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Old Thursday, March 07, 2013
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Default Muslim Law & Jurisprudence

Muslim Law & Jurisprudence (CE-2013)

PART-I ((MCQs) (COMPULSORY)

Q.1. (i) Select the best option/answer and fill in the appropriate Circle on the OMR Answer Sheet. (20x1=20)
(ii) Answers given anywhere, other than OMR Answer Sheet, shall not be considered.

1. Al Risalah is name of the book authored by:
(a) Imam Malik
(b) Imam Ahmad
(c) Imam Bukhari
(d) Noe of these

2. Mubarat means:
(a) When husband and wife decide to opt for li’an
(b) When husband and wife decide to get divorced.
(c) When wife decides to drag the husband to a court of law for divorce.
(d) None of these

3. The Federal Shariat Court declared in ______________ that some provisions of the Muslim Family Law Ordinance 1961 were repugnant to the Islamic injunctions.
(a) Farishta Case
(b) Ismael Qureshi Case
(c) Allah Rakha Case
(d) None of these

4. Easements are known in Islamic law as:
(a) Huquq al-Irtifaq
(b) Huquq al-Ardiyyah
(c) Haquq al-Hayatiyyah
(d) None of these

5. The suit for pre-emption shall fail if_________ different kinds of demands are note made:
(a) Seven
(b) Five
(c) Three
(d) None of these

6. Shuroot in’iqad in marriage are those:
(a) Which if not found, the contract will not be enforced.
(b) Which if not found, the contract will be irregular.
(c) Which if not found, the contract will not be binding.
(d) None of these

7. Zahir al-Riwayah
are six books authored by:
(a) Imam Shafi’i
(b) Imam Malik
(c) Imam Shaybani
(d) None of these

8. Divorce pronounced in death-illness is:
(a) Valid
(b) Invalid
(c) Valid if the wife accepts it
(d) None of these

9. Legal capacity (ahliyya) in Islamic law is divided into:
(a) Ahliyya al-ada and ahliyya al-wafa
(b) Ahliyya al-wujoob and ahliyya al-haqq
(c) Ahliyya al-wujoob and ahliyya al-ada
(d) None of these

10. Can the husband revoke the delegation of the right of divorce?
(a) No
(b) Yes
(c) Yes, if he does so before the wife exercise this right.
(d) None of these

11. Istishab denotes:
(a) The presumption of non-existence
(b) The presumption of validity
(c) The presumption of continuity
(d) None of these

12. Aasaba are those:
(a) Who have prejudice towards a section of the society.
(b) Whose share is not fixed and will get whatever is left.
(c) Who are entitled to get zakah.
(d) None of these

13. Imam Malik bin Anas belongs to:
(a) Ahl al-Hadith
(b) Ahl al-Ra’i
(c) Ahl al-Zahir
(d) None of these

14. Maslaha Mursala refers to:
(a) A Maslaha which is neither recognized nor rejected by Shariah.
(b) A Maslaha which is not recognized by Shariah but which must be adopted for its utility for Muslims.
(c) A Maslaha which is proved by a Hadith i Mursal
(d) None of these

15. In case of divorce before consummation of marriage:
(a) Half dower must be paid, if dower was fixed.
(b) Full dower must be paid if its proved that mistake of husband caused the divorce.
(c) No dower is payable as dower is paid as consideration for “consummation”.
(d) None of these

16. Bay’ al-Salam is:
(a) Money for fruit but the counter-values must be exchanged simultaneously.
(b) Money for fruits but money must be paid prior to delivery.
(c) Money for fruits but money is paid after delivery, otherwise sale is void.
(d) None of these

17. Talaqqi al-Rukban denotes:
(a) Divorces during travel
(b) Divorce while the wife is pregnant.
(c) Divorce when the agent of the husband pronounces it on his behalf.
(d) None of these

18. Consideration in Khula’ means:
(a) Gifts
(b) Any property paid to the wife
(c) Any property paid to the husband
(d) None of these

19. Faskh in the Hanafi School is:
(a) Available only on three grounds.
(b) Available only on four grounds.
(c) Is the absolute right of the wife.
(d) None of these

20. Imam Abu Hanifah was student of:
(a) Abdullah Ibn Mas’ud
(b) Imam Hammad
(c) Imam Hasan Basri
(d) None of these


Q.2. Explain the provisions of Islamic law regarding the custody of child and critically evaluate the notion of "parental child abduction".

