Abu Dawood Muhammad Sadiq Vs. the State

IN THE FEDERAL SHARIAT COURT

(ORIGINAL JURISDICTION)

PRESENT:

Mr. Justice(Retd) Salahuddin Ahmad, Chairman. Mr. Justice Agha Ali Hyder Member Mr. Justice Aftab Hussain Member Mr. Justice Zakaullah Lodi Member Mr. Justice ICarimullah Durrani Member

SHARIAT PETITION NO.6 OF 1980.^ ^ ''■ \

Abu Dawood Muhammad Sadiq ........ Petitioner Versus The State . . . . . Respondent Nazir For the petitioner Mian/Akhtar, Advocate. For the State

JUDGMENT

ZAKAULLAH LODI, J/MEMBER.

The petitioner k is Surmat-wal-Jamaat (Hanafi, Sa r a l v i ) . He has challenged the National Regi s t r a t i o n Act, 1973 whereunder every citizen is registered with the Government of Pakistan and an identity card with his photograph affixed thereon is issued to h i m . It is extremely useful not only to the G o v e r n m e n t but also to a c i tizen as it facilitates the establishment of identity. The petitioner assails this enactment mainly on the ground that it requires him to provide his photographj and he believes that photography, paintings and other works of f i n e art are "HARAM” for a Muslim.

Accordingly he seeks a declaration to the effect that this law was repugnant to the injunctions of the Holy Quran and Sunnah of the H o l y Prophet (peace be upon him)(hereinafter referred to as the Injunctions of I s l a m ) .

2.Mr. Nazir Akhtar appearing for the petitioner relied upon Verse No.3^-/l3 °f the Holy Quran and few :,IIadith" reported in Bukhari

-52s-

(Kitab-ul-Amsalat) , Muslim(lCitab-ul-Masajid) and Nasal (Kitab-ul-Masajid). I would reproduce first the Quranic Verse:

13 T h e y worked for him A s h e d e s i r e d ,(m a k i n g ) A r c h e s , Images, Basons A s l a r g e as R e s e r v o i r s , ‘ it ~t - And (cooking) Cauldrons fixed ■> ?

( i n t h e i r p l a c e s ' : ''Work ye, S o n s of David, w i t h thanks B u t f e w of M y s e r v a n t s Are gratefuli (a . Y u s u f A H ' !

I t is e v i d e n t f r o m t h i s V e r s e t h a t i t is the i n / n a t u r e of " K h a b a r ” . It o n l y i n f o r m s u s that Prophet Suleman built various kinds of b u i l d i n g s .

and decorated them with statues and paintings i.e.

"TAMASIL" . Yord "I.-l-hlSIL" u s e d in this Verse would also cover photography as by this technique also picture of an existing object is transmitted on paper. It is significant that this Verse neither imparts any instructions about the p r e p a r a t i o n and use of "T. lM A S 1 L S :i n o r does it approve or condemn the same. Apart from this verse no revelation is to be found in the H o l y Quran on this particular subject. It is thus uncontroversial that fine art, as such, is n o t even discouraged by Quran much less-*4' than total prohibition. Vhat is thus left to be examined in this context is the extent of limitations, if any, and their n a t u r e \ and that c a n be deduced from the general policy envisaged by the H o l y Book in ethical and moral field. 1 would endeavour to d i l a t e upon it. But before doing so I may relevantly mention that it is one of the fundamentals of our belief that all the Prophets were messengers o f G-od a n d the revelations which came unto them are true and binding.

Their practices can also not be regarded derogatory to the laws of God| f o r ; i t ftneonev-’i '-ble a b o u t a Prophet. In fact these Prophets were fore-runners of the last Prophet and the revelations introduced by them were a prelude to I s l a m . Hence, what was said

# or done by earlier Prophets in different walks of life shall hold good for us unless it w a s explicitly altered, amended or forbidden.

3« 1 may now discuss the position of

"TIadith" on this subject. In all the 6 books of Iladith ( r v * ) believed by the Sunni Muslims and ( ) believed by the Shia Sect, we find that prohibitionswere initially introduced by the Holy Prophet for all k i n d s of "T-n-lASIL ! . S o much so that even the u s e of printed cloth was prohibited.

