|Publisher:||Royal Book Company (Karachi)
|Pages:||pp. [xiii] + 202, Appendix
is written by Tanzilur Rehman.
Dr. Tanzilur-Rehman holds a Ph. D degree in Islamic learning. His area of specialization is Islamic Law. He practiced at the Bar for about 25 years (1955-79). He has been Legal Advisor to the Islamic Research Institute, Government of Pakistan, Karachi-Islamabad (1964-79), Judge of the High Court of Sindh (1980-90) and Chairman, Council of Islamic Ideology, Government of Pakistan (1980-84), Chief Justice, Federal Sharia't Court of Pakistan (1990-92). Member; Pakistan Law Commission (1980-84, 1990-92).
He is the Author of over two dozens of books on Islamic Law; A Code of Muslim Personal Law (2 volumes); Essay on Islam; Islamization of Pakistan Law; The Judgment That Could Not Be Delivered; English-Urdu Law Dictionary with explanatory notes of about 20,000 legal terms; Majmu'ah Qawaneen-i-lslam (6 vol.); Islami Qawaneen-i-Hudud, Qisas wa Diyat; Islami Qanoon-i-Shahadat; Islamic 'Qanoon-i-lrtitad, Fiqh Islami Ka Tarikhi Irtiqa; Jurm wa Saza Ka Islami Falsafah; Islami Nizam-i-Adalat, Khulasah Matalih-i-Qura'an; Qura'an-i-Hakim Awr Hamari Zindagi (2 vol.), etc.
Besides, he contributed various research papers to law journals and delivered various talks in a number of National and International Conferences both in and outside Pakistan.
He visited U.S.A., UK, U.A.E., Iran, Saudi Arabia, Egypt, Sudan, Algeria, Bangladesh, Brazil, Italy, South Africa, Thailand, Singapore, Malaysia, etc.
Chap. I : OBJECTIVES RESOLUTION & ITS EFFECTS :
Objectives Resolution; Significance of the Objectives Resolution; Opening address of Shaheed-i-Millat Liaquat Ali Khan in the First Constituent Assembly of Pakistan; Addresses by other Members of the Assembly-Dr. Ishtiyaq Husain Quraishi; Maulana Shabbir Ahmad Usmani; Sardar Abdul Rab Nishtar; Sir Muammad Zafrullah Khan; Chaudhry Nazir Ahmad Khan; Dr. Omar Hayat Malik; Nur Ahmad; Dr. Mahmud Husain; Begum Dr. Shaista Sahrawady Ikratnullah; Reply by Shahecd-i-Millat Liaquat Ali Khan; Resolution Carried; Sovereignty of Allah; Obedience to the Holy Prophet; Talimat-i-Islami Board and 22 Points; Dissolution of Constituent Assembly; Constitution of Pakistan 1956-Islamic Provisions; Constitution of 1956 abrogated; Constitution of Pakistan 1962-Islamic Provisions; Constitution of 1962 abrogated; Constitution of Pakistan 1973-Islamic Provision; Constitution of 1973 Suspended, ; Islamization Ushers in a New Era; Revival of Constitution of 1973 and Insertion of Article 2A; Background of the insertion of Art. 2A; Constitutional Recommendations of the Council of Islamic Ideology; Commission's Recommendations; Effects of Article 2A; Analysis of the Objectives Resolution; Principles and Provisions set out in the Objectives Resolution; Enforceability of Article 2A; Islamization of Laws-the Five Modes
Case Law Cited :
Ali Nawaz Gardezi Vs Muhammad Yousuf PLD 1963 SC, 51 at p. 74 (46); Asma Jellani's case PLD S.C. 139 (48, 54, 69, 72); Benazir Bhutto v. Federation of Pakistan PLD 1988 S.C. 416 (52); Fathergill Vs. Monarch Air Line 1981 A.C. 280 (73); Fauji Foundation's case PLD 1983 S.C. 457 (72); Federation of Pakistan v. Maulvi Tamizuddin Khan PLD 1955 F.C. 240 (41); Haji Nizam Khan Vs. Additional District Judge, Lyallpur PLD 1976 Lahore 930 (74,98); Jubinder Kishore's case PLD 1957 S.C. 46 (98); Major and St. Million Rural District Council Vs. New-Port Corporation 1952 A.C. 189 (73); Muhammad Sharif Vs. Member Board of Revenues Punjab, PLD 1987 Lahore 58 (75); Muhammad Din Vs. The Slate PLD 1977 S.C. 52 (97); Mirpurkhas Sugar Mills Limited Vs. Consolidated Sugar Mills PLD 1987 Karachi 225 (104); Pakistan Vs. Public at Large PLD 1987 S.C. 304 at pp 361-62 (77); Sardar All Vs. Muhammad Ali PLD 1988 S.C. 187 (85,98); Saeed Ahmed's case PLD 1974 S.C. 151 (72); State Vs. Ziaur-Rahman PLD 1973 S.C. 49 (56,69); Tanbir Vs. Province of East Pakistan PLD 1968 S.C. 185 (74); Usif Patel's case PLD 1955 F.C. 387 (42); Ziaur-Rahman Vs. State PLD 1986 Lahore 428 (68,69)
Chap. II : ARTICLE 2A AND THE CASE-LAW :
