By Hassan Ali*
The legal system of the Islamic Republic of Pakistan encompasses a mixture of secular and Islamic law. There remains a distinct difference between its secular courts and Islamic institutions,[1] with no requirement imposed on the former to adhere strictly to Islamic principles unless the statutes under which the proceedings arise, or evidentiary requirements, are based on Islamic principles.[2] Nonetheless, its historical, cultural, and religious fabric results in Islamic principles permeating legal doctrines derived by its secular courts. Consequently, and as Pakistan’s legal framework is based on the common law system, many common law principles derived by its constitutional courts align closely with Islamic principles on various issues. These parallels, however, are rarely acknowledged by the courts in their judgments. This essay highlights some of these common law principles that parallel Islamic principles and uses the database of SHARIAsource Lab’s Courts and Canons (CnC) Annotation Suite to access Islamic legal canons (qawāʿid fiqhiyya) for this analysis.[3]
Interpretation of Contracts
One area where Islamic principles and Pakistan’s common law align is in the rules of contract interpretation. For example, canon #5279 provides that in contracts, the intended meaning is to be considered, and the ruling is based on it (fī al-ʿuqūd yuʿtabar al-maqṣūd wa-ʿalayhi yanbanī al-ḥukm; في العقود يعتبر المقصود وعليه ينبني الحكم).[4] Similarly, canon #5280 stipulates that in contracts, significance matters more than wordings (al-ʿibra fī al-ʿuqūd lil-maʿnā dūn al-alfāẓ; العبرة في العقود للمعنى دون الألفاظ ).[5] The effect of these principles is that parties enter into contracts with a specific intention of conducting a transaction in a particular way and for a certain purpose, therefore, such intention is to be gleaned from the contract and given effect through rulings when there is a dispute. As such, the judge/qāḍī has to ascertain this intention from the contract before ruling on any dispute related therewith.
In Pakistan, rules of contract interpretation are not particularly stipulated in any statute and are instead found in common law principles derived by its courts. In parallel to the Islamic principles of contract interpretation mentioned above, the courts in Pakistan also ascertain the intention of the parties while interpreting contracts. Case law establishes that the primary object of interpreting any contract is to find out the intention of the parties to the contract. It has been held that the cardinal presumption while interpreting a contract is that the parties intended what they have written in a contract, and their words must be construed as they stand; however, as no contract is made in a vacuum, any ambiguity in the words of the contract is to be resolved by ascertaining its “commercial/social purpose and the factual background against which it was made.”[6] The main purpose of interpreting a contract, therefore, is to ascertain the intention of the parties,[7] which is to be gathered after considering its terms as a whole.[8] This interpretative rule has been expanded and applied liberally, and, in order to ascertain the intentions of the parties to a contract, the courts even resort to correspondence preceding and/or subsequent to the execution of the contract, the conduct of the parties, and the attending circumstances surrounding the execution of the contract between the parties.[9]
Certainty in Legal Rulings
Another shared principle between Pakistan’s common law and Islamic principles is the requirement of certainty before giving legal rulings—more specifically, the principle of not basing legal rulings on assumptions. Canon #3318 stipulates that an illusion/assumption does not establish a legal ruling (lā ʿibra bi-tawahhum; لا عبرة بتوهم).[10] Therefore, a legal ruling cannot be based on and cannot rely on a fact or proposition that has not been established definitively. Similarly, jurisprudence in Pakistan has established that a ruling cannot be based on mere assumptions. This principle has been applied in all areas of the law from criminal matters to the interpretation and application of tax statutes. For instance, no conviction can be based on mere assumptions or presumptions unless it is established purely following the law,[11] vested rights cannot be taken away on assumptions or suppositions,[12] nor can a vested right exist on presumptions,[13] and a taxing statute/notification cannot be interpreted and applied on presumptions or assumptions.[14] Importantly, it is settled that a judgment passed on an erroneous assumption of material facts justifies review.[15]
Jurisdictional Requirements for Courts
Another principle where Islamic principles and common law of Pakistan align is the requirement for courts to act within the confines of their jurisdiction. Canon #3279 stipulates that a judge does not have the authority to act except in matters under consideration (laysa lil-qāḍī wilāya lil-taṣarruff illā fī-mā fīh naẓar; ليس للقاضي ولاية التصرف إلا فيما فيه نظر ).[16] Its interpretation also entails that a judge cannot exceed his scope of work or act outside his jurisdiction. Therefore, an act in excess of his jurisdiction would be legally invalid. Similarly, it is settled by the superior courts of Pakistan that a court should not assume or exercise jurisdiction not vested in it by law.[17] For example, no court has the power and jurisdiction to compel the government to make a policy or interfere with a policy that it has competently made, the same being the prerogative of the government.[18] The importance of ensuring that a court has jurisdiction before ruling on a matter can be gauged from the Supreme Court’s judgment in Muslim Commercial Bank v. Muhammad Anwar Mandokhel, holding that the question of jurisdiction of the court is of “paramount importance as the foremost and pivotal consideration. . . . Such determination is the cornerstone of a fair legal process ensuring that cases proceed efficiently, prevent delays, and maintain clarity.”[19] Furthermore, with exceptions depending on the hierarchy of the court and the jurisdiction invoked, it is also settled that a court cannot grant relief beyond what has been prayed for by the claimant.[20]
Therefore, despite there being no specific requirement to apply Islamic principles in their rulings, many common law principles derived by the secular courts of Pakistan align closely with Islamic principles. This may be because judges have received some form of formal Islamic education as citizens of a Muslim country, or that most common law jurisdictions in the world have derived similar principles—or perhaps due to a combination of both. Further analytical study could be undertaken to explore this.