It was besides strict i n s t r u c t i o n s to e r e c t M b s q u e s w h i c h is f u r t h e r s i g n i.Pic a n t . on the graves of t h e dead/. P a i n t i n g s o f ’'Tarnasil” of the P r o p h e t ^ J 1" p ious men etc. were also strictly prohibited. In order to find the reasons for such prohibitions we w o u l d be required to examine this subject in h i s t o r i c a l perspective. Various eminent writers have dealtk with this subject with reference to the Holy Book and ''iiadith'1 a n d h a v e arrived at the conclusion that the prohibition imposed on m a k i n g and us'ag* o f "Tar.iasils’’ w a s mainly on account of the necessity to erase from the minds of the people ths all traces of a p o s t a s y , t h e trends of w h i c h were still to be found in their nature. Dr. Yusuf Qarzavi in } has ably discussed the subject with

reference to !,T a h a v i ' r a jurist of H a n f i School, and arrived at the conclusion,' the gist of w h i c h I would reproduce below: ? / O ' . w.*

J c ? j * 4 ^ 4 o < 4 ^ ^

^ Cl </' - (CCS^J &**■> i r

^ o'i

C s')

Another quotation from the writer would also be relevant,.

\Sar* ^ % /o t, * » » tf* £ g ^ \P < A s^ O ^ W A )^ J > 3u' o y ^ 'o m ^ c*4sZ(& 'iJ> s2j-

o ^ o )dS ^

He has bWs^rf'ed that:

(yAV16! ^ ) “ ■

~J>y « ■ > « ; O ^ s Q :^ > ? ^ i ^ ^ V a a ;

(j m ,>;

Tibri has also discussed this subject and w'ith reference to lladith in Muslin which says*, he has said that:

(f^ < j * t f j . ° s S y O'-*,-

* S

( H r S ' S S ' c ' ^ ' S * ' 'J

In respect of the u s e of printed cloth, the rigidity of the earlier instructions was later relaxed and it w a s due to the realisation that with the passage of time new converts had started forgetting or say condemning their ancestoral beliefs, and it was no more necessary to bind them with such prohibitions. Accordingly use of p r i n t e d c l o t h was allowed as ’’ T ^ V ■■ (S u n n a n A.bu D a w o o d , Vol.III, printed by Quran Mahal, Karachi, commentary on " H a d i t h " N o .753 and 75^)*

I may also usefully refer to the views of Muhammad Yusuf Farooqui (Monthly " !1 August, 1980 issue, page 39). After talcing into account all the Cl>iu»\j?\ on the point and analysing them in historical perspective, he is of the view that such prohibitions were strictly with the purpose of totally /XQ <0- and ...

supressing^idolatory /©» immoral practices which were hitherto rampant in the society.

-:5s-

u fjfiV S r 1h O uy s s df<* *•?*TjJ p *?c < < y - o £ V*"*-**' ^ iS C d S d *’1a f ^ s t J - cSf g j J It wi l l be seen that in all these conclusions based on the interpretation of "Hadith" a pointed reference has been made to idolatory and immoral practices. It c a n be easily appreciated that before the advent of Islam, a vast majority of A r a b s were idolators and despite their conversion to Islam trends of partial or total reversion to their ancestoral practices remained in tact for some time, and t h e I-Ioly P r o p h e t had to initiate all such steps by which these trends could be eliminated for good. This was one of those measures which were adopted to do away with the least of possibilities of M u s l i m s 'p o l l u t i n g their faith. In fact, Quran mentions of such converts who were still not staunch in their belief and calls them " O*^". It w a s in these circumstances that graves of the dead were demolished, statues and paintings etc. were destructed and total ban on the making and use of p a i n t i n g s was imposed.

But present day- I s l a m i c society stands on altogether different pedestal and each and e v e r : l.uslir- is staunch in h i s religious beliefs. So, the cause \ having changed, we are bound to c o n s t r u e and use these "Hadith' with radically different approach. The arguments of the learned counsel that these ''Hadith'1 h a d universal application are based on p l a i n reading of the w o r d s of "Hadith'. He lias c o m p l e t e l y divorced the logic behind the wor d s , while pressing them: i n t o service. These "Hadith" when read with reference to the times and their requirements would certainly not call for universal application.

As we have already seen, it is unimaginable that Islam which is a religion based on r e a l i t i e s of life would impose embargo on a subject with which development as w e l l as appeasement of finer sentiments of the people is closly related.

O f c o u r s e , it c u r b s w i t h a h e a v y h a n d the n e g a t i v e

use of any art or science. This is necessary for a healthy, progressive and principled society that all channels of human thought and effort should play constructive role, and that is what Islam demands.

k* Here a few words on Quranic thought and policy relevant to the subject may not be out of place. Fine arts are meant to beautify the individual's life as well as society as a whole, by creating will^ vigour, and optimisn^. They are in a big way responsible in developing the qualities of head and heart. But if handled irresponsibly, they are also capable of producing disasterous results in the society. Such use of the art is condemned by Islam. But as far as its balanced or beneficial use is concerned it is highly approved by Quran. At enumerable places the Holy Quran appeals to man's finer senses and asks them to reaslise the beauty of the earth, universe and heavens which has been richly ornamented. After mentioning this he directs its followers to mould their lives in a refined, decent and balanced pattern. Crude and base life, which is bound to take place, if chances of satisfaction of finer sentiments of the people were eliminated, would mean impeding human progress, and Islam does not stand for a dull, static and retrogressive society.