Q.3. Imam Gazhali says: "Maslahah does not mean acquiring benefit or repelling harm; it means protecting the purposes of the law." Elaborate theory of the purposes of Islamic law (maqasid al-shari'ah) and link it with the wider doctrine of maslahah as expounded by Imam Ghazali and Imam Shatibi.

Q.4. (a) "A contract of marriage concluded in the absence of two witnesses is void, but some consequences of irregular contract are assigned to it". Elaborate this rule by clearly separating the effects of a void contract and the effects of an irregular contract which are found in such a contract.

(b) Give three examples in which one divorce is deemed irrevocable (ba'in) by the Sunni Law.

Q.5. "Necessity does not allow every prohibited act; rather, some acts remain prohibited even in the state of necessity." Explain this statement by clearly elaborating the parameters and limitations of the doctrine of necessity in Islamic law.

Q.6. "Islamic law links the punishments of hadd, ta'zir and qisas to the right of God, the right of individual and the joint right of God and individual, respectively." Distinguish between the legal consequences of these punishments whcih emanate from these different kinds of rights.

Q.7. "Istihsan does not mean deviation from the legal norms on the basis of personal liking or disliking; it is a means to ensure analytical consistency in the legal system by resolving conflicts in various sources of law." Elaborate this statement and citically evaluate the objection raised by the shafi'i jurists on the Hanafi principle of Istihsan.

Q.8. Write notes on the following:-
(a) Obligatory Bequest (Wasiyyah Wajibah)
(b) Intoxication as Cause of Defective Legal Capacity
(c)Mujtahid fi al-Madhab
(d)Zihar
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Old Thursday, March 07, 2013
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  • Quote:
    1. A marriage which is not valid may be either void or irregular.
    Quote:
  • 2.A void marriage is one which is unlawful in itself, the prohibition against the marriage being perpetual and absolute. Thus, a marriage with a woman prohibited by reason of consangunity (S.250), affinity (S.251), or fosterage (S.252), is void, the prohibition against marriage with such a woman being perpetual and absolute.(a) (Women within the prohibited degree are called Mooharim) (or Mehram).
Quote:
  • 3. An irregular marriage is one which is not unlawful in itself, but unlawful “For something else,” as where the prohibition is temporary or relative, or when the irregularity arises from an accidental circumstances, such as the absence of witnesses. Thus, the following marriages are irregular, namely–
  • a marriage contracted without witnesses (S. 244):
  • a marriage with a fifth wife by a person having four wives (S. 255) ;
  • a marriage with a woman undergoing iddat (S. 247) ;
  • a marriage prohibited by reason of difference of religion (S. 249) ;
  • a marriage with a woman so related to the wife that if one of them had been a male, they could not have lawfully intermarried. (S. 253).
  • The reason why the aforsaid marriages are irregular, and not void, is that in case (a) the irregularity arisen from an accidental circumstances ; in clause (b) the objection may be removed by the man divorcing one of his four wives ; in clause (c) the impediment ceases on the expiration of the period of iddat ; in clause (d) the objection may be removed by the wife becoming in convert to the Muslim, Christian or Jewish religion, or the husband adopting the Muslim faith ; and in clause (e) the objection may be removed by the man divorcing the wife who constitutes the obstacle ; thus, if a man who has already married one sister marries another, he may divorce the first, and make the second lawful to himself. (Baillie, pp, 150-555.
  • .
Without witness is irregular marriage .Question is wrong or book is ,In Mullah book it irregular marriage that held without witnesses I molded the question somehow ,if without witness(irregular marriage ) would not be converted in to valid ,then it would become void

Quote:
The irrevocable divorce has five types:

1) The divorce of the woman who has not completed nine years of age.

2) The divorce of the menopausal woman (Yaa`isah) who has passed fifty years of age.

3) The divorce of the woman whom her husband had not had intercourse with her after the marriage.

4) The divorce of the woman who has been divorced three times.

5) The Khala' and Mubaara`ah divorce whose explanation is coming afterward.

