PREAMBLE

The Federal Shariat Court (FSC) of Pakistan has been granted extensive power to
determine validity of any law or custom having the force of law on the yardstick
of ‘injunctions of Islam’. It is the original jurisdiction of the court. This paper
explores the scope of ‘injunctions of Islam’ as construed by the FSC along with its
implications on the constitutional system of Pakistan. Although it is an important
jurisdiction having many implications for the role of Islam and its introduction into
the legal system by judicial pronouncements, the irony of this jurisdiction is that
it’s very foundation, i.e. ‘injunctions of Islam’ has not been defined precisely by
the Constitution of Pakistan. Leaving this important phrase undefined, the
Constitution has abdicated its task to the FSC. Hence, the court has to give a
connotation to the ‘injunctions of Islam’ in order to exercise its jurisdiction. The
paper posits that the court’s exercise of jurisdiction in this regard is somewhat
ambivalent and amounting to interference in the tasks assigned to other
constitutional courts.
 Introduction
It consists of 8 Muslim judges appointed by the President of Pakistan after
consulting the Chief Justice of this Court, from amongst the serving or retired
judges of the Supreme Court or a High Court or from amongst persons possessing
the qualifications of judges of a High Court. The judges hold office for a period of
3 years, which may eventually be extended by the President.
Appeal against its decisions lie to the Shariat Appellate Bench of the Supreme
Court, consisting of 3 Muslim judges of the Supreme Court and 2 Ulema,
appointed by the President. If any part of the law is declared to be against Islamic
law, the government is required to take necessary steps to amend such law
appropriately.

Since its independence, Pakistan has been struggling with the idea of establishing
an Islamic state. Many contentious debates were undertaken in its embryonic
stage by parliamentarians, politicians and constitutional experts on what should
be an ideal constitutional and legal framework in the light of Islam. The religious
segment of Pakistan was of the view that Islam should have been given a decisive
role in shaping the laws of the country, even the judicial organ of the state should
have had the power to strike down laws perceived to be not Islamic. On the other
hand, the secularists decried any role of Islam in the legal setup. A compromise
was struck in all Constitutions (1956, 1962 and 1973) of Pakistan wherein both
sides ceded some space to the other. According to Martin Lau, this compromise
has been on basic structure of constitutional provisions declaring fidelity to
Islamic norms and way of life and non-justiciability of these provisions in the court
of law.

The above-mentioned compromise was shattered by establishing the Federal

Shariat Court (FSC). The justiciability of laws on the touchstone of Islam was
conferred to the FSC for the first time in the legal history of Pakistan by General
Zia-ul-Haq1. The said court was constituted in a bid to Islamize the existing laws of
Pakistan. Initially, the late General Zia established the Shariat Benches in different
High Courts in 1979. Thereafter, in 1980 he constituted a full-fledged court having
1
‫ جسٹس تنزیل الرحمن‬، ‫ ماہنامہ الشریعہ‬، ‫وفاقی شریعہ عدالت کے قیام کا پس منظر‬

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a principal seat in the federal capital Islamabad. The court is comprised of eight
judges including three ulema judges who are required to be well versed in Islamic
law. The FSC has been bestowed with original, appellate and revisional
jurisdictions. The appellate and revisional jurisdictions of the court are for hearing
appeals and to supervise the judicial proceedings of the subordinate courts in
hudood cases. The original jurisdiction of the FSC is the most important one which
is embodied in article 203D of the 1973 Constitution. This paper analyzes its scope
and implications. According to the article 203D, the FSC has an original jurisdiction
to determine vires of any law or custom having force of law on the touchstone of
‘injunctions of Islam’ as laid down in the Qur’an and the Sunnah of the Holy
Prophet. The entire original jurisdiction of the FSC rests on interpretation of the
phrase ‘injunctions of Islam’. The bare reading of the article suggests that any
legislative instrument or customary practice which violates any dictate of the
Qur’an and the Sunnah would not survive within the legal fabric of the country.
The FSC can exercise its original jurisdiction Suo moto, on petition of any Pakistani
citizen or federal and provincial governments. Appeals against the decisions of the
FSC are filed in the Supreme Court of Pakistan which are heard by its special
bench constituted for this purpose namely Shariat Appellate Bench (SAB).
There is one important restriction on the original jurisdiction of the FSC placed by
the article 203B(c) of the Constitution. According to this provision, certain kinds of
legislative instruments have been excluded from the FSC’s original jurisdiction.
These laws are the Constitution, Muslim Personal Law, procedural and fiscal laws.
In one of its earlier decisions, Mr. B. Z. Kaikaus v Federal Government of Pakistan,
the FSC declared that not only the Constitution but those enactments which had
been made to discharge certain constitutional obligations were also ousted from
the original jurisdiction of the court. Moreover, the original jurisdiction of the FSC
can only be exercised in respect of those laws which are currently applicable. It
implies that laws which have become non-existent or being no longer in force
cannot be questioned in the court. Once the FSC assumes its original jurisdiction
in any matter and decides therein, the decision as per article 203D (2) of the
Constitution cannot operate retrospectively.

