Hamdard Islamicus 7 Vol. XXXIX, No. 3

TRACING THE CONCEPT OF ADR IN
SHARÔ‘AH AND LAW
A COMPARATIVE STUDY

DR. QAZI ATTAULLAH1 AND DR. LUTFULLAH SAQIB2

1Civil Judge cum Judicial Magistrate, Director Instructions,
Judicial Academy Peshawar, Peshawar,

e-mail: qaziofmalakand@gmail.com
2Assistant Professor (Law and Shariah),

University of Swat, Khyber Pukhtunkhwa,
Pakistan.

e-mail: lutsaqib@gmail.com

The paper traces the concept of Alternative Dispute Resolution
(ADR) in the Sharʑah and law in general. The details of various modes

of ADR (Arbitration, Mediation, Conciliation Negotiation, TaÍkÊm and
ØulÍ) have been left aside, owing to the fact of concentration on the issue
under investigation. In this work, focus, therefore, remains on ADR’s
meaning, evolution, legal status, need and significance in both systems;
with minute details. It also discusses the origin of ADR in the modern law,
the various stages through which it has been passed, the era of invention
of the phrase ‘ADR’ and the advantages of this mechanism of dispute
resolution, both for the state and individual/individuals. As a complementary
requirement, Pakistani Legal System has also been analyzed profoundly in
the ADR perspective. It also discovers the similitude of term ‘ADR’ in
the Sharʑah. A comprehensive tabulated comparison between ADR and
formal litigation is made in the present work, followed by a comprehensive
conclusion of the issue under investigation. In addition, content analysis
technique of qualitative research method has been used for the critical
analysis of the secondary data, available on the concept of ADR and
TaÍkÊm, both in the conventional and Islamic law respectively.

Introduction

Clash of interest, the core responsible stimulant of creating a dispute,



Hamdard Islamicus 8 Vol. XXXIX, No. 3

is an integral character of human society. Man, by nature, hankers after his
interests. This often puts him in a conflict with his fellows.1 The birth of

a dispute is, therefore, natural. It would be unwise and futile as well to
claim stopping of its birth or its complete eradication from the society. On
the other hand, it would also be imprudent to leave a dispute unnoticed
till it starts challenging public tranquillity and peace. A dispute will always

evolve; nonetheless, it should not escape resolution. This evolving-resolving
process has been attracting the contemporary legal scholarship to the
subject.

Human history has recorded three modes of dispute resolution so

far; resolution of dispute by violence,2 resolution of disputes by regular
formal adjudication and resolution of dispute by informal amicable means.
In law, this later form is known as Alternative Dispute Resolution (ADR).
In the Sharʑah (Islamic law), such an encompassing phraseology could

not be found in the work of classical as well as contemporary jurists/
fuqahÉ (Muslim jurists), nevertheless, they have dealt with the issue
under the concept of TaÍkÊm and ØulÍ.

ADR means “a series of different modes of amicable, conclusive,

and out of court resolution of dispute, almost resulting in a win-win
situation”. It mainly includes Arbitration, Mediation, Conciliation and
Negotiation. The Phrase ADR was first heard of in 1970’s and reached
its climax in 1990’s, when Lord Woolf introduced his reforms to the civil

justice system of England. Having British legal legacy, first India and
then Pakistan followed suit. In the recently passed two and half decades,
both the states have introduced a number of ADR-mandating provisions
to their justice systems.

One may wonder why the whole world is running away from formal
justice system to the informal one. A possible answer could be that that
formal system was unable to keep pace with time and as such, became
outdated. It is highly expensive and so keeps the majority of the litigants

out-priced. Being too lengthy, it is tiresome. It is complicated and the
nature of human being is inclined to simplicity. It is dead slow in getting
finality and that is inconsistent with the hasty nature of man. The main
defects of the state-run courts are, therefore, inordinate delays, abuse of

procedure, priority of legal justice over substantial justice, unnecessary
and unwanted consideration of technicalities in decision making process,
and preference of fairness over justness. Skyrocketing fees of advocates,



Hamdard Islamicus 9 Vol. XXXIX, No. 3

their professional dishonesty, lethargic appearance and wanton
performance further add to the problem.

On the other hand, ADR techniques are local, simple, amicable,

peace-ensuring, expeditious, conclusive and inexpensive. ADR prefers

resolution over adjudication. It ignores black-robed judges, well-dressed

lawyers, and fine-panelled courtrooms as against ordinary sincere

mediators while resolving disputes in houses made of mud or in tents built

of grass fragments. ADR is a blessing in a system where keynote is law

rather than justice.

Because of the popularity of ADR across the world, and its effective

role in the resolution of national and international conflicts, a presumption

has evolved that informal amicable modes of dispute resolution are

the outcome of the contemporary think-tank of the modern world. This

work first, rebuts the presumption by connecting these modes with the
history of mankind. Secondly, it explores the concept of ADR in the
Sharʑah, and claims that the Sharʑah has its own pillars of justice
system, recommending peaceful settlements as first priority and warranting

regular adjudication as last option. Thirdly, it explores the working of
ADR in the Pakistani Legal System and its analysis on the touchstone of
Sharʑah.

ADR as a Term and Phrase

The dispute resolution phenomena are as ancient as the history of
mankind itself, nevertheless, the term ADR is hardly half century old.

Even up to the end of 1970’s, the term was not in common usage. Some
writers are of the view that no one was using the term ADR in this
decade. Other phrases such as conflict resolution, dispute settlement,
mediation, arbitration and negotiation were dominating the field. A cursory

study of ADR timeline would, however, reveal that the precursors of this
term were heard of in late 1970’s and early 1980’s.3

ADR stands for Alternative Dispute Resolution. Some experts hold
that ‘A’ stands for ‘appropriate’. According to them it is the parties to

choose that what technique of dispute resolution would be more
appropriate for their needs and interests. In some other jurisdictions of
the world like Australia and Switzerland, the process is known as



Hamdard Islamicus 10 Vol. XXXIX, No. 3

EDR (External Dispute Resolution) and DRT (Dispute Resolution Tools)
respectively. It is, sometimes also called CDR (Consensual Dispute

Resolution). In India, Pakistan and Afghanistan, it is named as ‘PanchÉyat’
and ‘Jargha’. Again there are some others who prefers CR (Conflict
Resolution) and CPR (Collaborative Problem Solving).4

ADR as a Concept

To comprehend the concept of ADR perfectly and to give a
comprehensive definition to it, it is necessary to understand the meanings
and limits of all the three components of ADR; ‘alternative, dispute, and
resolution.

Whether Alternative or Alternate

Strictly speaking, the word ‘alternative’ should not be confused
with the word ‘alternate’. Both words convey distinct meanings. The

word “alternate” means happening of something in turn. An alternate
day would mean leaving the day falling between two days. The word
“alternative” means “different”, “instead of”, “replacement”, and “on the
other hand”. It also means a situation where someone has an option

between two things or when a second choice is offered while the first
one also remains available. So it is a privilege of choosing one of the
two things. In the absence of any second option, we would say that
no alternative is available. It is, thus, clear that the word “alternate”

signifies one after the other, whereas “alternative” denotes choice between
two. In the presence of ADR, the litigants are provided an opportunity
to opt one of the methods of adjudication; formal or informal. They are
given the choice either to go for determination of issues through

regular litigation or for resolution of differences through amicable
consensual settlement. The availability of this choice is an inspiring
evidence to hold that the correct phrase is ‘alternative’. The appearance
of the word ‘alternate’ in some writings, books and handouts seems mere

inadvertence.5

The difference between the two is also appearing in Arabic;
the language of Islamic law and Jurisprudence. In the Arabic language,



Hamdard Islamicus 11 Vol. XXXIX, No. 3

alternative means “al-BadÊl” and “al-kheyarÊ”, whereas alternate
refers to “al-mutanÉwib”.6 As I have mentioned earlier that a

comprehensive phrase like ADR could not be found in any highly valuable
work of classic and contemporary jurists of the Islamic Law, this distinction
would really help us giving appropriate translation to ADR in the Islamic
Law. This translation could be “AlfaÎl ul BadÊl lilkhuÎËmat” or

“Al-ÏurËq Al-hasmiah al-badÊlah”. In Pakistani legal system we may
invent some suitable nomenclature such as “TaÎfiah ka MutabÉdil
Shara‘Ê ÙarÊqah”. This Urdu phraseology would also contribute to
officializing of Urdu language as required by the Constitution of 1973.7

The distinction referred to above carries great significance, both in
Sharʑah and Law and, therefore, should not be considered otiose. So,
in connection with ADR, the word ‘alternative’ would refer to judicious
but not judicial procedures of dispute resolution.

Dispute

Dispute, when used as a noun, means conflict, contest, debate,

controversy, quarrel, difference of opinion, subject of litigation, and

disagreement between two persons, states and nations. It would

also include the clashing of opposed principles, interests and benefits.

The term as a verb means to put something into question or to

challenge the validity of something.8 In this study, only its first usage will

concern us.

In Arabic, the corresponding words for dispute are “nizÉ‘”,

“khuÎËmah”, “khilÉf”, “munÉqashah”, “mushÉkasah”, “jidÉl” and

“sira”.9 These words, more or less, convey the sense of nizÉ‘ and

khuÎËmah, which mean subsistence of the disputed fact, state of
continuance of adverse opinion particularly in respect of some corporeal

object or some right relating to it. KhilÉf appears to be the second
nearest meaning of dispute. The reason is that khilÉf is usually used in
non-corporeal matters like beliefs, values, standards, and moralities. The
remaining terms are, though analogous to the term dispute, denoting serious

situations emerging from dispute, when left unnoticed.
Dispute denotes a situation where opposite interests constitute a

conflict. It is the point from where the differences between opponents



Hamdard Islamicus 12 Vol. XXXIX, No. 3

originate. When a fact is viewed differently and is believed oppositely, a

dispute emerges. In the civil law, the parties are considered to be at

“variance” when one of them asserts the existence of a fact and the

other denies the same. This assertion and denial constitute an issue: the

name given to dispute by the Code of Civil Procedure 1908. It is, thus,

rightly said that when court does not find the parties at variance, it shall,

without delay, announce its judgment.10

Dispute, in its broad sense, also covers criminal justice. At the

commencement of the trial, the tribunals frame a charge in respect of

some fact asserted by the complainant and denied by the accused. In

Pakistani legal system, the subject matter of the dispute is determined at

the stage of framing of issues in civil cases, and at the stage of framing

of charge in criminal cases. According to the Code of Civil Procedure

1908, issue arises when a material preposition of fact is affirmed by one

party and denied by the other.11 It means that this law uses the term

“issue” instead of “dispute”. So “issue” and “dispute” almost carry the

same sense in civil law and contemplate the variance in stances. If the

facts, raised by plaintiff, are admitted by defendant, no issue can arise

and no dispute can emerge. Consequently, court pronounces its judgment

for an admitted fact need not to be proved.12

It seems that the word “issue” or “dispute” is similar to the phrase

“fact in issue” in the Law of Evidence. According to Alan Tolyar, in

criminal cases facts in issue are those which prosecution must establish

in order to prove its case if accused refuses to admit the charge. He

says further that even the accused may sometime bring a fact into issue

by claiming alibi, insanity or sudden provocation. In civil cases, facts in

issue may be framed from the pleading.13

The commentators of the QÉnËn-e-shahÉdat Order 1984 have

also taken the phrase “fact in issue” in the meaning of a dispute. They

maintain that, in criminal cases, the framing of charge contemplates

“facts in issue” and framing of issues in civil cases exposes “fact in
issue”.14 In the Code of Criminal Procedure 1898, however, the word
“dispute” has been expressly used. It means a reasonable dispute; dispute

between parties who have each semblance of a right or supported right.
Hence, dispute may either concern to immovable property such as land
or to the right of use of immovable property.15



Hamdard Islamicus 13 Vol. XXXIX, No. 3

It is clear from the above discussion that, “issue”, “dispute”, and
“fact in issue” are analogues and, therefore, have an interchangeable use

in legal fraternity.
The word “dispute” has been discussed in numerous arbitration

cases and cases of common adjudication, for example, Halki Shipping

Corporation v. Sopex Oils Ltd [1998] WLR 726 [1998], London and

Amsterdam Properties Ltd v. Waterman Partnership Ltd [2003]. All

ER.(D) 391. Still it is a fact that the word ‘dispute’ has not been defined

by any statute. A dispute, in the context of ADR, most often refers to

lack of compromise between the parties. Some difference and bone of

contention must do exist; otherwise, ADR cannot be attracted. This rule

is, however, not hard and fast because ADR will work even in respect

of such issues which have yet to attain the status of an actual dispute.

For example, the business partners may concur to appoint an expert to

decide an issue such as the valuation of shares.16

Worthy to mention here is that, principally, the dispute must be of

civil nature; for example, disputes pertaining to ownership, property,

tenancy, business, matrimonial issues and the like. Principally, criminal

disputes cannot be referred to arbitration, particularly, cases of non-

compoundable nature.17 A reference which would stifle the prosecution

of a criminal is not proper. Neither the magistrate can delegate his

powers to arbitrators nor do the arbitrators confer on themselves the

powers of a magistrate. So an award purporting to determine whether

or not an offense has been committed has no legal cover. Cases falling

within the meaning of sec. 145 the Code of Criminal Procedure 1898

[disputes as to possession of immovable property], can be referred to

arbitration due to their civil origin. In Kamini Kumar Basu v. Birendra

Nath Bose, the Privy Council held that the consideration for a reference

would mater. If consideration is unlawful, such as stifling of a prosecution,

the arbitration would be vitiated. But if the reference is lawful, the

award would be proper even if results in the abatement of prosecution.18

Similarly if an injured person is entitled to both civil and criminal remedies,

his case may be referred to arbitration even if some crime as a result

may be wiped out.19

According to the authors of Mu‘jam LughÉt ul FuqahÉ, dispute is
nizɑ which means the claiming of right by one party and the refusal



Hamdard Islamicus 14 Vol. XXXIX, No. 3

by the other to admit it.20 Whether Sharʑah also requires the civility of
a dispute for the purpose of ADR, a diversity of opinion is found. The

civil and criminal nature of a dispute is not, however, the agreed upon
criterion. In this connection, the difference of opinion between fuqahÉ
has been caused by the division of rights in the Sharʑah and necessity
of court verdict in some areas.