Whatever is aside from these are the revocable divorce (Raj'i), meaning that it is permissible for the man to return to his wife during the seclusion ('Iddah) without need of renewing the contract.
I answered ; Talke-bidat , talak-e ahsan without cohabitation and Illa which is conditioned to future happening or husband announces that he has no interest in this contract so divorce thee..:P
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Old Thursday, March 07, 2013
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Ash-Shafi’i, Malik’s pupil, fumigated against his shaykh for this and said that istihsan amounted to abandoning the evidence for benefit which was tantamount to adopting the principle of benefit alone without attempting to rely on the texts. He criticised that and said that it was wrong and wrote a chapter on that in al-Umm called, “The Chapter of the Invalidation of Istihsan.”

Quote:
The basis of the disagreement in this topic is that ash-Shafi’i limits himself to the text in every question in which he gives fatwa. If there is no clear text, then the text is brought to bear. That is by analogy and so there is nothing other than the text with ash-Shafi’i in every question in which he gives fatwa. Malik, however, viewed the Shari’a in a comprehensive way and found that in its heart and goals it was directed to the best interests of people and the avoidance of harm. If a confirmed benefit has no harm connected to anyone, that is the confirmed goal. If there is confirmed harm, then there is confirmed prohibition. This comprehensive view is referred to often in a group of texts like the words of the Almighty, “He has not placed any constraint on you in the deen.” (22:78) and like the words of the Almighty, “Allah desires ease for you; He does not desire difficulty for you.” (2:185) The Messenger, peace and blessings be upon him, said, “No harm and no causing injury.” A critical examination of any legal judgement will reveal that the benefit and averting of harm are both observed in it and are intended by it.

Quote:
1. Introduction
Istihsan means preference of one over another considering the formed good.

When a rule of law deduced by analogy is either in conflict with Ijma or is likely to causes inconvenience owing to its narrowness. The Hanfi jurists refuse to follow it and give preference to rule, which in his opinion would better advance the welfare of man and the interest of justice.
2. Meaning and definition of Istihsan
(I) Meaning
In its literal sense Istihsan means
“to consider something good.”
(II) Definition
(i) By Kharkhi
“In case of some legal problem exception is created from its analogous precedent on the basis of some stronger argument which render it distinguishable.
I did it on the same pattern and it was mere a tukka which turned out a right answer
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Old Thursday, March 07, 2013
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sadia shafiq your answer isnt making any sense under the light of this statement "Istihsan does not mean deviation from the legal norms on the basis of personal liking or disliking; it is a means to ensure analytical consistency in the legal system by resolving conflicts in various sources of law."
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Old Thursday, March 07, 2013
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UNDER THE INFLUENCE OF DRUGS OR ALCOHOL

If a person signs a contract while drunk or under the influence of drugs, can that contract be enforced? Courts are usually not very sympathetic to people who claim they were intoxicated when they signed a contract. Generally a court will only allow the contract to be avoided if the other party to the contract knew about the intoxication and took advantage of the intoxicated person, or if the person was somehow involuntarily intoxicated (e.g. someone spiked the punch). The law will intervene in some circumstances where someone who is intoxicated enters into an agreement. Intoxication alone is not sufficient, but it can be a defence to enforcement by the sober party, and the intoxicated party may void the contract on the basis of his or her own intoxication in the following circumstances, that is firstly, the intoxicated party, because of the intoxication, did not know what he or she was doing. Secondly, the sober party was aware of the intoxicated state of the other party. Thirdly, upon becoming sober, the intoxicated party moved promptly to repudiate the contract. The basis for this approach is not that one party is drunk but that the other party might defraud the drunkard. Thus, even where the sober party is not aware of the intoxicated state of the other party, if there is evidence of intoxication so that it may be presumed, the unfairness or one-sidedness of a contract might result in its being voided. This view moves the law toward a position that an unconscionable agreement permits the court to presume that the sober party had knowledge of the intoxication of the other party once there is evidence of intoxication.



Quote:
Incapacity is present if a mental status defect renders the individual unable to understand and knowingly and intelligently act upon consent information using rational processes. This is a determination made in the first instance by the treating doctor. A competent decision remains valid even after the patient lapses into incompetence. The law, in its simplicity, however, presumes the incompetent patient is unconscious or demented rather than impaired yet still capable of acting. When this is not the case, psychiatric consultation may be requested to opine on competency by assessing mental status defects and their impact on capacity to give or withhold consent.
What is the Fatwa about a person who intentionaly says to his wife that she is his mother?

