Polygamy

The Arabs of pre Islamic era were governed by tribal customary law that permitted unlimited polygamy. Islamic law severally restricted this by providing that a husband could not have more than four wives concurrently. Surah AL NISA (Verse 3) is that source of the law of polygamy in Islam. The verse also said that a man must treat all his rights equitably.

The surah has been interpreted to the effect that law obliges the husband to treat his wife equitably and he must spend an equal amount o9f time with each wife.

All the schools are agreed that it is not necessary for a man to obtain any short of permission before remarriage.

The legal remedies for woman whose husband decides to take a further wife are limited. Hinchcliffe has commented that a non Malik wife who reluctantly finds herself a co-wife will have no recourse at all unless her husband agreed to delegate to her the Talaq-e-tafwid. Whether the moral obligation on the Husband to treat his wife equally relates only to nafaqa (material support and maintenance) or also to equal affection has remained heavily contested.

The Quran itself appears to suggest that the later is an impossible task. Surah AL NISA (Verse 129) says that a man shall not be able to deal unfairness and justice between women however much he wished. It has therefore been possible to argue that polygamy was never really allowed in Islam and should consequently be prohibited by modern Muslim law.     

The fundamentalist reacted strongly to such a suggestion, arguing that such interpretation would render the Quranic allowance for up to four wives absurd and in operative and that in order to honor it a distinction much be made justice in verse 3 which would mean equality between the wives in material and tangible matters and justice in verse 129 which would mean inner feelings over which man has no control. They quoted traditions (sunnah) of the prophet to substantial their opinion. 

Reform:

The controversary over polygamy started in early 20^th century in the grounds that it was an injustice to woman. Many jurists have taken different views on the need for restricting polygamy.

An Indian Muslim author known as Siddiqi takes a balanced view. The permission given by the Quran for polygamy arises out of particular circumstances. There will always be individual cases where polygamy may become necessary in order to avoid more serious social and moral consequences. So it may not be right to prohibit polygamy by legislation since the Quran has made it conditional on a just an equal treatment of the wives. It is open to the countries to prescribe conditions under which polygamy may be allowed.

Polygamy has been subject to reforms and many countries have legislated to impose restrictions on it. The trend is in favor of restriction polygamy of not prohibiting it completely.

TUNISIA:

Tunisia has ban polygamy outright and has declared a polygamous marriage void. Under Tunisian law, polygamy is forbidden and constitutes a criminal offence, rendering a man who marriage before his previous marriage is dissolved, liable to a penalty of one year imprisonment and or a fine.

The Tunisian jurist took economic criteria as a key element arguing that since in modern socio economic conditions impartial treatment of several wives was a practical impossibility, the essential Islamic conditions of polygamy was impossible to fulfill.

LEBANON:

Polygamy is also prohibited in Lebanon.

IRAQ:

 In Iraq marriage more than one wife is allowed only by permission of the judge, who shall not grand such permission unless he makes sure of fulfillment of two conditions.

1. The Husband is financially capable of supporting more than one wife.
2. That there is a legitimate interest.

A man who contravenes above is liable to a penalty of one year imprisonment and or fine.

SYRIA:

The Syrian legislation is less categorical while following same course. The judge has the power to forbid a married man from taking another wife unless there is the legitimate justification and the financial capability to support both wives is proven.

Jordan

Although the Jordanian law imposes no obvious restrictions upon polygamy. It allows the wife to stipulate I marriage contract that the husband shall not take another wife and entitles the wife to sue for divorce if such same allowance for the wife is repentant in the Moroccan law. 

Alzeria

According to the Algerian law, a man who wishes to take a second wife must establish a clear and genuine need. The court will grant him such permission if it is satisfied of such need and further if there is evidence that the man is able and willing to treats the wives and children with equality. The first wife may obtain a on the sole ground of husband second marriage.

Asian sub-continent

The modern south Asian secular view of the law considers polygamy at best as an institution to be tolerated but not encouraged [an Indian case of irwari v asgari]

India

There has been no direct legislation reform of Muslim personal law in India in the subject of polygamy. Many judges have called for government to enact legislation on this subject. Muslim marriages in Indian are therefore potentially polygamous. And the husband may subject to conditions stipulated by the wife, make arrangement for polygamy which the wife has legally, very little control, unless she has inserted relevant stipulations in her marriage contract. Such stipulation would be enforced in that the wife would be entitled to claim divorce from the husband or a judicial desolation of marriage under the DMMA 1939

Pakistan

The Pakistani law in Muslim polygamy was the subject of reform in the context of MFLO 1981.although Pakistan has academically impressive restrictions to men’s right to polygamy in practice the requirement that prior permission for a polygamous marriage  be  obtained  from the council appears to be a formality rather then a effective deterrent. If a second marriage is completed with out the approval of council the second marriage is clearly valid.

Bangladesh

Bangladesh has inherited the provision of MFLO1961 from Pakistan. Bangladesh has made some amendments to the provision of MFLO. Polygamous marriage in contravention on MFLO remains fully valid marriage in Bangladesh. The couple is not allowed to register the marriage. But it may be doubted whether this is in fact really punishment. So, the existing law is clearly not as effective as theory could be.

Conclusion:

Bharatliya says that, there are certain factors under which polygamy historically portrayed as a consequence of wars and the presence of many widows and orphans. However, it is also true that, the existence in law of the right to take a second wife severely hinders the progress of Muslim woman.

But as Menski stated easy divorce rules without a legal right to polygamy would lead to a large pool of divorce woman, many of whom are presumable either ill, infertile or in some way unsuited to full material life. Prohibition of polygamous arrangements would perhaps required the toleration of extra marital relation of man. Hence there has always been ample room for debating whether strict legal monogamy is preferable- or whether restricted right to monogamy should be allowed. Some reforms in the Muslim world have prohibited polygamy whether as other have only imposes certain procedure burden. It is a fact that some Muslim husbands justify there choice in favor of polygamy by arguments phrased in terms of sharia. 

Islamic Contract Law

6.1

The classical law of contracts and obligations have adopted the principle of freedom of contract and elaborated various requirements for formation and validity of contract.