Notes:
* Muhammad Hassan Ali is a legal practitioner and writer specializing in constitutional law, fundamental rights, Islamic law, and commercial law. He earned his first law degree from the University of London in 2017 and is currently pursuing an LL.M. from Harvard Law School (Class of 2025). With over seven years of professional experience primarily in litigation, he has clerked for three Justices of the Supreme Court of Pakistan, contributing to several landmark judgments on constitutional law, fundamental rights, and commercial law.
[1] These include the Federal Shariat Court constituted under Article 203C of the Constitution of the Islamic Republic of Pakistan, 1973 [hereinafter Constitution] to examine and decide if any law or provision of the law is repugnant to the injunctions of Islam (see Article 203D); and the Council of Islamic Ideology established under Article 228 of the Constitution to, inter alia, make recommendations or advise the Parliament and other constitutional bodies/office bearers as to whether the proposed law is or is not repugnant to the injunctions of Islam.
[2] For an understanding on the history and interplay between secular law and sharīʿa in Pakistan, see Amber Darr, “No Law but God’s Law: Islam and the Pakistani Legal System,” LSE Blogs, March 13, 2023, https://blogs.lse.ac.uk/southasia/2023/03/13/no-law-but-gods-law-islam-and-the-pakistani-legal-system/.
[3] SHARIAsource is a portal for Islamic law and data science tools, combining scholarship and technology to provide comprehensive resources and analysis on Islamic law. The numbering of the canons in this essay follows the SHARIAsource database.
[4] SHARIAsource CnC Database Canon No. 5279 (citing Muḥammad Ṣidqī Būrnū, Mawsūʿat al-qawāʿid al-fiqhiyya (3d ed., 2015), 8:100 [hereinafter Būrnū]).
[5] Canon No. 5280 (citing Būrnū, 8:100).
[6] Wasif Ali v. Fakhra Jabeen, (2023) CLC 1021 (Lahore).
[7] Housing Building Finance Corporation v. Shahinshah, (1992) SCMR 19.
[8] Abdul Rehman v. Ghulam Fatima, (2017) YLR 2276 (Lahore).
[9] Sandoz v. Federation of Pakistan, (1995) SCMR 1431.
[10] Canon No. 3318 (citing Būrnū, 8:880).
[11] Ibrahim v. State, (2024) PCrLJ 190 (Quetta); Kamran v. State, (2024) MLD 1047 (Karachi).
[12] Abdul Hayee v. The Accountant General, (2024) PLC (CS) 393 (Quetta).
[13] Aneeqa Sohail v. Lahore Development Authority, (2024) MLD 183 (Lahore).
[14] Basfa Textile v. Deputy Collector (Customs), (2024) PTD 265 (Lahore).
[15] Justice Qazi Faez Isa v. President of Pakistan, (2022) PLD SC 119.
[16] Canon No. 3279 (citing Būrnū, 8:802).
[17] Muhammad Fazil v. Mumtaz Munnawar, (2024) SCMR 1059.
[18] Secretary School Education v. Riaz Ahmed, (2024) SCMR 809.
[19] (2024) SCMR 298.
[20] Lahore Development Authority v. Faiz Muhammad, (2007) YLR 2432 (Lahore); Muhammad Yousaf v. Tehsil Administration, (2008) CLC 1496 (Lahore); Jahanzaib Malik v. Balochistan Public Procurement Regulatory Authority, (2018) SCMR 414; Irfan Bashir v. DC, (2021) PLD (SC) 571; Sadiq Poultry v. Government of Khyber Pakhtunkhwa, (2023) PLD (SC) 236.
(Suggested Bluebook citation: Hassan Ali, Islamic and Common Law Principles in Pakistan: An Analysis of Unstated Influences, Islamic Law Blog (Feb. 26, 2025), https://islamiclaw.blog/2025/02/26/islamic-and-common-law-principles-in-pakistan-an-analysis-of-unstated-influences/)
(Suggested Chicago citation: Hassan Ali, “Islamic and Common Law Principles in Pakistan: An Analysis of Unstated Influences,” Islamic Law Blog, February 26, 2025, https://islamiclaw.blog/2025/02/26/islamic-and-common-law-principles-in-pakistan-an-analysis-of-unstated-influences/)