http://www.qtafsir.com/index.php?opt...628&Itemid=114

it is good one with zihar ,2 questions are exact right ..
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Old Thursday, March 07, 2013
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Originally Posted by JhooTa View Post
sadia shafiq your answer isnt making any sense under the light of this statement "Istihsan does not mean deviation from the legal norms on the basis of personal liking or disliking; it is a means to ensure analytical consistency in the legal system by resolving conflicts in various sources of law."
yes I knew ,it is not written by me ,I copy it from source and just presented view of shafi .I knew and answered it like you have said
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Human Rights from an Islamic Worldview
An outline of Hudud, Ta'zir & Qisas
By: Mohammed Salam Madkoar
In order to properly understand the Muslim world's concept of Human Rights under the law, it is helpful to have a basic grasp of the concepts of Islamic law. First World Student of Human Rights will find the following article by Mohammed Salam Madkoar a most useful aid in attempting to understand the struggle for human rights in the Islamic world.
The general public and many academics have several preconceived notions about Islamic Law. One such notion is that Islamic judges are bound by ancient and outdated rules of fixed punishments for all crimes. This paper explores that idea and looks at other myths in an attempt to present Islamic Law from a non-biased view of Sharia Law.

Some contemporary scholars fail to recognize Islamic Law as an equal to English Common Law, European Civil Law and Socialist Law. A few academics have even attempted to place Islamic Law into the Civil Law tradition. Other writers have simply added a footnote to their works on comparative justice on the religious law categories of Islamic Law, Hindu Law, which is still used in some parts of India, and the Law of Moses from the Old Testament which still guides the current thought of the Israeli Knesset (Parliament) today. This survey will attempt to alter some of these inaccurate perceptions and treatments in both the contemporary literature and academic writings. Mohammed Salam Madkoar explains the theoretical assumptions of Islamic Law:

In order to protect the five important indispensables in Islam:
1. religion
2. life
3. intellect
4. offspring
5. property

Islamic Law has provided a worldly punishment in addition to that in the hereafter. Islam has, in fact, adopted two courses for the preservation of these five indispensables:

the first is through cultivating religious consciousness in the human soul and the awakening of human awareness through moral education;
the second is by inflicting deterrent punishment, which is the basis of the Islamic criminal system.
Therefore "Hudud," Retaliation (qisas) and Discretionary (Tazir) punishments have been prescribed according to the type of the crime committed.

Islamic Law and Jurisprudence is not always understood by the western press. Although it is the responsibility of the mass media to bring to the world's attention violations of human rights and acts of terror, many believe that media stereotyping of all Muslims is a major problem. The recent bombing at the World Trade Center in New York City is a prime example. The media often used the term "Islamic Fundamentalists" when referring to the accused in the case. It also referred to the Egyptian connections in that case as "Islamic Fundamentalists."

The media has used the label of "Islamic Fundamentalist" to imply all kinds of possible negative connotations: terrorists, kidnappers, and hostage takers. Since the media does not use the term "Fundamentalist Christian" each time a Christian does something wrong, the use of such labels is wrong for any group, Christians, Muslims, or Orthodox Jews.
A Muslim who is trying to live his religion is indeed a true believer in God. This person tries to live all of the tenets of his religion in a fundamental way. Thus, a true Muslim is a fundamentalist in the practice of that religion, but a true Muslim is not radical, because the Quran teaches tolerance and moderation in all things. When the popular media generalizes from the fundamentalist believer to the "radical fundamentalist" label they do a disservice to all Muslims and others.
No Separation of Church and State
To understand Islamic Law one must first understand the assumptions of Islam and the basic tenets of the religion. The meaning of the word Islam is "submission or surrender to Allah's (God's) will." Therefore, Muslims must first and foremost obey and submit to Allah's will. Mohammed the Prophet was called by God to translate verses from the Angel Gabriel to form the most important book in Islam, the Quran, Muslims believe.

There are over 1.2 billion Muslims today worldwide, over 20% of the world's population. "By the year 2000, one out of every four persons on the planet will be a Muslim," Rittat Hassan estimated in 1990. There are 35 nations with population over 50% Muslim, and there are another 21 nations that have significant Muslim populations. There are 19 nations which have declared Islam in their respective constitutions. The Muslim religion is a global one and is rapidly expanding. The sheer number of Muslims living today makes the idea of putting Islamic Law into a footnote in contemporary writings inappropriate.