The elements of contract under Islamic law:

1.     Capacity to contract

2.     There must be an offer & acceptance

3.     Consideration

4.     Ther must be absence of Riba and Gharar

6.2

Capacity to contract:

Contractual capacity, other than for contracts of marriage, is (with the exception of Maliki females) attained for males and females alike at the onset of physical puberty. There is an irributable presumption of law that no male below the age of 12 and no female before the age of nine has achieved majority and an equally irrebuttable presumption of law that by the age of 15 both males and females are adult. In between the minimum and the maximum ages whether majority has been attained is a question of fact. Moreover, a minor’s coming of age according to symptoms or age is not sufficient for perfection of his capacity and obligation of making over his property to him, and to give him a free hand in disposing of it. But it is necessary that he must possess sound judgment along with legal majority. The proof of that is the following quranic verse

“And put the orphans to test until they reach the age of marriage; then if you perceive in them sound judgment deliver to them their property” (Sura 4, verse 6)

This verse is decisive about the fact that making over property to the orphans, that is minors, is qualified by two conditions, the first is reaching the marriageable age, and the second is that sound judgment is found in them. If a child comes of age but has no sound or right judgment, he will have no perfect capacity and this property will not be made over to him. But he will be interdicted until right judgment is found in him.

A person having sound judgment is he who disposes his property well and know the method of its investment and protection. The Shafi jurist define sound or right judgment as competence of a child for disposing of his property well and observing the injunctions of the islamic shariah. If a child comes of age while he manages the affairs of his property and disposes of it very will according to the requirement of intelligence and wisdom, but does not manage his other affairs according to the injunctions of Shariah, he will not be considered having sound judgment. Abu Hanifa holds that when a person reaches the age of twenty-five years, he becomes a man having perfect capacity and his property must be delivered to him so that he may dispose of it. That is after this age no person is expected to improve his capacity to dispose of his property, and therefore it is useless to interdict him and prohibit him from disposing of his proerty. (An Introduction to the Study of Islamic Law, Dr. H.H. Hassan, 2005, p.p 356-357)

Children below the age of majority are subject the control of the guardian of their property. The person with the prior right to deal with the property of the child is the father. If the father is absent then a person appointed by the father has the right. If the father has not named the guardian of the property of his infant child the right passes to his nearest male kinsmen in the order of succession on death. The guardian of the property has the duty to safeguard the interests of the minor and to deal with the property of the minor as if it was his own.

A child below the age of majority who has reached the age of seven, which the Muslim jurists considered the age of discernment, has a restricted contractual capacity. The child may enter into a contract which is manifestly to its advantage so that it may be the recipient of a gift. Conversely the child may not enter a contract manifestly contrary to its advantage such as making a gift. Other contracts made by a child below the age of majority are not void but are deemed to be suspended pending the guardian’s consent or otherwise to their execution. The only exception to the general rules relating to contractual capacity are insane persons, persons who are, while not certifiably insane, feeble-minded, acknowledged spendthrifts and persons who are easily deceived. In their cases, the age of entering into contract is higher than the ordinary persons. In the case of persons possessing these defects the guardianship of minority may, with the permission of the judge, be extended. Also persons who are in their death-sickness are under an interdiction restricting their contractual rights.

Maliki women also do not achieve contractual capacity at puberty. A Maliki woman achieves contractual capacity only upon consummation of a valid marriage. Even then her contractual capacity is not absolute. She may not dispose gratuitously of more than one-third of her property. The Maliki jurists argued that as a married woman is presumed to be having sexual relations with her husband there is a possibility that she could become pregnant, with the inevitable result that she would deliver a child. Death in childbirth is equated with death-sickness.

In many parts of the Muslim world today the age of majority has been fixed by the various civil codes. It is interesting to note, however, that the courts in Abu Dhabi (where Maliki law prevails), have held that a woman who was over the age of 18, the age of contractual capacity for commercial contracts in that Emirate, was unable to validly contract because she was unmarried. The courts of Pakistan have sought to safeguard the interests of women. Where a Purdasheen woman disposes gratuitously of property the burden of proof is on the person who is claiming a right under the property she executed to prove that she had proper understanding of the effect of the contract.

6.3

Offer & Acceptance:

An offer is the first stage for making a contract. The offer has to be accepted in the same session in which the offer is made. However, what is meant by the same session is a question of fact, which may take a variety of forms.

A offer can be made in a number of ways:

1)     It can be made verbally. This kind offer is to be made in the same meeting.

2)     This can be made in writing. This form of offer becomes effective as soon as the letter leaves the person offering and will remain valid until received by the recipient. The offer must be replied to immediately.

3)     It can be made through message sent with some person, whose honesty is not doubted and if the offer is accepted it will be a good acceptance.

4)     It can be made through signs and gestures particularly in those cases where the person offering is deaf or dumb or when the recipient does not understand the language of the person offering.

5)     It can be made by conduct. An offer made through the delivery of goods is valid according to Maliki school. An offer can not be made by silence.

The Hanafi and Hanbali jurists says that the person offering has the option to withdraw his offer before it has been accepted since the person who is to receive has nem giving the chance to make up his mind whether to accept or reject the offer. It seems equitable that the person offering should have the right to withdraw his offer before acceptance is made.  It is likely that the person offering might have made some mistake or forgotten to include something in his offer, therefore he can quickly withdraw his offer while the other party is still busy in making up his mind. But Maliki school takes a different view and said that once the offer is communicated to the recipient the person offering it has no right to withdraw the offer because he ought to have made up his mind before making an offer but will not be permitted to change it later on. (Abdur Rahman Ibn Doi, 1984, p. 357)

On the other hand, doctrine of Khiyar Al Majlish is relevent for the parties to the contract, duly completed by offer and acceptance, which gives the right to repudiate the agreement during session of bargain. A Prophet’s tradition express this doctrine which is:

“Each of the parties to a contract of sale has the option against the other party as long as they have not separated”

Imam Malik comments on this tradition in the following words: “Here in Medina, we have no such known limit and no established practice for this” and the points he then proceeds to discuss show that for Imam Malik a contract was binding as well as complete immediately mutual agreement had been reached. In this point  professor Coulson remark that: “This is one of the many occasions on which the law expressed in the reported precedent of the prophet or later authority was rejected by the early Medinan scholars when it ran counter to their currently adopted doctrine”. Though Hanafi school also do not recognise this doctrine however, the Shafi and Hanbali jurist accept this doctrine.

6.4

Consideration:

In Islamic law, the consideration for the contract must be something which is ritually clean, and which has some value recognized under shariah. Thus contract for selling 100 bottle of wine shall not constitute a valid contract since wine is not recognized under shariah as goods.