In the perspective of ADR, the dispute has got its own meaning.
Here, it refers to a state of lack of compromise.

Resolution

To resolve means to determine, to dispose of, to make a firm
decision for doing some act. For the purpose of ADR, it would denote
the finding out of an acceptable solution to a dispute, also known as the

amicable settlement of an issue. The word “resolution” will also cover

a decision, reached by the majority of a forum.21 Its loose application

would also convey the sense of adjudication which may be either formal

or alternative. The resolution can be achieved by the disputants themselves

or by any neutral person like a judge and an arbitrator. In law, resolution

means the official expression of opinion or will of a legislative body.22

The conclusion of findings is also known as resolution. The contents of

resolution are considered as a kind of soft law.

In the Arabic language the word “resolution”, in the context of ADR,

will correspond to “faÎal” or “Íasm”, nonetheless the latter is more
appropriate. “FaÎal” is nearer to regular adjudication in the current

Arabic usage. It means the decision of a dispute by fixation of guilt or
liability through evidence whereas the Íasm carries the sense of uprooting
a dispute. Resolution means “solution of a problem whereas decision
means determination of the causer to problem”.23 To resolve and to

decide should be thus differentiated inter se. These words, as already
pointed out, would help us in giving proper terminology to ADR in the
Sharʑah.

Besides, the factor of “acceptability” there is another line of

demarcation between “Resolution” and “Adjudication”. For this reason,
the word “resolution” was given to amicable settlements and the word
“adjudication” was avoided. Resolution must be acceptable to both sides



Hamdard Islamicus 15 Vol. XXXIX, No. 3

but this is not necessary in case of formal adjudication. Hence, the
difference between “Adjudication” and “Resolution” is of effect and

should not be presumed otiose. In the context of ADR, resolution would
mean an out of court, consensual and conclusive settlement.

The above details of all the three components of ADR would help
us understanding the concept in the following manner.

ADR is an alternative to settlement of issues by regular courts and
tribunals, by use of force and by resorting to the violence or by any other
mean resulting in an unfair adjustment. Most interesting is the fact that
some practitioners of ADR claim that not the ADR, but courts are,

actually, the alternative dispute process. So according to them, ADR
represents usual conflict resolution processes.24 Giving a weight to
historical aspect, this stance seems to be more agreeable to reason
because, principally, the subsequent process should be considered as

an alternative. The regular court system is undoubtedly later in time as
compared to informal modes of dispute resolution. We add that, historically,
ADR techniques are, no doubt, alternatives but not to the courts rather
they are alternatives to resolution of disputes by quarrel and violence. In

the present scenario of actual existence of states and state-run courts,
ADR is an alternative to regular formal litigation.

ADR refers to the various amicable modes in which dispute can be
settled by disputants themselves directly or by the intervention of neutral

third person. These modes are known as arbitration, mediation, negotiation
and conciliation. Early evolution, collaborative law or collaborative divorce,
restorative justice and ombudsman are comparatively less known modes
of ADR. Amongst them, mediation and arbitration are analogous to

“Jargah” and “PunchÉyat” in the Sub-continent of India. To a great
extent, they correspond to the concept of “TaÍkÊm” in the SharÊ‘ah.
“IslÉÍ” would cover all modes leading to amicable settlement whereas
conciliation would mean “ØulÍ”.

ADR is, therefore, the name of various methods of resolving civil
disputes; leaving aside normal adjudication. Its subject may be individual’s
problems, disputes between nations, groups, trade disputes and marital
issues. Settlement through ADR is not only helpful in eradication of the

bone of contention but it also instigates the participants to build a nice
and smooth relationship for the future. ADR encompasses a wide range
of mechanisms for settling differences avoiding costly, hard in getting



Hamdard Islamicus 16 Vol. XXXIX, No. 3

finality adjudication process.25 It is, sometime, referred to as “appropriate
resolution” for the reason that option should be more appropriate to the

disputed cause and to the disputants. In some countries like Australia, the
abbreviation EDR (External Dispute Resolution) is preferred. In
Switzerland, ADR is named as DRT (Dispute Resolution Tools).26

The textual books, however, while defining ADR, refer to mediation,

conciliation, arbitration, expert determination and ombudsman scheme, as
the main process involving third party role. In a seminar on Access to
Justice and ADR, held on 22nd May, 2004, the then Chief Justice of

Pakistan, Mr. Nazim Hussain Siddiqi, said that ADR was out of court

settlement of disputes through various modes, such as arbitration, mediation,

conciliation, early neutral evolution, and facilitation. ADR is relatively a

new term for dealing with an age-old problem, the problem of heavy

backlog, the problem of delayed resolution of the disputes, and the problem

of expensive litigation.27

The inductive analysis of what has been stated would result in the

following definition of ADR.

“ADR is a series of different modes of amicable, conclusive, and

out of court resolution of dispute, almost resulting in a win-win situation”.
The definition is, now, comprehensive and objective-based. It provides
that ADR is a generic collective phrase, encompassing various procedures.

Its objective is permanent, meaningful and peaceful settlement of a dispute,
through non-judicial forums, persons and institutions. The word “amicable”
would not exclude arbitration because, in this case, amicability refers to
the agreement and choice of the parties in appointment of an arbiter, and

to the acceptance of his award. It covers the resolution of disputes with
the intervention of a third party and without such intervention, and as such
encloses “negotiation”. Hence, it is hard to agree with those who, by one
way or the other, exclude “Arbitration” and “Negotiation” from the ambit

of ADR.

Need and Justification for ADR

Progress, prosperity and productivity of a nation depend upon the
law and order situation. Public tranquillity plays a significant role in the
rising up of the stature or position of a nation. For achieving this objective,



Hamdard Islamicus 17 Vol. XXXIX, No. 3

rule of law is emphasized in all the civilized states. So, the ways that are
more efficient to bring peace, establish tranquillity and promote harmony

should be, naturally, more welcomed. The system which will ensure
these objectives in a quickest, cheapest and simplest manner, shall gain
universal acceptability. Pendency of disputes and advancement cannot
run together.

Admittedly, behind every dispute, there is an effective cause.
Suspension of dispute is not the success rather the resolution of dispute
should be the goal. Formal adjudication is but mere disposal or suspension.
It cannot eliminate the stimulant cause of the conflict. It is rightly presumed

that adversarial adjudication, at maximum, declares one party victorious
and the other vanquished. This does not provide an end to the dispute
rather it may lead to a series of disputes and social tensions. Keeping this
end in view, second caliph ‘Umar (R.A.), while issuing judicial directives

to the qÉÌÊs said, “Return the litigants to affect compromise for adjudication
will bring hatreds to the masses”. On another occasion he pointed out,
“Enable the litigants, particularly, when they are relatives, to make an
amicable settlement, for adjudication would create enmities amongst

them.28

On the other hand, ADR strikes at the very root of conflict on the
basis of no bamboo no flute. It believes in resolution instead of mere
disposal. Here, both are victorious and no one is vanquished. There is

less consumption of time, wealth and exertion. It is advisable for a qÉÌÊ
to refer the litigants to ADR, before the commencement of trial. The
Prophet MuÍammad (œ) said, “Compromise is permissible amongst
Muslims provided it does not turn the unlawful to lawful and lawful to

unlawful”.29 If the qÉÌÊ apprehends the adjudication will worsen the
situation and will amount to bloodshed between the disputants, recourse
to ADR becomes imperative.30

Litigation is a reaction which deepens the differences whereas ADR

is a response which uproots the dispute. The former promotes resistivity
and the later encourages adjustment. There can be no life without
adjustment rather “adjustment itself is life”, as emphasized by the famous
poet Dasarathi Rangacharya. Edmond Burke, while delivering a speech

in the House of Commons, on conciliation with the American Colonies
round about 1775, said that all human benefits and enjoyments, every
virtue and every prudent act, is founded on compromise and barter.



Hamdard Islamicus 18 Vol. XXXIX, No. 3

ADR is not meant to settle the national and international disputes only
rather it answers the problems of middle class and to resolve the conflicts

of the rich with the poor. ADR thus ensures social justice.31

Fixation of liability and establishing the fault and guilt is not necessary
in each and every case. Approximately, 90 per cent cases fall within the
category which need not regular adjudication. Such cases remain sub-

judice for irrational and cumbersome length of time, destroying the wealth
and time of the parties. The precious time of the court is wasted and the
national exchequer is burdened with useless expenditure. A large portion
of population daily remains indulged in uncertain litigation which adversely

affects their productivity. How and up to what time, this state of affairs
can be left unnoticed? What answer, except ADR, may be given to this
challenge?

There is strong need to consider ADR before going for formal

litigation. The courts of England and Wales, after Lord Woolf’s reforms,
are cautious in this regard. Failure to adopt techniques of ADR is fatal.
In Cowl and others v. Plymouth city Council, while hearing appeal
against the decision of the High Court, the apex court dismissed the

appeal on the ground that the petitioner had failed to consider methods
of Alternative Dispute Resolution. The court held that no sufficient attention
was paid to the requirement of avoiding litigation wherever possible, as
suggested by Lord Woolf.32 Similarly in Dunnett v. Railtrack, the Court

of Appeal decided in favour of Railtrack but penalized him for costs for
the only reason that he had flatly refused to consider mediation despite
the recommendation of the court of first instance. In another case
Hurst v. Leeming, when Justice Lightman disclosed to the claimant that

his case is of no merit and apprehension of costs was there. The claimant
suggested that no costs should be awarded against him because he had
proposed mediation and that it was the defendant who had turned it
down.33

In India, the modern concept of Loc ‘AdÉlat is based on the fact
that Anglo-Saxon courts could not deliver sufficiently. The Lord Woolf’s
report also confirmed that civil justice system of England had lost the
confidence of the litigant public. The leaders of the justice system of the

United States, while expressing their low inclination towards formal justice,
drew the attention of the Americans towards ADR and emphasized
avoidance of litigation. The former chief Justice of America Warren



Hamdard Islamicus 19 Vol. XXXIX, No. 3

Burger was a long-time supporter of ADR. His successor, William
Rehnquist, took the mission a step ahead. Their efforts made it possible

that the number of criminal cases that went for trial fell to 5 percent in
2002 from 15 percent in 1962. Similarly, 11.5 percent of Federal criminal
cases went for trial in 1962. In 2002, the ratio fell down to 1.8 percent
only.34 Regular trial, in the US, is considered a total failure of society.

Samuel R. Gross, a law professor at the University of Michigan, said, “If
a trial occurs, it usually means a whole lot of efforts by a whole lot of
people have failed”.35 It was only the ineffectiveness of the US Civil
Justice system that compelled the Congress to enact Civil Justice Reform

Act (CJRA) of 1990, enabling all the federal district courts to promote
ADR methods to overcome the insufficiency of the adversarial system.
They have also introduced the ADR Act 1998. Now, in US, 90 percent
cases are decided through ADR. The American President Abraham

Lincoln once said:

“Discourage litigation. Persuade neighbours to compromise whenever
you can. Point out to them how the nominal winner is often the real

loser; in fees, expenses and a waste of time. As a peacemaker, the
lawyer has a superior opportunity of becoming a good man”.36

The situation is not different in Canada, Japan, Australia, South

Africa, Singapore, and so many other states, where ADR is getting
overwhelming acceptability and is becoming the usual and customary
method of Dispute Resolution. In Sri Lanka, mediation failure certificate
from the Mediation Board is a pre-requisite for filing a suit. In China,

mediation is rooted in history and culture. In the Muslim World, Egypt
and Jordan have already introduced ADR. In Bangladesh, the former
chief justice, Kamal Mustafa, has caused effective amendments for
introducing ADR in family and commercial laws. The situation in

Pakistan is tenser and the miseries of the formal justice system have
given birth to a proverb in KP Province which says, “May Allah (God)
not indulge you in a hospital or in a court”. The Law and Justice
Commission of Pakistan has conducted a number of seminars on the

significance of ADR. Time Bound Delay Reduction (TBDR) plan was
introduced by the National Judicial Policy Making Committee (NJPMC),
where special value has been given to the amicable settlement. The Civil



Hamdard Islamicus 20 Vol. XXXIX, No. 3

Procedure Code 1908 has also been amended in this regard. The judges
of the Supreme Court as well as the senior advocates are writing

papers in support of ADR. The Arbitration and Conciliation Bill 2009 is
also waiting the assent of Parliament. In more than 20 enactments like
Land Revenue Act 1967, Electricity Act 2003, Income Tax Ordinance
2001, Custom Rules 2001, Custom Act 1969, Sales Tax Act 1990,

Federal Excise Act 2005, Family Laws and Banking Act, separate
provisions are available for informal amicable settlements. MuÎÉliÍÉtÊ
Anjuman (conciliation council) is the salient feature of Local Government
Ordinance 2001.

The question is why the whole world is running away from formal
justice system to an informal one? The answer is that formal system
could not keep pace with time, and as such, it has become outdated. It
is expensive and so keeps the majority of the litigants out-priced. It is too

lengthy and is, therefore, tiresome. It is complicated though the nature of
human being is inclined to simplicity. It is dead slow in getting finality and
that is inconsistent with the hasty nature of mankind. Though not physical,
but a sort of fighting takes place in the dock and fighting is usually taken

as last resort, as it is said in a Persian-Urdu proverb, “When no effort
remains unexhausted, man begins to fight”.

The main defects of the state courts are inordinate delays, procedural
requirements, abuse of procedure, and priority of legal justice over

substantial justice, unnecessary and unwanted consideration of
technicalities in decision making process, preference of fairness over
justness, problems of execution, and above all, highly belated finality.
Skyrocketing fees of advocates and their professional negligence are

other fatigues.