The most difficult part of Islamic Law for most westerners to grasp is that there is no separation of church and state. The religion of Islam and the government are one. Islamic Law is controlled, ruled, and regulated by the Islamic religion. The theocracy controls all public and private matters. Government, law, and religion are one. There are varying degrees of this concept in many nations, but all law, government and civil authority rests upon it and it is a part of Islamic religion. There are civil laws in Muslim nations for Muslim and non-Muslim people. Sharia is only applicable to Muslims. Most Americans and others schooled in Common Law have great difficulty with that concept. The U.S. Constitution (Bill of Rights) prohibits the government from "establishing a religion." The U.S. Supreme Court has concluded in numerous cases that the U.S. Government can't favor one religion over another.

That concept is implicit for most U.S. legal scholars and many U.S. academicians believe that any mixture of "church and state" is inherently evil and filled with many problems. They reject all notions of a mixture of religion and government.

To start with such preconceived notions limits the knowledge base and information available to try and solve many social and criminal problems. To use an analogy from Christianity may be helpful.

To ignore what all Christian religions except your own say about God would limit your knowledge base and you would not be informed or have the ability to appreciate your own religion. The same is true for Islamic Law and Islamic religion. You must open your mind to further expand your knowledge base. Islamic Law has many ideas, concepts, and information that can solve contemporary crime problems in many areas of the world. To do this you must first put on hold the preconceived notion of "separation of church and state."
Judge (Qadi)
Another myth concerning Islamic Law is that there are no judges. Historically the Islamic Judge (Qadi) was a legal secretary appointed by the provincial governors. Each Islamic nation may differ slightly in how the judges are selected. Some nations will use a formal process of legal education and internship in a lower court. For example, in Saudi Arabia there are two levels of courts. The formal Sharia Courts which were established in 1928 hear traditional cases. The Saudi government established a ministry of justice in 1970, and they added administrative tribunals for traffic laws, business, and commerce. "All judges are accountable to God in their decisions and practices" (Lippman, p.66-68).

One common myth associated with Islamic Law is that judges must always impose a fixed and predetermined punishment for each crime. Western writers often point to the inflexible nature of Islamic Law. Judges under Islamic Law are bound to administer several punishments for a few very serious crimes found in the Quran, but they possess much greater freedom in punishment for less serious (non-Had) crimes. Common law is filled with precedents, rules, and limitations which inhibit creative justice. Judges under Islamic Law are free to create new options and ideas to solve new problems associated with crime.
Elements of Sharia Law
Islamic law is known as Sharia Law, and Sharia means the path to follow God's Law. Sharia Law is holistic or eclectic in its approach to guide the individual in most daily matters. Sharia Law controls, rules, and regulates all public and private behavior. It has regulations for personal hygiene, diet, sexual conduct, and elements of child rearing. It also prescribes specific rules for prayers, fasting, giving to the poor, and many other religious matters. Civil Law and Common Law primarily focus on public behavior, but both do regulate some private matters.

Sharia Law can also be used in larger situations than guiding an individual's behavior. It can be used as guide for how an individual acts in society and how one group interacts with another. The Sharia Law can be used to settle border disputes between nations or within nations. It can also be used to settle international disputes, conflicts, and wars. This Law does not exclude any knowledge from other sources and is viewed by the Muslim world as a vehicle to solve all problems civil, criminal, and international.
Sharia Law has several sources from which to draw its guiding principles. It does not rely upon one source for its broad knowledge base.
The first and primary element of Sharia Law is the Quran. It is the final arbitrator and there is no other appeal.
The second element of Sharia Law is known as the Sunna, the teachings of the Prophet Mohammed not explicitly found in the Quran. The Sunna are a composite of the teachings of the prophet and his works. The Sunna contain stories and anecdotes, called Hadith, to illustrate a concept. The Quran may not have all the information about behavior and human interaction in detail; the Sunna gives more detailed information than the Quran.
The third element of Sharia Law is known as the Ijma. The Muslim religion uses the term Ulama as a label for its religious scholars. These Ulamas are consulted on many matters both personal and political. When the Ulamas reach a consensus on an issue, it is interpreted as a ijma. The concepts and ideas found in the ijma are not found explicitly in the Quran or the teachings of the Prophet (Sunna). Islamic judges are able to examine the ijma for many possible solutions which can be applied in a modern technical society. They are free to create new and innovative methods to solve crime and social problems based upon the concepts found in the ijma. These judges have great discretion in applying the concepts to a specific problem.

