In my previous blog posts, I identified Islamic judicial review as the distinctive feature of Pakistan’s legal system. In my next three posts, I shall scrutinize how Islamic judicial review works in practice through the analysis of a few important judgments related to criminal law and family law.
In this first post, I examine an unexplored judgment of the Shariat Bench of the Balochistan High Court. This judgment did not receive much attention not only by scholars and researchers who explore judicial Islamization of laws in Pakistan but it was also forgotten by the judges of the superior courts in Pakistan.
In Maulvi Muhammad Ishaque Khosti v Government of Baluchistan, the petitioner challenged the Frontier Crimes Regulation 1901 (FCR), the colonial era law that governs frontier tribal territories adjacent to Afghanistan border. The FCR was an exception to the colonial legal framework prevalent in rest of British India to cater to the special conditions of the frontier inhabited by tribes who self-governed themselves based on their age-old traditions. The FCR supplanted the tribal community-based governance through its official, the Deputy Commissioner, who exercised wide executive and judicial powers. To effectively establish the colonial order, the FCR imposed collective punishments and reversed the presumption of innocence in criminal trials. The petitioner identified these features of the FCR and challenged it on the ground that it violated Islamic principles of justice and equality.
Justice Zakaullah Lodhi, who wrote the judgment, observed that the historical background of the FCR showed that it was promulgated merely for the purpose of convenience or expediency, rather than to ensure justice and fairness in tribal areas. He held that the FCR is arbitrary and discriminatory for two reasons: firstly, it gives the state official, the Deputy Commissioner, unconstrained powers; and secondly, it is discriminatorily enforced only in two provinces, Baluchistan and North West Frontier Province, targeting two ethnicities, Baluchis and Pathans. Justice Lodhi held that the FCR violates several substantial and procedural principles of Islamic law because it imposes various punishments such as collective fines, exile based on apprehension of an offence, and whipping for certain offences. It was also held to be disregarding evidentiary rules related to credibility of witnesses, collection of evidence, and cross examination of witnesses.
On behalf of the government, the Advocate General defended the FCR on the basis that the head of an Islamic state has powers to make suitable laws to ensure law and order. Justice Lodhi rejected this argument by referring to the history of the FCR, which, unlike the Islamic legal principle of public good (maṣlaḥa), was not promulgated to protect the interests of the people who were subject to it.
A more formidable objection of the Attorney General was related to the jurisdiction of the Shariat Bench to examine the validity of the procedural parts of the FCR because Article 203-B of the Constitution excluded procedural law of a court or tribunal from the definition of the “law” that could be subjected to Islamic judicial review. Justice Lodhi rejected this objection and held that the FCR is a “strange mixture of interdependent substantive and procedural provisions” and once its substantive provisions are held invalid for violation of Islamic injunctions, its procedural provisions also become invalid. In the end, Justice Lodhi declared all the provisions of the FCR repugnant to Islamic principles of justice, equality and non-discrimination as well as fundamental rights enshrined in the Constitution.
Despite this judgment, however, the FCR continues to be in force. Strangely, the above judgment of the Shariat Bench was simply ignored. The government neither filed an appeal against this judgment nor did it repeal the FCR. It is unclear why this was the case. It appears that the promulgation of two statutes, which limited the scope of the FCR, played a role in lack of attention to this judgment: the Hudood Ordinances 1979 which covered several criminal offences and the Baluchistan Civil Disputes (Shariat) Application Regulations 1976 which established Qazi Courts for civil disputes in the tribal areas of Baluchistan.
Around three decades later, the FCR was challenged before the FSC on grounds that were similar to the ones already discussed in the judgment of the Shariat Bench delivered in 1979. There was, however, one crucial additional ground for the challenge that related to Regulation 30 of the FCR which provided the punishment of five years of imprisonment or a fine or both for adultery for a woman. The Federal Shariat Court (FSC) declared this Regulation as repugnant to the injunctions of Islam because, according to the judges, the punishment of adultery under Islamic law is stoning (rajm). The FSC asked the government to amend Regulation 30 of the FCR to bring it in conformity with the inunctions of Islam.
In complete contrast to the judgment of the Shariat Bench of the Baluchistan High Court, the FSC declared the rest of the provisions of the FCR in conformity with the injunctions of Islam. The FSC found the procedural parts of the FCR in consonance with the requirement of the administration of justice which had to be dispensed with care, caution, speed and by taking into account the particular conditions of the frontier area. Justice Fida Muhammad Khan, who wrote the judgment, observed that the main purpose of the FCR is to ensure speedy trial to forestall bloodshed and crush insurgency, connivance and conspiracy to maintain law and order in the area. Regarding collective punishments imposed under the FCR, Justice Khan acknowledged that as a general rule of Islamic law, nobody could be made liable for the wrong committed by others; however, in exceptional circumstances, joint liability can be imposed, for example, the entire community is held collectively liable to pay dīyah (blood money) in cases where murderers could not be identified.
The judgment of the Shariat Bench of the Baluchistan High Court in 1979 depicts the enthusiasm of the judges to exercise newly vested powers of Islamic judicial review. Similar enthusiasm was shown by the judges of the Shariat Bench of the Peshawar High Court who went ahead and broadly construed their powers by reviewing procedural laws and Muslim personal law which were explicitly excluded from Islamic judicial review. I will discuss some of their judgments in the next two posts.
 Martin Lau, The Role of Islam In the Legal System of Pakistan (Leiden: Martinus Nijhoff 2006); Shoaib A Ghias, Defining Shari’a: The Politics of Islamic Judicial Review (University of California, 2015).
 PLD 1979 Quetta 217.
 Ibid, para 11.
 The Act provided for the establishment of Majalis-e-Shura, which were to act as appellate courts similar to the District Courts. The High Court was the court of appeal against the judgments of the Majalis-e-Shura. Under the Baluchistan Civil Disputes (Shariat) Application Rules 1977, a graduate of a religious seminary (madrasa) could be appointed a judge (qazi).
 Abid Ali Bangash v Government of Pakistan, PLD 2017 FSC 39.
 Regulation 30 of the FCR reads, “(1) A married woman who, knowingly and by her own consent, has sexual intercourse with any man who is not her husband, is guilty of the offence of adultery, and shall be punishable with imprisonment for a term which may extend to five years, or with fine, or with both. (2) Cognizance shall not be taken of an offence under this section unless a complaint has been made by the husband of the women, or, in his absence, by a person who had care of the women on his behalf at the time when the offence was committed.”