Pitfalls in Court Ways of Dispute Resolution

Huge Pendency

There are two reasons for increased filing of law suits: increase in

population and awareness in the masses regarding rights and obligations.
No one can stop filing suits, particularly, in the situation where doors of
the court are open for every person believing himself aggrieved. Fair trial



Hamdard Islamicus 21 Vol. XXXIX, No. 3

and reason-based judgments have made the people reposing higher
confidence and faith in judiciary. For the reason that various departments

including the other two pillars of the state are not performing their duties
properly, the Judiciary has been compelled to be more intervenient. All
these factors have overburdened the courts and they cannot bear this
burden alone. In an environment like this, the chief justice of India

R.C. Lahoti has rightly said:

“Now it is clear that the inlet (of water store) cannot be totally
stopped. Can we at least increase either speed of outlet or increase

the number of outlets? One such new outlet is ADR, which includes
arbitration, mediation and conciliation”.37

It may be added that the safe way is the increase in the number

of outlets, meaning thereby, increase in the forums of settlements of
disputes because increase in the speed of the outlet (speedy and hasty
hearings) would lead to mere disposal of cases, leaving aside dispensation
of justice. This is what actually happened twice in Pakistan. The directives

of previous chief justice, Mr. IrshÉd Hassan KhÉn (2000-2002), to all the
state courts, for concluding all pending family cases within a short span
of three months, was counterproductive to a larger extent. It amounted
to meaningless and sometime even injurious disposals. What to say of the

vanquished, the victor was unhappy with the decision in a considerable
number of cases. The judges of family courts took the pre and post-trial
conciliation just as the completion of a formality. In this regard, sincere
efforts were intentionally avoided. Consequently, the cases which were

instituted only for the purpose of compelling the husband for good behaviour,
ended with dissolution of marriage. In so many cases, the spouses
requested the local religious scholars to declare such decrees as revocable
divorce. Majority of the judges could not differentiate between hasty

hearings and expeditious hearings.
The following details show the current pendency of Peshawar High

Court. In the first three months of 2013, the cause list of the chief Justice
Peshawar High Court exceeded the figure of 100.38 Despite this number

of cases on cause list, in writ petitions, where, as a policy, short dates
of hearing are fixed, the petitioner has to wait for months. When the date
arrives, the case is adjourned due to lengthy cause list or some other



Hamdard Islamicus 22 Vol. XXXIX, No. 3

reason. This is what happens in the writ petitions what to say of criminal
and particularly civil appeals. The appellants has to wait for years and

yet they are not certain whether proceedings would take place or their
cases would be adjourned for one reason or the other. It would be
injustice to call it dispensation of justice. Delay of justice means denial
of justice.

Litigation Between State and Citizens

Beside the Services Tribunal, the other civil courts and the apex
courts have been burdened with cases in which state is either claimant
or defendant. The heads of concerned departments, giving priority to

their vested interests rarely show their interest in resolving disputes.
They don’t apprehend expenses because the state fights against citizens
at the cost of the citizens. The government functionaries are bound to
deal with the citizens and government servants judiciously but they don’t.

On account of malfeasance, they intentionally do some acts which create
cause of action. Consequently, the burden shifts to courts where they
neither withdraw the cases nor allow it to get resolved. They file a
second appeal even in cases where the first appellate court has upheld

the decision of the court of first instance. They don’t hesitate in filing a
review petition with the last appellate forum. The issues which they raise
at the process of execution, is another problem. Currently, more than
1600 cases against KP Department of health only are pending in courts.39

Behaviour of the Advocates

In countries like ours, where legal ethics are confined in the books
and professional dishonesty has become general, the performance of the

advocates is too poor to be described. No doubt the situation in the
Supreme Court is comparatively better, nonetheless, majority of the clients
are unhappy with the behaviour of their counsels regarding their non-
appearance in the courts. It has been observed in so many cases that a

counsel is sitting in his chamber or in bar-room but does not attend the
court. Sometimes, he pays no proper attention to his client and ignores
his beseeching to appear before the court. In this situation, the poor



Hamdard Islamicus 23 Vol. XXXIX, No. 3

litigant turns into a shuttle cock between the judge and the advocate.
With great difficulty, and after waiting for a long time, when this counsel

appears, the counsel of the other party disappears either surreptitiously
or under the pretext of appearance in some other court. If the advocate
apprehends loosing of case, he tries to adjourn the case by hook or
crook. This often happens during the stage of recording evidence or

when the case is fixed for final arguments. To achieve their goal, they
even don’t hesitate to file unwanted petitions of revision.

Service of Process

The appearance of the parties consumes extra-ordinary time.

Sometime the plaintiff fails to provide true and complete address of
the defendants or fails to the process fees in time and sometimes the
defendant or a witness intentionally conceals himself. Most of the process
servers are untrained. Their emoluments are small and cannot meet their

basic needs. Their strength also is usually insufficient for the area they
are supposed to cover. Hence an effective service of summons and
notices cannot be expected. In cases where the defendant’s house can
be traced by some additional efforts, he would report that the house of

the defendant could not be traced due to its location in thickly populated
area and the non-mentioning of the number of the house by the plaintiff.
He, sometimes writes that the summons could not be served due to the
rush of work and shortage of time. If a summon is served, it suffers from

injurious mistakes and the court is to issue summons afresh. Interestingly,
at times, he requests the court that no one in the area knows the defendant,
therefore, the plaintiff be directed to make the defendant shown, on spot,
to the process server. In these circumstances, the plaintiff waits that

when his next door neighbour defendant would appear in the court.
Often too late, he comes to know that it is the money which makes the
mare go.

Adjournments

There may be adjournments on reasonable grounds. The Civil
Procedure Code 1908 itself carry provisions for it such as power of



Hamdard Islamicus 24 Vol. XXXIX, No. 3

the court to enlarge a fixed date for some act under section 148.
Adjournments may be on grounds of emergencies but frequent

adjournments on frivolous grounds are really bad. Delay in submission of
written statements, list of witnesses, replications, depositing of various
fees, production of witnesses and documents and above all non-appearance
of the counsel under the excuse of being busy in some other forum, are

very common. Granting for hormonal relations between the bench and
the Bar, judges accept requests of advocates for adjournments. It is
nothing else but a compromise at the cost of clients. In the process, the
interest of the litigants is crushed and the judiciary fails to provide speedy

justice to the aggrieved. It is quite clear that adjournments always go in
favour of the aggressor. Imagine that whom the bar and bench help?
Again imagine whom they harm?

Abuse of Procedure

It is an admitted fact that procedure is aimed to promote justice. Its
utilization in a way to defeat justice is its abuse. This abuse, sad to say,

is often made both by the judge and a counsel. The judge should keep in
mind that mere technicality should not defeat justice; the real and ultimate
goal. Any discretion provided by procedure should be used judiciously
and equally. Though it is really bad on the part of the judiciary, yet it

occurs. The situation is worse on the part of the bar. The Counsel often
indulges the court in meaningless petitions just for the purposes of getting
time, prolonging the proceedings, teasing the opponent and obtaining
interlocutory orders for taking the case to Appellate Courts and Forums

of Revisions. The original issue is, thus, put to dormancy, a new issue is
created and a series of judicial reviews commence, leaving the real issue
aside.

In the process of execution, 95 percent of the objection petitions

are filed with mere intention of delay and resistance in the satisfaction
of the decree. The abuse of section 47 and Order XXI rules 99,100 and
101 is rampant. Section 47 the Civil Procedure Code 1908 is aimed to
determine the questions naturally arising between the parties. It never

speaks that a party should deliberately raise questions as of right and the
court be bound to determine them by recording pro and contra evidence.
How it can be called dispensation of justice if execution of decree takes



Hamdard Islamicus 25 Vol. XXXIX, No. 3

larger time than the obtaining of a decree in the suit. Sometimes, if a suit
takes two years, the execution takes four. In a number of cases, if a

plaintiff succeeds to be alive at the time of getting decree, he passes away
long before the satisfaction of decree. It is rightly said that the miseries of
an aggrieved person begin at the time when the trial court passes a decree
in his favour. Does it not amount to an open deprivation? It does amount

to it. An Indian judge, while commenting on delays in execution, observed
that Order 21 had been the despair of an honest litigant and haven for
unscrupulous judgment-debtors, as it gives uncontrollable freedom for
raising technical objections and manipulating the skills of the trade.40

Insertion of section 12(2) in the Civil Procedure Code1908 has
opened another window to the abusers.41 In a number of cases, the
petitioner, being in conspiracy with the appearing defendants, does not
attend the court in the hearing of the original suit. As soon as the suit

gets resolved, he suddenly appears with a petition under the said
sub-section claiming that the decree has been obtained by fraud,
misrepresentation or want of jurisdiction. The sub-section was aimed to
bar a fresh suit and to avoid the repetition and multiplicity of proceedings.

Now, the same thing is done though under another cover. Preliminary
arguments are heard. Only and hardly 01 percent petitions are dismissed.
In 99 percent cases the court orders the framing of issues, the submission
of the list of witnesses and the production of pro and contra evidence.

If it doesn’t mean hearing of a regular suit then what else does it mean?
The purpose of the section is thus defeated.

Other Causes of Delay

Besides those mentioned above, the following are other causes of
delay.

1) Lengthy and meaningless cross-examination only for pleasing the
clients.

2) Lengthy arguments just to impress the client that his counsel is of
a high caliber.

3) Unnecessary citations just to combat the opponent counsel.
4) Half-hearted attention of a judge in the framing of issues, creating

grounds for reversal of proceedings.



Hamdard Islamicus 26 Vol. XXXIX, No. 3

05) Strikes of advocates on various occasions.
06) Meetings of judicial officers as well as of advocates during court

hours.
07) Numerous judicial reviews.
08) Reluctance of courts to refer cases to ADR experts.
09) Concentration of work with few senior advocates.

10) Lack of required sincerity on the part of the judge during pre and
post-trial conciliation in family cases.

11) Rawness or inexperience of the reader of the court, resulting in
unsuitable fixation of dates of hearings.

The above list is not exhaustive in nature under any stretch of
explanation, but the above-mentioned facts are sufficient to establish the

need for ADR. Moreover, there are so many examples where civil
litigation has given birth to serious crimes. ADR saves lives, protects
time, wealth and honour, ensures peace, security and tranquillity, and
leads towards prosperity. On the other hand, litigation travels in the

opposite direction. This reality could be seen in the statement about
Singapore which flows as under:

“We introduced mediation primarily because of the understanding
that adjudication is not always the most appropriate process, as

disputes differ widely in nature. The courts must be able to offer

the most effective, responsive and appropriate methods for resolving

disputes. They must be able to offer alternatives to the traditional

resolution path. With a variety of dispute resolution mechanisms

available, disputants can then match the forum to their particular

dispute rather than being required to fit their dispute to the adversarial

forum. The subordinate courts have taken the lead and set the pace

for the use of mediation as a dispute resolution process. Unlike

some other court jurisdictions where it had its genesis as a

diversionary measure to deal with backlogs and delays, our motivation
was different as the problem was absent. Rather we saw an

opportunity to reintroduce into our culture a process to which it was
not a stranger. In fact, our own mediation roots can be traced back
to the early 19th century.”42



Hamdard Islamicus 27 Vol. XXXIX, No. 3

Status, Need and Justification of ADR under the Islamic Law

It is already noticed that ADR corresponds to the word IÎlÉÍ as it
appears in the Holy Qur’Én and Sunnah. Here, further explanation is

given to support this claim. ØulÍ is the name of a contract between two
parties which refers to a state of restored peace. Its antonym is dispute/
niza‘/fasÉd. IÎlÉÍ means a process where efforts are made for
reformation. So every act which leads to amicability, sobriety and ensures

the restoration of peace is IÎlÉÍ. A muÎliÍ is a reformer whereas muÎÉliÍ
is a party to the compromise. The antonym of IÎlÉÍ is ifsÉd which
covers every act amounting to out-breaking of peace, disturbing of
public tranquillity, creating, havoc and horror, and making mischief and

chaos.43 There are many verses of the Holy Qur’Én that describe IÎlÉÍ
and fisÉd as juxtaposed concepts. The following few verses of the holy
Qur’Én provide are sufficient evidence in this regard:

When it is said to them: “Make not mischief on the earth” they say:
“Why we only want to make peace!”.44

And Moses had charged his brother Aaron (before he went up):
“Act for me amongst my people: do right and follow not the way
of those who do mischief.”.45

Give just measure and weight nor withhold from the people the
things that are their due; and do no mischief on the earth after it
has been set in order;46

“And follow not the bidding of those who are extravagant, who
make mischief in the land and mend not (their ways).47

�ǜǔ˟ǝʣǞːǠʳǝ˒�ǝ˔ǠǜӜ�ʉǜЁՀЈƹ�ƹ˟ǝˏʉǜˉ�ǞljǠDŽЅǠϼƹ�Ǟۗ�ƹǖǝʧǞʭǠˇǝʓ�ǜϺ�Ǡˑǝ˝ǜˏ�ǜˎ˥Ǟˉ�ƹǜǃЈƹǜǖ

�ǜޜǞʧǞʭǠˇǝ˓Ǡˏƹ�ǜˎ˥Ǟʐǜʬ�ǠʽǞʏЁʗǜʓ�ǜϺǜǖ�ǠʡǞːǠʲЅƺǜǖ�ǞܖǠ˟ǜˉ�Ǟۗ�ǞقǠˇǝːǠʥƹ�ǜǔǖǝDŽʉǜ˜�Ǟ˛˥ǞʥЅǞϼ�Dzǜڙ˟ǝ˒�ǜǒʉǜˉǜǖ

ʉǜ˝ǞʢǜϻǠʲЈƹ�ǜʧǠʿǜʌ�ǞljǠDŽЅǠϼƹ�Ǟۗ�ƹǖǝʧǞʭǠˇǝʓ�ǜϺǜǖ�ǠǝܙǜƳʉǜ˦ǠʯЅƺ�ǜdžʉЁ˘ˏƹ�ƹ˟ǝʭǜʦǠʏǜʓ�ǜϺǜǖ�ǜǔƹǜ֥Ǟ˓Ǡˏƹǜǖ�ǜˎǠ˥ǜˍǠˏƹ�ƹ˟ǝˆǠǖЅƺ 