1. Messrs. Bank of Oman Ltd. Vs. Messrs East Trading Co. Ltd. PLD 1987, Karachi, 404
2. Habib Bank Ltd. Vs. Muhammad Hussain & Others PLD 1987, Karachi 612
3. Muhammad Sharif Vs. Member Board of Revenue, Punjab PLD 1987, Lah. 58
4. The Muslim Commercial Bank Ltd Vs. Messrs Republic Industrial Corporation. 1987 MLD 2794 Karachi
5. Muhammad Bachal Memon Vs. Government of Sindh (PLD 1987, KAR. 296)
6. Shahbazuddin Chawdhry Vs. Messrs Services Industries Textiles Limited PLD 1988, Lah. 1
7. Mirza Qamar Raza Vs. Mst. Tahira Begum and PLD 1988, Lahore, 167
8. Muhammad Sarwar and another Vs. The State PLD 1988, Federal Shariat Court 42
9. Miss Benazir Bhutto Vs. Federation of Pakistan and another PLD 1988, S.C.
10. Muhammad Naseer Vs. The State PLD 1988 Federal Shariat Court 58
11. Malik Ghulam Mustafa Khar Vs. Pakistan PLD 1988, Lahore 49
12. Bank of Credit and Commerce International Vs. Messrs Ali Asbestos Industries Ltd. 1988 MLD 2088 Karachi
13. Mian Aziz A. Sheikh Vs. The Commissioner of Income-Tax Investigation, Lahore, PLD 1989 Supreme Court 613
14. Shaukat Hussain Vs. Mst. Rubina & others PLD 1989 Karachi 513
15. Ahmed Vs. Abdul Aziz PLD 1989 Supreme Court 771
16. Jagan Vs. State PLD 1989 Karachi 281
17. Aijaz Haroon Vs. Inani Durrani PLD 1989 Karachi 304
18. Sharaf Faridi and three others Vs. The Federation of Islamic Republic of Pakistan PLD 1989, Karachi 404
19. Habib Bank Ltd. Vrs. Messrs Waheed Textile Mills Limited, PLD 1989, Karachi 371
20. Messrs Yaseen Sons Vs. Federation of Pakistan PLD 1989 Karachi 361
21. Saghir Ahmed Warsi Vs. Industrial Development Bank of Pakistan, 1989, MLD 968 Karachi
22. Muhammad Salah-ud-Din and Others Vs. Government of Pakistan PLD 1990 FSC
23. Ittefaq Foundry Vs. Federation of Pakistan PLD 1990, Lahore 121
24. Abdul Mujeeb Pirzada Vs. Federation of Islamic Republic of Pakistan PLD 1990, Karachi
25. Miss Farhat Jaleel and others Vs. Province of Sind and others PLD 1990, Karachi 342
26. Allah Banda Vs Mst. Khurshid Bibi 1990, CLC 1683 Lahore
27. Massuetc. Vs. United Bank Ltd. NLR 1990 SD 806
28. Tayeb Vs. Alpha Insurance Co. Ltd. and other 1990, C.L.C. 428
29. Mst. Resham Bibi Vs. Mst. Elahi Sain PLD 1991, Supreme Court 1034
30. Mirza Ghulam Hussain and another Vs. Ch. Iqbal Ahmed PLD 1991, Supreme Court 290
31. Messers Mumtaz Industries Vs. Industrial Development Bank of Pakistan, PLD 1991 Supreme Court 729
32. Messers MacDonald Lay ton Constain Limited, Karachi Vs. Punjab Employees' Social Security Institution, Lahore. PLD 1991, Supreme Court 1955
33. Muhammad Ashraf Vs. National Bank of Pakistani991 CLC 1018 Lahore
34. The State Vs. The Senior Superintendent of Police Lahore, PLD 1991 Lahore 224
35. Sindh High Court Bar Association, Karachi Vs. The Islamic Republic of Pakistan. PLD 1991 Karachi 178
36. Haji Muhammad Saifullah Vs. Federal Government PLJ 1992 FSC 477
37. Allah Ditta Vs. The State, PLD 1992 Lahore 45
38. Mst Sakina Bibi Vs. Federation of Pakistan PLD 1992 Lahore 99
39. Allah Dad Vs. Mukhtar and another 1992 SCMR 1273
40. Hakim Khan Vs. Federation of Pakistan PLD 1992 SC 595
Chap. III : CRITICISM ON SUPREME COURT JUDGMENT IN HAKIM KHAN'S CASE (PLD 1992 SC. 595) :
Appraisal; The Role of Judiciary and the Objectives Resolution; Non-amenability of Article 2A; Article 2A as a subsequent provision; Violation of Article 2A involves violation of oaths; Article 2A deals with the question of authority, 163; Court's plea of Non Self-executory; The role or function of Judiciary; Judicial Activism-Need for; The phrase, "Effect shall be given accordingly"; To Resolve the conflict-Duty of the court; Legislative bodies as exclusive repositories of sovereignty; Objectives Resolution and challenge to Constitution; Is Islamization Business of Legislature only?; Asma Jellani's
Case PLD 1972 S.C. 139 (158, 160, 168;) B.Z. Kaikaus case PLD 1980 S.C. 160 (175); Darvesh M. Arbey's case PLD 1980 Lahore 206 at p. 263 (160) Dosso's case PLD 1958 S.C. Pak. 533 (168); Jehangir Iqbal Khan's case PLD 1979 Peshawar 67 (160) 1932 K.B. 733 (162); Nusrat Bhulto's case PLD 1977 S.C. 657 at p. 633 (161. 168); PLD 1992 FSC p. 445 (181); PLD 1958 Karachi 283 (157); Qazilbash Waqf case PLD 1990 S.C. 99 (168, 175); Shefard Vs. Wheeling 30 W Va 479 (156); Saifullah's case PLD 1989 S.C. 166 (168); United Stales Vs. J. Bulber 297 V.S.I. 1936 78,79 (169); Ziaur-Rahman Vs. Slate PLD 1986 Lahore 428 (158,167); AIR 1975 S.C. p. 2299 (182); AIR S.C. p. 271 (182)