The Qiyas are a fourth element of Sharia Law. The Qiyas are not explicitly found in the Quran, Sunna, or given in the Ijma. The Qiyas are new cases or case law which may have already been decided by a higher judge. The Sharia judge can use the legal precedent to decide new case law and its application to a specific problem. The judge can use a broad legal construct to resolve a very specific issue. For example, a computer crime or theft of computer time is not found in the Quran or Sunna. The act of theft as a generic term is prohibited so the judge must rely on logic and reason to create new case law or Qiyas.

The fifth element of Sharia Law is very broad and "all encompassing." This secondary body of knowledge may be ideas contained in the other written works. The New Testament is an example of this area of information, and legal discourses based upon Civil Law or Common Law may be another example. All information can be examined for logic and reason to see if it applies to the current case. It also may be a local custom or norm that judge may find helpful in applying to the issue before him. The judge may also weigh the impact of his decision upon how it will effect a person's standing in the community.
Crimes in Islam
Crimes under Islamic Law can be broken down into three major categories. Each will be discussed in detail with some common law analogies. The three major crime categories in Islamic Law are:
Had Crimes (most serious).
Tazir Crimes (least serious).
Qisas Crimes (revenge crimes restitution)
Had crimes are the most serious under Islamic Law, and Tazir crimes are the least serious. Some Western writers use the felony analogy for Had crimes and misdemeanor label for Tazir crimes. The analogy is partially accurate, but not entirely true. Common Law has no comparable form of Qisas crimes.

Fairchild, in her excellent book on comparative justice, makes the following observation of Islamic Law and punishment (Fairchild, p.41).

"Punishments are prescribed in the Quran and are often harsh with the emphasis on corporal and capital punishment. Theft is punished by imprisonment or amputation of hands or feet, depending on the number of times it is committed..."
Had Crimes
Had crimes are those which are punishable by a pre-established punishment found in the Quran. These most serious of all crimes are found by an exact reference in the Quran to a specific act and a specific punishment for that act. There is no plea-bargaining or reducing the punishment for a Had crime. Had crimes have no minimum or maximum punishments attached to them. The punishment system is comparable to the determinate sentence imposed by some judges in the United States. If you commit a crime, you know what your punishment will be. There is no flexibility in the U.S. determinate model or in the punishment for Had crimes of Islamic Law.
No judge can change or reduce the punishment for these serous crimes. The Had crimes are:
Murder;
Apostasy from Islam - making war upon Allah and his messengers;
Theft;
Adultery;
Defamation - false accusation of adultery or fornication;
Robbery;
Alcohol-drinking.
The first four Had crimes have a specific punishment in the Quran. The last three crimes are mentioned but no specific punishment is found.

Some more liberal Islamic judges do not consider apostasy from Islam or wine drinking as Had crimes. The more liberal Islamic nations treat these crimes as Tazir or a lesser crime.

Had crimes have fixed punishments because they are set by God and are found in the Quran. Had crimes are crimes against God's law and Tazir crimes are crimes against society. There are some safeguards for Had crimes that many in the media fail to mention. Some in the media only mention that if you steal, your hand is cut off.
The Islamic judge must look at a higher level of proof and reasons why the person committed the crime. A judge can only impose the Had punishment when a person confesses to the crime or there are enough witnesses to the crime. The usual number of witnesses is two, but in the case of adultery, four witnesses are required. The media often leaves the public with the impression that all are punished with flimsy evidence or limited proof. Islamic law has a very high level of proof for the most serious crimes and punishments. When there is doubt about the guilt of a Had crime, the judge must treat the crime as a lesser Tazir crime. If there is no confession to a crime or not enough witnesses to the crime, Islamic law requires the Had crime to be punished as a Tazir crime.
Tazir Crimes
Modern Islamic Society has changed greatly from the time of the Prophet. Contemporary Sharia Law is now in written form and is statutory in nature. Islamic concepts of justice argue that a person should know what the crime is and its possible punishment.

For example, Egypt has a parliamentary process which has a formal penal code written and based upon the principles of Islamic Law, but Saudi Arabia allows the judge to set the Tazir crimes and punishments. Modern Islamic Law recognizes many differences between these two nations. It also allows for much greater flexibility in how it punishes an offender. The major myth of many people is that judges in Islamic nations have fixed punishments for all crimes. In reality, the judges have much greater flexibility than judges under common law.