�ǜǔ˟ǝʣǞːǠʳǝˢ�ǜϺǜǖ�ǞljǠDŽЅǠϼƹ�Ǟۗ�ǜǔǖǝʧǞʭǠˇǝˢ�ǜޜǞʨЁˏƹ -�ǜؑǞˆǞǠڑǝ˓Ǡˏƹ�ǜʩǠ˒Ѕƺ�ƹ˟ǝʿ˥Ǟʹǝʓ�ǜϺǜǖ 

�ǜǔ˟ǝʣǞːǠʳǝˢ�ǜϺǜǖ�ǞljǠDŽЅǠϼƹ�Ǟۗ�ǜǔǖǝʧǞʭǠˇǝˢ�ǛʷǠ˜ǜDŽ�ǝʑǜʿǠʭǞʔ�Ǟʑǜ˘ˢǞʧǜ˓Ǡˏƹ�Ǟۗ�ǜǔǜۡǜǖ 

�ǜǔ˟ǝʣǞːǠʳǝ˒�ǝ˔ǠǜӜ�ʉǜЁՀЈƹ�ƹ˟ǝˏʉǜˉ�ǞljǠDŽЅǠϼƹ�Ǟۗ�ƹǖǝʧǞʭǠˇǝʓ�ǜϺ�Ǡˑǝ˝ǜˏ�ǜˎ˥Ǟˉ�ƹǜǃЈƹǜǖ

�ǜޜǞʧǞʭǠˇǝ˓Ǡˏƹ�ǜˎ˥Ǟʐǜʬ�ǠʽǞʏЁʗǜʓ�ǜϺǜǖ�ǠʡǞːǠʲЅƺǜǖ�ǞܖǠ˟ǜˉ�Ǟۗ�ǞقǠˇǝːǠʥƹ�ǜǔǖǝDŽʉǜ˜�Ǟ˛˥ǞʥЅǞϼ�Dzǜڙ˟ǝ˒�ǜǒʉǜˉǜǖ

ʉǜ˝ǞʢǜϻǠʲЈƹ�ǜʧǠʿǜʌ�ǞljǠDŽЅǠϼƹ�Ǟۗ�ƹǖǝʧǞʭǠˇǝʓ�ǜϺǜǖ�ǠǝܙǜƳʉǜ˦ǠʯЅƺ�ǜdžʉЁ˘ˏƹ�ƹ˟ǝʭǜʦǠʏǜʓ�ǜϺǜǖ�ǜǔƹǜ֥Ǟ˓Ǡˏƹǜǖ�ǜˎǠ˥ǜˍǠˏƹ�ƹ˟ǝˆǠǖЅƺ 

�ǜǔ˟ǝʣǞːǠʳǝˢ�ǜϺǜǖ�ǞljǠDŽЅǠϼƹ�Ǟۗ�ǜǔǖǝʧǞʭǠˇǝˢ�ǜޜǞʨЁˏƹ -�ǜؑǞˆǞǠڑǝ˓Ǡˏƹ�ǜʩǠ˒Ѕƺ�ƹ˟ǝʿ˥Ǟʹǝʓ�ǜϺǜǖ 

�ǜǔ˟ǝʣǞːǠʳǝˢ�ǜϺǜǖ�ǞljǠDŽЅǠϼƹ�Ǟۗ�ǜǔǖǝʧǞʭǠˇǝˢ�ǛʷǠ˜ǜDŽ�ǝʑǜʿǠʭǞʔ�Ǟʑǜ˘ˢǞʧǜ˓Ǡˏƹ�Ǟۗ�ǜǔǜۡǜǖ 

�ǜǔ˟ǝʣǞːǠʳǝ˒�ǝ˔ǠǜӜ�ʉǜЁՀЈƹ�ƹ˟ǝˏʉǜˉ�ǞljǠDŽЅǠϼƹ�Ǟۗ�ƹǖǝʧǞʭǠˇǝʓ�ǜϺ�Ǡˑǝ˝ǜˏ�ǜˎ˥Ǟˉ�ƹǜǃЈƹǜǖ

�ǜޜǞʧǞʭǠˇǝ˓Ǡˏƹ�ǜˎ˥Ǟʐǜʬ�ǠʽǞʏЁʗǜʓ�ǜϺǜǖ�ǠʡǞːǠʲЅƺǜǖ�ǞܖǠ˟ǜˉ�Ǟۗ�ǞقǠˇǝːǠʥƹ�ǜǔǖǝDŽʉǜ˜�Ǟ˛˥ǞʥЅǞϼ�Dzǜڙ˟ǝ˒�ǜǒʉǜˉǜǖ

ʉǜ˝ǞʢǜϻǠʲЈƹ�ǜʧǠʿǜʌ�ǞljǠDŽЅǠϼƹ�Ǟۗ�ƹǖǝʧǞʭǠˇǝʓ�ǜϺǜǖ�ǠǝܙǜƳʉǜ˦ǠʯЅƺ�ǜdžʉЁ˘ˏƹ�ƹ˟ǝʭǜʦǠʏǜʓ�ǜϺǜǖ�ǜǔƹǜ֥Ǟ˓Ǡˏƹǜǖ�ǜˎǠ˥ǜˍǠˏƹ�ƹ˟ǝˆǠǖЅƺ 

�ǜǔ˟ǝʣǞːǠʳǝˢ�ǜϺǜǖ�ǞljǠDŽЅǠϼƹ�Ǟۗ�ǜǔǖǝʧǞʭǠˇǝˢ�ǜޜǞʨЁˏƹ -�ǜؑǞˆǞǠڑǝ˓Ǡˏƹ�ǜʩǠ˒Ѕƺ�ƹ˟ǝʿ˥Ǟʹǝʓ�ǜϺǜǖ 

�ǜǔ˟ǝʣǞːǠʳǝˢ�ǜϺǜǖ�ǞljǠDŽЅǠϼƹ�Ǟۗ�ǜǔǖǝʧǞʭǠˇǝˢ�ǛʷǠ˜ǜDŽ�ǝʑǜʿǠʭǞʔ�Ǟʑǜ˘ˢǞʧǜ˓Ǡˏƹ�Ǟۗ�ǜǔǜۡǜǖ 

�ǜǔ˟ǝʣǞːǠʳǝ˒�ǝ˔ǠǜӜ�ʉǜЁՀЈƹ�ƹ˟ǝˏʉǜˉ�ǞljǠDŽЅǠϼƹ�Ǟۗ�ƹǖǝʧǞʭǠˇǝʓ�ǜϺ�Ǡˑǝ˝ǜˏ�ǜˎ˥Ǟˉ�ƹǜǃЈƹǜǖ

�ǜޜǞʧǞʭǠˇǝ˓Ǡˏƹ�ǜˎ˥Ǟʐǜʬ�ǠʽǞʏЁʗǜʓ�ǜϺǜǖ�ǠʡǞːǠʲЅƺǜǖ�ǞܖǠ˟ǜˉ�Ǟۗ�ǞقǠˇǝːǠʥƹ�ǜǔǖǝDŽʉǜ˜�Ǟ˛˥ǞʥЅǞϼ�Dzǜڙ˟ǝ˒�ǜǒʉǜˉǜǖ

ʉǜ˝ǞʢǜϻǠʲЈƹ�ǜʧǠʿǜʌ�ǞljǠDŽЅǠϼƹ�Ǟۗ�ƹǖǝʧǞʭǠˇǝʓ�ǜϺǜǖ�ǠǝܙǜƳʉǜ˦ǠʯЅƺ�ǜdžʉЁ˘ˏƹ�ƹ˟ǝʭǜʦǠʏǜʓ�ǜϺǜǖ�ǜǔƹǜ֥Ǟ˓Ǡˏƹǜǖ�ǜˎǠ˥ǜˍǠˏƹ�ƹ˟ǝˆǠǖЅƺ 

�ǜǔ˟ǝʣǞːǠʳǝˢ�ǜϺǜǖ�ǞljǠDŽЅǠϼƹ�Ǟۗ�ǜǔǖǝʧǞʭǠˇǝˢ�ǜޜǞʨЁˏƹ -�ǜؑǞˆǞǠڑǝ˓Ǡˏƹ�ǜʩǠ˒Ѕƺ�ƹ˟ǝʿ˥Ǟʹǝʓ�ǜϺǜǖ 

�ǜǔ˟ǝʣǞːǠʳǝˢ�ǜϺǜǖ�ǞljǠDŽЅǠϼƹ�Ǟۗ�ǜǔǖǝʧǞʭǠˇǝˢ�ǛʷǠ˜ǜDŽ�ǝʑǜʿǠʭǞʔ�Ǟʑǜ˘ˢǞʧǜ˓Ǡˏƹ�Ǟۗ�ǜǔǜۡǜǖ 

�ǜǔ˟ǝʣǞːǠʳǝ˒�ǝ˔ǠǜӜ�ʉǜЁՀЈƹ�ƹ˟ǝˏʉǜˉ�ǞljǠDŽЅǠϼƹ�Ǟۗ�ƹǖǝʧǞʭǠˇǝʓ�ǜϺ�Ǡˑǝ˝ǜˏ�ǜˎ˥Ǟˉ�ƹǜǃЈƹǜǖ

�ǜޜǞʧǞʭǠˇǝ˓Ǡˏƹ�ǜˎ˥Ǟʐǜʬ�ǠʽǞʏЁʗǜʓ�ǜϺǜǖ�ǠʡǞːǠʲЅƺǜǖ�ǞܖǠ˟ǜˉ�Ǟۗ�ǞقǠˇǝːǠʥƹ�ǜǔǖǝDŽʉǜ˜�Ǟ˛˥ǞʥЅǞϼ�Dzǜڙ˟ǝ˒�ǜǒʉǜˉǜǖ

ʉǜ˝ǞʢǜϻǠʲЈƹ�ǜʧǠʿǜʌ�ǞljǠDŽЅǠϼƹ�Ǟۗ�ƹǖǝʧǞʭǠˇǝʓ�ǜϺǜǖ�ǠǝܙǜƳʉǜ˦ǠʯЅƺ�ǜdžʉЁ˘ˏƹ�ƹ˟ǝʭǜʦǠʏǜʓ�ǜϺǜǖ�ǜǔƹǜ֥Ǟ˓Ǡˏƹǜǖ�ǜˎǠ˥ǜˍǠˏƹ�ƹ˟ǝˆǠǖЅƺ 

�ǜǔ˟ǝʣǞːǠʳǝˢ�ǜϺǜǖ�ǞljǠDŽЅǠϼƹ�Ǟۗ�ǜǔǖǝʧǞʭǠˇǝˢ�ǜޜǞʨЁˏƹ - �ǜؑǞˆǞǠڑǝ˓Ǡˏƹ�ǜʩǠ˒Ѕƺ�ƹ˟ǝʿ˥Ǟʹǝʓ�ǜϺǜǖ 

�ǜǔ˟ǝʣǞːǠʳǝˢ�ǜϺǜǖ�ǞljǠDŽЅǠϼƹ�Ǟۗ�ǜǔǖǝʧǞʭǠˇǝˢ�ǛʷǠ˜ǜDŽ�ǝʑǜʿǠʭǞʔ�Ǟʑǜ˘ˢǞʧǜ˓Ǡˏƹ�Ǟۗ�ǜǔǜۡǜǖ 



Hamdard Islamicus 28 Vol. XXXIX, No. 3

There were in the City nine men of a family who made mischief
in the land and would not reform.48

ImÉm RÉghib, while interpreting the word ‘Íakam’, says that it means
the staying of some action for the purpose of a IÎlÉÍ (reform). In the
case titled Saeeda KhÉnam v MuÍammad SamÊ, Justice A.R. Cornelius

held that Íakam means a person of such social influence who could stay
the wrong performance of an act.49 So doing such an act is IÎlÉÍ not
ÎulÍ. Even the relevant verse of the Holy Qur’Én adopted the word
IÎlÉÍ instead of ÎulÍ. IÎlÉÍ bain al-nÉss (conciliation between people

[al-Qur’Én, IV:114]) also refers to peace making process. AÎloÍË zÉta
bainikum (keep straight the relations between yourselves [al-Qur’Én,
VIII:I]) conveys the same sense.

Now, the distinction between ÎulÍ and iÎlÉÍ is clear. So ÎulÍ is a
contract whereas iÎlÉÍ is a procedure. IÎlÉÍ is the modus oprendi and
ÎulÍ is one of its products. The jurisprudential relationship between ÎulÍ
and iÎlÉÍ is that of sharÏ and mashrËÏ lahu. No ÎulÍ without iÎlÉÍ but
not the vice versa. The conclusion is that the concept which is commonly
known as ADR is nothing else but the concept of iÎlÉÍ under Islamic
law. This theory should not be made cloudy under the pretext of
interchangeable use of ÎulÍ and iÎlÉÍ in common parlance.

The directives of ‘Umar (R.A.), as mentioned in the beginning of
this topic, are also suggestive of the fact that efforts for amicable settlement
should have the priority and that recourse to the litigation should be made
as a last resort. No one from the mujtahidÊn has dissented with the
opinion which makes ÎulÍ mandatory in case of apprehension of serious
consequences. The saying of the Prophet MuÍammad (œ) also
recommends amicable settlement within the limits of the Sharʑah.

Nevertheless, we would like to clarify the SharÊ‘ah’s ruling for ADR in
the light of principles of UÎËl al-Fiqh.