The First Constituent Assembly was created under the Indian Independence Act 1947 to frame a Constitution for Pakistan which was carved out on 14(h of August, 1947 as an Independent State dividing India into two Independent States—Pakistan and Bharat. This Constituent Assembly passed on 12th March 1949, a historic Resolution called the 'Objectives Resolution' which, inter-alia, laiddown the parameters of the future Constitution of Pakistan to be framed by the Constituent Assembly. (For text sec p. 2 infra)
2. A cursory glance at the contents of the Resolution will show that it acknowledges that "the sovereignty over the entire universe belongs to Allah Almighty alone', recognizes that the "authority to be exercised by the people of Pakistan through its chosen representatives, within limits prescribed by Him, is a sacred trust," and accepts the Injunctions of Islam, as laid down in the Holy Qur'an and Sunnali, to be the guidelines for running the affairs of the Slate in all its spheres through Constitution and Law.
3. Unfortunately the Constitution-making was delayed for various reasons which I need not discuss here. The First Constitution was, however, promulgated on 23rd March 1956 and the Objectives Resolution was made as its Preamble only, and it continued to be so in 1962, 1972 and 1973 Constitutions. It was late General Muhammad Zia-ul-Haque, the then President and Chief Martial Law Administrator who by President's Order No. 14 of 1985 perhaps, for the observation made by Supreme Court in Ziaur Rahman's case (PLD 1973 S.C. 49). by virtue of the power, recognized by the Supreme Court of Pakistan in Nusrat Bhutto's case (PLD 1977 S.C. 657), made the principles and provisions set out in the Objectives Resolution a substantive part of the Constitution of Pakistan, 1973, and incorporated the same as Article 2 A thereof. This Article 2A was later on adopted by the newly elected National Assembly in 1985, by an amendment in the Constitution notoriously known as 8th. Amendment. The said Article reads as under:
"2A. The principles and provisions set out in the Objectives Resolution reproduced in the Annex are hereby made substantive part of the Constitution and shall have effect accordingly."
4. This Article came up for consideration in several judgments of the High Courts as well as Supreme Court of Pakistan. Perhaps, the last of such judgments, wherein the effect of Article 2-A was discussed in detail, is that of the Supreme Court reported as Hakim Khan and 3 others Vs. Govt. of Pakistan and others decided in July 1992 (PL1) 1992 Supreme Court 595)), on appeal from the judgment dated 14-1-1992 of the Lahore High Court reported as Sakina Bihi Vs. Federation of Pakistan (PLD 1992 Lahore 99). The point at issue directly involved in the case was whether Article 45 of the Constitution empowering the President of Pakistan to grant pardons, contravenes, in some respects, the Injunctions of Islam and if so, can it be struck down as repugnant by virtue of Article 2A or not? The High Court held it to be so. The Supreme Court in Hakim Khan's case while examining Articles 45 and 2A accepted the appeal against it and observed that :
"......, in the instant case, if the high Court considered that the existing provision of Article 45 of the Constitution contravened the Injunctions of Islam in some respects it should have brought the transgression to the notice of the parliament which alone was competent to amend the Constitution, and could initiate remedial legislation to bring the impugned provision in conformity with the Injunctions of Islam." (p. 621).
Basic Principles of Islamic State, (Unanimously Formulated by 31 Ulama in 1951) 2050
The three recent decisions :
1. Mohammad Nawaz Sharif vs. Federation of Pakistan PLD 1993, Supreme Court dated 29-05-1993
2. Zaheeruddin and Others vs. Slate (1993 SCMR 1718 dated 03-07-1993 (189, 191, 197
3. Kaneez Fatima vs. Wali Muhammad PLD 1993 SC. 901 dated 01-08-1993