Tazir crimes are less serious than the Had crimes found in the Quran. Some common law writers use the analogy of misdemeanors, which is the lesser of the two categories (felony and misdemeanor) of common law crimes. Tazir crimes can and do have comparable "minor felony equivalents." These "minor felonies" are not found in the Quran so the Islamic judges are free to punish the offender in almost any fashion. Mohammed Salam Madkoar, who was the head of Islamic Law at the University of Cairo, makes the following observation (Ministry of the Interior, 1976,p.104):

Tazir punishments vary according to the circumstances. They change from time to time and from place to place. They vary according to the gravity of the crime and the extent of the criminal disposition of the criminal himself.

Tazir crimes are acts which are punished because the offender disobeys God's law and word. Tazir crimes can be punished if they harm the societal interest. Sharia Law places an emphasis on the societal or public interest. The assumption of the punishment is that a greater "evil " will be prevented in the future if you punish this offender now.

Historically Tazir crimes were not written down or codified. This gave each ruler great flexibility in what punishments the judge was able to dispense. The judge under Islamic Law is not bound by precedents, rules, or prior decisions as in common law. Judges are totally free to choose from any number of punishments that they think will help an individual offender. The only guiding principle for judges under Sharia Law is that they must answer to Allah and to the greater community of Muslims.
Some of the more common punishment for Tazir crimes are:
1. counseling
2. fines
3. public or private censure
4. family and clan pressure and support
5. seizure of property
6. confinement in the home or place of detention
7. and flogging

In some Islamic nations, Tazir crimes are set by legislative parliament. Each nation is free to establish its own criminal code and there is a great disparity in punishment of some of these crimes. Some of the more common Tazir crimes are: bribery, selling tainted or defective products, treason, usury, and selling obscene pictures. The consumption of alcohol in Egypt is punished much differently than in Iran or Saudi Arabia because they have far different civil laws. Islamic law has much greater flexibility than the Western media portrays. Each judge is free to punish based upon local norms, customs, and informal rules. Each judge is free to fixthe punishment that will deter others from crime and will help to rehabilitate an offender.
Qisas Crimes and Diya
Islamic Law has an additional category of crimes that common law nations do not have. A qisas crime is one of retaliation. If you commit a qisas crime, the victim has a right to seek retribution and retaliation. The exact punishment for each qisas crime is set forth in the Quran. If you are killed, then your family has a right to seek qisas punishment from the murderer. Punishment can come in several forms and also may include "Diya."

Diya is paid to the victim's family as part of punishment. Diya is an ancient form of restitution for the victim or his family. The family also may seek to have a public execution of the offender or the family may seek to pardon the offender.
Traditional qisas crimes include:
Murder (premeditated and non-premeditated).
Premeditated offenses against human life, short of murder.
Murder by error.
Offenses by error against humanity, short of murder.
Some reporters in the mass media have criticized the thought of "blood money" as barbaric. They labeled the practice as undemocratic and inhumane. qisas crimes are based upon the criminological assumption of retribution. The concept of retribution was found in the first statutory "Code of Hammurabi" and in the Law of Moses in the form of "an eye for an eye."
Muslims add to that saying "but it is better to forgive."
Contemporary common law today still is filled with the assumptions of retribution. The United States federal code contains "mandatory minimum" sentences for drug dealing, and many states have fixed punishment for drugs and violence and using weapons. The United States justice system has adopted a retribution model which sets fixed punishments for each crime. The idea of retribution is fixed in the U.S. system of justice. qisas crime is simple retribution: if one commits a crime, he knows what the punishment will be.

Diya has its roots in Islamic Law and dates to the time of the Prophet Mohammed when there were many local families, tribes, and clans. They were nomadic and traveled extensively. The Prophet was able to convince several tribes to take a monetary payment for damage to the clan or tribe. This practice grew and now is an acceptable solution to some qisas crimes.

Today, the Diya is paid by the offender to the victim if he is alive. If the victim is dead, the money is paid to the victim's family or to the victim's tribe or clan. The assumption is that victims will be compensated for their loss. Under common law, the victim or family must sue the offender in a civil tort action for damages. qisas law combines the process of criminal and civil hearings into one, just as the "civil law" is applied in many nations of the world. qisas crimes are compensated as restitution under common law and civil law.

