing off company.

 

DIFFERENCES BETWEEN PASSING OFF AND INFRINGEMENT

  • As to remedy

Statutory remedy is available for infringement whereas the action for passing off is a common law remedy.[14]

  • As to identity

For infringement it is necessary only to establish that the infringing mark is identical or deceptively similar to the registered mark but in the case of a passing off action, the need is to prove that the marks are identical or deceptively similar which is likely to deceive or cause confusion and damage to the business of the company.[15]

  • Registration as to particular category of goods

When a trademark is registered, registration is given only with regard to a particular category of goods and hence protection can be given only to these goods and action of infringement would be taken but in a passing off action, the defendant’s goods need not be the same, they may be related or even different.[16]

  • As to action

For a passing off action registration of trademark is not relevant. It is based on property in goodwill acquired by use of the mark. On the other hand infringement is based on statutory right acquired by registration of trademark.[17]

  • As to goods

 In case of a passing off action, the defendant’s goods need not be same as that of the plaintiff; they may be allied or even different. In case of an action for infringement, the defendant’s use of the offending mark may be in respect of the goods for which the mark is registered or similar goods.

  • As to confusion

Passing off action identity or similarity of marks is not sufficient, there must also be likelihood of confusion. But in case of infringement if the marks are identical or similar no further proof is required.

  • As to forum of remedy

The remedy of passing off has been found in one form or another for centuries. It is part of the common or so-called unwritten law. In contrast, the system of statutory protection of trade marks by way of the registration thereof, has, relatively speaking, not been in existence that long. The law relating to passing off was thus, put differently, made by judges, and the law relating to trade mark infringement was created by the relevant legislative bodies. The latter origin does not necessarily indicate a greater degree of rigidity insofar as the application of legislative instruments is concerned. The courts obviously interpret the legislation continuously, and in a sense the words of the statute form only a broad framework within which the judiciary functions, and “finds” the law. [18]

  • As to related rights

Rights relating to passing off are established “gradually”, with use, and the central question would be when it can be said that a reputation has been acquired insofar as a specific mark is concerned. The establishment of a reputation is dependent on a number of factors, including the nature of a mark, that is, the degree of distinctiveness, sales figures, promotional expenditure on the marketing of products bearing the mark or get-up, and the period of use. Protection in terms of the Act is available immediately, on registration, and is not, in the short term, dependent on use of the mark. Although the obtainment of statutory rights would seem, from this perspective, to be a more expedient way in which to obtain rights, such an observation is not borne out by reality. This is on account of the fact that the time frame within which an application will proceed to registration can be a matter of up to three or four years at this stage. This factual consideration does however not change the theoretical position.

  • As to allegation

A further difference is that in cases of alleged passing off, it is said that it is the goodwill built up through the use of a mark that is protected, whilst in instances of trade mark infringement, it is the right to the mark itself that is being protected. Flowing from this fact is a practical difference between the two remedies, namely that passing off involves a comparison of the two marks and the get-up of the products in relation to which they are used. In other words, the mere fact that a mark, whether registered or not, is used by A, does not automatically imply that he would be liable towards B for passing off. Colours and shapes or the addition of other distinctive material can thus be considered by the court to determine whether or not there is a likelihood of confusion. On the other hand, in the instance of trade mark infringement, the comparison is solely between the two marks themselves, and extraneous matter cannot be taken into consideration. In a manner of speaking, a holistic approach is adopted in passing off cases. Trade mark infringement is concerned only with the mark that has been registered, and if that mark is used by the respondent along with other distinctive material, the addition of the latter is disregarded. In line with the above, in infringement cases there is a prohibition on the use of the mark in issue, but the wording of an interdict in passing off cases rather relates to steps to be taken to distinguish the products concerned.[19]

  • As to remedy relates to a particular geographical area

Lastly, it is important to bear in mind that the remedy of passing off relates to a particular geographical area in which a reputation can be said to exist. In other words, where a mark is used in Brackenfell, it will not necessarily be possible to prevent the use of the mark in Brakpan. In the case of a registered mark, the registration will in principle be enforceable in the whole country. In summary, it appears that there are a number of instances where relief in terms of passing off will achieve the rights holder’s objective of the protection of his intellectual property, whilst in other instances relief in terms of the Trade Marks Act will be more appropriate.

CASE LAW THAT DIFFERENTIATE PASSING OFF AND INFRINGEMENT

            In the case DurgaDutt Sharma V. N.P. Laboratories , a Supreme Court judgment, the difference between the two has been laid. It was held that ” An action for passing off is a Common law remedy, being in substance an action for deceit, that is, a passing off by a person of his own goods as those of another. But that is not the gist of an action of infringement. The action for infringement is a statutory remedy conferred on the registered proprietor of a registered trade mark for the vindication of the exclusive right to use the trade mark.”[20]

 

JUDICIAL RESPONSE

Courts have given several judgments in these kinds of disputes where the infringement and passing off of trademark were in question. Few of them I am discussing in this paper where courts have dealt with these questions and formulated several concepts related to them.[21]

CASES OF INFRINGEMENT

No one can use the trademark which is deceptively similar to the trademark of other company. As in the case of Glaxo Smith Kline Pharmaceuticals Ltd. v. Unitech PharmaceuticalsPvt. Ltd.[22] the plaintiff claimed that defendants are selling products under the trademark FEXIM that is deceptively similar to the plaintiff’s mark PHEXIN, which is used for pharmaceutical preparations. The defendants are selling anti-biotic tablets with the trademark `FEXIM’ with the packing material deceptively similarly to that of the plaintiff, whereby intending to not only to infringe the trademark but also to pass off the goods as that of the plaintiff as the two marks are also phonetically similar. The Court restrained the defendant from using the trademark `FEXIM’ or any trademark deceptively similar to the trademark of the plaintiff `PHEXIN’, any label/packaging material deceptively similar and containing the same pattern as that of the plaintiff.

If a party using the deceptively similar name only for a single shop and not spreading its business by use of that particular name then also that party could be stopped from using the tradename of other company. This is given in M/s Bikanervala v. M/s AggarwalBikanerwala[23]where the respondent was running a sweet shop in with the name of AGGARWAL BIKANERVALA and the plaintiff was using the name BIKANERVALA from 1981 and also got registered it in the year 1992. Hence they applied for permanent injunction over the use of the name AGGARWAL BIKANERWALA for the sweet shop by the defendant. Court held in favour of the plaintiff and stopped defendant from manufacturing, selling, offering for sale, advertising, directly or indirectly dealing in food articles for human consumption under the impugned trade mark/trade name/infringing artistic label ‘AGGARWAL BIKANER WALA’ or from using any trade mark/trade name/infringing artistic work containing the name/mark ‘BIKANER WALA/BIKANERVALA’ or any other name/mark/artistic work which is identical or deceptively similar to the plaintiff’s trademark ‘BIKANERVALA’.

If the trademark is not registered by any party but one party started using it before the other then first one would have the legal authority on that particular mark. As in the case ofDhariwal Industries Ltd. and Anr.v. M.S.S. Food Products[24]where appellants were using the brand name MALIKCHAND for their product and the respondents were using the name MANIKCHAND which is similar to the previous one and both parties have not registered their trademarks. Court held in this matter that even though plaintiff have not registered their trademark they are using it from long time back and hence court granted perpetual injunction against the respondents.

Even if a company is not doing business in country, but it is a well known company or well known goods, then also it would be entitled to get authority over its trademark. As given in case of N.R. Dongare v. Whirlpool Corp. Ltd.[25]where the defendants have failed to renew their trademark ‘WHIRLPOOL’ and in the mean time the plaintiffs have got registration of the same. In this case court said that though there was no sale in India, the reputation of the plaintiff company was travelling trans border to India as well through commercial publicity made in magazines which are available in or brought in India.

The “WHIRLPOOL” has acquired reputation and goodwill in this country and the same has become associated in the minds of the public. Even advertisement of trade mark without existence of goods in the mark is also to be considered as use of the trade mark. The magazines which contain the advertisement do have a circulation in the higher and upper middle income strata of Indian society. Therefore, the plaintiff acquired transborder reputation in respect of the trade mark “WHIRLPOOL” and has a right to protect the invasion thereof.

CASES OF PASSING OFF

Even if the goods are not same or similar to each other, then also no one can use the registered trademark of a company for any kind of goods which may result in the harm to the business and reputation of the company which is the owner of the trademark. In Honda MotorsCo. Ltd. v. Mr. Charanjit Singh and Ors[26]defendant Company was using the trade name HONDA for ‘Pressure Cookers’ which they are manufacturing in India and even when their application for registration of this trademark had been rejected by the registrar they continued using it and again applied for registration and hence plaintiff has brought this plaint. Plaintiff is the well known company having presence all over the world in the field of Motor Cars, Motorcycles, Generators and other electronic appliances. They are doing business in India in association with the SiddharthShriram Group with the name Honda Siel Cars India Ltd. Plaintiff has established that his business or goods has acquired the reputation and his trade name has become distinctive of his goods and the purchasing public at large associates the plaintiff’s name with them. The use of trademark HONDA by respondents is creating deception or confusion in the minds of the public at large and such confusion is causing damage or injury to the business, reputation, goodwill and fair name of the plaintiff. Hence court has restricted the defendants from using the trademark HONDA in respect of pressure cookers or any goods or any other trade mark/marks, which are identical with and deceptively similar to the trade mark HONDA of the plaintiff and to do anything which amounts to passing off to the goods of the plaintiff.