1) “Command creates Obligation unless the context demands
otherwise” is the well-known rule of Islamic Jurisprudence.50 Allah
says, “so fear Allah and keep straight the relations between

yourselves”.51 So, there is command of Allah regarding the removal of
the bone of  contention. Nothing in the context appears to divert this
obligation into recommendation rather other commands in the context

�ǜǔ˟ǝʣǞːǠʳǝ˒�ǝ˔ǠǜӜ�ʉǜЁՀЈƹ�ƹ˟ǝˏʉǜˉ�ǞljǠDŽЅǠϼƹ�Ǟۗ�ƹǖǝʧǞʭǠˇǝʓ�ǜϺ�Ǡˑǝ˝ǜˏ�ǜˎ˥Ǟˉ�ƹǜǃЈƹǜǖ

�ǜޜǞʧǞʭǠˇǝ˓Ǡˏƹ�ǜˎ˥Ǟʐǜʬ�ǠʽǞʏЁʗǜʓ�ǜϺǜǖ�ǠʡǞːǠʲЅƺǜǖ�ǞܖǠ˟ǜˉ�Ǟۗ�ǞقǠˇǝːǠʥƹ�ǜǔǖǝDŽʉǜ˜�Ǟ˛˥ǞʥЅǞϼ�Dzǜڙ˟ǝ˒�ǜǒʉǜˉǜǖ

ʉǜ˝ǞʢǜϻǠʲЈƹ�ǜʧǠʿǜʌ�ǞljǠDŽЅǠϼƹ�Ǟۗ�ƹǖǝʧǞʭǠˇǝʓ�ǜϺǜǖ�ǠǝܙǜƳʉǜ˦ǠʯЅƺ�ǜdžʉЁ˘ˏƹ�ƹ˟ǝʭǜʦǠʏǜʓ�ǜϺǜǖ�ǜǔƹǜ֥Ǟ˓Ǡˏƹǜǖ�ǜˎǠ˥ǜˍǠˏƹ�ƹ˟ǝˆǠǖЅƺ 

�ǜǔ˟ǝʣǞːǠʳǝˢ�ǜϺǜǖ�ǞljǠDŽЅǠϼƹ�Ǟۗ�ǜǔǖǝʧǞʭǠˇǝˢ�ǜޜǞʨЁˏƹ - �ǜؑǞˆǞǠڑǝ˓Ǡˏƹ�ǜʩǠ˒Ѕƺ�ƹ˟ǝʿ˥Ǟʹǝʓ�ǜϺǜǖ 

�ǜǔ˟ǝʣǞːǠʳǝˢ�ǜϺǜǖ�ǞljǠDŽЅǠϼƹ�Ǟۗ�ǜǔǖǝʧǞʭǠˇǝˢ�ǛʷǠ˜ǜDŽ�ǝʑǜʿǠʭǞʔ�Ǟʑǜ˘ˢǞʧǜ˓Ǡˏƹ�Ǟۗ�ǜǔǜۡǜǖ 



Hamdard Islamicus 29 Vol. XXXIX, No. 3

also demands obligation. Same is the case with these commands,
“If two parties among the Believers fall into a quarrel make ye

peace between them” and “make peace between them with justice
and be fair”.52

2) A number of commands render dispensation of justice mandatory.
Take these verses for example, “Allah commands justice the doing

of good”53 and “Judge in equity between them”.54 Now a
considerable number of cases pending in the court are not appropriate
for formal litigation (qaÌÉ). The resolution of such cases may only
be obtained through ADR techniques. At this stage, we are supposed

to apply another rule of Islamic Jurisprudence and i.e., “An act
essential for complementing an obligatory act becomes an obligation
itself”.55

3) Under the rule of FatÍ al-zara‘, it is incumbent upon the chief

executive to open all such sources that lead to prosperity. Steps
towards prevention of harms {offences, torts and other civil injuries}
and steps for the removal of inflicted harms, is the foremost duty
of the ruler. So the chief executive is duty bound to open as many

forums and modes for resolution of disputes, as possible.

All the above facts would reveal that:

1) ADR may be directed for use in ordinary situations.
2) ADR is mandatory if the case is fit only for it.
3) ADR is the integral part of trial procedure of the Sharʑah.

Discovery of the Alternative for the Phrase ADR in the Sharʑah

The point that needs to be noted here is the use of word “iÎlÉÍ”
in so many provisions of the primary transmitted sources of Islamic Law.

It denotes and includes all the human efforts towards an amicable
settlement and reforming strained situations. ØulÍ, on the other hand, is
the name of a justice-restored situation. A musliÍ means reformer.56 So
IÎlÉÍ is a generic name like ADR; covering negotiations, mediations,

conciliations and, above all, the consent-oriented arbitration. Besides,
ÎulÍ is a contract under the Islamic Law whereas iÎlÉÍ is a procedural
phenomenon. The following lines would further clarify this stance.



Hamdard Islamicus 30 Vol. XXXIX, No. 3

It is noticed from the above discussion that ADR corresponds
to the word iÎlÉÍ as it appears in the Holy Qur’Én and Sunnah.

Here, further explanation is given to support this claim. ØulÍ is the
name of a contract between two parties which refers to a state of
restored peace. Its antonym is dispute/nizÉ‘/fasÉd. IÎlÉÍ means a process
where efforts are made for reformation. So every act which leads to

amicability, sobriety and ensures the restoration of peace is iÎlÉÍ.
A muÎliÍ is a reformer whereas muÎÉliÍ is a party to the compromise.
The antonym of iÎlÉÍ is ifsÉd which covers every act amounting to
out-breaking of peace, disturbing of public tranquillity, creating, havoc

and horror, and making mischief and chaos.57 Enough number of
the verses of the Holy Qur’Én describe iÎlÉÍ and ifsÉd as juxtaposed
concepts. The previously mentioned verses are sufficient evidence in this
regard.

Clothing iÎlÉÍ with the meaning of ADR, it becomes justifiable to
hold that the Islamic Law is pioneer in the field. It introduced ADR long
before any other system. What has been covered by ADR in law; has
been covered by iÎlÉÍ under Islamic Law. Law describes four basic

modes of ADR; Arbitration, Mediation, Conciliation and Negotiation. The
SharÊ‘ah describes two modes; taÍkÊm and ÎulÍ. The difference is in
form only. Law gives effect to technical differences between the various
modes and thus makes it four. For example arbitration differs from the

remaining on the basis of its binding nature. A third neutral person plays
a role in mediation and conciliation but his role in the later is more
proactive than his role in the former.58 Negotiation refers to the direct
communication between the parties.59 The SharÊ‘ah differentiates taÍkÊm

from ÎulÍ for its quasi-judicial in nature and considers mediation,
conciliation and negotiation as various modes leading to a contract of
ÎulÍ between the disputants.

TaÍkÊm and ØulÍ

Here, we would give a cursory touch to these concepts and would
avoid details. TaÍkÊm means arbitration and ÎulÍ means conciliation. The

term “iÎlÉÍ” literally means reforming but technically refers to efforts
for restoration of peace, by removing differences through an amicable
settlement,60 nevertheless, its interchangeable use with conciliation (ÎulÍ)



Hamdard Islamicus 31 Vol. XXXIX, No. 3

is allowed. To be more specific, ÎulÍ is objective and iÎlÉÍ is means
towards such objective.

Islam, since its emergence, encouraged arbitration. Actually the
customs that were prevailing in the pre-Islam Arab Society were
recognized by Islam provided they were found in consistency with the
express provisions of SharÊ‘ah. These customs include QiÎÉÎ (retaliation),

QasÉmah, MudÉrabah, Salam, Rahan (mortgage) and much more.
TaÍkÊm was one of such customs. It should be noted here that Arab
civilization is older than any other ancient civilization of Europe. The
state of Yemen existed long before Athens and Rome.61 The famous

battle al-BasËs, began with the death of a camel and continued for
forty (494-534 C.E.) years.62 It claimed hundreds of lives. The dispute
was eventually settled by the process of taÍkÊm. Similarly, another
famous war “Dahis and Ghabra” came to an end as a result of taÍkÊm.63

In the north of Ka‘bah, a town hall was built and named as DÉr
al-Nadwah. The grand grandfather of Quraish QuÎÎai has been
reported to be its founder.64 It was a community center where the
decision-makers used to hold consultations, dialogues and to conduct

meditation.65 Matters of serious concern only could find a place on agenda
of the meeting.66 The unsacred unsuccessful plan of assassination of the
holy Prophet MuÍammad (œ) was also approved in the al-Nadwah.67

In the Charter of Madinah; the first ever written constitution of the

world, the Prophet MuÍammad (œ) was unanimously accepted as the
final forum of arbitration.68 Besides, earlier during the reconstruction of
Ka‘bah, a dispute arose between the leaders of local tribes of Makkah
on the point that who would have the honour to reinstall the sacred

Blackstone (al-×ajr al-AswÉd). Just before a conflict was likely to
happen, MuÍammad (œ) was requested to arbitrate. The Prophet (œ)
used a wonderful tactic by placing the stone on a piece of cloth. He,
then, directed the chiefs of every clan to hold the cloth from specified

area and to take it to the designated place. When they did so, the
Prophet (œ) himself placed the stone at its place.69

As for as amicable settlement (ÎulÍ) is concerned, so numerous
verses of the Qur’Én and a large number of AÍÉdÊth speak for it.

ØulÍ, its cognates and collocations can be found in more than 175 verses
of the Holy Qur’Én.70 Most of the jurists of Islamic Law have
specified independent chapters in their voluminous books for ÎulÍ. The



Hamdard Islamicus 32 Vol. XXXIX, No. 3

×udabiyah Pact was the outcome of a peaceful settlement. Actually, a
great deal of conversations, negotiations, information sharing, exchanging

of promises and other diplomatic efforts preceded the Fact. Similarly
composite dialogues, comprehensive deliberations and a package of binding
promises regarding liabilities of each side contributed towards framing of
the Charter of Madinah*.71

The point that needs to be noted here is the use of word “iÎlÉÍ” in
so many provisions of primary transmitted sources of the Islamic Law.
It denotes and includes all human efforts towards an amicable settlement
and reforming strained situations: whereas ÎulÍ is the name of a justice-

restored situation. A “muÎilÍ” means reformer.72 So “iÎlÉÍ” is a generic
name like ADR; covering negotiations, mediations, conciliations and above
all consent-oriented arbitration. Besides, “ÎulÍ” is a contract under the
Islamic Law whereas “iÎlÉÍ” is a procedural phenomenon. This point

would be more clarified later but we should maintain that the distinction
between “iÎlÉÍ” and “ÎulÍ” is not useless.

Negotiation is one of the modes of ADR. The history of negotiations
is older than that of mediation. The first ever negotiation, for which an

evidence could be available, is the negotiations that had taken place
between the prophet NoaÍ (*) and his people. The text of the above-
referred negotiations has been narrated by the Holy Qur’Én. It flows as
below:

“The people of Noah rejected the apostles.”
“Behold their brother Noah said to them: “Will ye not fear (Allah)?”
“I am to you an apostle worthy of all trust”

“So fear Allah and obey me.”
“And no reward do I ask of you for it; my reward is only from the
Lord of the worlds.”73

Woolf Report and Reforms: A Contemporary March towards ADR

Since long, the people of England and Wales were complaining
against the civil justice system. To them, the system was adversely

contributing due to its complex adversarial nature. They shouted that the
––––––––––––––––––––––––––––––––––––––––––––––––––––––

*There is no evidence showing any discussion on the terms of the Charter – Ed.



Hamdard Islamicus 33 Vol. XXXIX, No. 3

system was outdated, complicated, unable to answer, snail-moving,
unwelcoming and above all deadly expensive. In 1995, the National

Consumer Council conducted a survey which explored that every three
out of four (75%) litigants were extremely unhappy with the civil justice
system. In order to defuse the situation, so many attempts were made
but the government utterly ignored all reports and recommendations.

CLR report, report of Civil Justice Review in 1988, and the Heilbron
Hodge Report 1993 went in vain. Consequently, during 1990’s, the situation
became so tense that it could not be left unnoticed any further. In March
1994, Lord Chancellor Lord Mackay had to appoint Lord Woolf; Master

of the Rolls, to work out the ways for overhauling the civil justice system.
In 1995, he submitted an interim report under the caption of “Access to
justice” containing 124 recommendations. 1n July 1996, he gave his final
report with 303 recommendations. Complexity of procedure, uncertainty

of expenses and time, and the role of the parties were found to be the
main causes of no confidence upon the system. He, inter alia, emphasized
on encouragement of out-of-court settlement (ADR) to such an extent
that exposed the report to the drastic criticism of lawyers. In response,

the Labour Government asked Sir Peter Middleton to review the Woolf’s
reforms. In September 1997, Sir Peter submitted his repot and endorsed
Woolf’s reforms. In April 1999, Woolf reforms were officially introduced
that resulted in overhauling the Civil Procedure Rules (CPR) and bringing

about radical changes to the Civil Justice System. Evidence suggests
that, in the post-reform era, the number of civil actions launched in the
High Court has fallen massively. During 1990 and 1991, more than 350,000
cases were instituted in the Queen’s Bench Division. By 2002 this had

fallen to below 20,000 - and this descending trend has continued growing.
“Judicial Statistics reveal average waiting time from issue of a claim to
trial has reduced form 85 weeks in 1998 to 52 weeks in 2005 in the
county courts”.74

ADR in Pakistani Legal System

The Constitution of Pakistan 1973 provides foundation for Alternative

Dispute Resolution. It does not mention ADR directly by its current
nomenclature like Indian constitution; nevertheless it provides general
guidelines for it. Article 2A, inter alia, requires that the Muslims shall be



Hamdard Islamicus 34 Vol. XXXIX, No. 3

enabled to order their lives in accordance with the teaching of Islam and
that social, economic and political justice shall be guaranteed by the

state. If Article 2A is read with the historic Objective Resolution adopted
by the Constituent Assembly of Pakistan on 12th April 1949 and section
4 of Enforcement of Shariat Act 1991, it would keep the Islamic Laws
at a superior level than other general laws of the country. “Justice for

all” particularly “social justice” is the main theme of Articles 2A, 18 and
25. State is, therefore, bound to take steps for securing the ends of social
justice. It is already explained that ADR ensures social justice under the
topic “Need and Justification of ADR”. Similarly, the status of ADR

under the Islamic Law has also been explained. Article 37 enshrines the
promotion of social justice and eradication of social evils. Claus (d) of the
article ensures “inexpensive” and “expeditious” justice. These two phrases
are of great significance as far as quicker and cheaper justice is concerned.

It is the duty of the state to make proper legislation in this regard and
to set up necessary machinery therefore. No doubt the provisions of
article 37 occurs in the “Principles of Policy” and is, therefore, not
directly enforceable at law, nevertheless, they have been described as

“fundamental to the governance of the state” and that Article 9 of the
constitution requires all state’s functionaries to act in accordance with
those Principles.

