Abdul Majid Vs. Government Of Pakistan

IN THE FEDERAL SHARIAT COURT

(ORIGINAL JURISDICTION)

PRESENT

MR. JUSTICE CH. EJAZ YOUSAF, CHIEF JUSTICE

MR.JUSTICE DR. FIDA MUHAMMAD KHAN

MR. JUSTICE SAEED-UR-REHMAN FARRUICH

SPIARIAT PETITION NO: 1/I OF 2003

Abdul Majid son of Major Abdul Malik R/o Village and Post Office Dulmial Teh. Choa Wan Shah, District Chakwal Petitioner

VERSUS

Government of Pakistan .... Respondent Counsel for the petitioner .... Petitioner in person Date of Institution •••• 29.1.2003 Date of hearing .... 5.11.2003 Date of decision •••• 5.1402003

JUDGMENT

DR.FIDA MUHAMMAD KHAN, J.- The petitioner Abdul Majidi son of Major ( R) Abdul Malik, through this petition, has assailed Pakistan Arms Ordinance No.XX of 1965 and Arms Rules 1924, hereinafter referred to as the Ordinance and Rules, on the ground of being repugnant to the Injunctions of Islam. The petition was fixed for preliminary hearing and the petitioner was heard in detail. While supporting the contents of his petition, inter-alia, he submitted that every citizen is entitled to protect his life and property and naturally he has to keep any kind of weapon for that purpose.

Therefore, he argued, there was no requirement for grant of licence for keeping of fire-arm weapons, as envisaged by the said Ordinance and rules framed therewith. He also opposed levying of annual fees for the grant of licence in this connection. He placed reliance on verse 59 of sura 4 (4:59).

We have given our anxious consideration to the points raised by the ... petitioner and besides going through provisions of the Ordinance and Rules, 11 'th\ also considerethiniboil of the abo* mentioned Holy Verse, as applicable in Alte contetof instant petition. It may be pertinent to mention right in the

beginning that the Ordinance and the Rules place no embargo on keeping of weapon for the purpose a self-protection as well as protection of honour and property but, as highlighted in its preamble itself, only 'aims at consolidating the law relating ti5 the sale, transport, bearing or possession of arms ammunition for military store, by making certain rules and regulations for the same. The only purpose of the Ordinance and Rules appears to regularise the possession of weapons etc. and thereby, check misuse of the same, so that the lives and properties of innocent people are properly safeguarded.

3.It may be mentioned, that Islamic Shariah empowers the authorities in power to make legislation for all matters which are not specifically covered by the injunctions of Islam, as contained in Holy Quran and Sunnah of the w Holy Prophet (e-).,..ke.frist.4^0. ). The Holy Prophet (e.54....i.,;:t5LP) has made it explicitly clear that Almighty Allah has revealed Commands for certain things but has left out many other matters for consideration by the Ummah to make laws for the same if they feel the necessity to do so.-The Oly condition,.particularly imposed and emphasised upon in this connection 2 Sr

the requirement that the legislation must be in accordance with the Injunctions of Islam and no law shall be enacted which is repugnant to such injunctions. At the time of revelations, the Muslims were snictly directed to abstain from asking questions from the Holy Prophet (ctsc,14,1`14.), in respect of matters intentionally left out by the Injunctions. Verse No.101 of Surah No.5 which follows is very clear in this respect. The said verse reads as • under:- “ 2 4

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4.The inference drawn from the above Verse and Hadith is stated to be the fact that while some Injunctions were revealed in respect of matters which are permanent in nature and scope and are not liable to be changed while some matters were left out to the discretion of Ummah so that, while keeping in view the principles and broad outlines contained in the permanent Injunctions, they should make laws according to their requirements, from time to time. This flexibility, based on the eternal principles, has made the Islamic system a solid rock to always stand the test of time everywhere. The institution of Ijtihad has played a vital role in the evolution of laws and making them progressive, modern and dynamic. It has been held that where there is no explicit provision in the Holy Qtiran and Sunnah, the legislative body may enact laws in respect of the same while keeping in view the general spirit of Islam Allama Abdul Aziz Amir, a renowned authority on Islamic law, has rightly pointed out that the Ummah may consider enactment of various laws according to the requirement of its people from time to time.

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Most of the details of crimes and their punishments have been left out, to the discretion of rulers, so that they' may declare acts as crimes and determine punishments for them appropriate for their age and generation.

5.So it follows that where ever and in what ever-matters the specific guidance is not available from the Quran, the Sunnah, or the conventions of the early periods of companions of the Prophet (elfr-sZIP), the •Ummah is authorised to legislate, through their qualified representatives, in respect of the same according to their requirements. The principle governing such situations is that whatever has not been disallowed is allowed.