In the case of Smith line Beecham v. V.R. Bumtaria.[27]The plaintiff applied for permanent injunction to restrain the defendant from infringing the trademark, passing off, damages, delivery etc. of its registered trademark ARIFLO, used in respect of the pharmaceutical preparations. Defendants were using the similar name ACIFLO for their product of the same drug in India. Plaintiffs were not doing business in India for the particular product and argued that since their advertisements are been published in medical journals hence they have a transborder reputation and defendants should be stopped to use the similar trademark which creating deception in customers.

Court said that mere publication of an advertisement in a journal cannot establish a trans-border reputation. Such reputation if any is confined to a particular class of people, i.e., the person subscribing to the said specialized journals and the same can’t be said to be extended to the general consumers. Thus any adverse effect on the firm in such a case can’t be amounted to the offence of “passing off”.

Though the dispute resulted in compromise where the defendant agreed and accepted the plaintiffs’ exclusive right on the use of mark i.e. ARIFLO in India and abroad and further agreed to not to manufacture pharmaceutical preparations under the mark ACIFLO or any other mark identical or similar to ARIFLO.

There are two types of remedies are available to the owner of a trademark for unauthorized use of its imitation by a third party. These remedies are:-an action for passing off in the case of an unregistered trademark and an action for infringement in case of a registered trademark. An infringement action and an action for passing off is quite different from each other, an infringement action is a statutory remedy and an action for passing off is a common law remedy. Accordingly, in order to establish infringement with regard to a registered trademark, it is necessary only to establish that the infringing mark is deceptively similar to the registered mark and no further proof is required. In the case of a passing off action, proving that the marks are deceptively similar alone is not sufficient. The use of the mark should be likely to deceive confusion. Further, in a passing off action it is necessary to prove that the use of the trademark by the defendant is likely to cause injury to the plaintiff’s goodwill, whereas in an infringement suit, the use of the mark by the defendant need not cause any injury to the plaintiff. Trademarkinfringement laws help the trademark holders to keep awareness about infringement of trademark.

CONCLUSION

There are two types of remedies are available to the owner of a trademark for unauthorized use of its imitation by a third party. These remedies are:-an action for passing off in the case of an unregistered trademark and an action for infringement in case of a registered trademark. An infringement action and an action for passing off is quite different from each other, an infringement action is a statutory remedy and an action for passing off is a common law remedy. Accordingly, in order to establish infringement with regard to a registered trademark, it is necessary only to establish that the infringing mark is deceptively similar to the registered mark and no further proof is required. In the case of a passing off action, proving that the marks are deceptively similar alone is not sufficient. The use of the mark should be likely to deceive confusion. Further, in a passing off action it is necessary to prove that the use of the trademark by the defendant is likely to cause injury to the plaintiff’s goodwill, whereas in an infringement suit, the use of the mark by the defendant need not cause any injury to the plaintiff. Trademarkinfringement laws help the trademark holders to keep awareness about infringement of trademark.

So by this discussion we can draw following inferences

  • Registered trademark is the property of the holding company and it is directly associated with the name, reputation, goodwill and quality of products of a company.
  • There are very slightly differences between infringement and passing off
  • A company can not use the trademark of another company.
    No one can use even the similar trademark which is creating deception or confusion for the customers.
  • No one can use the trademark of a company, which is well known and having a transborder reputation, even if it is not registered

 

 

 

BIBLIOGRAPHY

F:\trademarks tm\Trademark Infringement & Passing Off.htm

http://www.wisegeek.com/what-is-trademark-infringement.htm

http://www.tms.org/pubs/journals/jom/matters/matters-9610.html

http://tcattorney.typepad.com/ip/

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1335874

Passing Off: Tort, Trademark, Common Law, Intellectual Property, Trademark Infringement, Personality Rights by Lambert M. Surhone

http://www.amazon.co.uk/Passing-Off-Intellectual-Infringement-Personality/dp/6130343809

[2003(27) PTC478 (Del)]

[MANU/DE/2890/2005]

[2003(26) PTC1 (Del)]

[(1996) 5 SCC 714]

[AIR 2005 SC 1999]

[117 (2005) DLT 255]

[MANU/DE/2840/2005]

Modern intellectual property laws By Catherine Colston, Kirsty Middleton Page 466

 

The psychology behind trademark infringement and counterfeiting By Judith Lynne Zaichkowsky Page 19

 

Trade marks at the limit By Jeremy Phillips Page 256

 

 

 

[1]Colston,CatherineModern intellectual property laws,Kirsty Middleton, P:466

 

[2]http://www.wisegeek.com/what-is-trademark-infringement.htm

[3]http://tcattorney.typepad.com/ip/

 

[4] F:\trademarks tm\Trademark Infringement & Passing Off.htm

[5]http://www.wisegeek.com/what-is-trademark-infringement.htm

 

[6]http://www.wisegeek.com/what-is-trademark-infringement.htm

[7]http://www.amazon.co.uk/Passing-Off-Intellectual-Infringement-Personality/dp/6130343809

 

[8]Lynne, Judith,The psychology behind trademark infringement and counterfeiting,Zaichkowsky, P: 19

 

[9]Phillips, Jeremy,Trade marks at the limit,P: 256

 

[10]Ibid,P: 256

[11]Lambert M. Surhone,Passing Off: Tort, Trademark, Common Law, Intellectual Property, Trademark Infringement, Personality Rights

[12] [1979] AC 731

[13] [1995] FSR 947

[14]http://www.bowman.co.za/LawArticles/Law-Article~id~2132417158.asp

[15]http://www.amarjitassociates.com/index.htm

[16]http://www.bowman.co.za/LawArticles/Law-Article~id~2132417158.asp

[17]ibid

[18]http://www.tms.org/pubs/journals/jom/matters/matters-9610.html

[19]http://www.amazon.co.uk/Passing-Off-Intellectual-Infringement-Personality/dp/6130343809

 

[20]http://www.amarjitassociates.com/index.htm

[21] ibid

[22] [MANU/DE/2840/2005]

[23] [117 (2005) DLT 255]

[24][AIR 2005 SC 1999]

[25][(1996) 5 SCC 714]

[26][2003(26)PTC1(Del)]

[27][MANU/DE/2890/2005]

No Revision Competent Against an Order Which Is Challengeable in Appeals U/S 417(2),Why?Explanation With Reference to Case Laws

 No Revision Competent Against an Order Which Is Challengeable in Appeals U/S 417(2),Why?Explanation With Reference to Case Laws

 

Muhammad Tariq Anayat

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@ Muhammad Tariq Anayat Deputy District Public Prosecutor is an employee in Punjab Public Prosecution Department and presently rendering his services as a trail prosecutor at Anti-Terrorism Court Gujranwala. He has not only profound knowledge of investigation skills but also is a practical legal issues researcher .He wrote this article as a participant of 02 days  training course of  “Appeal Policy” conducted and supervise by CAPRI at Lahore. He can be reached attariqanayat786@gmail.com

 

Abstract

Right of appeal is a constitutional and inalienable right of the aggrieved person which cannot be denied or barred by statuary provisions of any enactment. Appeal is a continuation of trail and any statutory provision which denied access to right of appeal, is against fundamental rights guaranteed by the Constitution of Pakistan, 1973. Therefore,no revision competent against an order which is challengeable in appeals under section 417(2) Cr.P.C 1898 because, appeal is an fundamentally guaranteed right of aggrieved person and it cannot be barred by statuary provisions of law or where there are no express provision in special laws.  Nevertheless this would not then mean that an aggrieved person whether provincial Government, Federal Government or any aggrieved person is denuded of the power of filing an appeal from an Order of acquittal passed by a Special Judge appointed by such Government or for that matter such person would have no remedy of appeal against acquittal by any such Special Judge. To read as much into the provisions of Section 10 of the Criminal Amendment Act, 1958 would certainly amount to denying access to justice to an aggrieved person which would certainly be in violation of his fundamental rights as guaranteed under the Constitution particularly Articles 4 and 25 thereof and Article 10-A as an appeal is a continuation of the trial. So also, it would be seen that the Special Court/Judge is a Court inferior to the High Court and hence the High Court’s revisional powers under Section 435 Cr.P.C 1898 to check the correctness, legality or propriety of any finding or order recorded or passed by an inferior Court would not stand excluded particularly as the Act itself does not exclude the same. Consequently it would be quite appropriate to observe that any aggrieved person whether it be the Federal or the Provincial Government or an accused or a complainant could approach the High Court in appeal against either an order of conviction or acquittal or for that matter for the purpose of enhancement of a sentence passed by any Special Judge appointed under the Act 1958 and as much should be read into Section 10(1) of the Criminal Amendment Act, 1958. In this regard, it may also be observed that perhaps this was the legislative intent, as Section 10(2) of the Act ibid was added to cater for the right of the Federal Government to file an appeal against acquittal as such right was not given to it under Section 417(2) Cr.P.C 1898.