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 Approach of the FSC in General
The article 203D of the Constitution has laid down regarding the original
jurisdiction of the FSC, that it would only ascertain the vires of those laws which
would come into conflict with the ‘injunctions of Islam’ as laid down in the Qur’an
and the Sunnah. There are two possible explanations: the first is whatever has
been explicitly pronounced in these divine sources that would only be regarded as
‘injunctions of Islam’. The second possible interpretation is that not only the
explicit pronouncements of these divine sources come within the import of the
above provision, rather, whatever is consistent with spirit of these sources that
would also be within the ambit of ‘injunctions of Islam’.
The FSC has more often than not tilted towards the upholding of the second
interpretation of the phrase. Thus, the approach of the court is not literal; it is
progressive in scope and nature. The most important case on this point is Pakistan
v Public at Large. In this case, the SAB merged five different appeals from the
decisions of the FSC and rendered a consolidated judgment. The SAB was
surprised to notice that in none of the impugned decisions of the FSC had it
referred to the text of the Qur’an and Sunnah while exercising its original
jurisdiction. On being so, the SAB was pushed into the debate of true import of
the phrase ‘injunctions of Islam’. The bench made it clear that no decision of the
FSC should be pronounced without taking into account the relevant text of the
Qur’an and the Sunnah. The bench said that the Qur’an and the Sunnah are akin
to an ever-expanding tree to meet growing needs of all times to come. So,
whenever the FSC derives the ‘injunctions of Islam’ from these divine sources, it
should not limit itself to the explicit meanings. The court should also take into
account the ethos and spirit of these divine sources as it is the only way to have
guidance from them in all ages and circumstances.
The same approach has been reiterated by the FSC in some recent decisions. In
Mohtrama Benazir Bhutto & Another v Federation of Pakistan, the FSC has
granted relief against appropriation of a trust created by the family of ex-Prime
Minister Benazir Bhutto. The trust was created in 1974. After the imposition of
Martial Law by late General Zia in 1977, different legislative instruments were
enacted to take over the control of the trust and to debar the aggrieved party to
have any relief from courts. In the present case, the aggrieved party initiated
judicial proceeding for restoration of the trust back to them. Relying on God’s
attribute of hearing and seeing as mentioned in the Qur’an, the FSC held that such

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legislation cannot hold the field which deprives any person from appealing against
his rights. During the course of its arguments, the court observed that the original
jurisdiction is to uphold the ‘injunctions of Islam’ which cannot be vindicated
without establishing justice on unwavering foundations in the society. The court
termed acquisition of anyone’s property without a legally permissible method as
batil (void). Consequently, all impugned laws enacted by the Martial Law
Administrator against the petitioners were declared inconsistent with the
‘injunctions of Islam’.
In the Pakistan case, the SAB has observed that ascertaining the scope of the
‘injunctions of Islam’ is not left to “the discretion of the court or notions of an
individual”, and on the other hand, the bench candidly admitted that it is not
possible to prepare an exhaustive list of the ‘injunctions of Islam’. When it is not
possible to have an exhaustive list of the ‘injunctions of Islam’, the court is left
with no option except to determine the Islamic dictates in each and every case on
the basis of arguments and circumstances of that particular case.
Relying on general attributes of God as mentioned in the Qur’an and generic
notions of justice and fair-play, as was done in the Benazir Bhutto case, is an easy
way to spread out the original jurisdiction, but it is not without the risk of over-
stretching and getting into the domains of other organs of state.
If something does not come within the literal scope of the divine sources, bringing
it within that fold by exercising human reasoning would likely introduce an
element of subjectivity. The possibility of construing a constitutional provision on
the basis of subjectivity would undermine the very restraint included in the
Constitution itself. The framers of the article 203D are supposed to have
appended the Qur’an and the Sunnah after the phrase ‘injunctions of Islam’
consciously with an object that the jurisdiction of the FSC would be limited by the
parameters envisaged by these sources. The specification of the divine sources in
the article 203D does not only empower the court but also delimits its
jurisdiction.
The FSC has not been altogether unaware of this possible trap of falling into
unwarranted subjectivism. To meet this end, the court has articulated a theory of
conformity. According to the theory, as pronounced in a famous case of Dr
Muhammad Aslam Khakhi, the impugned law should not only be in agreement
with the explicit nasus (dictates) of the Qur’an and the Sunnah but the same must
not be offensive to the spirit of these divine sources. Moreover, the court
observed that the word repugnant would not only have implications for any law
which is antagonistic or opposite to the ‘injunctions of Islam’ rather it would also