6.5

Ther must be absence of Riba and Gharar:

The first principle of Islamic contract law is that ‘Muslims must abide by their stipulations’. This principle of ‘pacta sunt servanda’ does not entail complete freedom of contract but is accompanied by a recognition of the ethical dimension

of a transaction. Freedom of contract is restricted by ethical considerations. The scope of commercial activity in Islamic law is limited by two principles, namely the prohibition on interest (i.e. riba) and on gharar (i.e. an uncertainty in the object of a contract).

6.5.1

Prohibition on interest (Riba)

All schools of Islamic law agree that the taking of interest (i.e. the exchange of money for money with excess and delay), is prohibited. The prohibition placed by Islamic law on interest-based loans is derived directly from the Qur’an in several different revelations, which is the primary source of Islamic law.

Firstly in Sura 30 (Ar-Rum), Verse 39:

“That which you give in usury so that it increases in other people's wealth, will not increase with Allah; but the charity you give desiring the Face of Allah, to those, they shall be recompensed many times over.”

Secondly in Sura 4 (An Nisa), Verse 161:

“And for their taking of usury, that they were prohibited, and consuming the wealth of people in falsehood, for the unbelievers among them We have prepared a painful punishment.”

Thirdly in Sura 2, verse 275–279 provides that:

“Those who devour interest stand like one whom Satan has smitten with insanity. That is so because they keep saying: The business of buying and selling is also like lending money on interest; whereas Allah has made buying and selling lawful and has made the taking of interest unlawful”.

Though, in the Holy Koran, the term Riba has not been defined. However, islamic jurists have defined Riba as taking a monetary advantage without giving a counter value, or more specifically it refers to the “premium” that must be paid by the borrower to the leder along with the principal amount as a condition for the lone or for an extension in its maturity.

In Shariah the term riba is used in two senses:

a)     Riba al nasiah

b)    Riba al Fadl

6.5.1.1

Riba al Nasiah:

The term nisiah means to postpone, defer or wait and refers to the time that is allowed for the borrower to repay lone in return for the addition or the “premium”. Prohibition of Riba al naisah essentially implies that the fixing in advance of a positive return on a lone as a reward for waiting is not permitted in shariah. It makes no difference whether the return is a fixed or a variable precent of the principal or an absolute amount to be paid on maturity.

6.5.1.2

Riba al Fadl:

Riba al Fadl relates to the hand to hand purchase and sale of commodities. The discussion of riba al fadl has arisen from the hadith requring that if gold, silver, wheat, barley, dates and salt are exchanged against themselves, they should be exchanged on the spot and be equal and like.

Apparently it seems to be something very innocuous because even in a barter transaction one would be tempted to sell a given quantity of wheat for a similar quantity of wheat paid and delivered then and there. But on a deeper examination it becomes clear that this prohibition was primarily to close the slightest possiblity of increase on the principle amount which was possible if this back door is left open. For example if a person want to sell salt in exchange of wheat then there is possiblity of riba. As the price of wheat and salt are not same. For this reason there is a possiblity that one party will suffer loss and other party will get some extra economic benefit over the premium. Moreover, if this trade do not took place on the spot then also there is a possiblity of riba. This is because the price of the product might not be same in the whole period. So here also one party will suffer loss; whereas other will gain though uncosciously. For this reason it is said that this hadith is in fact a discouragement to enter into this kind of transaction.

Of the six commodity specafied in the relevant tradition of the Prophet dealing with Riba al Fadl, two unmistakably represent commodity money; whereas, the other four represent staple food items. Hence the jurist have over the centuries debated the question whether Riba al Fadl is confined only to these six items or it can be generalised to include to other commodities; and if so, what should be the reasoning used for this purpose. On the basis of the characteristics of gold and silver as commodity money, it has been almost unanimously concluded that all the commodities used as money enter the sweep of Riba al Fadl. With respect to there four items, there is a difference of opinion. One opinion argues that since all four commodities are sold by weight or measure (Hanafi, Hanbali, Imami and Zaydi) therefore, all items which are so saleable by weight or mesure would be Riba al Fadl. A second opinion is that since all four items are edible, Riba al Fadl would be involved in all commodities which have the characteristics of edibility (Shafi and Hanbali). A third opinion is that since these items are necessary for substence and are storable (without being spoiled) therefore all items that sustain life and are storable are subject to Riba al Fadl (Maliki). The Zahiri school however confines Riba al Fadl to only to six commodities specifically mentioned by the Prophet. It is however the only school and a minority to be so restrictive. A fourth but perhaps a more plausible, explanation is that all the six commodities were used as money in and around Medina, particularly among the Bedouins, and therefore Riba al Fadl would be involved in the exchange of any commodity which is used as money. It is apparent that Joseph Schact, in his Introduction to Islamic Law has adopted the opinion of Hanafi view that the prohibition of Riba al Fadl applies in case of any commodities which can be weighted and measured. The learned Author’s analysis of the prophibitioncan be summarised as follows. Riba will occure if-

a)     An exchange of two commodities of the same species takes place

b)    The commodities can be weight and measured

c)     There is a delay in performance or excess in quantity

d)    Excess in quantity may be allowed if the commodities are from different species but no circumstances delay in performance can be allowed.

If there is any element of riba in any contract, then the contract would be void to the extent of excess amount and the other pert will remain valid.

After discussing both kind of riba it appears that the prohibition on interest-bearing loans is a strict one in Islamic law. Islamic banking practice is therefore limited to financial agreements that do not involve the charging of interest. One of the means of avoiding the charging of interest is the Murabaha contract that is widely used in Islamic banking.

6.5.1.3

Murabaha contract:

A Murabaha contract can be defined as the sale of a commodity for the price at which the vendor has purchased it, with the addition of a stated profit known to both the vendor and the purchaser. It is therefore at its most basic an ordinary contract of sale.As such it must satisfy all the usual conditions of a regular contract of sale.

A Murabaha contract is not a loan given on interest but a sale of a commodity for a deferred price, which includes an agreed profit, added to the cost. In order to make a Murabaha contract distinguishable from an ordinary, interest-bearing loan the following essential conditions have to be fulfilled.

1)     The Murabaha contract must fulfil all the usual requirements of an ordinary

          contract under Islamic law.

2)     The institution providing the finance to the client must purchase the commodity in its own name from a third party.

3)      At the point of purchase the commodity must come into the possession of the institution and the commodity must remain in the risk of the institution until the commodity is sold to the client.