                                                               

 

 

Introduction

  1. Definition of Appeal and Scope in law

In law, an appeal is the process in which cases are reviewed, where parties request a formal change to an official decision. Appeals function both as a process for error correction as well as a process of clarifying and interpreting law.[1] Although some scholars argue that “the right to appeal is itself a substantive liberty interest”,2 the notion of a right to appeal is a relatively recent advent in common law jurisdictions.3 In fact, commentators have observed that common law jurisdictions were particularly “slow to incorporate a right to appeal into either its civil or criminal jurisprudence”.4 There is no definition of the word “appeal” in any statute. It can be defined as the judicial examination by a higher Court of a decision of an inferior Court. It is a legal proceeding by which a case is brought before a higher court for review of the decision of a lower court.5 It is a legal proceeding by which a case is brought before a higher court for review of the decision of a lower court.

Appeal is a process of re-examination by a higher court of the judgment, or the order or the decision made by a lower court in a suit or in a case. Appeal is the right of entering a superior court and invoking its aid and interposition to redress the error of the court below. It is a proceeding taken before a superior court for reversing or modifying the decision of an inferior court on ground of error. The distinction between an appeal and a revision is a real one. A right of appeal carries with it a right of rehearing on law as well as fact, unless the statute conferring the right of appeal limits the rehearing in some way as, we find, has been done in second appeals arising under the Code of Criminal  Procedure. The power to hear a revision is generally given to a superior court so that it may satisfy itself that a particular case has been decided according to law. An appeal is subject, of course, to the prescribed statutory limitations. But in the case of revision whatever powers the revisional authority may have, it has no power to reassess and reappreciate evidence unless the statute expressly confers on it that power. That limitation is implicit in the concept of revision is a continuation of a suit or proceedings wherein the entire proceedings are again leftopen for consideration by the appellate authorities which has the power to review the entire evidence.6 No distinction in appeal to Supreme Court exists whether the appeal is by a convict, a private complainant, or by a Provincial Government.7Right is not a natural right, it is created by statute.8Appeal from acquittal is not competent for offence u/S. 5(2) of 1947 PCA. Sec. 10(2) of Act 1958 provides no right of appeal to the Provincial Government against acquittal order passed by Special Judge. Right of appeal is a statutory right and unless statute provides for appeal from acquittal there is no right of appeal. Appeal by complaint dismissed.9In appeal from acquittal for offence u/S. 307 PPC as the accused had already undergone 2 years R.I. his conviction was maintained but he was not sent back to jail instead he was ordered to pay Rs. 50,000 to injured within one year and in default he was to suffer 2 years R.I.10Law applicable to appeal. A right of appeal existing on a day on which a proceeding or lies commences or prosecution is a vested right and that right is governed by the law prevailing on that day and not the law prevailing on the date of its decision. This vested right can be taken away only by subsequent enactment, if it so provides expressly or by necessary intending and not otherwise. The right of appeal is not a matter procedure but is a substantive right and there is no vested right in procedure. The procedure to be followed in the trial of an offender must be in accordance with the law of procedure in force on the date of the inception of the trial, and not the date of the commission of the offence.11Complaint or any aggrieved person can file appeal against acquittal in a case for offences under Azad Jammu and Kashmir Islamic Penal Laws Enforcement Act, 1974.12 High Court has powers, in a proper case, either under section 439 or under inherent jurisdiction to quash a conviction and sentence if the ends of justice so demand.[i]13

 

 

  1. https://dictionary.cambridge.org/dictionary/english/appeal accessed on 10.01.2019
  2. Gary Stein, Expanding as per the Process Rights of Indigent Litigants: Will Texaco Trickle Down?, 61 N.Y.U.L. Rev. 463, 487-88 (1986)
  3. See Peter D. Marshall, A Comparative Analysis of the Right to Appeal, 22 Duke J. of Comp. & Int. L. 1, 1 (2011) (“The right to appeal is a comparatively recent addition to the common law criminal process.”)
  4. Stan Keillor, Should Minnesota Recognize A State Constitutional Right to A Criminal Appeal?, 36 Hamline L. Rev. 399, 402 (2013)
  5. Mahmood, Major Act,2018 (58 th Edition)775

 

 

6.Hari Shanker v. Rao Girdhari Lal Chowdhury, AIR 1963 SC 698 : 1962 Supp (1) SCR 933;

LachhmanDass v. Santokh Singh, (1995) 4 SCC 201

7.State vs Sikandar Hayat ,PLD 1970 SC 224

  1. Karam Dad v. Emperor, AIR 1941 Lah. 414
  2. Ashiq Muhammad v. Khuda Bakhsh, PLJ 1998 Cr.C. 565
  3. Noor Ahmed v. Muhammad Anwar ,1993 SCMR 243

11.Ghazi and others, (FB) PLD 1962 Lahore, 786

12.Abdul Khaliq Khan v. Muhammad Afsar Khan etc, 1995 P.Cr.LJ. 391

13.Emperor v. Kasim 48 Cr.LJ 631 = AIR 1943 Pat. 313 Kirshana Chandra v. Emperor

  1. Acquittal order appealable u/s 417(2-A) Cr.P.C 1898 and revision u/Ss. 435, 439 or 439-A Cr.P.C 1898

Acquittal order appealable u/s 417(2.A) and revision without availing remedy of appeal u/S. 439 (5) is not competent.14.Aggrieved person. It appears that when Shariat was declared as governing law government thought it proper to extend right of appeal to a person aggrieved against order of acquittal. Word “Aggrieved person” has been intentionally used so as to include agencies of Government.15 Appeal against acquittal u/S. 417 (2-A) Cr.P.C 1898 is maintainable by the aggrieved person regarding the cases which were pending trial at the time of the amendment, in order to bring this section in conformity with Islamic Injunction. The appeal can now be filed without the permission of the State i.e. the District Magistrate as it was done previously now the aggrieved party can file appeal instead of revision against acquittal contrary to previous practice).Acquittal u/Ss. 249-A and 265-K is an order of acquittal. Remedy available to the aggrieved party is appeal u/S. 417, Appeal against acquittal by any person against the order of any Court other than High Court is to be made u/S. 417(2-A) Cr.P.C 1898 within 30 days. A revision filed against order of acquittal beyond limitation period of 30 days was not competent, as it could not be treated as appeal because of being filed after 30 days and u/S. 439 (5) Cr.P.C when an appeal can be filed no revision by the party who could have filed an appeal can be entertained. No revision u/ss. 439 & 417 (1) Cr.P.C can be filed when remedy by way of appeal is available but is not utilized. Acquittal on complaint is not revisable but is appealable under section 417(2) Cr.P.C.16 Accused had been acquitted by the Special Court constituted under the STA Act, 1975, which being a special law had override the general law. Appeal against acquittal of accused could be filed U/S 7 of the said Act by a person appointed by the Provincial Government and not by a person U/S 417(2-A) Cr.P.C  1898 which could not be equated with Section 7 of the STA Act, 1975 and appeal was dismissed.17

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14.Bahadar Khan v. State and another, PLJ 1998 Cr.C.(Q) 92

15.State through Deputy Director (FIA) v. Zahid Nadeem etc.(D.B.) PLJ 1996 Cr.C. (Q) 909

  1. (D.B) PLJ 1996 Cr.C. (Q) 1865, Zahid Ali v.State; Wazir v. Muhammad Yuqub, PLD 1999 Kar. 130; PLJ 1996 Cr.C. (Pesh.) 1783, Hidayat Ullah v. Abdul Majeed and others; 1995 P.Cr.LJ 1369, Abdul Majeed etc. v. M/s. M. Ghulam Muhammad etc;Noor Gul vs STATE, NLR 1987 Cr. 470

17.Haji Khan Kharo V/S Muhammad Shareef & 2 Others (Karachi DB), 2001 PCrLJ 568.

 

  1. SECTION 417(2.A) Cr.PC 1898, Appeal against acquittal Interpretation :
  2. 1. Term “person aggrieved” as used in subsection (2.A) of S.417 could not be interpreted liberally so as to include every person who, as a member of the society, could claim to be interested to make the society free from crime by way of getting offenders punished. System of administration of criminal justice, which was adversarial in nature provided that a person accused of an offence was presumed to be innocent unless proved guilty in a trial before a competent Court. Finding of acquittal given by a court of law strengthened the presumption of innocence in his favour. In absence of compelling reasons, finding of acquittal was not to be disturbed. Consensus of judicial opinion was that scope of appeal against acquittal was narrower than the scope of appeal against conviction and acquittal could not be disturbed simply because other view of evidence was also possible. Every enemy of an acquitted person could not be allowed to drag acquitted person in appeal on the plea that he was interested to live in a crime free society. For the purpose of filing appeal against acquittal, person aggrieved must be the person whose personal and not only general rights were affected. In a case of an offence against a person, victim and in case his death had been caused, his legal heirs and blood relations, would be the persons aggrieved for the purpose of filing appeal against acquittal. In the case of an offence against property, the owner, the possessor of the property or any other person having a right in it would be the aggrieved person.
  3. 2. Appellant being brother of deceased, would be an “aggrieved person” entitled to file appeal against acquittal of respondents from the charge of his brother’s murder, but that was not the case of their acquittal from the murder charge. Respondents had been acquitted only of the charge of possessing unlicensed pistols and that too on the ground of prosecution’s failure to produce witnesses and not by disbelieving the evidence. Magistrate had not recorded any evidence. Question of expressing any opinion about it would not arise. Contention of counsel for appellant that acquittal of respondents from the charge of possessing unlicensed pistol had damaged the murder case of his brother was wholly unfounded as no opinion had been expressed by the Magistrate regarding the quality of evidence. Even if Magistrate had acquitted respondents by appraising evidence, his opinion about the quality of evidence, would not have the binding effect upon trial court trying murder case. Every case had to be decided on the basis of its own record. Evidence recorded in one case, could not be used as evidence in any other case. Sessions Judge trying murder case, being a higher court, was not expected to be influenced by any finding given by a Magistrate, a court subordinate to him. Appellant who was father of deceased, being not an “aggrieved person”, in circumstances, was not entitled to file appeal against acquittal of accused. Orders of Magistrate acquitting respondents, on examination, were found to be grossly improper and illegal, even the counsel for respondents would not support them. Case property was not available before Magistrate without which witnesses could not be examined. Appeals were converted into revisions, orders of the Magistrate acquitting respondents were set aside and case was remanded to the Magistrate for its disposal according to law.18