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be attracted for those laws which are “disagreeable, repulsive, offensive,
distasteful, inconsistent, incompatible, irreconcilable or even averse to the spirit
of the nasus i.e. injunction of Islam.”
In theory it is easy to lay down general principles but in practice it is difficult to
abide by them. The same has happened in the exercise of the original jurisdiction
by the FSC. That is why we come across decisions which do not give an impression
that a consistent line of reasoning has been followed by the FSC in all cases. We
will discuss some decisions of this category later in this paper.
The FSC’s role to determine the scope of ‘injunctions of Islam’ may be
problematic to some but the court has its own reasons for doing so. Since the
Constitution of Pakistan has not precisely defined the phrase, the FSC’s effort to
give it a connotation in cases before it is simply an exercise of its assigned role of
interpreting the Constitution. This constitutional role of the judiciary in Pakistan
has long been established by the superior courts themselves. As held by the
Supreme Court of Pakistan in State v Zia-ur-Rehman that the judiciary in Pakistan
though a creature of the Constitution, has an exclusive jurisdiction to interpret it.
In another important decision Asma Jilani v Government of the Punjab, the
Supreme Court observed that “the Courts undoubtedly have the power to hear
and determine any matter or controversy which is brought before them, even if it
be to decide whether they have the jurisdiction to determine such a matter or
not. The Superior Courts are, as is now well settled, the Judges of their own
jurisdiction.” Having these kinds of unequivocal pronouncements of the Supreme
Court of Pakistan, it seems difficult for the FSC to hold back itself from assuming
jurisdiction in matters contested to be inconsistent or otherwise with the
‘injunctions of Islam’.2

2
Article by Shahbaz Ahmad Cheema named “The Federal Shariah Courts”

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 Jurisdiction

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

Original and Suo Moto jurisdiction

Article 203-D of the Constitution empowers the court to examine and decide the
question, whether or not any law or provision of law is repugnant to the
injunctions of Islam. For the information of those readers who have not gone
through the previous Reports, it may be pointed out here that this court during
the past years have examined 512 Federal Laws and 999 Provincial Laws Suo
Moto on the touch stone of injunctions of Islam and have found 55 Federal Laws
and 212 Provincial Laws as repugnant to these injunctions.

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

Appellate Jurisdiction
The court exercises appellate jurisdiction in Hudood cases registered under the
Hudood Laws viz

i) The Offences Against Property (Enforcement of Hudood) Ordinance, 1979.

ii) The Offence of Zina (Enforcement of Hudood) Ordinance 1979.

iii) The Offence of Qazaf (Enforcement of Hadd) Ordinance, 1979.

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iv) The Prohibition (Enforcement of Hadd) Order, 1979.

Review Jurisdiction
Clause (9) of Article 203 E of the Constitution empowers the court to review any
decision given or order made by it.

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 Objectives & Functions

Objectives
          The Judges of the Court, since its inception in 1980, armed with the
provision of the Constitution, serving the glory of Islam, and dedicating
themselves to the sacred task, laid down a sizable body of judgments, which
taken together constitute a remarkable chapter in the history of Islamic law. The
task continues as new problems emerge and the consistent stream of fresh
legislation gives rise to new questions.

           The policy of the Federal Shariat Court is that the delay in the disposal of
cases may be averted. Islamic norms demand the very prompt redressal of
grievances. In fact, the concept of ‘Adl in the Holy Qur’an and the Sunnah of the
Holy Prophet (peace be upon him) demands that there should be no delay in the
dispensation of justice. Even the Western concept is that justice delayed is justice
denied. The Judges of this Court exercise tact, wisdom, knowledge and authority
to see that the hearing of cases may not be unreasonably delayed at the instance
of any one. To provide justice to the litigants at their doorsteps and to hear cases
filed in Bench Registries of this court at Lahore, Karachi, Peshawar and Quetta.
The Branches of this Court hold sittings at these seats.

The Rules of the Court provide for free legal representation in cases where an
appeal is filed from jail and the appellant is not in a position to pay for the
services of a lawyer irrespective of the quantum of his sentences. Federal Shariat
Court has taken a lead in this respect as compared even to the most advanced
countries in the world. The legal representation over there is generally provided
to a pauper accused mostly through free legal aid societies and the Courts rarely
pay the bills of such representation.