In addition, the Murabaha must comply with the basic rules of a contract of sale under Islamic law.

a)     The object of the sale must be property (i.e. an object having a legal use).

b)    The commodity must be in the ownership of the seller at the time of sale (i.e. it must be in the physical or constructive possession of the seller when it is sold to another person). Constructive possession means that the commodity has not been physically delivered but has come into the control of the seller and all rights and liabilities in the commodity, including the risk of its destruction or disappearance, are borne by the seller.

c)     The delivery of the commodity must be certain and not dependent on contingency or chance.

d)    The price must be certain at the time of the contract.

e)     ‘In the event of an intrinsic defect existing in the object, the buyer has the

          unconditional right to rescind the sale. This right (khiyar al-‘ayab) cannot be           ceded by a contractual stipulation, any such stipulation would be null and void.’

The above requirements are regarded as essential for the validity of a Murabaha

contract since the contract would otherwise be indistinguishable from an ordinary

interest bearing loan which, of course, is invalid under Islamic law.

The rules formulated by the religious supervisory boards of the main Islamic banking organisations insist that the bank can only legally sell the object of the Murabaha contract to the client once the bank has received it. Nicholas D. Ray, in his book Arab Islamic Banking and the Renewal of Islamic Law (Graham & rotman, 1995) found that the rules of the International Association of Islamic Banks stipulate that ‘Selling is postponed until the bank gets actual ownership and possession of goods and becomes responsible for any defects therein’. The same applies to the Faisal Islamic Bank of Egypt, the Islamic International Bank for Investment of Development as well as the Second Conference of Islamic Banks.

In a recent decision the Supreme Court of Pakistan defined the essential characteristics of a Murabaha agreement.

[...] Murabahah is a sale and not a financing in its origin. It must, therefore, conform to all the basic standards of a sale. It may be used only where the client of the bank really wants to purchase a commodity. The bank must purchase it from the original supplier after taking into its ownership and (physical or constructive) possession sells it to the client. All these elements must be visibly present in a valid Murabahah with all their legal and logical consequences, including in particular, that the bank must assume the risk of the commodity so long as it remains in its ownership and possession. This is the basic feature

of the Murabahah which makes it distinct from a interest-based financing and once it is ignored, though for the purpose of simplicity, the whole transaction steps into the prohibited field of interest-based financing.

(M. Aslam Khaki v Muhammad Hashim PLD 2000 SC 225, at pp.748–749, per Justice Maulana Muhammad Taqi Usmani.)

The ownership of the goods by the bank for the interval between the two sales can be identified as the most important difference between an interest bearing loan and a Murabaha agreement. During that interval the bank bears the risk that the goods may be destroyed or harmed, or develop a defect. In practice, Islamic banks will procure insurance cover for the period during which they bear the risk in the object of the Murahaba contract.

Compensation for late payment is permitted in modern Islamic banking practice as long as it does not amount to the charging of interest. A contractual provision for the payment of liquidated damages which is calculated on the basis of an annual or daily interest would obviously be prohibited since it amounts to riba (i.e. interest) which is, as explained above, repugnant to Islamic law. In practice, damages for late payment by the purchaser can be contractually provided for by agreeing a pre-determined (i.e. contractually fixed) price for the object of the Murabaha contract if payment takes place after a certain settlement date. This price will be higher than the price payable for the object if payment is effected on the due date.

Other restrictions include the prohibition of an exchange of an obligation for an

obligation and the prohibition of a delay in the exchange of goods.

The essential ingredients of a contract are the offer and the acceptance which must be made in the same meeting (majlis). The offer can be withdrawn as long no acceptance of it has taken place and the majlis, or meeting, has not been terminated. The object of the contract must be specified in order to prevent speculation or interest. A classic example for the specificity requirement is the prohibition on the selling of dates which are still unripe, to be delivered when ripened. Since it is unknown when they will ripen the contract is void. For the same reason Islamic law prohibits gambling, although some of the present day civil codes of the Middle East, for instance the Jordanian Civil Code, allow gambling on racecourses.

Contractual liability arises out of the non-performance of a contractual obligation or the negligent performance of a contract. Liability and obligation are extinct as soon as the contract is properly performed or the debtor is ‘acquitted’ (i.e. the creditor waives his right to the performance of the contract unconditionally). An amicable settlement is also possible, as is the renegotiation of the contract. Another way to extinguish a contractual obligation is to transform it into a new one by way of assignment. A debt owed can, for instance, be assigned to satisfy a claim.

6.5.2

Uncertainty in the object of a contract (Gharar)

Literally Gharar means fraud, the word gharar has often been used to mean risk, uncertainty and hazard. In Islamic law of contract, gharar means uncertainty and ignorance of one or both parties over the substance, attributes of the object of sale, or of doubt over its existence at the time of contract.

For Gharar to have legal consequence it must fulfil four conditions:

a)     It must be excessive and not trival: There is a consensus of opinion that gharar to have effect it must be excessive. Excessive gharar may originate as Ibn Rushd has explained, in ignorance and lack of information over the nature and attributes of an object, a doubt over the availability and existence, doubt over its quantity, or want of exact information concerning price, unit of currency in which the price is paid and the terms of payment. It may concern with the time of payment or prospect of delivery. On the other hand traffling gharar is one which is found in nearly all contract but does not feature prominently, in other words which is negligible. This is not so fundamental as to likely give rise any dispute.

b)    It occures in case of cominutatuve contract ( a contract in which each of the contracting party gives and receives and equivalent): therefore gharar does not occure is case of obligations crated unilaterally e.g declaration of wakf.

c)     It affects the subject matter fo the contract directly, for example in a cow it is the animal itself and not its yet to be born calf.

d)    No public interest would be served by the entering into such contract if such a contract is made for the purpose of public interest, then even if there is excessive gharar the contract would be valid. This is because satisfying the people‘s need takes priority by virtue of the quranic principle of removal of hardship (raf cal haraj). For this reason salam contract (advance purchase) and istisna (manufacture contract) contract have been made valid regardless the gharar element therein simply because of the people’s need for them.

A gharar is prevented in the following circumstances:

1)     When the parties have adequate knowledge of the counter value they intend to exchange

2)     When the object is known to exist and is obtainable

3)     When its quality, quantity and attributes are identified and it can be deleivered.

Apart form these, despite gharar, Islamic law recognizes two kindes of contract namely competition for horse ride and competition on islamic quiz.