D.No Revision Competent Against an Order Which Is Challengeable in Appeals U/S 417(2) Cr.P.C 1898 and  Related Laws

The law related to appeal in code of criminal procedure, 1898is enacted as follows:

  1. Appeal in case of acquittalU/S 417
  • “Subject to the provision of sub-section (4), the Provincial Government may, in any case, direct the Public Prosecutor to present an appeal to the High Court from an original or appellate order of acquittal passed by any Court other than a High Court. (2) If such an order of acquittal is passed in any case instituted upon complaint and the High Court, on an application made to it by the complainant in this behalf grants special leave to appeal from the order of acquittal the complainant may present such an appeal to the High Court. Pakistan: Code of Criminal Procedure 1898 (2-A) A person aggrieved by the order of acquittal passed by any Court other than a High Court, may, within thirty days, file an appeal against such order.’ (3) No application under sub-section (2) for the grant of special leave to appeal from an order of acquittal shall be entertained by the High Court after the expiry of sixty days from the date of that order. (4) If, in any case, the application under sub-section (2) for the grant of special leave to appeal from an order of acquittal is refused, no appeal from that order of acquittal shall lie under sub-section (1).”19

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18.Khalid Hussain V/S Naveed @ Qalb Ali & 2 Others, PLD 2007 Karachi 442.

  1. M. Mahmood, Major Act.2018 (58 th edition) 775

 

 

  1. Article 4 and 25 of The Constitution of Pakistan 1973 and Right of Appeal U/S 417(2)

 

The articles 4 and 25 of constitution of Pakistan,1973 safeguard right of appeal of an aggrieved person as under:

 

“. 4. Right of individuals to be dealt with in accordance with law, etc.(1) To enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen, wherever he may be and of every other person for the time being within Pakistan.(2) In particular-(a) no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law;(b) no person shall be prevented from or be hindered in doing that which is not prohibited by law; and(c) no person shall be compelled to do that which the law does not require him to do.

  1. Equality of citizens (1) All citizens are equal before law and are entitled to equal protection of law. (2)There shall be no discrimination on the basis of sex (3) Nothing in this Article shall prevent the State from making any special provision for the protection of women and children.”20
  2. Section 10 of Criminal Amendment Act,1958 related to Appeal, revision and transfer of cases

The criminal amendment Act,1958 bars and denied right of appeal of an aggrieved person as under:

“An appeal from the judgment of a Special Judge shall lie to highest court having appellate jurisdiction in the territorial limits in which the offence is tried by the Special Judge, and the same court shall also have powers of revision. (2) Notwithstanding the provisions of section 417 of the Code of Criminal Procedure, (V of 1898),

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20.M.Mahmood, The Constitution of  Islamic Republic of Pakistan,1973 (58 th edition) pages 38,114

 

in any case tried by a Special Judge appointed by the Federal Government under section 3, in which such Special Judge has passed an order of acquittal, the Federal Government may direct the Public Prosecutor to present an appeal to such Court as aforesaid. (3) The aforesaid court shall have authority to transfer any case from the Court of a Special Judge to the Court of another Special Judge: Provided that notwithstanding anything contained in section 526 of the Code of Criminal Procedure, (V of 1898), the Special Judge from whose Court a transfer is desired, shall not be bound to adjourn the case, but if he rejects a request for adjournment, he shall record his reasons for doing so. (4) No prosecution under this Act against any person either generally or in respect of any one or more of the offences for which he is being tried shall be withdrawn except under the orders in writing of the appropriate Government.”21

4.Article 10.A of The Constitution of Pakistan,1973Also Grant Right of Appeal to an Aggrieved Person

The articles 4 and 25 of constitution of Pakistan,1973 safeguard right of appeal of an aggrieved person as under:

 

”For the determination of his civil rights and obligations or in any criminal charge against him a person shall be entitled to a fair trial and due process.”22

The remedy to file an appeal with special leave ofHigh Court was available to aggrieved person but instead of filing an application for leave to appeal before High Court under section 417(2), the respondent preferred a revision petition against the order of the Magistrate in the court of additional session judge. The distinguishable features in the said judgments are to the effect that in 1994 PCr.LJ 2297, the application under section 249‑A, Cr.P.C 1898 was dismissed by the Magistrate and revision petition against that order was held competent. In the judgment reported in, 1984 MLD 1488, the legal point that revision powers of the Sessions Court and the High Court are concurrent has been discussed. Similarly, in the case reported in 1986 PCr.LJ 2179 the validity of proceedings before the Magistrate was challenged under sections 438 &439, Cr.P.C 1898.

_____________________________________

  1. https://ace.punjab.gov.pk ,Section 10 of ThePakistan Criminal Law Amendment,1958 page 3 accessed on 10.01.2019
  2. M. Mahmood, The Constitution of Islamic Republic of Pakistan,1973 (58 th edition) page 54

 

The learned Sessions Judge had dismissed the revision petition in limine on the ground that the petitioners could obtain relief by invoking the provisions of section 249‑A, Cr.P.C before the trial Court. On writ petition, the Hon’ble High Court held that the provision of section 249‑A, Cr.P.C are impediment in his way to hear and decide the revision petition on merits: The judgment reported in 1997 PCr.LJ though to some extent is applicable to the facts of the present case, but with profound respect, this judgment is in conflict with the explicit provisions of section 439(5), Cr.P.C1898 .Also the view taken by, this Court while interpreting section 439(5) and section 417(2), Cr.P.C is different.23

With respect, the facts and circumstances under which the rulings were made in the said cases are distinguishable from the facts and circumstances of the instant cases. The distinguishable features in the said judgments are to the effect that in 1994 PCr.LJ 2297, the application under section 249‑A, Cr.P.C was dismissed by the Magistrate and revision petition against that order was held competent. In the judgment reported in, 1984 MLD 1488, the legal point that revision powers of the Sessions Court and the High Court are concurrent has been discussed. Similarly, in the case reported in 1986 PCr.LJ 2179 the validity of proceedings before the Magistrate was challenged under sections 439, Cr.P.C 1898.

The learned Sessions Judge had dismissed the revision petition in limine on the ground that the petitioners could obtain relief by invoking the provisions of section 249‑A, Cr.P.C before the trial Court. On writ petition, the Hon’ble High Court held that the provision of section 249‑A, Cr.P.C are impediment in his way to hear and decide the revision petition on merits: The judgment reported in 1997 PCr.LJ (sic) though to some extent is applicable to the facts and circumstances of the this case, but with profound respect, this judgment conflicted with the explicit provisions of Section 439(5), Cr.P.C 1898.

 

 

__________________________________________________________

  1. Parvez Muzammil Keen etc. VS Muhammad Anis etc. ,2002 PC.LJ page 2072

 

 

 

 

Also the view taken by, this Court while interpreting these two Sections,Section 439(5) and Section 417(2), Cr.P.C is different.24

Quashing of order against the order of acquittal of accused passed by Magistrate under S.249‑A, Cr.P.C in the private complaint remedy open to the ‘ complainant was by way of a petition for leave to appeal before High Court under section 417(2), Cr.P.C. Revision petition before the Sessions Court against the said order of acquittal, therefore, was not competent and the order passed by Sessions Court setting aside the order of acquittal and remanding the case to Trial Court was without jurisdiction and the same was quashed accordingly.

Revision maintainability U/Ss. 249‑A, 417 & 439.A The trail Courthaving acquitted accused of the charge, complainant instead of availing remedy of appeal against acquittalavailable to him under S. 417, Cr.P.C, filed revision under S.439‑A, Cr.P.C before appellate Courtand the AppellateCourt below, had rightly dismissed revision being not maintainable.25

Maintainabilityofrevision petition against order of acquittal passed in a complaint case not competent.Magistrate had acquitted the accused under S.249‑A,Cr.P.C. in a complaint case.

No revision petition was competent against the said order before the Sessions Court in view of the express provisions contained in S.417 (2), Cr.P.C only remedy available to complainant against the aforesaid order of acquittal was to file an appeal under section 417(2), Cr.P.C andSessions Court’s order passed in its revisional jurisdiction remanding the case to Trial Court was consequently, set aside being Coram non judice. The Court is has observed that the revision petition filed by the respondent before the learned Additional Sessions Judge against the acquittal order under section 249‑A, Cr.P.C was not maintainable under the provisions of section 439(5), Cr.P.C as the respondent was having the remedy of filing an application for 1 special leave to appeal before this Court under section 417(2), Cr.P.C 1898.