It h a s rather taken care to assume strains and develop mental and spiritual faculties of the mankind. Among others, Verses N o s .1 8/ 7 ,15/ 16, 16/ 5 , 16/ 7 ,1 6/ 8 ,16/ 6 ,7/ 32, 7 / 3 1 . 7 6 / 1 3 . 7 6 / 1 5 -21 may be perused to realise the nature and extent of intensity of the said Quranic appeal for a decent, refined and balanced life; and it is for a balanced life that it points out the symmetry, beauty and ornamentation of earth, universe and heavensj so that individuals may take a lesson from this. Islam has no en:'iiy with the finer sentiments of the man, as often tried to be preached by some such scholars of Islam, who fail to realise its true spirit and thus can not visualise the kind of society^ that it endeavours to create on earth

Reference to P r o p h e t Suleman's buildings and their decoration? music and its patronisation and development by P r o p h e t D a w o o d a n d s u c h o t h e r r e f e r e n c e s a r e in in Quran plenty/, a n d n o t w i t h o u t s i g n i f i c a n c e . H o w e v e r , s i n c e the scope of this petition is limited, X need not expand the d i s c u s s i o n so as to cover the entire field.

5.Adverting to this petition once again, I am of the view that the Identity Card, Passport and such other documents requiring photographs do lend a helping hand in beneficial administration of the country. They are required for journey abroad not only under the laws of our State but under the laws of the countries all over the world. Such beneficial use of photographs can not be called ingenuine or d e t r i m e n t a l . It is for such i±ke reasons/Dr. Yusuf Qarzavi ( ) while

interpreting Islam almost in traditional manner has tried to pick photograph out of the pale of "TAMASIL" and allowed its use, which is commendable. Tibri is also of the view that pict u r e s were aot prohibited in I s l a m as long as they did not lead to s e n s u a l i s m . e ’t c .

Haulana Muhammad Shafi in " " also allows

the us e of photograph, but under the pretext of " , From this it is evident that some of the learned men in I s l a m w h o s e views carry considerable x± weight as well as some jurists also do not take such rigid view of the matter as the learned counsel for the petitioner has tried to convass. No schonlar has declared the t certainly pictures' o u t r i g h t l y "Haram" . T h e y h a v e /tried to peer into the question realistically which the petitioner fails to do.

S As a result of this discussion; I do not

find the law challenged in this petition to be repugnant to the Injunctions of Islam. Petition is dismissed.

C H -ITRI'AN / /r

MEMBER-I H

MEMBER-II

MEMBER

Dated, Islamabad the 3rd Dece m b e r .1980

•per Aftab Hussain: Member

While agreeing with ray learned brother Zaka ullah Lodhi (ft£) in the order proposed by him I would like to add that centuries before the discovery of Camera there were jurists who considered the use of pictures as 'Mabah' ( Z/ ^ ) or permitted. This is clear from the quotation from Zarqani reproduced at pages 672 and 673 of Mawatta of Imam Malik, There is no objection if the picture be on a curtain and even a pillow, see Mowatta P»673» There are traditions in support of this proposition.

A question arose about the legality of pictures on stamps or currency notes. This has been held to be leral and even the Petitioner must be using such ^ stamps and currency notes with impunity. It is difficult to reconcile this fatwa with the view placed before us on behalf of the Petitioners, This judgment finds further support from the views of the renowned jurist Abdul Rehraan Aljaziri (vide pp 69-71 of Kitabul Fiqh Vol. II) who gave his opinion in favour of permissibility of the pictures.

I agree that the Petition should be dismissed.

l ^

— per Afta’ o Hussain; Member

While agreeing with ray learned brother Zaka ullah Lodhi (/)£) in the order proposed by him I would like to 3dd that centuries before the discovery of Camera there were jurists who considered the use of pictures as •Mabah* ( Z/ ) or permitted. This is clear from the quotation, from Zarcani reproduced at pages 672 and 673 of Mawatta of Imam Malik. There is no objection if the picture be on a curtain and even a pillow, see Mowatta P.673. There are traditions in support of this proposition.

A question arose about the legality of pictures on stamps or currency notes. This has been held to be legal and even the Petitioner must be using such p stamps and currency notes with impunity. It is difficult to reconcile this fatwa with the view placed before us on behalf of the Petitioners.