6.6

Pre-emption:

In contracts for the sale of real property the right of pre-emption (Shuf’a) may arise. Shuf’a means that in certain cases where property is sold a third party may replace the vendee by paying to him the amount which the vendee paid for the property. The right to pre-empt arises first when property is jointly held. Where one of the co-owners sells his share the other co-owner may repurchase the property from the purchaser. Also, where a person is a joined owner of an easement attached to the property sold, he has a right to pre-emption. In Hanafi law a person whose property is immediately adjacent to the sale property has a right to pre-empt. The Hanafi law giving the neighbour a pre-emptive right is preserved in the Egyptian civil code. In many cases where Hanafi law applied, the right of a neighbour was thwarted by the vendor making a gift to his purchaser of choice of a narrow strip of land adjacent to his neighbour’s property and then of course selling the purchaser the remainder of the property. This device was effective as the right of pre-emption does not arise over gifted property. A person

wishing to exercise his right to pre-emption must act immediately upon learning

of the sale. He must exercise his right with due formality and in the presence of

witnesses.

6.7

Gift

Every sane Muslim who has attained majority (with the exception of women in Maliki law as explained above) may dispose of his entire property by gift. A transfer of property by one person to another constitutes a Hiba (i.e. a gift), if the transfer of the property is made immediately, is accepted by or on behalf of the other person and nothing is given in exchange for the property so transferred. With the exception of Maliki law a gift is completed on acceptance by the donee and transferred to him. The Malikis, however, consider that the gift is completed before the handing over is made. It is essential for the validity of a gift that the donor should divest himself completely of all ownership of and control over the property which is the subject of the gift. However, as explained in the chapter on succession, certain conditions exist in respect of death-bed gifts: a gift made by a Muslim during a death-illness cannot take effect beyond a third of the estate nor can it be made in favour of an heir, unless the other heirs give their consent to the gift after the donor’s death.

6.8

Law of torts

You have seen in the chapter on penal law that many crimes are treated in a fashion that is more similar to torts in English law than it is to criminal law. The law of civil liability for tortious actions is not well developed in Islamic law. Perhaps the basis of the law lies in the Qur’anic verse ‘There is no dhara [prejudice] in Islam’. The basic principle of the Islamic law of torts is that compensation is only available for actual damage. No damages in traditional law can be awarded for moral damage, like injury to one’s reputation or for pain and suffering. However, many codes in the countries

of the Middle East do allow damages to include compensation for pain and suffering. The courts in Saudi Arabia, however, still apply traditional law and, besides refusing compensation for future loss, also refuse moral damages. Various regulations in the Kingdom do provide for compensation to be awarded for pain and suffering but such compensation can only be ordered by a tribunal appointed to enforce the regulation itself, like the Labour Court which hears cases of work-related injuries suffered by

workers.

Penal Law

Introduction

Islamic criminal law is one of the areas of law that is deeply influenced by pre-Islamic tribal law. The laws of homicide, bodily injury and rape, for example, are closely related to tribal law, and in many respects Islamic law can be regarded as an attempt to reform these earlier norms. It is also an area of law that exhibits fundamental differences with Western law in many of its characteristics. The most important of these differences is the fact that Islamic law regards many criminal offences as a matter of private law, whereas the distinguishing factor of Western criminal law is the fact that it is primarily the state and not the individual who is responsible for the prosecution and punishment of an offender. In Western criminal law, the role of the victim is insignificant in these matters. However, it should be noted that even English law is increasingly prepared to give the victim of crime a role in the punishment of an offender. Criminals can, for instance, be compelled to pay compensation to their victims by a criminal court.

While in the majority of the countries in the Muslim world modern penal codes have been enacted which depart from traditional Islamic penal law, one of the effects of the rise of political Islam has been the reintroduction of Islamic criminal law into the legal systems of some states. In Iran, following the establishment of the Islamic Republic, Islamic criminal law replaced the previous code which was based on a Western pattern. Pakistan as part of the Islamisation programme initiated by General Zia ul Haq also introduced some aspects of Islamic criminal law, as has Nigeria in those states which are largely Muslim. In the Kingdom of Saudi Arabia, of course, Islamic law applies in the area of criminal law as well in all other areas of the law.

Some aspects of Islamic criminal law, especially the laws on sexual offences and on corporal punishment, is considered controversial within and outside the Muslim world. In this chapter, we will look at classical Islamic criminal law but will also examine the application of these laws in modern Islamic states, in particular the Islamic Republic of Pakistan.

Be that as it may, in Islamic law, though hadd punishments appear to be harsh, sufficient measures have been provided to restrict the hadd punishment to the lowest level. Firstly, the offences classified as hadd have been defined narrowly. Secondly, short period of limitation for lodging the complaint (normally one month, however in case of wife drinking, so long the smell of wine is found from the mouth of accused). Finally, proofs in hadd offences have been made difficult.

Hadd and taz’ir punishments

Islamic law distinguishes between offences for which the punishment is determined in the Qur’an and offences for which the punishment is established by the judge in his own discretion. Punishments specified in the Qur’an itself are called hadd punishments, for the Arabic term for ‘limit’ or ‘boundary’. Of these the most important is apostasy, the abandonment of Islam by a Muslim. Punishments which are at the discretion of the judge are called taz’ir.

Where an offence has been committed but there is insufficient evidence to warrant the application of the hadd punishment the ta’zir punishment is applied, subject to the discretion of the judge. However it may never exceed the hadd punishment.

There are three main aspects of Hadd punishments: firstly, this punishment is prescribed in public interest. Secondly, it can not be pardoned either by him, by political authority or by the victim of the offence. The non-changeability of the hadd punishment is supported by the Koranic verse: “these are the limits of allah. Do not transgress them” (Sura 2 verse 229)

Apostasy

The punishment for apostasy is death but before the sentence is carried out the accused must be offered the chance to return to Islam and belief. Apostasy is still a capital offence in Saudi Arabia, Yemen and the Islamic Republic of Iran. Apostasy does not appear as a criminal offence in either the Pakistan Penal Code (PPC) or the Code of Criminal Procedure of Pakistan. However since the amendment of article 295-C of the PPC to make blaspheming the name of the Prophet an offence punishable by death or life imprisonment, it is likely that an apostate would suffer the same penalty as there can be no greater blasphemy of the Prophet than renouncing Islam and the role of the Prophet as the Messenger of God.