The constitution itself provides for the appointment of arbitrator for

the resolution of differences between the Federation and the Provinces.75

The Arbitration Act 1940 is the law that deals with the civil and commercial
arbitration. The objective of this Act is to provide expeditious remedy to
the litigants; regardless the rules and procedure contained in the Code of

Civil Procedure 1908 and the QÉnËn-i ShahÉdat Order 1984. Section 89
(Arbitration) of Civil Procedure Code 1908, which was omitted by the
Arbitration Act 1940, was again inserted as 89(A) , under the heading
of Alternative Dispute Resolution.76 The object of the section has been

set out in the wording itself. It flows as under:

“The court may, where it considers necessary, having regard to the
facts and circumstances of the case with the object of securing

expeditious disposal of the case, or in relation to a suit, adopt with
the consent of the parties alternate dispute resolution method including
mediation and conciliation”.



Hamdard Islamicus 35 Vol. XXXIX, No. 3

Order X Rule 1 of CPC has also been amended accordingly:
The institute of Ombudsman (MuÍtasib) has been effectively working

since 1983, through Presidential Order.77 Principal seat is at Islamabad
and its regional offices are working at Lahore, Karachi, Peshawar, Multan,
Quetta, Faisalabad and Dera Ismail Khan. At present, there are 09
institutions of ombudsman; four provincial muÍtasibs, and five federal

muÍtasibs i.e. Federal Tax Ombudsman Pakistan, Federal Banking
MuÍtasib, Federal Insurance Ombudsman, Federal Ombudsman against
harassment of Women at Work Place. Vast powers, for an amicable
resolution of a pending dispute, have been given to the wifÉqi muÍtasib

(federal ombudsman) under section 33 of the Order. The Order has
overriding effect by virtue of section 37. Provisions for peaceful resolution
of the dispute are also available to all the remaining ombudsmen offices.
The Federal Ombudsman institutional Reforms Ordinance 2013 has further

enhanced the powers of ombudsman in connection with expeditious
disposal of complaints. In addition, the Conciliation of Courts Ordinance
1961 is also in the field. It provides for establishment of a court at the
level of each union council. Its jurisdiction is to hear cases of civil nature

and offences mentioned in the schedule attached to the said law.
In 2002, Small Claims and Minor Offences Courts Ordinance, was

promulgated. Its inter alia objective is to achieve amicable settlements
through a “ThÉlith” (arbitrator) by means of arbitration (other than under

the Arbitration Act 1940), conciliation and mediation. All courts of Senior
Civil Judges/A‘lÉ ‘IlÉqah QÉÌÊs, Civil Judges-cum-Judical Magistrates/
‘IlÉqah QÉÌÊs, in the district headquarters and sub-divisional headquarters
have been notified as courts of small claims and minor offence, in-

accordance with section 4 of the Ordinance. Our experience, however,
reveals that these courts have not contributed up to the expectation due
to their own original burden. It is very hard, and to some extent humanly
impossible, for an individual judge to act in so many capacities; as Family

Court, small Causes and Minor Offences Court, Juvenile Court, Court of
Wards and Guardians and much more. Permanent and separate judges,
like banking judge, labour judge and anti-Corruption Judge, should be
appointed for the purpose.

The previous Arbitration (Protocol and Convention) Act 1937 has
recently been repealed by the “Recognition and Enforcement (Arbitration
agreements and foreign Arbitral Rewards) Ordinance 2006”. Under this



Hamdard Islamicus 36 Vol. XXXIX, No. 3

piece of legislation, an arbitration council, consisting of representative of
each party and the chairman of the concerned Union Council, resolves

the disputes through mediation and conciliation. The Ordinance is
particularly useful for commercial and industrial community. The Family
Courts Act 1964 makes it obligatory for a judge of Family Court to make
efforts for reconciliation between the litigating spouses at pre trial and

post trial stages. Sections 10 and 13 of the Act can be utilized for the
purpose. Industrial Relations Ordinance 2002 also provides for the use of
ADR techniques. The concept of “shop stewards” and “joint works
council” under sections 23 and 24 of the Ordinance has inter alia been

based on the philosophy of amicable settlements.
To encourage ADR, necessary amendments have been introduced

to laws pertaining to customs, excise duties, sales tax, and income tax
and banking matters. In 2001, all the four provinces promulgated Local

Government Ordinances that contain provisions for settlement of disputes
at the union council levels. “InsÉf Committees”and “MuÎÉliÍat
Anjumans” had been established. The objective of these institutions was
to provide justice at doorsteps through cordial settlements. The Ordinance

has been repealed. Now, all the four provinces have their own Local
Government Acts. Each provides mechanism for amicable dispute
resolution.78 Shar‘i NiÐÉm-i ‘Adl Regulation 2009 and rules framed therein
has empowered the court to appoint muÎliÍ or muÎliÍÊn, subject to the

consent of parties, for resolution of dispute.
What has been stated above is a brief discussion about the present

status of ADR in Pakistani Legal System.
For the future status of ADR in Pakistani Legal System, the

recommendations of International Judicial Conference 2012 provide
sufficient evidence. The Ex-Chief Justice of Pakistan, Iftikhar Muhammad
Chaudhry, has also participated in all the working groups. Judges of
Supreme Court, Chief Justices, Judges of Federal Shariat Court and High

Courts, foreign delegates, Supreme Court Bar Association, Pakistan Bar
Council, Bar Councils and Bar Associations from all over the Pakistan
are participating in the event. Law and Justice Commission of Pakistan,
while giving its report on International Judicial Conference 2012, made

the following recommendations:

1) All the commercial contracts must incorporate mediation clause.



Hamdard Islamicus 37 Vol. XXXIX, No. 3

Prior to invoking arbitration or approaching the Court, they shall
attempt to settle through mediation.

02) All stakeholders, including the Judges, Advocates and corporate
bodies must take a pragmatic approach to resolve the problems of
the litigating public, by encouraging ADR and attempting to resolve
disputes through mediation.

03) Stakeholders, at all levels, must be educated about ADR and Internal
Arbitration. The judges should be trained to deal with the cases in
a manner that would encourage litigants to settle their disputes
through methods of Alternative Dispute Resolution.

04) The High Court Rules and other appropriate rules should be
amended to remove caps on costs awarded to a winning party.
Costs of litigation should normally follow the event and the award
of costs should reflect the actual legal costs incurred by a party.

This would act as a deterrent to litigation and would encourage
ADR.

95) As a matter of policy, Courts should be instructed to ask the parties
to consider mediation in matters before them at the preliminary

stage. Each High Court may set up a committee to explore any
administrative changes that can be made in applicable Rules to
facilitate or encourage mediation at this stage.

96) The Government and its corporations should insert standard mediation

clauses in their contracts; this would help avoid significant portion
of litigation.

97) The Supreme Court of Pakistan should declare 2012 as the ADR
year.

98) The Bar Associations should motivate the advocates to attempt
resolution of their clients’ dispute through ADR.

99) The Court should use Order 10 Rule 4 CPC more effectively and
in a manner that gives effect to its objective, in order to restrict and

control the conduct of litigation cases.
10) It has been noted that a good number of cases have been disposed

of through Court mediation; therefore, the Court should maintain
the data in this regard. Each High Court should frame the Rules to

make mediation compulsory in appropriate matters.
11) ADR should be made a part of the syllabus of legal education, with

law students being taught the importance of ADR, as well as expertise



Hamdard Islamicus 38 Vol. XXXIX, No. 3

in effectively resorting to methods of ADR. Furthermore, ADR
should not only be introduced as an academic subject at law schools

but also in institutions imparting business studies.
12) The Supreme Court of Pakistan may support efforts of Karachi

Centre for Dispute Resolution (KCDR) in institutionalizing ADR/
mediation. A memorandum of understanding can be executed

between the Federal Judicial Academy and KCDR to avail the
services of KCDR’s faculty to train judicial officers in ADR/
mediation.

13) KCDR should be encouraged to open its setups at Lahore, Quetta,

Peshawar and Islamabad.

Classification of ADR

Classification here means kinds or modes of ADR. In the beginning
of this study, it is noticed that ADR is a generic name that encompasses a
number of different procedures that lead to the common objective of
amicable peaceful settlement. An acceptable resolution of a dispute may
be obtained by mediation, conciliation, arbitration and negotiation. Some
argue that arbitration doesn’t come within the meaning of ADR due to
its binding and adversarial nature. Some others hold that conciliation
should not be included in ADR. They consider it as a form of mediation.
According to majority of writers, collaborative divorce or collaborative
law is an independent mode of ADR. Restorative Justice, early evaluation,
Family group conference, Neutral fact-finding, Ombudsman, moderated
settlement conference, summary jury trial, early neutral evaluation, mini-
trial and Conflict resolution are comparatively less known modes of

ADR. No doubt, these terms have some similarities, yet they differ inter
se. For example, when each side presents a summary of its case to an
audience of the clients and lawyers, it would be called mini-trial. If each
side states his case to a panel of attorneys, it would be known as

moderate settlement conference. It would be summary jury trial if the
parties are to present their cases to a jury and magistrate. In early
neutral evaluation the evaluator has to study the brief summaries of the
case and then discover the expected consequences.79

Those who exclude arbitration from the ambit of ADR should know
that the philosophy behind ADR is a peaceful resolution that terminates
the issue in a final way. This objective is well achieved in arbitration



Hamdard Islamicus 39 Vol. XXXIX, No. 3

despite its adversarial nature. As far as its binding nature is concerned,
it should not be forgotten that it is a consent-based and will-generated

compulsion.
Conciliation and mediation are, no doubt, similar but not the same.

As the role of a third neutral makes them similar, exactly the role of a
third neutral makes them distinct. In mediation, the mediator facilitates

only and rarely offers his opinion whereas a conciliator, besides facilitation,
often offers his own proposals to the disputants. So as compared to
mediator, conciliator plays relatively direct role in resolution of a dispute.80

Furthermore, mediation and conciliation have been separately used in the

process of legislation. In section 89(A) and order X rule 1(A), III of the
Code of Civil Procedure 1908 (reproduced above) conciliation and
mediation have been distinctly mentioned. West Pakistan Family Court
Ordinance 1964, in sections 10 and 12, speaks for a pre and post-trial

reconciliation.81 In Indian legislation, both words have been used in different
senses. According to Madabhushi Sridhar, section 89 of the Indian Civil
Procedure Code (Amendment) Act 1999 speaks of conciliation and
mediation as different concepts. Mr. Sridhar has also quoted the statements

of Justice Jaganndha Rao that differentiate between mediation and
conciliation.82 In UK, conciliation is considered a more proactive process
whereas mediation is understood as a more passive phenomenon.83

The rules of interpretation and construction will further clarify the

situation. It says that no word of a legal provision should be left
meaningless or redundant. Every word should be given its due weight.
Courts should avoid construction that may render any word inoperative.84

Even in case of repetition of the same word, presumption as to identical

meaning is not of much weight. The same word may be used in different
meanings in the same statute and even in the same section.85

Consequent upon the above details, we may classify the modes of
ADR in two categories:

1) Main and known modes.

2) Less known modes.

The first kind would include:

1) Arbitration.
2) Mediation.



Hamdard Islamicus 40 Vol. XXXIX, No. 3

3) Conciliation.
4) Negotiation.

The second kind would include:

1) Collaborative divorce or Collaborative Law, also known as Family

Dispute Resolution (FDR).
2) Early Neutral Evaluation.
3) Moderate Settlement conference.
4) Summary Jury Trial.

5) Mini-Trial.
6) Restorative Justice.
7) Family Group Conference.
8) Natural Fact Finding.

9) Ombudsman.

Dispute Resolution Directory,  published by Martindale-Hubbell, in
cooperation with the American Arbitration Association, in 1995, also

mentions thirteen processes of ADR.86 The above diagrammed list, in
respect of less known kinds of ADR, is not exhaustive. Other terms such
as expert appraisal, expert determination, counseling, facilitation, private
judging, med-arb and MEDOLA (kinds of Hybrid Arbitration), conflict

coaching, victim-offender mediation and on-line dispute resolution (ODR)
also refer to various modes of alternative dispute resolution.87

In the SharÊ‘ah, in view of the verse, “And adjust the matter of
your difference”, 88 efforts for an amicable settlement come within the

category of WÉjib KifÉyah. It means an act, whose performance is
compulsorily required from the community as a whole and not from an
individual specifically.89 But in what mode this communal obligation should
be carried out, is not fixed. So in the absence of any specific modus

operandi, the matter would fall in the category of MubÐÍ (permissible/
optional). Consequently, any mode that leads to the peaceful settlement
is allowed under the Islamic Law; provided it goes in consistency with
the text of Qur’Én and Sunnah. On this analogy, the above classification

of ADR is quite good. It is, nonetheless, evident that the FuqahÉ’ (jurists),
both classical and contemporary, have discussed only two modes of
ADR; taÍkÊm (arbitration) and ÎulÍ (compromise). To them, rest of the





Hamdard Islamicus 42 Vol. XXXIX, No. 3

application would bring, are the standards whenever a comparison is
required between two constructions or even between two phenomena.90

On the bases of this preface, we would compare ADR with litigation.

S.No.       Alternative dispute      Regular litigation
           resolution

1. The procedure is simplest The procedure is highly
and easy-to-understand. No complicated. Technicalities

room for and no consideration plays effective role. Non-
of technicalities. One can state hiring of the services of an
his case himself. expert could prove fatal.

2. Principles of equity are regarded Rules of common law are

and thus equitable justice (QisÏ) applied and thus de jure
is the out-come. justice (‘Adl) is the product.

3. Focus is on the substantial justice. Focus is on legal justice.
Justness precedes fairness. Fairness precedes justness.

4. ADR experts are usually elders Chances of misrepresenta-

of the locality of the disputants. tion and fraud are always
Chances of misrepresentation and there. An aggrieved person
fraud are, therefore, rare to the is supposed to bear one of
extent of nil. Social pressure the curses; either to slaughter

keeps the disputants away from his rights and remain calm
practices disregarded by the on such decrees or to file a
society generally. petition for cancellation of

the decree and de novo trial.