This judgment finds further support from the views of the renowned jurist Abdul Rehman Aljaziri (vide pp 69-71 of Kitabul Piqh Voi. II) who gave his opinion in favour of permissibility of the pictures.

I agree that the Petition should be dismissed.

Subject:- Shariat A ppeal No. 6 o f __ 1981 . (Abu Dewood Mohammad SVdiq, Versus.

The State and othe r s ) .

(On appeal from the judgment and order of the Federal Shariat Court of Pakistan, dated 3.12.1980,in Shariat Petition No . 6 of 1980, (Abu Dawood Mohammad Sadiq. V s . The State and others).

sir,

In continuation of this Registry's letter No.5. 6 of 1981-SCJ: dated 12.3.1981, I am directed to enclose a certified copy of the order of Supreme Court of Pakistan, dated 16.5.1984, dismissing the above-cited appeal for necessary action.

2.I am also directed to return herewith the original record of the Federal.Shariat Court in this case... ... .■ yf ru,.,.-. ■? ■ k*'*-, /i. r . :

Kindly acknowledge the receipt of this leaser alongwith its enclosures.

Your cbe

Ends: 1). Judgment. •--gi - 'r-r, 2). Original record. gi sonar.

Ik.:

IN THE SUPREME’ .COURT

(Shariat Appellate Jurisdiction)^

PRESENT

Mr.Justice Muhammad Afzel Zullah,Chairman. Mr.Justice Dr.Nasim Hasssn Shah.

Mr.Justice Shafiur Rahman.

Mr.Justice Pir Muhammad Karam Shah. Mr.Justice Msulana Muhammad Taqi Usmani.

SHARIAT APPEAL N O .6 OF 1$81.

Abu Dewood Sadiq Appellant

Versus

The State etc Respondents.

For the appellant M i e h Nazir Akhtar, ASC Mr.M. A. Siddiqui, AOR

For the respondents Syed Riszul Hassan Gilsni,ASC Mr.M.A. Siddiqui, AOR

Dates of hearing: 9th, 10th, 12th, 14th October, 1982 & 16th May, 1984.

ORDER

For the additional reasons to be given in the detailed judgment of this Court, we are unanimously caf.,the opinion that the use of a picture on the’INational Registration Card is not repugnant to the Holy Quran and Sunnah because of our findings, inter-ali a , that-

(q)Making and keeping of pictures or photo­ graphs cfcf living tfeeing is forbidden by the Sunnah of the Holy Prophet (Sellellah-o- Alsihey Wesss l a m ) . This prohibition is relaxed only for a genuine social need, and,as the requirements of photograph for the purposes of the Act are such as to make out a -esse' of a genuine social need, tiieyy ere not repugnant to ifche Holy

Quran end S u n n a h .

Where the photograph or a statue in ajiy physical form, is meant for worship or homage it is forbidden in Islam. If e photograph or e picture is not complete it mey not be impermissible. However, so far as the cease of e picture to be attached to the National Registration Card is concerned, it does not fall within the forbidden category of pictures rnd therefore the _ y relevant provision is not repugnant to the Holy Quran and Sunnah.

The making or taking of photographs is neither forbidden in the Hbly Quran nor disapproved by the ’Sunnah of the Holy Prophet (S.A.W.) if the intention, purpose end object for so dloing is not for exhibiting th e m as a mark of worship/ devotion nor as a challenge to the a

Creator but only Jfor furthering the ends of the happy, harmonious> orderly fu functioning obf the lives of the community and the proper organisation of the affairs of the State.

If the matter is examined in yet another context, namely the new methods in historical evidence and Archaeological discoveries, w h i c h are in progress and many sites, as reported, ® r e being dug in Arabian Peninsula alone, whictypoint towards need for more detailed research regarding the Sunnah, on this subject-, of the Holy Prophet (3.A.W.)- together with

the. practice of-, the Companions arid the Tebiaens for a long time after Hijra, then also et least till the completion of the new research, the conceptual scope of Urf/Msroof end Zeenat-Allah read with the commands in the Holy Quran and Sunnah for their use by the Muslims under restrictions like those of JCsraf, Fohsh and S h i r k , will make pictures in question, permissible.

* This appeal is, accordingly dismissed, leaving the parties to bear their own costs.

Sd/-

(Muhammed Afza.1 Zulleh) Chairman.

Sd/-

(Nrsim Hasan Shah) Judge.

,Sd/-

(Shefiur Rahman) Judge.

.i *Sd/- Pir Muhammad Ksram Shah) * y

Sd/-

(Msulana Muhammad Taqi Usmani) Announced at Lahore, Judge.

dated: 16.5.1984.