Application of Islamic laws in Pakistan

On Feb. 10, 1979 two Ordinances came into force in Pakistan for purposes of providing punishments under Islamic Laws against offences of theft and adultery. Two more Ordinances dealing with manner in which punishment of whipping was to be carried out and amending second Schedule attached to Code of Criminal Procedure 1898, for purpose of facilitating enforcement of punishment of whipping and powers of authority to arrest in certain cases, also came into force on this date.

Under Ordinance VI of 1979, courts have now been empowered to award persons found guilty of offences of (theft for first time punishment of “amputation of the right hand from the joint of the wrist” and for second time punishment of amputation of his left foot up to ankle and for third time and all subsequent occasions punishment of life imprisonment. Under Ordinance VII of 1979 courts have now been empowered to award persons found guilty of offence of “adultery” punishment of “stoning to death.” Under Prohibition (Enforcement of Hadd) (Amendment) President’s Order No. 12 of 1983, person found guilty of manufacturing and trafficking in opium, heroin, cocaine and other dangerous drugs “shall be punishable with imprisonment which is not less than two years and with whipping not exceeding 30 stripes and shall be liable to fine”.

It may be noted however that punishments under both above Ordinances, i.e., VI & VII, are not ordinarily awarded but are subject to strict proof, e.g. in case of theft evidence of only those two witnesses is to be taken who are regarded fit by court in this behalf, meaning thereby that to qualify witnesses should have exemplary character themselves, both religion-wise and according to norms of society. In case of “adultery” requirement of witnesses as regards both their character and numbers is even stronger. Here four such witnesses are required to depose before court.

Besides the above safeguards certain exceptions have also been provided in both Ordinances and provisions relating to lesser punishments have been incorporated in addition to stricter punishments. These lesser punishments are contained in Penal Code and now punishment of whipping has supplemented same.

Provisions regarding presence and examination by medical officers both before and at time of punishment are part and parcel of two Ordinances.

The Government of Pakistan under Islamic Laws has also imposed complete “prohibition” in country. Prohibition under Central Laws has been supplemented by Provincial Ordinances which inter alia provide following: (a) That no member belonging to Muslim Community, be he citizen of Pakistan or any other country, would be allowed either to consume alcoholic beverages or sell, deal, keep or manufacture same; (b) all other persons whose religions allow consumption of alcohol, would henceforth be allowed to consume same only within four walls of their homes and not publicly; (c) strict punishments have been provided for violators of these regulations which include punishment of whipping.

Except in cases where punishment of whipping is provided for in hadd, sentence of whipping under other laws stands abolished in Pakistan by Abolition of the Punishment of Whipping Act, 1996.In order to provide mechanism for prevention of terrorism, sectarian violence and for speedy trial of heinous offences, Anti-terrorism Act, 1997 was passed. Act was aimed to combat terrorism in country and to provide sense of security to general public. In Act, sentence of two years was also provided for delinquent officers for carrying out defective investigations.

By Constitution Amendment Order 1980 Federal Shariat Court replacing Shariat Benches of High Courts has been constituted. It consists of five members including Chairman who has rank of Supreme Court Judge while remainder have rank of High Court Judges. All five are appointed by President of Pakistan. Federal Shariat Court (“FSC”) exercises non-contentious jurisdiction and may be petitioned by any citizen of Pakistan, Federal or Provincial Governments to examine any law except Constitution, Muslim personal law, law of procedure of any court or tribunal and, until May 1990, any fiscal law, or law relating to levy and collection of taxes and fees or banking or insurance practice and procedure. Court must decide whether it conforms to injunctions of Islam as contained in Holy Quran and Sunnah. If law is held to be repugnant to these injunctions it ceases to be effective from date specified and must be amended. FSC (Nov. 1991) struck down provisions relating to payment of interest in 22 laws and required amendment by 30 June 1992. However, court has subsequently reviewed its decision and has held that issue is not free of complications and needs further analysis of position of interest in Islam. Earlier decision has been suspended and case remanded back to Shariat Court for reconsideration.