Legislation in Islam, in fact is mainly based on public welfare and "maslaha" Imam Ghazali defines "maslaha" (public welfare) \ as the establishment of a legal principle for which there is no evidence in the source, but which is itcommended by reason as advantageous. The rightly guided Caliphs have also followed the principles of "Maslah". The Muslim .Nt jurists have relied upon various examples of their ruling. Ali Hassaballahlus.

highlighted several such rulings e.g. judgment of Hazrat Urnar in the case of I Ia Mawalafat. ul qulub (d5\1>), suspension of punishment of Hadd in the year of famine, suspension of the punishment of sending in exile for the "zani" etc. (Usul al Tashria al Islami, page 149).

There are a number of legal maxims laying down rules for the • application of the principle of "Maslahah". This principle defines the limit within which the rulers can exercise their administrative and political authority and take measures for the protection of the rights and freedom of the masses so as to establish law and order and maintain justice. The concept • of justice is eternal but its dynamics may change in the changing , circumstances. A certain law may be just in one time but may entail injustice at another time and in another context. Abdul Aziz Amir writes:

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(Whatever is not treated as a crime in a particular efaratid country may, be treated as crime in other era and country and vise versa.)

Shariat Petition No.1/I-2003

8.Mother significant feature of Islamic legislation worth-mentioning is that every harm and corruption, in whatever form and whatever degree and proportion it may be, should be removed and exterminated as far as possible.

Dr. Faroog al Nabhan writes:

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o , In ull c.3.01331 j (U‘ cha;21 ( c' t4-4.3‘ •:r°74> klitra-1-5 ‘":‘;'-vil /. - 0 Lrl e \ "Islamic law is based on the principle of gaining public interest and warding off harms. If the commission of any action of a human being causes harms to the public, then he will be prohibited from the using of the same right. So that the basic legal maxim may be implemented, i.e. to ward off harm has priority over gaining interest. "

9.The same opinion has been supported by the internationally acknowledged scholar and authority on Islamic law, namely Abdul Qadir Audah, He Writes:

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" The approach of the legislature to penal crimes varies with . lands and customs. The same act may be declared by the legislature of one state as lawful and by that of another unlawful. Similarly the court of one country may award punishment for an atton grounds other than the court of another country may do so."

10.In this respect Sharjah has given vast power to the authorities in power to enact appropriate laws for the public welfare. Here we may refer to a legal maxim laid down by the Muslim furists which is as follows:- " The ruling of a ruler over his subjeet is based on their welfare. (Majallah, Article-558).

The maxim has been derived from the following verses. The Holy Quran says:

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"0, you who believe, Obey Allah, Obey the Prophet and those who are in power among you." (4:58).

Explaining the above verse, Abdullah Yousaf Ali writes;

" As Islam makes no sharp ,division between sacred and secular affairs, it expects ordinary government to be imbued with righteousaness, and stand in the place of the righteous Imam, and we must respect and obey such authority, otherwise there will be no order or discipline". ( Commentary on Holy Quran by Abdullah Yousaf Ali, Page:198).

11.Mother basic principle which naturally follows in Islamic Shariah is that if a permissible act becomes a source of trouble and harm to the public;

it will be prohibited in the interest of the public. In this connection a famous contemporary scholar Ali Hasabullah writes:

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"When it appears in some matters that to act therein according to the text ( oa.s) (of Holy Quran or Sunnah) or analogy do not fitlfil the requirements of mas laha (public welfare) but rather it amounts to mischief or. harm (to the public), such act will be suspended (prohibited) in such critical situation for the achievement of public weal). (Usul al. Tashri' a al Islami, P. 160).

Explaining Maliki opinion in this regard, Abdul Aziz Amir writes:

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" Some times the commission of an act in itself is permissible but it. amounts to a mischief or public harm. According to the majority of the Maliki jurists such act in such context will be prohibited as preventive measure 3.A.).....) and the violation of such prohibition should be made punishable with tazir if punishment has not been prescribed therefore".

(Al-Tazir fi al-shariah al-Islamiyyah, P.85).

In view of the above we have come to the conclusion to hold that the impugned law and Rules having been duly made for the general welfare and security of Umma at large are not against the injunctions of Islam.

Regarding .the imposition of fees for keeping *arms, we may refer here to a judgement of this court reported as PLD 1992 FSC 329 .wherein, interalia, it has been held that:

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14.Consequently for the reasons stated above, we find this petition misconceived and therefore, dismiss it accordingly in limine.

imactg

( DR. FDA MUHAMMAD KHAN)

Judge

L—. 41' 11RAtteL, (Ch: EjanCiusaf ) ( Saeed-ur-Rahman Farrulch ) Chief Justice Judge

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Islamabad 5-11-2003 . Arshad Khan & Mujeeb/

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