5. Personal knowledge of the elders Personal knowledge of the
and experts of ADR are helpful judge cannot play any role
and it may be easily utilized in in proceedings before him
reaching to an acceptable rather it will provide a

settlement. The proceedings, thus, ground for transfer of the
become shorter. case to some other judge,

prolonging it further.

Contd..........



Hamdard Islamicus 43 Vol. XXXIX, No. 3

S.No.       Alternative dispute      Regular litigation
           resolution

6. Hearings are conducted in a Hearing of the whole case
single day or on few consecutive on a single day or even on
days. The data remain fresh in consecutive days is hard to
the minds of all concerned. The the extent of impossibility.
resolution, therefore, leaves no The court is supposed to
aspect unconsidered. maintain its diary under case-

management policy. It
becomes very hard for a
judge to recall all the events
of the hearings, while he is
making the decision.

7. The nature of the case, some- The courts are reluctant in
times, demands inspection of the arranging spot inspections
spot or suit-property. The elders, themselves. The reasons,
while conducting ADR, either inter alia, are rush of work
already know the spot or they and security problems.
may easily arrange a visit to Appointment of commissions
the spot. Neither there is any prolongs the hearing on one
apprehension of security nor do side and subjects the parties
the parties bear additional to additional expenses on the
expenses. other side. In so many cases,

it has been observed that
either one of the parties or
each of them refuses the
appointment of commission
for their inability to pay the
fee.

8. The decider remains the same. There are unexpected,
Being local and being non-official, immature and frequent
there is no apprehension of his transfers of judges. Some-
transfer. He deals the case from times, the transfer of 09 or
beginning to the end. Arriving to 10 judges takes place and
a justifiable solution is more the hearing is yet to
probable. complete. This piece-meal

hearing hardly amounts to a
right decision.

Contd.....



Hamdard Islamicus 44 Vol. XXXIX, No. 3

S.No.       Alternative dispute      Regular litigation
           resolution

09. ADR conductors can express A judge cannot express his
their opinions just to test its opinion and if he does so, he
acceptability to the disputants. becomes functus officio.
They can put different proposals Besides, it is not advisable
to the parties. for him to make proposals

though it may be beneficial
for both parties.

10. Disputants are before their chosen Disputants are before a
resolvers. They state their case in court, having some rules to
a free and relaxed environment. be followed by the parties.
There is no fear of contempt and They are usually hesitant and
no apprehension of technical reluctant to speak. Even
mistake. their counsel precludes them

from speaking before the
court for their expressions
may lead to a technical
knock-out.

11. Chances of adjournment are rare. Unexpected adjournments
Official meetings, strikes, and law are frequent due to casual
and order situation do not affect leaves of judges and
the job. Time-work is not confined magistrates, their lengthy
to particular hours. official meetings, in-service

trainings, national holidays,
summer and winter vacation,
strikes, non-availability of
counsel for one reason or
the other and above all limited
official time.

12. A single case is fixed for hearing. A number of cases are fixed
Due care and full attention is for hearing. It becomes
given. They hear the issue with humanly impossible to give
the required patience. the required attention to each

case. Hasty hearings are
frequent.

Contd......



Hamdard Islamicus 45 Vol. XXXIX, No. 3

S.No.       Alternative dispute      Regular litigation
           resolution

13. It is inexpensive. Sometimes, the It is highly expensive. Poor
elders refuse honoraria and even litigants are out-priced. Fees
necessary expenditure of of the advocates are sky-
travelling, entertaining and rocketing. Poor litigants
stationery. It has also been prefer not to file a suit even
observed that, a matter of in highly fit cases for hearing.
honour and courtesy, they Court fees, process fees,
contribute from their own pockets commission fees, expenses
while compensating a party. on production of witnesses

especially the official ones,
expenses on the production
of official records, fees of
the clerks of counsel
(munshiÉnah) and fees of
the attested copies of the
record of the court break the
spine of the litigants. Very
often, the expenditure of a
case highly exceeds the real
value of the suit. There are
pains for no gains.

14. The issue gets finality soon due Finality in decision comes in
to a win-win situation. No doubt excessively belated stages.
each side looses to some extent Even interlocutory orders
but it occurs on account of their create grounds for appeals
own consent. So it is not a and revisions. Petitions of
defeat but a sort of consented appeal, review and revision
withdrawal. against the full judgments are

filed in 99% cases. One can
found a lot of instances
where the suitor passes
away and the suit is yet to
get finality.

Contd......



Hamdard Islamicus 46 Vol. XXXIX, No. 3

S.No.       Alternative dispute      Regular litigation
           resolution

15. Execution is easy rather the Execution is harder than the
decision and execution come obtaining of decree in the
simultaneously. No petition for suit. Objection petitions know
execution and no petition for no end. The abuse of section
objection are filed. 47 and order XXI CPC is

common. Decree in hands of
decree-holder becomes just
a receipt of expenditure of
the case and a certificate of
completion of trial.

16. The real and effective cause of Cause of enmity doesn’t flee.
dispute is uprooted. Hormonal Torn relations between the
relations are restored. State of winner and the looser deepen
sympathy is promoted. Issue is further. State of antipathy
really settled. develops. Issue is solved in

the papers only.

17 The elders, arbitrators, mediators The language of the court,
and conciliators, and the particularly of apex courts is
disputants speak the same English. Legal terminologies
language. There is no problem in are also not easy to under-
communication. stand. A communication gap

always prevails between the
court and disputants.

18. Admittedly decisions are based Disputants and their
on proven facts. When disputants witnesses, despite taking of
are deposing before their village oath, give false statements.
elders, they refrain from telling They depose tutored and pre-
lies due to social pressure even dictated evidence. Hence,
though they have not been their veracity is rarely
administered oath. The out-come shaken. Resultantly, false
is a fair as well as just decision. facts get authenticity. The

product is a fair (according
to law) but unjust decision. 



Hamdard Islamicus 47 Vol. XXXIX, No. 3

Conclusion

01) ADR stands for Alternative Dispute Resolution. “Alternative” is
more appropriate than “alternate”. ADR in some parts of the world
is also known as External Dispute Resolution (EDR), Dispute
Resolution Tools (DRT). The phrase Consensual Dispute Resolution

(CDR) is also in field. Some experts prefer “appropriate” over
“alternative” whereas some others prefer “difference” over “dispute”.

02) The appropriate similitude for phrase ADR in the Holy Qur’Én and
Sunnah is “IÎlÉÍ”. The term “ØulÍ” should not be confused with

IÎlÉÍ despite their interchangeable use.
03) The suitable transliteration for ADR, in the current Arabic

usage, is Taswiyyat al-munÉza‘Ét al-badÊlah or ×asm al-nizÉ‘
al-badÊl.

04) The history of informal dispute resolution is as old as the history of
mankind, nonetheless, the history of conflict resolution under the
nomenclature of ADR is hardly half a century old.

05) ADR has its roots in Divine religions.

06) Primarily and historically ADR is alternative to violence but in current
civilized states, it is an alternative to formal adjudication. However,
it is not a substitute for that. It plays only a complementary role to
the regular judicature.

07) Under the Islamic Law, formal litigation is lost resort. Its procedural
law must carry a provision for recourse to ADR, as pre-trial
proceeding.

08) ADR uproots the dispute whereas adjudication disposes it of.

09) ADR saves time and wealth and regular adjudication consumes
them both.

10) ADR brings peace, harmony and promotes cooperation. Litigation
creates hatred, enmity and brings the disputants to a state of

antipathy.
11)  In ADR, justness prevails over fairness and justice is dispensed on

the basis of equity. In formal litigation, fairness prevails over justness
and justice is done within the meanings of legal provisions. In

ADR, justice and only justice is the objective whereas formal
litigation aims at the application of laws to disputed facts, whatsoever
the outcome may be.



Hamdard Islamicus 48 Vol. XXXIX, No. 3

Notes and References

1. This nature of man has been described by the Holy Qur’Én in the following
verses:
“Truly man was created very impatient, fretful when evil touches him; And
niggardly when good reaches him.” (Al-Ma‘Érij, LXX:19, 20, 21).
“And violent is he in his love of wealth.” (Al-‘AadiyÉt, C:8).

2. “By violence” does not only mean the use of force or might against one
opponent. It includes all such modes of dispute resolution that carries the
element of inhuman procedures such as trial by fire (the healing of wound/burns
after walking on fire or the picking of an object out from within a fire safely),
trial by hot iron (the turning of one pound heated iron rod to three pounds in
the hands of the accused, after taking it to a 09 feet distance), trial by water
(throwing of the accused after chaining him in a fatal position into a container
of water, then convicting him/her upon floating and acquitting him/her upon
drowning), trial by hot water (the keeping of the accused his hand elbow-deep
in a boiling water and his acquittal on the non-appearance of blistering), trial by
Tagena, sassywood and ordeal bean (the ingesting of these poisonous seeds and
tree-gums to the accused), trial by diving (a breath-holding test beneath the water,
trial by snake (the safe lifting of a ring placed under a snake) and the like. All
these procedures are collectively called ‘Trial by Ordeal’. See for further details,
editors of the Encyclopedia Britannica, ordeal trial method, available at
http://www.britannica.com/EBchecked/topic/431352/ordeal (last accessed on May
11, 2015). Also see Arallyn Primm, A History by ‘Trial by Ordeal’, in mental_floss
2013, available at http://mentalfloss.com/article/50161/history-trial-ordeal (last
accessed on May 11, 2015). Also see Peter T. Leeson, Ordeals, in Journal of Law
& Economics, pp. 691-714, available at http://www.peterleeson.com/Ordeals.pdf
(last accessed on May 12, 2015).

3. Jerome T. Barrett and Joseph P. Barrett, A History of Alternative Dispute
Resolution, US, Jossey-Bass, 2004, pp. 188-189.

4. Jerome T. Barrett and Joseph P. Barrett, A History of Alternative Dispute
Resolution, pp. 8, 256-257. Also see Sher Muhammad Mohmand, The Pathan
Customs, Islamabad, Saeed Book Bank, 2011, pp. 14-15. See also Abdul Qayyum
Zahid Mishwani, Pashto Pashto Seend, Afghanistan, Daniish Khparandoya Tolana,
2012, p. 304.

5. See for ‘alternate’ Section 89-A of the Code of Civil Procedure, 1908. Also see
Bench Book published by Ministry of Local Government and Rural Development,
at page 5. See for ‘alternative’ Order X, Rule 1-A of the CPC, both Pakistani
and Indian.

6. Dr. Hassan Ghazalah, QÉmus Dar Al-ilm lil mutalazamÉt Al-lafziah, Lebanon, Dar
al-Ilm lilmalaeen, 2007, p. 66.

7. See Article 251(A) of the Constitution that says, “The National language of
Pakistan is Urdu, and arrangements shall be made for its being used for official
and other purposes within fifteen years from the commencing day”.

8. A.S. Hornby, Oxford Advanced Learner’s Dictionary, p. 439. See also P. Ramanatha



Hamdard Islamicus 49 Vol. XXXIX, No. 3

Aiyar’s, Advanced Law Lexicon, New Dilhi, Wadhwa and Company, 2007, pp. 2,
1431.

09. Hassan Ghazalah, AlmutalazamÉt Al-LafÐiyyah, p. 442.
10. Aamir Raza, Code of Civil Proceddure, Order xv. Rule 01, Lahore, Ganj Shakkar

Press, 2000, p. 562.
11. Aamer Raza, Code of Civil Procedure, pp. 555-556.
12. Iqbal Muhammad Awan, QÉnËn-i ShahÉdat 1984, Lahore, Mansoor Book House,

2008, p. 280. See also Alan Tolyar, Principles of Evidence, London, Cavendish
Publishing Limited, 2000, p. 2.

13. Alan Tolyar, Principles of Evidence, p. 1.
14. Mahmud Iqbal Aawan, QÉnËn-i-ShahÉdat Order 1984, p. 28.
15. Shaikh, Abdul Halim, Code of Criminal Procedure v of 1898, Lahore, Shah

Electric Press, 1977, pp. 1:513, 514, 655.
16. D. Fosket, The Law and Practice of Compromise, Scottland, Thomson Reuters

(Legal) Limited, 2010, p. 5. Also available at http://legalresearch.westlaw.co.uk/
wp-content/uploads/2013/01/Prelim-Pages-from-Foskett-on-Compromise-7e-
text.pdf (last accessed on Feb.11 2015).

17. Avtar Singh, Law of Arbitration and Conciliation, pp. 21-23.
18. Kamini Kumar Basu v Birendra Nath Bose, AIR 1950 PC 100: 57 IA 117: ILR

57 Cal 1302.
19. Nand Kishore v International Mercantile Corpn Ltd, AIR 1953 Cal 415. V.

Narasimha Raju vs Gurumurthy Raju, AIR 1963 SC 107. Sudhindhra Kumar v
Ganesh Chandra Ghosh, ILR (1939) 1 Cal 241.

20. Muhammad Rawas Qala Jee and Hamid Sadiq Qanib, Mu‘jÉm LughÉt al-FuqahÉ,
Karachi, Idarat ul Quran wal ulum al Islamiyyah, n.d., p. 196.

21. Elizabith A. Martin, Oxford Dictionary of Law, UK, Oxford University Press,
2006, p. 463. See also A.S. Hornby, Oxford Advanced Learner’s Dictionary,
p. 1301.

22. Thomson Gale and Lehman, West Encyclopedia of American law, pp. 8, 343,
available at http://www.amazon.com/Wests-Encyclopedia-American-Law-Volume/
dp/0787663670 (last accessed on Feb. 11, 2015).

23. Luis Maaloof, Al-Munjid, translated by Balyavi Abu Al-fazl Abd-ul-Hafeez,
Lahore, RR Printers, 2011, p. 185. Also see Shams ul Haq Haqqi, Oxford English
Urdu Dictionary, not mentioned, Oxford University Press, 2013, p. 1431.