The qisas crimes require compensation for each crime committed. Each nation sets the damage before the offense and the judge then fixes the proper Diya. If an offender is too poor to pay the diya, the family of the offender is called upon first to make good the diya for their kin. If the family is unable to pay, the community, clan, or tribe may be required to pay. This concept is not found in common law or the civil law of most nations. It acts as a great incentive for family and community to teach responsible behavior. What happens to the debt if the offender dies and has not paid it? Historically, it was passed on to the offender's heirs; today, most nations terminate the debt if the offender left no inheritance.

One question that is often raised is "What happens if a victim takes the diya without government approval ?" The victim or family has committed a Tazir crime by accepting money which was not mandated by a judge: taking diya must be carried out through proper governmental and judicial authority.

Another concept of qisas crimes is the area of punishment. Each victim has the right to ask for retaliation and, historically, the person's family would carry out that punishment. Modern Islamic law now requires the government to carry out the qisas punishment. Historically, some grieving family member may have tortured the offender in the process of punishment. Now the government is the independent party that administers the punishment, because torture and extended pain is contrary to Islamic teachings and Sharia Law.
Conclusions
Contemporary treatment of Islamic Law and "Radical Muslims" is filled with stereotypical characterizations. Some in the Western media have used the "New York City bombings" as a way to increase hate and prejudice. They have taken the views of a few radicals and projected them onto all Muslims.
This action has done a great disservice to the Muslim world. Some academic writings also have been distorted and not always completely accurate and some researchers have concluded that Islamic Law requires a fixed punishment for all crimes. These writers also have concluded that Islamic judges lack discretion in their sentences of defendants in the Sharia Court System. There are four Had crimes that do have fixed punishments set forth in the Quran, but not all the Had crimes are bound by mandatory punishment.

Islamic Law is very different from English Common Law or the European Civil Law traditions. Muslims are bound to the teachings of the Prophet Mohammed whose translation of Allah or God's will is found in the Quran. Muslims are held accountable to the Sharia Law, but non-Muslims are not bound by the same standard (apostasy from Allah). Muslims and non-Muslims are both required to live by laws enacted by the various forms of government such as tax laws, traffic laws, white collar crimes of business, and theft. These and many other crimes similar to Common Law crimes are tried in modern "Mazalim Courts." The Mazalim Courts can also hear civil law, family law, and all other cases. Islamic Law does have separate courts for Muslims for "religious crimes" and contemporary non-religious courts for other criminal and civil matters.
Mohammed Salam Madkoar.


http://www.muhajabah.com/docstorage/hudud.htm


http://www.cssforum.com.pk/css-compu...sas-tazir.html
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Quote:
(a) "A contract of marriage concluded in the absence of two witnesses is void, but some consequences of irregular contract are assigned to it".
According to Shia law presence of witnesses is not required in any case regarding marriage .

page no 332

According to Sunni law ,a marriage contract without witnesses is irregular .

page no 334

Book Mullah's Muhammdan Law (recommended by fpsc )

Question is asked wrongly to make paper difficult . Who will call to fpsc to give 10 marks to every one for such a mistake in a question paper .
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Quote:
Originally Posted by SADIA SHAFIQ View Post
Without witness is irregular marriage .Question is wrong or book is ,In Mullah book it irregular marriage that held without witnesses I molded the question somehow ,if without witness(irregular marriage ) would not be converted in to valid ,then it would become void



I answered ; Talke-bidat , talak-e ahsan without cohabitation and Illa which is conditioned to future happening or husband announces that he has no interest in this contract so divorce thee..:P


Yes, it was a confusing one,but i simply discussed what shia and sunni law says on the subject; for examiner one could not change the Islamic law. Mullas book is considred as most authentic in all Law institutions on the subject of Muslim law.

Quote:
Originally Posted by Wiqaralamkhan View Post
It was a "Halwa Paper"
Yes it was a halwa paper, but i don't know what went wrong with our fats that examiner for the first time in his life forgot to use Sugar , instead he used chilis in same halwa
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Let me say there is a difference between Analytical question and a Senseless question. Muhammadan Law of Mullah and Sir Abdur Rahim are books considered as authorities on the subject but these books, unfortunately, do not teach one the art of solving complex problems ''MASALAh'' of muslim law. Ladies and gentleman, FPSC proudly announces that now you will have to be 'learned' enough to be a member of 'House of WIsdom' firstly and only then you are eligible to, even, attempt Muslim Law paper of CSS.
Congratulations to those who call it Halwa, Easy, Piece of cake or child's play.
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