Sexual relations outside marriage (Zina)

Another most serious hadd offence is that of Zina (i.e. sexual relations outside of Marriage). The offence therefore can either be the committing of adultery or fornication. Sexual acts which do not amount to having actual sexual intercourse are punished at the discretion of the judge and are, accordingly, taz’ir offences. The punishment for a person found guilty of Zina, has laid down in Surah Noor verse 2 as follows:

“The adulterer and adulteress shall each be given a hundred lashes. Let no pity for them cause you to disobey God, if you truly believe in God and the last day; and let their punishment be witnessed by a number of believers”

However, it is found from the tradition of prophet that if the party to the adultery is married, then an additional punishment of stoning to death would be imposed. It is however disputed as to whether the requirement of stoning to death is still sanctioned by Islamic law. One view is that those traditions which have prescribed for stoning to death are relating to the events which are in point of time earlier than the revelation of the Kornic verse, and as such the provision of stoning to death has been abrogated. On the other hand, another view emphasizes that this is still applicable because that was the practice of prophet in cases of married offender. This is also a disagreement among the jurists as to whether the married offender, who should be stoned to death, should also be subject to flogging or not. Conversely, it is not disputed that if the offender is a person who has never been married the punishment is a hundred lashes.

To prove the hadd offence of Zina the testimony of four eyewitnesses of the act of intercourse itself is required. Moreover the eye witnesses must be adult sane male Muslims possessing the highest degree of moral probity. Guilt may also be established by the confession of the accused, which is maintained until punishment is actually carried out. It should be noted that in traditional Islamic law pregnancy outside marriage does not constitute proof of the hadd offence of Zina.

The early years of the new Islamic Republic of Iran saw the execution of many women charged with the offence of Zina. There is no record of how the conviction of these women was obtained but it would be virtually impossible for the Sharia standard of proof (i.e. eye-witnesses of the act of sexual intercourse) to be obtained or that all the women convicted made a complete confession which they maintained even while punishment was carried out.

False accusation of Zina (Qazf):

Qazf – falsely making an accusation of Zina, is another kind of hadd offence. The unproved allegation that a person had committed zina constitutes this offence. Jurist of the sunni school hold that in order to constitute such offence, the person accused of zina must be a sane adult Muslim who is known to be a chast person. The punishment for zina is prescribed in verse 4-5 of Surah Noor, which as follows:

“Those that defame honorable women and can not produce four witnesses shall be given eighty lashes. Do not accept their testimony ever after, for they are great transgressors- except those among them that afterwards repent and mend their ways.”

Theft

Theft is defined as taking and carrying away without right a thing of value from a protected place. There is almost complete agreement on this definition among jurists, but they are not so unanimous concerning the value of the stolen property. According to Hanafi Jurists, the minimum value should be 10 dirham, but according to Maliki Jurists the minimum amount should be 3 dirham, while other schools do not prescribe any minimum amount. Things that have no value in Islam such as pigs, pork or wine, cannot be the object of the hadd offence of theft.

Keeping something that is found does not constitute theft. Further the requirement of stealth implies that any property taken forcibly does not amount to theft; and taking away from custody requires that the property should be taken out of the premises where the theft takes place.

Again, to establish the hadd offence the testimony of two eye-witnesses of the highest moral probity is required. Circumstantial evidence can never suffice to procure a conviction to the hadd offence although it can result in the application of a lesser ta’zir punishment.

The punishment of theft has been prescribed in Surah 37 verse 4, as follows:

“As for the man or woman who is guilty of theft, cut off their hands to punish them for their crimes. That is the punishment enjoyed by Allah…. But whoever repents and mends his ways after committing evil shall be pardoned by Allah.”

All views agree that for the commission of the first theft, the punishment is the amputation of the right hand from wrist. However, it is the punishment subsequent thefts that the jurists disagree. Hanafi School takes the view that for the second theft the left foot should be amputated, and for further thefts, no further amputation would be made, rather the thief should be imprisoned until he shows repentance. Maliki, Shafei and Hanbali jurists hold the view that for the third theft the left hand should be cut off and for the fourth the right foot. Ibn Hazam expresses a different view holding that the Koran has mentioned only about the hand and nothing about the feet, and as such there is not authority to support that a thief’s foot can be amputated.

In Pakistan, The Offences against Property (Enforcement of Hudood) Ordinance, 1979 provides for hadd punishments that, however, can be awarded if the very high evidential burden imposed under Islamic law is satisfied. The proof of theft liable to a hadd punishment (i.e. the amputation of the right hand for the first offence), requires that either the accused pleads guilty to the commission of the theft or that at least two Muslim adult male witnesses, other than the victim of the theft, who are regarded by the court to be truthful persons and who have in the past abstained from major sins, give evidence as eye-witnesses of the occurrence. Further, the statement of the victim of the theft has to be recorded before the statements of the eye-witnesses are recorded. However, in the Indian sub-continent India does not apply Islamic penal law at all.

Armed robbery (Haraba)

The offence hiraba is often translated as highway robbery, but which covers other offences committed by stealth. The punishment for hiraba has been declared in the Surah Maidah verse 33-34:

“Those that make war against God and His prophet and spread distorder in the land shall be put to death or crucified or have their hands and feet cut off on alternate side, or be banished form the country. They shall be help up to shame in this world sternly punished in the hereafter.”

There may be two types of situations. One, where the armed robbery has been committed without any killing and another, the armed robbery has been committed accompanied by killing. While in the former case, the punishment would be cutting off hands following the rules applicable in case of theft. That is to say for the commission of the first theft, the punishment is the amputation of the right hand from wrist. Hanafi School takes the view that for the second theft the left foot should be amputated, and for further thefts, no further amputation would be made, rather the thief should be imprisoned until he shows repentance. Maliki, Shafei and Hanbali jurists hold the view that for the third theft the left hand should be cut off and for the fourth the right foot. Ibn Hazam expresses a different view holding that the Koran has mentioned only about the hand and nothing about the feet, and as such there is not authority to support that a thief’s foot can be amputated.

In the letter case, the punishment would be cutting off the hands and feet in the opposite directions, and killing by crucifixion.

Drinking alcohol

The drinking of wine or other intoxicating liquids is also a hadd offence. It has forbidden by the Holy Koran in the following verse:

“Believers, wine and games of chance, idols and divining arrows are abominations devised by satan. Avoid them, so that you may prosper. Satan seeks or stir up enmity and hatred among you by means of wine and gambling, and to keep you from remembrance of God, and from your prayers. Will you not abstain from them?” (Surah 90 verse 5)

However, no punishment has been prescribed in the Koran for drinking alcohol. But from the tradition of prophet, it is found that prophet has inflicted different kinds of punishment upon those who were accused of drinking wine. In some cases he threw a fist of dust upon the face of the accused, in some cases he ordered to beat the offender. However exact number of lashes and mode of making them was not clear. Thus during the first caliph Abu Bakr, the issue came up, and it was decided in an ijma that the number of lashes should be 40. However, during the second caliph the issue again came up for review, since the number of drunken people increased alarmingly and upon consultation with the companion of the prophet, it was ultimately fixed at 80 lashes to make a parallel with the punishment of false accusation of unchastity. 