24. Jerome T. Barrett and Joseph P. Barrett, A History of Alternative Dispute
Resolution, US, Jossey-Bass, 2004, pp. 188-189, 256-257.

25. Jerome T. Barrett and Joseph P. Barrett, A History of Alternative Dispute
Resolution, p. XIV.

26. Bright Sambeth Glasner, A Report on ADR of Nov.6, 2006.pp 1-7, available at
https://www.google.com.pk/search?q=Bright+Sambeth+Glasner%2C+A+Report
+on+ADR+of+Nov.&oq=Bright+Sambeth+Glasner%2C+A+Report+on+ADR
+of+Nov.&aqs=chrome..69i57.1207j0j8&sourceid=chrome&es_sm=93&ie=UTF-8
(last accessed on Feb. 11, 2015).

27. Justice Nazim Hussain, Access to Justice and Alternative Dispute Resolution,
2004, page, 1, available at http://www.pakistanlawsite.com/lawonline/law/Login.asp
(last accessed on Feb.11, 2015).



Hamdard Islamicus 50 Vol. XXXIX, No. 3

28. Muhammad b. Abi Bakr, Ibn Qayyem al-Jauziyyah, Ilam-ul mu’aqi‘Ên, 1, p. 108.
29. Muhammad b. ÔsÉ Al-TirmidhÊ, JÉmi‘ al-TirmidhÊ, KitÉb al-aÍkÉm, reported by

Kathir b. Abdullah b. Amr b. Awf, ×adÊth no. 1364, Lahore, Maktabat-ul-Ilm,
n.d., 1, p. 697. Abu Dawud Sulaiman b. Ash‘ath, Sunan Abi DÉ’Ëd, KitÉb
al-‘Aqayah, reported by Abu Hurairah, ×adÊth no. 197, Lahore, Maktabat-ul-Ilm,
n.d., 3, p. 95.

30. Ahmad Al-Dardir, al-SharÍ al-KabÊr, Egypt, Maktaba ‘Isa al-Halabi, n.d., 4,
p. 152. See also Muhammad Naeem Abd-us-Salam Yasin, Nazria ul Da‘wa,
Egypt, Ministry of Religious Affairs, 1972, 2, pp. 50-53.

31. Madabushi Sridhar, Alternative Dispute Resolution, p. 1.
32. The Times Law Report, Tuesday, 8th January 2002, available at http://

asauk.org.uk/wp-content/uploads/2003/09/ADR-Update-4.pdf, last accessed on
Feb. 12, 2015.

33. Advice Services Alliance, Alternative Dispute Resolution, Policy Consultation
Paper, June 2003, 24,25,26, available at http://asauk.org.uk/wp-content/
uploads/2003/09/ADR-policy-consultation-paper.pdf, last accessed on Feb. 12,
2015.

34. Barrett & Barrett, A History of Alternative Dispute Resolution, pp. 266-267.
35. Ibid.
36. Johan, Nicolay and John Hay, Abraham Lincoln, Notes for a law lecture, July 1,

1850, available at  http://www.abrahamlincolnonline.org/lincoln/speeches/
lawlect.htm, last accessed on Feb. 12, 2015.

37. Madabhushi Sridhar, Alternative Dispute Resolution: Negotiation and Mediation,
p. 3.

38. According to the statistics provided by Mr. Sharif Ahmad, learned Additional
Registrar PHC, on 06:02:2013, the cause list was of 146 cases, on 14:02:2013,
it was of 312 cases, on 09:03:2013, it contained 364 cases. See couse list
issued for 09:03:2013, by office of the Additional Registrar Peshawar High
Court.

39. The Daily Mashriq Peshawar, April 7, 2015.
40. RSRTC v Mohanlal Khandelwal, 1985, Raj LR 866.
41. This sub-section was inserted in CPC by virtue of Ordinance X of 1980.
42. Abigail E. Ng and Eric Tin, Leading Change In The Singapore’s Magistracy: The

Seven Working Precepts, available at http://www.aija.org.au/Mag01/Singapore.pdf
(last accessed on April 28, 2015). See also Justice Tassaduq Hussain Jillani,
Delayed Justice and the Role of ADR, available at http://www.supremecourt.gov.pk/
ijc/articles/7/1.pdf, last accessed on Feb. 12, 2015.

43. Qasim b. Abdullah Al-qunuvi, AnÊs-ul-Fuqaha fi Ta‘arÊfat al-AlfÉÐ al-MutadÉwilah
Bain al-FuqahÉ , Jeddah, Dar-ul-Wafa, 1986, p. 245. Also see Nasiruddin
al-Mutarrizi, Al-Mughrib fi TartÊb al-Mu‘Érab, Syria, Maktabah Usamah b. Zaid
1979, 1, p. 478. Al-Jawhari, Al-ØiÍÉÍ, Bairut, Dar ul Ilm, 1979, 1, p. 383.
Muhammad b. Yaqub Fairozabadi, al-QÉmËs al-MuÍÊÏ, Egypt, Matbaa Mutafa
al-Halabi, 1952, 1, p. 243. Ahmad b. Muhammad al-Fuyumi, Al-MisbÉÍ
al-MunÊr, Egypt, Al-Matbaa Al-Ameeriah, n.d., 1, p. 528.

44. The Noble Qur’Én, II:11.
45. The Noble Qur’Én, VII:142.



Hamdard Islamicus 51 Vol. XXXIX, No. 3

46. The Noble Qur’Én, VII:85.
47. The Noble Qur’Én, XXVI:151-152.
48. The Noble Qur’Én, XVII:48.
49. Saeedah KhÉnam v Muhammad Sami, PLD 1952 Lahore 113.
50. Abd ul Karim Zaidan, Al-Wajiz fi UÎËl ul Fiqh, Lahore, Dar al-Kutub al-Salafiyyah,

1986, pp. 292-294.
51. The Noble Qur’Én, VIII:1.
52. The Noble Qur’Én, XLIX:9.
53. The Noble Qur’Én, XVI:90.
54. The Noble Qur’Én, V:42.
55. Imran Ahsan Khan Nyazee, Islamic Jurisprudence, p. 67. See also Muhammad

Naeem Abd-us-Salam Yasin, NaÐariyat al-Da’wah, 2, p. 51.
56. Munir Al-Ba’alabacci, Al-Mawrid English to Arabic, Beirut, Dar-ul-ilm,

1989).
57. Qasim b. Abdullah al-Qunuvi, AnÊs-ul-FuqahÉ fi Ta‘arÊfat al-AlfÉÐ al-MutadÉwilah

Bain al-Fuqaha, Jeddah, Dar-ul-Wafa, 1986, p. 245. Also see Nasiruddin
al-Mutarrizi, Al-Mughrib fi TartÊb al-Mu‘Érab, Syria, Maktabah Usamah b. Zaid
1979, 1 p. 478. Al-Jawhari, Al-ØiÍaÍ, Bairut, Dar ul Ilm, 1979, 1, p. 383.
Muhammad b. Ya‘qub Fairozabadi, Al-QÉmËs al-MuÍÊt, Egypt, Matbaa Mutafa
al-Halabi, 1952, 1, p. 243. Ahmad b. Muhammad al-Fuyumi, Al-MiÎbaÍ
al-MunÊr, Egypt, Al-Matbaa al-Ameeriah, n.d., 1, p. 528.

58. Sriram Panchu, Mediation; Practice and Law, p. 295.
59. Zaheer Cheema, West’s Legal Thesaurus/Dictionary, Lahore, Manzoor Law Book

House, pp. 514-515.
60. Muhammad Rawas Qalaji and Hamid Sadiq Qunaibi, Mu‘ajam LughÉt al-FuqahÉ,

Karachi, Idarat-ul-Quran, Publications, n.d., p. 71.
61. Muhammad Hamidullah, The Emergence of Islam, Islamabad, IRI Press, 2004,

p. 187.
62. Kamal Sulieman Salibi, A History of Arabia, New York and Michigan, Caravan

Books, 1980, p. 68.
63. T. Barrett with Joseph T. Barrett, A History of Alternative Dispute Resolution,

p. 13.
64. The members of this community centre were mostly from the family of Qusai.

Only few members belonged to other clans. A person less than 40 years, while
not possessing special aptitudes of leadership, could not be selected as a member.
See Dr. Muhammad Buyumi Mehran, DirÉsat fi TÉrÊkh al-‘Arab al-QadÊm,
Riadh, Jamiah al-Imam Muhammad b. Saud al-Islamiah, 1982, p. 406.

65. Muhammad Hamidullah, The Emergence of Islam, p. 193.
66. Abdullah b. Muhammad al-Shaikh, Seerat-ur-RasËl (œ), Urdu translation, Jehlum,

Pakistan, Javid Riaz Printers Lahore, 1990, p. 44.
67. Abul A‘ala MaudËdÊ, Seerat Sarwar-i ‘Óalam, Lahore, H. Faruq Associate Limited

Press, 1980, 2, pp. 720-721.
68. Muhammad Hamidullah, The Emergence of Islam, p. 198.
69. Abdur Rahman b. Muhammad b. Khuldun, TÉrikh Ibn KhaldËn, Karachi, Nafis

Academy Printers, Urdu Translation, 1981, p. 36. See also T. Barrett with
Joseph T. Barrett, A History of Alternative Dispute Resolution, p. 13.



Hamdard Islamicus 52 Vol. XXXIX, No. 3

70. Muhammad Abd al-Baqi Fuad, Al-Mu‘ajam al-Mufahras Li AlfÉÐ al-Qur’Én
al-KarÊm, Istanbul, Dar al-Da‘awah, 1987, pp. 410-412.

71. Muhammad Hamidullah, The Emergence of Islam, pp. 233-236.
72. Munir Al-Ba’alabacci, Al-Mawrid English to Arabic, Beirut, Dar-ul-ilm, 1989.
73. A. Yusuf Ali, The Holy Qur’Én, Text Translation and Commentary, Chapter

XXVI, The Poets, verses 105-109.
74. Anthony Glaister, Woolf Reforms: Lawyers continue to wrangle over merits a

decade on, available at http://www.thelawyer.com/analysis/opinion/practice-areas/
city-analysis/woolf-reforms-lawyers-continue-to-wrangle-over-merits-a-decade-on/
1000991 (last accessed on Feb.12, 2015). Also see Michael Zander, Cases and
material on the English Legal System 10th edition, UK, Cambridge University
Press, 2007, pp. 54, 138. Also see National Consumer Council. Seeking Civil
Justice: A survey of people’s needs and experiences, 1995, NCC. See also Gary
Slapper and David Kelly, The English Legal System, UK, Taylor and Francis,
2009, p. 334, also available at http://www.amazon.com/Seeking-Civil-Justice-
Peoples-Experiences/dp/1899581057 (last accessed on Feb.12, 2015).

75. See Articles146(3), 153, 154, 156, 159(4) 160, 184(1) and 17(2).
76. Inserted by Code of Civil Procedure (amendment) Ordinance, XXXIV of 2002,

dated 27.7.2002.
77. It was established by The Establishment of the Office of WafÉqÊ MoÍtasib

(Ombudsman) Order 1983 (I of 1983), now having Constitutional authenticity
under article 277A of the Constitution of Pakistan 1973.

78. See Chapter VII (ss.96-99) of the Punjab Local Government Act, 2013. Also see
See Section 72 and Schedule III, item 32, of the Sindh Local Government Act,
2013. See also Chapter XVI, Section 109 of the KP Local Government Act, 2013.
[In this later Act, the relevant provision is, nonetheless, cloudy and needs further
improvement to clearly incorporate ADR techniques].

79. T. Barrett with Joseph T. Barrett, A History of Alternative Dispute Resolution,
p. 183.

80. Madabushi Sridhar, Alternative Dispute Resolution, New Delhi, Lexis Nexis
Butterworths, 2006, p p. 311-312.  Details are also  available at http ://
www.mediate.com/articles/ (last accessed on Feb.12, 2015).

81. Aasima Jahangir, Manual of Family Laws in Pakistan, Lahore, Law Book
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82. Madabhushi Sridhar, Alternative Dispute Resolution, pp. 314-315.
83. Henry J. Brown and Arthur L. Mariot, ADR Principles and Practice, UK, Sweet

& Maxwell, 1997, p. 127.
84. M. Zubair Saeed, The Interpretation of Statutes as Expounded by Sir P.B. Maxwell,

Lahore, PLD Publishers, n.d., pp. 13-14, 77.
85. S.M. Zafar, Understanding Statutes, Cannons of Construction, Lahore, Pakistan

Educational Press, 2008, p. 636.
86. T. Barrett with Joseph T. Barrett, A History of Alternative Dispute Resolution,

p. 240.
87. Madabushi Sridhar, Alternative Dispute Resolution, pp. 94-95, 100-101. Details

are als o availab le at  ht tp s://www.go ogle.co m.pk/searc h?q=Leader-
ADR+at+www.leader.com.au%2Fadr.&oq=Leader-ADR+at+www.leader.com.au%



Hamdard Islamicus 53 Vol. XXXIX, No. 3

2Fadr.&aqs=chrome..69i57.755j0j8&sourceid=chrome&es_sm=93&ie=UTF-8 (last
accessed on Feb.12, 2015).

88. Muhammad Marmaduke Pickthall, The Glorious Qur’Én, Text and Explanatory
Translation, Chapter VIII, Verse 1.

89. Imran Ahsan Khan Nyazee, Islamic Jurisprudence, Islamabad, IRI Press, 2010,
p. 64. See also Ahmad Hasan, Principles of Islamic Jurisprudence, Islamabad, IRI
Press, 2007, p. 62.

90. M. Zubair Saeed, The Interpretation of Statutes, Lahore, PLD Publishers 1996,
p. 34. See also Wahbah Al-zuhaili, UÎËl al-Fiqh Al-IslÉmi, Damascus, Dar ul Fikr,
1998, 2, pp. 902-916, 1048-1056. See also Abd ul Karim Zaidan, Al-Wajiz fi UÎËl
ul Fiqh, pp. 236-243, 245-250. See also Avtar Singh, Introduction to Jurisprudence,
Lahore, Khyber Law Publication, 2001, p. 15.