The impugned judgment of the learned Additional Sessions Judge, therefore, suffers from legal infirmity, is not sustainable and liable to be quashed under the inherent powers of this Court under section 561‑A, Cr.P.C 1898.26

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  1. Parvez Muzammil Keen etc. VS Muhammad Anis etc. ,2002 PC.LJ page 2072
  2. 1998 MLD 1605 (Lahore), PLD 1996 Lahore 457
  3. State vs Hakim khan,1999 MLD 585 (Lahore)

 

  1. Conclusion

Right of appeal is a constitutionally and fundamentally right of the aggrieved person which cannot be denied or barred by statuary provisions of any enactment. Right of Appeal is fundamental right, granted by Constitution of Pakistan 1973. Appeal is a continuation of trail and any statutory provision which denied access to right of appeal, is against fundamental rights guaranteed by the Constitution of Pakistan, 1973. Nevertheless this would not then mean that an aggrieved person whether provincial Government, Federal Government or any aggrieved person is denuded of the power of filing an appeal from an Order of acquittal passed by a Special Judge appointed by such Government or for that matter such person would have no remedy of appeal against acquittal by any such Special Judge. To read as much into the provisions of Section 10 of the Criminal Amendment Act, 1958 would certainly amount to denying access to justice to an aggrieved person which would certainly be in violation of his fundamental rights as guaranteed under the Constitution particularly Articles 4 and 25 thereof and Article 10-A as an appeal is a continuation of the trial. So also, it would be seen that the Special Court/Judge is a Court inferior to the High Court and hence the High Court’s revisional powers under Section 435 Cr.P.C 1898 to check the correctness, legality or propriety of any finding or order recorded or passed by an inferior Court would not stand excluded particularly as the Act itself does not exclude the same. Consequently it would be quite appropriate to observe that any aggrieved person whether it be the Federal or the Provincial Government or an accused or a complainant could approach the High Court in appeal against either an order of conviction or acquittal or for that matter for the purpose of enhancement of a sentence passed by any Special Judge appointed under the Act 1958 and as much should be read into Section 10(1) of the Criminal Amendment Act, 1958. In this regard, it may also be observed that perhaps this was the legislative intent, as Section 10(2) of the Act ibid was added to cater for the right of the Federal Government to file an appeal against acquittal as such right was not given to it under Section 417(2) Cr.P.C 1898.Therefore, it is concluded that no revision competent against an order which is challengeable in appeals under Section 417(2) Cr.P.C, because, appeal is an fundamentally guaranteed   right of aggrieved person and it cannot be barred by statuary provisions of law or where there are no express provision in special laws. 

 

  1. References and Bibliography

 

  1. https://dictionary.cambridge.org/dictionary/english/appeal accessed on 10.01.2019
  2. Gary Stein, Expanding as per the Process Rights of Indigent Litigants: Will Texaco Trickle Down?, 61 N.Y.U.L. Rev. 463, 487-88 (1986)
  3. See Peter D. Marshall, A Comparative Analysis of the Right to Appeal, 22 Duke J. of Comp. & Int. L. 1, 1 (2011) (“The right to appeal is a comparatively recent addition to the common law criminal process.”)
  4. Stan Keillor, Should Minnesota Recognize A State Constitutional Right to A Criminal Appeal?, 36 Hamline L. Rev. 399, 402 (2013)
  5. Mahmood, Major Act,2018 (58 th Edition)775
  6. Hari Shanker v. Rao Girdhari Lal Chowdhury, AIR 1963 SC 698 : 1962 Supp (1) SCR 933;Lachhman Dass v. Santokh Singh, (1995) 4 SCC 201
  7. State vs Sikandar Hayat ,PLD 1970 SC 224
  8. Karam Dad v. Emperor, AIR 1941 Lah. 414
  9. Ashiq Muhammad v. Khuda Bakhsh, PLJ 1998 Cr.C. 565
  10. Noor Ahmed v. Muhammad Anwar ,1993 SCMR 243
  11. Ghazi and others, (FB) PLD 1962 Lahore, 786
  12. Abdul Khaliq Khan v. Muhammad Afsar Khan etc, 1995 P.Cr.LJ. 391
  13. Emperor v. Kasim 48 Cr.LJ 631 = AIR 1943 Pat. 313 Kirshana Chandra v. Emperor
  14. Bahadar Khan v. State and another, PLJ 1998 Cr.C.(Q) 92
  15. State through Deputy Director (FIA) v. Zahid Nadeem etc. (D.B.) PLJ 1996 Cr.C. (Q) 909
  16. (D.B) PLJ 1996 Cr.C. (Q) 1865, Zahid Ali v.State; Wazir v. Muhammad Yuqub, PLD 1999 Kar. 130; PLJ 1996 Cr.C. (Pesh.) 1783, Hidayat Ullah v. Abdul Majeed and others; 1995 P.Cr.LJ 1369, Abdul Majeed etc. v. M/s. M. Ghulam Muhammad etc; Noor Gul vs STATE, NLR 1987 Cr. 470
  17. Haji Khan Kharo V/S Muhammad Shareef & 2 Others (Karachi DB), 2001 PCrLJ 568.
  18. Khalid Hussain V/S Naveed @ Qalb Ali & 2 Others, PLD 2007 Karachi 442.
  19. Mahmood, Major Act.2018 (58 th edition) 775
  20. Mahmood, The Constitution of Islamic Republic of Pakistan,1973 (58 th edition) pages 38,114
  21. https://ace.punjab.gov.pk ,Section 10 of The Pakistan Criminal Law Amendment,1958 page 3 accessed on 10.01.2019
  22. Mahmood, The Constitution of Islamic Republic of Pakistan,1973 (58 th edition) page 54
  23. Parveez Muzamil Keen etc.VS Muhammad Anis etc. ,2002 PC.LJ page 2072
  24. Parveez Muzamil Keen etc.VS Muhammad Anis etc. ,2002 PC.LJ page 2072
  25. 1998 MLD 1605 (Lahore), PLD 1996 Lahore 457
  26. State vs hakim khan,1999 MLD 585 (Lahore)

SNIPER ATTACK ON ACCUSED / MURDER IN COURT : AN INCUMBANT NEED OF LIGISLATION.

SNIPER   ATTACK  ON   ACCUSED /  MURDER  IN  COURT  : AN  INCUMBANT   NEED  OF   LIGISLATION.

 

* UZMA   ASHRAF*

____________________

* He is professor ( Islamic jurisprudence and philosophy ) as well as director research and development at Premier Law College, Gujranwala. He has submitted his doctoral dissertation in Gift University, Gujranwala.

ABSTRACT:

 

This  article  views  the  increasing    number of  murder  in   our   courts . This   crime  not   only  breaks   the   dignity   of   human   life     but   also  degrades  the  dignity   of   court. There   is  no  protection  to   the   accused   in   our   legal    system  .The  murder  of   accused  in   our  court  creates  question  marks     on  the   dignity   of   court  .The   question   also   arises   on   the   security   of   court   as   well as   it  increases   the  responsibility    of   police     in   order to   see      how   illegal   weapon    entered   in   the   court.  It  is  a  great    example   of   people   taking   law   in  their   hands.  That’s   why   people  don’t    believe  in   the  system  of  court  . This   is   lacuna    in   our  legal   system. It  should   be  filled   in   with  an   incumbent   legislation   in   order   to   protect   the   dignity  of   the   human   life  as  well   as    the  dignity  of  court.

 

 

*Law  graduate   and   research   fellow   in  Premier   law  college, Gujranwala.

We  are seeing   day  to  day   increasing  number of  murder  in   our   courts .  This crime  not   only  breaks   the   dignity   of   human   life   but   also    degrades dignity   of  the  court . There   is  no  protection  to   the   accused   in   our   legal    system    .The  murder  of   accused  in   our  court  creates  question  marks     on  the   dignity   of   court  .The   question   also   arises   on   the   security   of   court   as   well as   it  increases   the  responsibility    of   police     in   order to   see      how   illegal   weapon    entered   in   the   court.  It  is  a  great    example   of   people   taking   law   in  their   hands.  That’s   why   people  don’t    believe  in   the  system  of  court  . This   is   lacuna    in   our  legal   system. It  should   be  filled   in   with  an   incumbent   legislation   in   order   to   protect   the   dignity  of   the   human   life  as  well   as    the  dignity  of  court.

 

Murder  in  the  court  vehemence  day  to  day. If    we  study  every    aspect   of    life    we  feel    that  the     protection   and  dignity  of      life  of  human  being   is    very    serious     aspect   of  life. In Quran     Allah   Almighty forbids the killing  of  human being in several  verses.

وَ لَا تَقْتُلُوا النَّفْسَ الَّتِيْ حَرَّمَ اللّٰهُ اِلَّا بِالْحَقِّ[1]ؕ

“Don’t kill any  soul , which  God  has  made  forbidden  except  in   justice  cause, If  anyone  has   been   killed  wrongfully  and  intentionally, we  have   given   his   heir  the  authority. But let   him  not   exceed   the   legitimate   bounds  in  killing. Indeed   he   has  been   helped”

This  ayat  explains   that  law  of   retaliations   must  be   enforced    as  the   heir  of  the  murdered   person  are   helped     sufficiently  by   the   provisions   and  procedures  of   the  law.