Another important feature of the working of this Court is that no Court fee is
payable either on petitions or appeals While exercising its Suo moto jurisdiction,
the Court’s policy is to take into confidence, and to associate in its working, the
lawyers, the Ulema, the social reformers, the intellectuals and other members of
the public. With this purpose in view public notices are published in leading

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Newspapers of the country inviting comments as well as representation from the
citizens of Pakistan.

Functions
Article 227 makes it incumbent that all existing laws shall be brought in
conformity with the injunctions of Islam as laid down in the Holy Qur’an and the
Sunnah of the Holy Prophet (peace be upon him), and Chapter 3-A which pertains
to the functions and organization of Federal Shariat Court, empowers the court
and entrusts the court with the responsibility to examine and decide the question
whether or not any law or provision of law is repugnant to the injunctions of Islam
as laid down in the Holy Qur’an and the Sunnah of the Holy Prophet (peace be
upon him).

(1)   To examine any law as defined in Article 203-B(c) and decide the question

whether or not any law or provision of law is repugnant to the Injunctions of
Islam;

(2) By an amendment to Article 203-D of the Constitution in 1982, the Court was

given the powers to act Suo Moto where any Law or provision of Law appears
to be repugnant to the injunction of Islam.

(3) To exercise appellate jurisdiction, to hear and decide appeals in Hudood cases

if the sentence of imprisonment awarded by the trial Court exceeds two years;

(4) To confirm or pass other appropriate order about any Hadd punishment
awarded by the trial Court in Hudood laws. Until it is so confirmed, no Hadd
punishment can be executed; and

(5) To exercise revisional powers to call for any case decided by any Criminal
Court under any law in relation to the enforcement of Hudood.

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Powers and Procedure of the Court
1. For the purposes of the performance of its functions, the court have the
powers of a Civil Court trying a suit under the Code of Civil Procedure, 1908 (Act V
of 1908), in respect of the following matters, namely: -

a) summoning and enforcing the attendance of any person and examining him on

oath;

b) requiring the discovery and production of any document;

c)  receiving evidence on affidavits; and

d) issuing commissions for the examination of witnesses or documents.

2) The court have power to conduct its proceedings and regulate its procedure in
all respects as it deems fit.

3) The court have the power of a High Court to punish its own contempt.

4) A party to any proceedings before the court under clause (1) of Article 203D
may be represented by a legal practitioner who is a Muslim and has been enrolled
as an advocate of a High Court for a period of not less than five years or as an
advocate of the Supreme Court or by a jurisconsult selected by the party from out
of a panel of jurisconsults maintained by the court for the purpose.

5) For being eligible to have his name borne on the panel of jurisconsults referred
to in clause (4), a person shall be an aalim who, in the opinion of the court, is well-
versed in Shariat.

6) A legal practitioner or jurisconsult representing a party before the court shall

not plead for the party but shall state, expound and interpret the Injunctions of
Islam relevant to the proceedings so far as may be known to him and submit to
the court a written statement of his interpretation of such injunctions of Islam.

7) The court may invite any person in Pakistan or abroad whom the court
considers to be well-versed in Islamic law to appear before it and render such
assistance as may be required of him.

8) No court fee is payable in respect of any petition or application made to the

court under Article 203D.

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 Conclusion
Pakistan has been experimenting different models to Islamize its laws. One of
them is to get this job done by the judiciary. The FSC was established with this
intent in mind. The court is assigned the original jurisdiction to declare null and
void those laws which are inconsistent to the ‘injunctions of Islam’. Though this
jurisdiction is a construct of the Constitution itself, the same instrument does not
elaborate its contours with reasonable certainty. Consequently, the FSC has to
step into this arena to fill this constitutional vacuum. The FSC to its wisdom has
defined the ‘injunctions of Islam’ liberally and progressively. In this era of judicial
activism resorting to such an interpretative approach is likely to win its admirers,
but at the same time this approach has raised some questions and brought forth
some implications which had not been foreseen. If the FSC remains steadfast to
its progressive approach, it would become difficult, if not impossible, to
determine the exact connotation of the ‘injunctions of Islam’ as the same
depends and will remain so, on discretion of the court irrespective of the fact how
judiciously that is exercised. No one is so blessed to foretell accurately about the
court’s approach and inclinations of its judges at any particular time in the future.
This flaw is at the foundation of many ambivalent decisions of the FSC, some of
which are analyzed in this paper. As is pointed out in the last section of the paper,
the progressive approach of the FSC is also responsible for meddling in the
domains of the other courts. The FSC should reconsider its jurisprudence based
on the progressive approach to the ‘injunctions of Islam’; otherwise the court is
likely to continue wavering around in its judicial pronouncements.i

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i
.