By Banking Companies (Third Amendment) Ordinance 1980 banks can now accept deposits on basis of participation in profit and loss of bank. Money so deposited will be invested by banks in business or transactions returns of which do not accrue to bank by way of interest. Person depositing money on this basis shall be entitled, subject to such general directions as State Bank may give from time to time in interest of monetary stability, to receive periodically share of profit of banking company arising out of such business or transactions and in event of loss, shall be liable to bear proportionate loss. In addition to above, banks can also accept deposits free of interest or return in any form and, until such time as government may determine, deposits can also be accepted on interest accounts. In order to promote Islamic banking State Bank issued detailed criteria on Dec. 1, 2001 for setting up of scheduled Islamic commercial banks in private sector. Existing scheduled commercial banks have also been allowed to open subsidiaries for Islamic banking operations.

By Circular dated June 20, 1984, of State Bank of Pakistan, issued under Banking Companies Ordinance, 1962, interest directed to be eliminated from banking system with effect from Jan. 1, 1985, in respect of finances provided by bank to Federal Government, Provincial Governments, public sector corporations and public or private joint stock companies, and with effect from Apr. 1, 1985, in respect of finances provided by bank to all other entities including individuals. As from July 1, 1984, all banks permitted to adopt alternative modes of financing listed in Annexure I to Circular, including profit and loss sharing, purchase of goods by banks and their sale to clients at appropriate mark-up in price on deferred payment basis, leasing, hire purchase, equity participation, purchase of participation term certificates, etc. Maximum and minimum rates of return or profit to be derived by banks from these transactions is to be determined by State Bank from time to time. As from July 1, 1985, no banking company to accept interest bearing deposits and all deposits to be on basis of participation in profit and loss of bank. These instructions have been implemented by Banking and Financial Services (Amendment of Laws) Ordinance, 1984, and Banking Tribunals Ordinance, 1984, has been enacted to provide for speedy recovery of finance provided by banks under these alternative systems. However these instructions are not to apply to on-lending of foreign loans or to foreign currency deposits.

Under  the Zakat and Ushr Ordinance 1980, provision has been made for collection of Zakat and Ushr from Muslim citizens of Pakistan, or from companies, majority of whose shares are held by such citizens. Zakat is tax of 21⁄2% on all assets, but compulsory deduction at source is only made from specified list of assets, including bank accounts, savings and investment certificates etc. On all other assets, Zakat is payable on self-assessment basis. Ushr is tax of 5% of produce from land. Zakat funds have been established at central, provincial and local level, and moneys in Zakat fund are to be utilised for specified purposes: For helping needy, orphans, widows, handicapped, and on public hospitals, educational institutions etc. Zakat councils, at central, provincial and lower levels have been created for administration and organisation of Zakat and Ushr collection and disbursement etc. Certain tax concessions are available on assets on which Zakat and Ushr has been paid.

By Zakat and Ushr (Amendment) Ordinance 1980, no compulsory deduction at source will be made from assets of person who files declaration in prescribed form.By Zakat & Ushr (Amendment) Ordinance, 1984, no Zakat to be charged on compulsory basis on assets which have been acquired against payment in foreign currency, or which are maintained in foreign currency and return on which and value on encashment, redemption or withdrawal which is payable in foreign currency.

The Modaraba Companies and Modaraba (Floatation and Control) Ordinance 1980 provides for setting up of Modaraba companies and carrying on of Modaraba business, which is defined to mean business in which person(s) participates with his money and another with his efforts and/or skill. Company can apply to Registrar (appointed under Ordinance) for registration as Modaraba company. Modaraba Company can then apply to Registrar for permission to float Modaraba business. Public participates by buying Modaraba certificates, Modaraba company shall subscribe in each Modaraba business floated by it to not less than 10% of total amount of Modaraba certificates offered for subscription, but remuneration of Modaraba company shall not exceed 10% of net annual profits. Registrar has powers of holding inquiries into running of Modaraba or of appointing administrator. Special tribunal may be constituted, with civil and criminal jurisdiction to hear claims and try offences, under Ordinance.

The  1972 Act, was repealed and replaced by Qanun-e-Shahadat Order, 1984. Majority of sections in new statute same as those of old Act. Certain changes have been made with view to bring law of evidence in conformity with injunctions of Islam. Under new statute all courts of law required to determine competence of witness in accordance with qualifications prescribed by injunctions of Islam, but where such witness is not forthcoming, court may take evidence of available witness. All accused persons, including accomplice made liable to cross-examination. Instruments pertaining to financial or future obligations must be attested by two men or one man and two women.

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