 

 

يٰۤاَيُّهَا الَّذِيْنَ اٰمَنُوْا كُتِبَ عَلَيْكُمُ الْقِصَاصُ فِي الْقَتْلٰى ١ؕ اَلْحُرُّ بِالْحُرِّ وَ الْعَبْدُ بِالْعَبْدِ وَ الْاُنْثٰى بِالْاُنْثٰى١ؕ فَمَنْ عُفِيَ لَهٗ مِنْ اَخِيْهِ شَيْءٌ فَاتِّبَاعٌۢ بِالْمَعْرُوْفِ وَ اَدَآءٌ اِلَيْهِ بِاِحْسَانٍ١ؕ ذٰلِكَ تَخْفِيْفٌ مِّنْ رَّبِّكُمْ وَ رَحْمَةٌ١ؕ فَمَنِ اعْتَدٰى بَعْدَ ذٰلِكَ فَلَهٗ عَذَابٌ اَلِيْمٌ۰۰۱۷۸[2]

 

وَ لَكُمْ فِي الْقِصَاصِ حَيٰوةٌ يّٰۤاُولِي الْاَلْبَابِ لَعَلَّكُمْ تَتَّقُوْنَ۰۰۱۷۹[3]

«And there is for you in legal retribution [saving of] life, O you [people] of understanding, that you may become righteous»

 

فَبَعَثَ اللّٰهُ غُرَابًا يَّبْحَثُ فِي الْاَرْضِ لِيُرِيَهٗ كَيْفَ يُوَارِيْ سَوْءَةَ اَخِيْهِ١ؕ قَالَ يٰوَيْلَتٰۤى اَعَجَزْتُ اَنْ اَكُوْنَ مِثْلَ هٰذَا الْغُرَابِ فَاُوَارِيَ سَوْءَةَ اَخِيْ١ۚ فَاَصْبَحَ مِنَ النّٰدِمِيْنَ٤ۚۛۙ۰۰۳۱ مِنْ اَجْلِ ذٰلِكَ١ؔۛۚ كَتَبْنَا عَلٰى بَنِيْۤ اِسْرَآءِيْلَ اَنَّهٗ مَنْ قَتَلَ نَفْسًۢا بِغَيْرِ نَفْسٍ اَوْ فَسَادٍ فِي الْاَرْضِ فَكَاَنَّمَا قَتَلَ النَّاسَ جَمِيْعًا١ؕ وَ مَنْ اَحْيَاهَا فَكَاَنَّمَاۤ اَحْيَا النَّاسَ جَمِيْعًا١ؕ وَ لَقَدْ جَآءَتْهُمْ رُسُلُنَا بِالْبَيِّنٰتِ١ٞ ثُمَّ اِنَّ كَثِيْرًا مِّنْهُمْ بَعْدَ ذٰلِكَ فِي الْاَرْضِ لَمُسْرِفُوْنَ۰۰۳۲[4]

 

«Then Allah sent a crow searching in the ground to show him how to hide the disgrace of his brother. He said, “O woe to me! Have I failed to be like this crow and hide the body of my brother?” And he became of the regretful Because of that, We decreed upon the Children of Israel that whoever kills a soul unless for a soul or for corruption [done] in the land – it is as if he had slain mankind entirely. And whoever saves one – it is as if he had saved mankind entirely. And our messengers had certainly come to them with clear proofs. Then indeed many of them, [even] after that, throughout the land, were transgressors»

 

وَ كَتَبْنَا عَلَيْهِمْ فِيْهَاۤ اَنَّ النَّفْسَ بِالنَّفْسِ١ۙ وَ الْعَيْنَ بِالْعَيْنِ وَ الْاَنْفَ بِالْاَنْفِ وَ الْاُذُنَ بِالْاُذُنِ وَ السِّنَّ بِالسِّنِّ١ۙ وَ الْجُرُوْحَ قِصَاصٌ١ؕ فَمَنْ تَصَدَّقَ بِهٖ فَهُوَ كَفَّارَةٌ لَّهٗ١ؕ وَ مَنْ لَّمْ يَحْكُمْ بِمَاۤ اَنْزَلَ اللّٰهُ فَاُولٰٓىِٕكَ هُمُ الظّٰلِمُوْنَ۰۰۴۵[5]

 

«And We ordained for them therein a life for a life, an eye for an eye, a nose for a nose, an ear for an ear, a tooth for a tooth, and for wounds is legal retribution. But whoever gives [up his right as] charity, it is an expiation for him. And whoever does not judge by what Allah has revealed – then it is those who are the wrongdoers»

 

There  are   numerous   tradition   of   Holy   Prophet (S.A.W.W)   which    establish      the    principle     that    all   persons    are    equal   before    the   law   and   as   such   are   entitled   to   have   equal    treatment   and   protection   of  law.

 

The    accused   is  the   favorite    child  of  law   but   unfortunately    these   words   limited    to   the   quotation. There   is   no  protection  to  the   accused   because   day  to  day the   murder  ratio  in   courts   is   increasing. The  murder    of   accused   create  a  great  question marks  on   the  dignity  of  the   court. The  question     arises  on   the   security   of   the  court . The   question    also   arises  on   the  responsibility  of    the    police .  How   illegal   weapon   entered   in  the   court? How   sharpshooter/ sniper  entered   the   court ,  who   is  backbone  of  it? Why     legislation   has   not   been  passed   in   the   parliament ? Are  the  security  forces  fail to   provide  protection to   the   accused? we  see  justice  in  last  breath,  People   are  taking  law  in  their  hands. People    don’t   belive in  the  system of the court .More  than  60  security  cameras   failed  in  performances. The  sniper   runaway    in   the   huge  crowded. It’s   possible  nobody  to  see the  murderer? Why    suo  muto  action  is  not  taken    on  this  issue?

Now  here  we  discuss   certain  cases  of  murder  in courts .  Wherein  we  see  great severity   of   the   nature  of   these   cases.

 

In March 12.2020   Mudasar  Iqbal  advocate  was  sitting  in his   chambar   and  was  murdered    in   bhalwal  court.[6]

On   22-2-2020  Nabeel Yusuf, the convict sentenced to life imprisonment in a murder case in Ludhiwala Warraich area, was brought to the court for a hearing. , the convict was going to be shifted to Bakhshi Khana after he was presented in court, but he was shot dead. Witnesses said the convict was targeted from the rooftop of Quaid-e-Azam Block of the sessions court, yet no trace of the shooter was found[7].

In  March 11.2020   Accused   appeared  in  the   court  with  his  father   and  was  mudered  in       dipalpur  court[8]

In  May 2011 Additional  District  and  Session  Judge  Haji  Ahmed’s court  in Lahore  was  hearing  the   case  of two  brothers,  zeeshan and  imran nazir. In  that  time  two   youths  had stood   up  and   fired  him these   two  brother’s  dead  at  the  spot. Judge lay  on  the  ground  and saved  their  life.[9]

On  7-1-2015   Mian Rashid, a plaintiff in the murder case, along with his cousin was standing in  the court when they were targeted by three assailants. Mian Rashid died at the spot while his cousin was badly injured.

On  9  feb 2018 – One accused aamir  was killed  at  the  spot by minor (hamza) assailants entered a session court in  Lahore and opened fire . In  9-2-2019  Unidentified assailants on Saturday gunned down a youth Bilal  azeem who had to  attend  a  hearing in a  case at a Lahore sessions court.[10]

On  20   February 2018, at least two lawyers were killed in a firing incident at Lahore sessions court premises. Police said that the incident of firing occurred after heated argument between lawyers over a property dispute. As a result, Advocate Rana Nadeem suffered fatal firearm wounds and died on the spot, whereas another lawyer Owais Talib,  who also suffered bullet injuries, died later at a hospital.[11]

In March 28 -2018  Rawalpindi the incident of firing in Judicial complex.  The  additional  session  judge  went  into  the   chamber   after   hearing  the   firing.[12]

On 29-5-2011   accused   in  muder   of   case   a   session   judge   Abid   Hussain  Qureshi  has   taken   notice    of   the   case  and   demanded  report   from   operation  DIG within   two   hours.   The  judge   inquired   how   could   the   arms   enter   the   premises  of  the   court   despite  the   security   checks.   An  accused   in   murder  case   was   shot   dead   in  the   premises   of   the   court.  A  head   constable  had  also   died   along   with  him. [13]

Islamabad court attack On 3 March 2014, gunmen attacked District Courts Complex F8 in Islamabad, Pakistan. Eleven people were killed and twenty-five people were injured as a result of the gun and  bomb attack.[14]

On 3-1-2019   brother-in-law shooting  his  sister- in-law   in  Lahore   session   court. who  came  in   court  for   hearing.[15]

On 22-11-2019   jaranwala An accused murderer was shot dead by his rival in the premises of a court here in the Faisalabad district city during an ongoing hearing. Additional Session Judge Muhammad Naeem Saleem was hearing a case wherein Tara Gujjar, the murder accused who had been in police custody, was presented in the court. The accused, who was in handcuffs, died on the spot.[16]

In  January 31, 2018, a shootout took place in  Lahore  Sessions Court, in which murder accused Malik Amjad Khan and his handcuffed policemen were killed while Asan was injured.[17]

In Feb 2017 ,  Lahore  session  court, thirteen years  old  Hamza  which  murder  the Amir who brought to the court for a hearing. [18]

on November 1, 2016, a gunman was killed and three persons were injured in firing in the Kamulkal court.