Some countries, such as Saudi Arabia, have also made the taking of hallucinatory drugs a hadd offence. The punishment for this offence is 80 lashes. Unlike the lashes inflicted in the case of ta’zir for Zina and for the false accusation of adultery, the lashes inflicted for drinking are not meant to inflict harm on the person but to shame him. Traditionally it is recommended that the lash be held between the first and the second fingers of the hand (i.e. lightly).

A further distinction is made in Islamic law between those crimes that involve a ‘right of God’ and those that involve only the right of an individual. In the first category fall the hadd offences (i.e. theft, illicit sexual relations, the drinking of alcohol, the unproved assertion of a chaste person’s immorality and apostasy from Islam). Crimes involving ‘the right of God’ can be compared to the concept of a crime in English criminal law: the court, once seized with the matter, cannot drop the case nor can the aggrieved party withdraw the case or come to an out-of-court settlement with the accused. The second category, namely offences against the right of an individual but not against a right of God, includes homicide and wounding. These are regarded very much like a tort in English law: the aggrieved party can accept compensation, insist on retaliation or pardon the offender.

Homicide

Islamic criminal law on homicide and wounding constituted a major reform of pre-Islamic tribal custom. Customary law demanded that a homicide was dealt with by revenge killings of not only the murderer himself but also of several of his fellowtribesmen, since tribal pride regarded only several members of the murderer’s clan

to be equal to the victim from their own tribe. The result was inevitably a blood feud between clans that would spread over many years. Islamic law introduced three major reforms.

uu Only the guilty party was liable for the crime and could be punished by being killed

or wounded.

uu A punishment was only imposed if the wounding or killing had been committed deliberately and wrongfully.

uu The facts of the crime and the guilt of the accused had to be established before the

ruler or a judge.

However, the principle of personal vengeance itself is preserved in Islamic criminal law: once guilt is established it is not the ruler or the judge who decides on the punishment of the guilty party but the victim or, in case of homicide, his heirs. The first option of the victim is to insist on retaliation. The second option is to waive the right of retaliation and to accept instead monetary compensation from the culprit. This sum payable to the victim or his heirs is called diyat. The amount of diyat depends on the status of the victim. For instance the blood-money payable for a woman is fixed at half the rate for a man; for a slave the amount was not fixed but determined by his value. Where a slave is killed by a free Muslim, only the Hanafis allow retaliation for deliberate homicide. The other schools restrict the punishment to the payment of blood-money to the owner.

The same principles apply to the killing of a non-Muslim: only the Hanafis allow for retaliation whereas all other schools and sects restrict the punishment to blood-money, which is reduced to a lower level than that of a Muslim. The third option is remission (to forgive the culprit and not to insist on either retaliation or blood-money).

The McLauchlan and Parry case

Aspects of the criminal law of Saudi Arabia – both substantial and procedural – have been highlighted by the case of Lucille McLauchlan and Deborah Kim Parry, two English nurses who were accused of murdering an Australian colleague. This was perhaps the most ‘open’ trial conducted under the criminal law of the Kingdom. The two accused were – for what is believed to be the first time –represented before the court by Saudi counsel. Counsel, in a submission to the court on their behalf, discussed the role of confession in Sharia. He stressed that the Islamic jurists would not recognize a confession obtained under duress whether physical or moral. He stressed that the Islamic jurists included in the concept of duress promises, threats and violence, irrespective of the degree of pressure in a prolonged interrogation, and every interrogation which was made in the late hour of the night. He also argued that under the Sharia a confession is nullified when: the interrogator conveys to an accused that his co-accused incriminated him or that

much evidence has been found against him at the crime scene etc and other similar tricks and deceptions if these contribute to the pressure and the breakdown of the accused and his admission of things which he did not do in order to get rid of his psychological and physical sufferings. Counsel argued that confessions should be corroborated by other evidence, because ‘confessions are the start of the evidence and not the end’.

He argued that in the case before the court the two accused must have been subject to duress as defined in accordance with the principles of the Sharia. Initially and while the trial was still in progress the brother of the victim was urged to accept blood money, diyat. At first he demanded retaliation which on a finding of guilt would have meant the execution of the two accused. However, intensive diplomatic efforts by the British government and other parties resulted in his agreeing to accept blood money. The trial itself was somewhat inconclusive, for while Lucille McLauchlan was found guilty of being an accessory to murder there is no report of any finding on the guilt of Deborah Kim Parry. It appears that there must have been a finding of guilt in both cases, however, as both the accused were pardoned by the late King Fahd and repatriated to the UK.

Honour crimes

In many countries of the Muslim world where Islamic criminal law does not apply, there are provisions in the statutory law to justify so-called honour killings. In Jordan, for example, article 34 of Law 16 of 1960 (the Penal Code) states that: A man who catches his wife or one of his female kinswomen who is within the prohibited degree of relationships having sexual relations with a man to whom she is not married and who kills or wounds both of them is exempt from any punishment. The law further provides that a man who catches his wife or a female ascendant or descendant or his sister with a male person in ‘an unlawful bed’ (presumably in bed with a man other than her husband) and who kills or wounds either of them will receive a reduction of his sentence. Provisions such as the ones in Jordanian law also appear in the laws of Iraq and Egypt. In 1999 King Abdullah of Jordan removed these provisions – which he considered offensive – from Jordanian law by decree when Parliament was not in session. The Jordanian Parliament, however, refused to ratify the decree. It should be noted that there are no provisions in Islamic law that justify honour killings. Honour killings are more a matter of tribal customs and the tribal customary belief that ‘the honour of the tribe rests in its women’.

Pakistan

The Hudood Ordinances

In most Arab countries modern penal codes have been established that depart from Islamic penal law. In the Indian sub-continent India does not apply Islamic penal law at all but Pakistan has introduced Islamic penal law for certain types of offences, for instance unlawful sexual intercourse. Traditional Islamic penal law is also applied in Saudi Arabia and some Gulf states. Pakistan introduced Islamic criminal law in 1979 in the form of three Ordinances, which are collectively referred to as the Hudood Ordinances. They are:

uu the Offences against Property (Enforcement of Hudood) Ordinance, 1979

uu the Offence of Zina (Enforcement of Hudood) Ordinance, 1979

uu the Offence of Qazf (Enforcement of Hadd) Ordinance, 1979.