On January 24, 2017, two people were killed and four were injured in a firing at Dipalpur court in Kawakara. Two brothers were killed, while two persons were killed and one injured in shootings in Sheikhupura court on December 20, 2017.[19]

February 23rd, 2020.The convict had shot dead Farooq Othi four years ago. He was recently sentenced to life imprisonment by the sessions court in the case.The CPO formed teams to arrest the killers under the supervision of Civil Line SP Waseem Dar.[20]

Shocking double-murder at  Lahore sessions court unidentified gunmen sneaked into the courtroom of the Additional District and Session judge on early Saturday and fled away after killing two under trial accused, creating worst panic in the otherwise highly-guarded area during rush hours. Its  means   security  forces   vague  in   the  matter  to   provide   safety   to   the   citizens.  No  body  know  what   happened in   the   next   movement   of  life.

 

No   doubt   an  accused   is  a  favourite   child  of  law, but  keeping  in  view  the  shape   of   scale   and   justice,  the   complainant   is   also   not  to  be  denied   of   justice   of   the   court.[21]

All  that  may   be  necessary   for   the  accused  is  to   offer   some explanations    for  the  prosecution  evidence  and  if  the  same  appears  to   be   reasonable  even  though  not  beyond   doubt  and   to  be   consistent  with  the  innocence    of  the   accused,  he  should  be  given  the  benefit  of  it.[22]

An    accused    has  a  right  to  life    unless a  judgment  of  the   court    passed  against   him   for   the   execution   of   the   sentences    of   the  court   following   his   conviction  of    a  crime. This   is   the   meaning  of  the   article   2  of  the   European  convention   of  human   rights. The   article  follows  as     <’Everyone’s  right  to   life   shall  be   protection   by   law. No  one  shall  be  deprived  of   this   life intentionally save   in  the   execution  of    a  sentence   of   a   court  following   his   conviction  of  a  crime   for  which this  penalty  is  provided  by  law.  Deprivation   of  life   shall  not  be   regarded  as   inflicted  in  contravention of  this   article   when   it   results  from  the  use   of  force  which  is  no more  than  absolutely  necessary’.[23]

John  Bowers  says   about   this   article

The   convention    encompasses    a  positive   duty   upon   the   state   to   take    adequate   measures    to   protect   life. This  is  of   obvious   relevance    to  the    health    and    safety    obligations[24]

T.H.Jones  writes  about  attack  on  accused

This   question   arises  in  relation  to   attacks  which   produce  fear  rather   than   actual   injury  whether   the   victim   has   to  be  conscious  of    the   attack  made   upon  him. Must  he  have   been personally   aware     of   the   menaces    and   threats  to  his  safety?[25]

The  burden  of    proving   the  actus  reus of  murder  and  the  requisite mens  rea  rests  on  the   prosecution. ‘throughout   the  web  of  the  English   criminal  law  one  golden  thread  is  always  to  be  seen, that  it is  the  duty  of  the   prosecution  to  prove  the   prisoner’s  guilt.[26] The    ILC’s Drafts  statute  for  an   international  criminal  court  was  revised  substantially  during  a  series  of  meeting  of  diplomatic  delegation  prior to  the  Rome  conference.  In  facts,  the  rome conference  virtually  replaced  the  drafts  statute  with  the  ICC  statute  that  is  much   more   extensive  in  term  of   content.  [27]

 

Prison  security  Act 1992  maintains  the conduct   of  accused  and prisoner   which  saves  them   from any  fictitious  act  inflicted  on  them. The  section  1 of  this   act  explains   this    phenomena  as  follows

For  the  purpose  of  this   section  there  is  a  prison  mutiny  where  two  or  more   prisoners, while on   the   premises  of  any   prison , engage  in   conduct  which  is   intended  to   further  a  common   purpose  overthrowing  lawful  authority  in  the   prison.   For   the  purpose  of  this  section  the   intention  and  common  purpose  of  prisoners  may  be  inferred  from  the form  circumstance.[28]

International  criminal  law has   provision  to  rehabilitate  morally   conduct    of  accused  as  a  quotation  from   an  international    criminal   law  has   been   quoted  here

While  the   concept   of  just  desert  is  by   no  means  new, it  is  only  in   the   last    few  decades  that   it  has  begun  to   assume  a  position  of   critical  importance   in  criminal  law  thinking. Until  then,  belief  in   the   possibility   of  crime   reduction   and   enchantment    with  the   rehabilitative   ideal   had  held  sway  for  much  of   this   century. The   ‘just   deserts’  movement  began  in  the    1970s   in   the   united  states   and    was   primarily   the   result  of  two  related   factors.  Firstly, there  was  the  demise  of  the  rehabilitative  ideal  and   mounting  scepticism as  to  the  efficacy  of  sentencing for  deterrent  purposes   and   secondly, there  was   growing  concern  at   the  extent  of  sentencing  disparity .[29]

 

 

Here  we   make   certain  suggestions     to   legislate on the   impediment of  the   murdering   in  the   court.   There  should  be     proper   security  system  launched  on   the   gate   of   session   courts.  The   visitor   must be   provided     a   visiting   card .     The  visitors  should  be  properly   checked. Their   names   and   propose   of  entry  should  be   biometric  recorded   on   the  gate. only the  people  involved   in  the  cases  and   matters  should  be  allowed    in  the   court.       The  entrees  and  exits  must  be  separate   in  two  gates.  The court   buildings    must  have  wall   boundaries. The clerks, sweepers  librarian, steno, alhmad    must  also  carry  the  cards .  Because  in  the   court   the  clerks   staff  do not    carry  card   and  they  are  not   went  on    checking process. The   advocates  must  also  carry  cards  and    because  in  this   way   any  person   wear  the  court  dresses in  the  court. The  security   staffs  must  have   fully ready  weapons. The   proper  planed  schedule  should  be   issued  which    protect  the   accused  and   witness  from  the   enemy. without  these   suggestions    we  cannot   control  the  critical  security  situation  of  the  court.

Defence  of  alibi   would  be   quite   shaky   and   inconsistent   when   defence  suggested   to    solitary  eye-witness  of  murder  occurrence  in   cross  examination   that   accused   was   not   armed  with   klashinkov  nor  he   was  present  at   wardat. Held, suggestion  to   eye-witness   that      accused  was   not   armed   with   klashinkov    amply   support   fact   that   accused   as   well   as   complainant    were   present    at   site   of    occurrence.[30]

 

This   article  concludes   the  great  severity   of   the  nature  of  the   murder  in   our   courts .This   crime   not   only   breaks   the   dignity   of   human   life    but   also  degrades  the  dignity   of   court. There   is  no  protection  to   the   accused   in   our   legal    system    .The  murder  of   accused  in   our  court  creates  question  marks     on  the   dignity   of   court. The   question   also   arises   on   the   security   of   court   as   well as   it  increases   the  responsibility    of   police     in   order to   see      how   illegal   weapon    entered   in   the   court.  It  is  a  great    example   of   people   taking   law   in  their   hands.  That’s   why   people  don’t    believe  in   the  system  of  court  . This   is   lacuna    in   our  legal   system. It  should   be  filled   in   with  an   incumbent   legislation   in   order   to   protect   the   dignity  of   the   human   life  as  well   as    the  dignity  of  court.

 

 

 

 

[1] AL  QURAN 17:33

[2] AL QURAN  2:178

[3] Al QURAN  2:179

[4] Al QURAN  5:31,32

[5] Al QURAN 5:45

[6] Dunya newspaper  Gujranwala, Wendnesday, March 11 ,2020

[7] https://tribune.com.pk/

[8] Dunya newspaper March 12,2020, p 2

[9] https://www.youtube.com/watch?v=K1O4S6pH2EI/https:www.citynewzlahore

7https://www.newsone.com/https://www.youtube.com/watch?v=_p3ZUF2vg-4

[11] https://www.pakistantoday.com.pk/

[12] https://www.youtube.com/results?search_query=%23JudicialComplex/ www.newsone.tv

[13] https://nation.com.pk/

[14] Ibid.

[15] https://www.youtube.com/watch?v=GN50MrTBhQU/https://www.abbtakk.tv

[16] https://www.juridipedia.com/

[17] https://www.youtube.com/watch?v=56rXvDmDC48/https://www.24NewsHD

[18] https://www.youtube.com/watch?v=O8SnUFVXPgg/ http://www.city42.com

[19]  http://www.city42.com

[20] https://tribune.com.pk/

[21] 200 MLD220

[22] PLD2005 S.C63

[23] See article  2, European convention of human  rights

[24] Bowers  john,employment law  and  human  rights ,sweet &  Maxwell ,London 2001.p 31.  

[25] T.H.Jones ,criminal  Law,W.Green/sweet  &   Maxwell Edinburgh 1996,p 184.

[26] L .B.Curzon, criminal  Law  sixth  Edition, Them  & Handbooks  series 

[27] Kriangsak  kittichaisaree , International  Criminal  law?P55

[28] P.R.Glazebrook, statutes  on   criminal  Law 1996-7,p224

[29] C.M.V.Clarkson,understanding criminal  law , sweet  &  Maxwell 2001.p275 

[30] NLR 1998 S.D.48

CAUSES OF ACQUITTALS IN ATA CASES

CAUSES OF ACQUITTALS IN ATA CASES

 

By

Muhammad Tariq Anayat DDPP ATC-I

Gujranwala.

 

 

 

 

 

 

 

A SUMMARY REGARDING MAJOR CAUSES OF ACQUITTALS IN ATA CASES

Acquittals in ATA cases tried by anti-terrorism courts are primarily an outcome of delay in lodging of FIR, stereo type loose complaint, recovery memo supported by oral recovery witnesses, delay in transmitting samples to PFSA/FIA, traditional modes and manners of collection of evidence, defective, faulty, illogical and imprudent style of investigation which is devoid of circumstantial or forensic evidence. Whereas, on the other hand, material contradictions committed by prosecution witnesses during trail at the stage of cross-examination plays havoc with prosecution cases. Generally, the anti-terrorism courts rely upon very high standard of proof against accused person and even a slightest loophole is sufficient for acquittal. The prosecution has to prove its case beyond any shadow of doubt. The high conviction rate in anti-terrorism act cases depends upon reliability, sufficiency, admissibility and credibility of confidence inspiring cogent and unshakable trustworthy evidence collected during investigation stage by I.O or JIT and thrash out at trail stage by defense counsel of accused person. The senseless manner of drafting of illogical and imprudent complaint by complainant, lack of proof about affiliation/link with proscribed/banned organization, insertion of decoy witness without independent corroboration, lack of signatures by magistrate on recovered terrorism financing currency notes, lack of surveillance and checking of fourth scheduler or suspected persons of proscribed organizations, photocopies of banned books, hate material and donation receipts/receipt book, lack of signatures of head of proscribed organization on donation receipts, non-implication and lack of investigation about  donors in terrorism financing cases and lack of documentary, audio-video, photographic and mobile recording regarding invitation, receiving, use , possession and arrangement of funds evidence demolish the terrorist financing cases and dash to ground the whole story of prosecution which is erected on concocted foundations and baseless pillars. The ATA cases seems to be registered and investigated in a haphazard and traditional time pass manners just fill up the wave of efficiency that results in acquittals or low conviction rate. The I.O,s are not only devoid of sense of collecting documentary or other circumstantial forensic evidence regarding possession of explosive substance, link with proscribed organization, receiving, invitation, possession, use and funding arrangement of suspicious transactions about terrorist financing  from formal banking channels and informal non-banking channels but also  unaware of proper forums for collection of relevant evidence. The timely lodging of FIR, no delay in dispatching samples to PFSA/FIA, collection of documentary and circumstantial evidence during investigation and tendering of quality evidence before ATA courts can be improved and standardized by proper awareness, grooming and conducting joint sessions of trainings for investigators, prosecutors and judges which ultimately would minimize acquittal rates.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

  1. CAUSES OF ACQUITTAL IN EXPLOSIVE SUBSTANCE CASES

The explosive substance cases are those cases in which explosive substance or material with or without devices is recovered from possession of accused person/persons for committing terrorism without any legal justification and presumption of truth is attached to this recovery unless and until contrary is proved. These cases are usually registered u/s 6 (ee),7(ff) of ATA, 1997 and 4/5 of explosive substance act 1908.The main causes of acquittal in these cases are as under:

  1. Defective Investigation

The defective investigation conducted by I.O/JIT in explosive substance casesis one of the prime reason of acquittals in ATA cases. This defective investigation has multi-facets aspects as under:

1.1Link or Affiliation of Accused Person withAny Proscribed Organization is Not Proved

The I.O is unable to provide any material during investigation or trail that could established link or affiliation of accused person with any proscribed organization. Due to this very cause the whole building of prosecution case is collapsed and dashes to ground. This lacuna is also inherited and I.O,s are still unable to collect any piece of evidence regarding connection of accused person with any proscribed organization.

How to establish link or affiliation of accused person/persons with proscribed organization

To overcome this major deficiency in investigation, I.O should collect link or affiliation material as under:

  • The I.O should collect badges, flags, stickers, letter pads etc.
  • The I.O should take into possession mobile phone and laptop of accused person so that data about his links on mobile calls in the shape of CDR, social media, face book, twitter, whats app etc. may be collected to establish link with other persons of proscribed organization. The I.O should send lap top or mobile phone to PFSA, Lahore for complete analysis and report according to retrieved data.
  • The I.O should collect audio-video recordings etc. through CCTV or mobile phone about meetings of accused person/persons with head or other prominent members of proscribed organization. Similarly, I.O must collect recording about speeches, participation in processions of proscribed organization to establish link/affiliation of accused person with alleged proscribed organization.

1.2No person from public is associated with alleged recovery proceedings

Although,19-A of ATA,1997 exception is there about searches and modes of arrest of accused persons. But, when PW,s deposed that a lot of people were gathered at alleged place of occurrence or place of occurrence was a busy area then, doubt about whole recovery proceedings arose , if I.O was unable to get them join in investigation.

Possible Solution: The I.O should tackle this deficiency during investigation stage by joining/associating public gathered at place of occurrence in investigation and mention their names in first case diary. Furthermore, I.O can include private persons in list of witnesses as recovery witness to strengthen recovery proceedings.

 

 

1.3Delay in Lodging of FIR after Alleged Lifting/Apprehension of Accused Person/Persons (An Inherited Defect)

Mostly, the defense counsel relied on defense plea that accused person had been lifted/apprehended illegally prior to booking in this very case and a false FIR had been registered against accused person to show efficiency or cover up illegal detention. The defense counsel strengthen his defense plea by tendering audio-video recordings and exhibiting FIR, applications /writ petitions tendered at different forums and press clippings etc.

Possible Solution

To cover up this very common reason of acquittal, it is essential that FIR should be lodged against accused person/persons without delay just after their lifting/apprehension so that the relatives of accused person/persons could not create defense pleas.

1.4 Lack of Expert and Equipments Facility to Analyze Grenade/Suicide Jacket in PFSA Lahore and FIA Islamabad

Sometimes, the relevant expert is not available at FIA headquarters, Islamabad for analysis of recovered grenade or suicide jackets and accused persons are acquitted due to FIA expert report. This very facility is not available at PFSA, Lahore.

Possible Solution

To overcome this very cause of acquittal, it is necessary that federal and provincial governments should take urgent steps for provision of experts and equipments for analysis of grenade and suicide jackets etc. and prosecution department should brought this  sensitive issue into the notice of all concerned authorities.

 

1.5 Stereo Typed, Illogical and loose complaints

A majority of complaints drafted by complainants are illogical, stereo typed and loose because, most of assertions jotted down in complaints are not supported by evidence which results acquittals in ATA cases. The natural course of events and chain of facts is not properly maintained in complaints. Forexample no person according to provided list of proscribed persons or suspected persons is searched and incorporated in case diaries. Similarly,  list of duty roaster or roznamcha by which raiding party is deputed at patrolling duty lacks names, time, date, place and venue of patrolling etc. When defense put questions to PW,s during cross-examination  about roznamcha or duty roaster then contradictions are produced that creates dents in prosecution story.

Possible Solution

The complainants should asserts those facts in complaints those could be proved during trail of ATA cases. The drafting of complaints should be prudent, logical and comprehensive so that contradictions can be reduced. The roznamcha and duty roaster should be maintained properly.

1.6 Suspicious Role of Source Person

Although the source person has legal protection under QSO, 1984, yet his role about pointation of accused persons, conveyance, information communicated on mobile phone, meeting with raiding party as described PW,s etc. becomes doubtful when thrash out by defense counsel during cross-examination. This problem can be overcome by proper training and guidance to PW,s.

1.7 Absurdity of District BDS (Bomb Disposal Squad) about IED or Grenade Defusing 

The I.O of explosive substance case calls district BDS and he along with his team defuses grenade or IED at the spot and submit the report hand written or printed. But, BDS is not an expert and his report causes failure of prosecution case during cross examination. When case property is opened then absurdities about connection of IED or grenade with other operates becomes doubt full and causes acquittal. To cover up this lacuna, the episode of BDS may be improved by preparation about how to give rational answers to defense questions and standardized report formation.

II-Major/Material Contradictions in the Statements of Prosecution Witnesses

The whole prosecution case proves planted and doubt full due to material contradictions. The material contradictions committed by PW,s during cross-examination demolishes the erected building of prosecution cases at trail stage because, ATA courts rely upon famous maxim that false in one thing is false in all things. The PW,s commit material contradictions due to following reasons as under:

The following material contradictions are detrimental to prosecution of ATA cases:

  • The PW,s do not approaches prosecutor one day before case is fixed for evidence.
  • All the PW,s are unable to conduct joint session of preparation about tendering of evidence in ATA court. A joint preparation of all PW,s will minimize material contradictions.
  • Usually, the PW,s being corporals are not law graduates and commits material contradictions during cross-examination.
  • The PW,s are not well conversant with facts and circumstances of the case.
  • The PW,s start preparing case on the spur moment of tendering of evidence.
  • The PW,s take the cross- examination just as time pass and in a relax mode.
  • The PW,s rarely tender rational answers to questions put to them by defense during cross-examination.
  • The PW,s donot use common sense and remains unable to follow the chain of facts or natural sequence of events which results in material contradictions.

 

Solution to Issue.

The problem of material contradictions committed by PW,s can be minimizes by adopting the following as under:

  • The PW,s should be aware of material contradiction during cross- examination.
  • The PW,s should have proper training of cross-examinations and moot court room exercises and rehearsals would be very fruit full.
  • The prosecutors should deliver lectures to CTD officials and police on the topics of material or fatal contradictions.
  • To avoid material contradictions, there should be audio-video recordings of famous lawyers regarding cross-examinations of different witnesses.
  • There should be joint session of trainings of prosecutors and corporals or police officials regarding material contradictions.