Under the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (the Zina Ordinance, 1979), before it was amended in 2006, any sexual intercourse between a man and woman who were not validly married constituted a criminal offence. This meant that adultery, rape and fornication were all criminal offences liable to hadd punishments if the required evidential burden was met. Anybody who falsely accused somebody else of having committed Zina was liable to be punished under the provisions of the Offence of Qazf Ordinance, 1979. Qazf in traditional law is the hadd offence of falsely accusing someone of Zina and is punishable by 80 lashes.

The Zina Ordinance, 1979 had an effect on the legal status of women: if a woman alleged that she had been raped and the matter came to trial it could happen that the accused was actually acquitted because of lack of evidence. In this situation the woman faced an awkward legal position: in order to prove rape she had had to admit that sexual intercourse had taken place. After the acquittal of the accused the possibility of rape was excluded and the woman now faced charges for either adultery if she was married, or for fornication if she was not. The Zina Ordinance, 1979 had therefore made it quite dangerous for a woman to press rape charges since she might in fact end up as an accused herself.

In 2006, the Protection of Women (Criminal Law Amendment) Act was enacted in Pakistan. This act seeks to redress much of the injustice and hardship caused to women by the Zina Ordinance, 1979. First, the 2006 Act returns a number of offences from the Zina Ordinance back to the Pakistan Penal Code. The offence of kidnapping or abducting a woman in order to compel her to marry against her will or to force her into illicit sexual intercourse, or kidnapping a male in order to subject him to ‘unnatural lust’ and selling a person for the purpose of prostitution, have now been reinserted into the penal code of 1860.

Also, the offence of rape has been returned to the penal code. The offence of rape is so defined that marital rape becomes a criminal offence. Sexual intercourse with a female below the age of 16, even with her consent, is defined as rape. The punishment for rape may be death or imprisonment for up to 25 years, with a minimum of 10 years. The offence of Zina is defined as ‘adultery’ if one of the parties is married at the time the intercourse occurs and ‘fornication’ if they are not. The 2006 Act inserts a new offence of fornication into the penal code. The offence is punishable by imprisonment for up to five years and a fine not exceeding 10,000 Rupees. The new offence is, however, safeguarded from abuse by the creation of a new offence of false accusation of fornication. The new provision provides that anyone who brings or gives false evidence of fornication shall be punished with imprisonment up to five years and a fine of up to 10,000 Rupees. Very importantly, once a prosecution for fornication results in an acquittal, the trial judge can, in the same proceedings, try and sentence the person bringing the charge.

The offence of adultery is the only offence retained by the Zina Ordinance itself. It is an offence for anyone to make a false accusation of adultery. The punishment for the offence follows the punishment of fornication in the penal code. A new definition of ‘confessions’ has been added to the Ordinance. The new definition serves to prevent women being placed in the invidious position of having been deemed to have ‘confessed’ to Zina when they brought an accusation of rape before the court, which the court found unproven.

The definition of what constitutes a valid marriage has also been deleted. The original definition had caused hardship to many women and resulted in confusion regarding the interpretation of Section 7 of the Muslim Family Laws Ordinance 1961. All too often, a husband would repudiate his wife by talaq (see Chapter 10) but would fail to comply with the requirement of ‘notice’ enjoined by Section 7 of the Ordinance. The woman would believe herself divorced and re-marry, whereupon the first husband would bring a charge of Zina against her, citing his failure to give notice of talaq as required by law and that, in effect, the woman was still his legal wife. The 2006 Act removes all reference to taz’ir punishments. The result is that now, under the Zina Ordinance, adultery may only be proved if the act itself is witnessed by four pious Muslim eye-witnesses, or if the accused confesses to the offence, for which the only punishment is death by stoning.

Finally, the 2006 Act amends the procedure governing sexual offences under both the penal code and the Zina Ordinance. Any complaint of adultery must be lodged directly in court, not made to the police. The judge hearing the case must examine on oath the complainant and at least four adult male eye-witnesses, who the court has established to be truthful. The witnesses must testify on oath to the committing of the act of penetration, i.e. the strict evidence required by the Sharia. Moreover, the offence of qazf in the Qazf Enforcement of the Hadd Ordinance 1979 has been amended. If the prosecution fails, punishment for qazf is now virtually automatic. If a prosecution for adultery fails and the judge is satisfied that the offence of qazf has been committed, he shall not require proof of qazf and will proceed to pass sentence against the complainant. Punishment for the offence is 80 lashes. The testimony of a person committed of qazf is thereafter inadmissible in any court proceedings. The procedure regarding allegations of fornication follows that of allegations of adultery, but only two actual eye-witnesses are required. The complainant and the eye-witnesses must be examined in court before the judge can issue a summons for the accused to attend the court.

The law of Pakistan now expressly recognises honour crimes as criminal offences. The amended Article 311 of the penal code provides a mandatory sentence of 10 years imprisonment if the offence is committed in the name of, or on the pretext of, honour. A compulsory sentence of imprisonment must also be given to anyone convicted of an attempted murder or assault in the name of honour.

Blasphemy

Article 295-C of the Pakistan Penal Code 1860 provides that:

Whoever by words, either spoken or written, or by visible representation, or by any imputation, innuendo, or insinuation, directly or indirectly, defiles the sacred name of the Holy Prophet Muhammad (Peace be upon him) shall be punished with death, or imprisonment for life, and shall also be liable to fine.

The Federal Shariat Court has held that, despite the discretion in the statute accorded to the trial judge, the only punishment for blasphemy is death. Although there have been many cases brought under the blasphemy provision and convictions obtained, what actually constituted the blasphemy is not reported, presumably because this would be to repeat the blasphemy.

The Christian community and the Ahmadiyyas (the followers of Mirza Ghulam Ahmad (1835-1908) who consider themselves as Muslims, although they are not so regarded under the law of Pakistan) have been the main sufferers of the blasphemy laws. Pakistan also makes it a criminal offence for a non-Muslim to make himself out to be a Muslim. Following an amendment to the Pakistani constitution, members of the Ahmadiyya sect are not regarded as Muslims although they regard themselves as such.