E:\ISLAMICUS\2018\NO.1'2018\07) SULH (WM).pmd Hamdard Islamicus 195 Vol. XLI, Nos. 1 & 2 ØUL× FACTS AND EFFECTS IN SHARI‘AH VIS-A-VIS EFFICACY OF PAKISTANI STATUTES AND EFFICIENCY OF THE JUDGES DR. QAZI ATTAULLAH1 AND DR. LUTFULLAH SAQIB2 1Senior Civil Judge/Judicial Magistrate, District Kohistan, 2Assistant Professor (Law & Shari‘ah), University of Swat, KPK, Pakistan. e-mail: qaziofmalakand@gmail.com This work probes the notion of ÎulÍ with its minute details, in the context of ADR (Alternative Dispute Resolution). It discovers the generic term IÎlÉh as one of the corresponding SharÊ‘ah’s phenomenon to ADR of the conventional law. It argues that the mechanism and structure provided by the SharÊ‘ah for resolution of disputes through informal techniques is highly simple, easily understandable, vastly practicable, more expeditious in bringing finality to the issue, and above all, it is free of cost. It determines the criterion of fitness of a case for ÎulÍ and explores that ÎulÍ could be affected both in civil and criminal areas including major issues of the ×udËd offenses. The work also covers the details of the subject in Pakistani legal system, with special reference to the efficacy of Pakistani Statutes, and efficiency of the learned judges on the subject. Legal effects of ÎulÍ, both in the SharÊ‘ah and law, have been discussed comprehensively. Proposals and suggestions for improvement also form part of this work. Being the very common and efficient method in legal research so far, the qualitative research technique has been adopted in the present work, where the content analysis of the secondary data, available in the SharÊ‘ah and law on the subject under investigation, has been made with minute details. Keywords: ØulÍ, Dispute, Judge, Law, Case, Resolution, Alternative, Settlement, SharÊ‘ah. Introduction Arising of disputes is the ever-connected and unpreventable Hamdard Islamicus 196 Vol. XLI, Nos. 1 & 2 characteristic of human society. Its sole responsible factor is the hankering nature of man that often appears in the shape of conflict of interest. To stop the birth of dispute is, therefore, almost impossible and every effort in this regard would not be more than a futility. What is necessary and wise is that dispute should not be left unnoticed, keep on growing till it begins challenging the peace of the whole society. They should be timely attended to, properly assessed, wisely managed and peacefully resolved. As the resolution of dispute has a direct nexus with law and order, tranquility of the society and productivity of its members, it has been a center of concern for philosophers, academicians, researchers, social workers and politicians round the world and throughout history. Human history has witnessed two modes of peaceful dispute settlement i.e. (a) amicable resolution of dispute through informal techniques and (b) determination of dispute through formal adjudication. No doubt, the human history has also experienced the ending of disputes by might and use of force, nonetheless, it could not be considered as settlement of dispute, and it may rather be called ‘Suppression of a dispute’. Regular adjudication is, of course, a peaceful mode of settlement of dispute; nevertheless, it has some necessary irremovable features that do not suit the hasty and comfort-inclined nature of humans. These features have been the subject of criticism by scholars, researchers, judges, lawyers and other important stakeholders of the justice sector and are, as a result, frequently counted as “the defects of the formal adjudication”. The defects mainly include complexity of procedure, towering expenditure, unwanted adjournments, extremely lengthy cross-examinations, hardships faced by the party in the production of witnesses, and most significantly the long- awaited finality of the verdict of the trial court. The situation goes further worsened when abuse of procedure becomes a common trait of the lawyers and the judges, for one reason or the other, could not save the proceedings from wanton, irrelevant and unwarranted performance of the counsels. Problems in the process of execution of decrees are more troublesome than those of a hearing of a suit. Juxtapose to it, the system of resolution of disputes through informal techniques is simple, cheap, expeditious, everlasting and, more importantly, easy in execution. It saves the time of the litigants, court and other related departments as it saves the wealth of the parties and expenditure of the government. These informal means are, now-a-days, known by a generic phrase of ADR in Hamdard Islamicus 197 Vol. XLI, Nos. 1 & 2 conventional legal paradigm; standing for Alternative Dispute Resolution. Two of its modes the Mediation and Conciliation correspond to the concept of ‘ÎulÍ’ under the Islamic Law (SharÊ‘ah). The SharÊ‘ah has its own system of informal means of dispute resolution that is more simple, easy and practicable as compared to ADR of conventional law. According to the main stream of scholars (both classical and contemporary), this system is twofold and offers taÍkÊm and ÎulÍ as informal means of dispute resolution. TaÍkÊm corresponds to arbitration and ÎulÍ would cover both ‘mediation’ and ‘conciliation’ of the conventional law. The SharÊ‘ah, principally, does not recommend meaningless and impracticable classification of informal means to ‘mediation’, ‘conciliation’ and ‘negotiation’ as provided by law. To it, all these phenomena are the ways leading to ÎulÍ, by one way or another. Pragmatically speaking, even taÍkÊm is not a mode of amicable settlement in the SharÊ‘ah and is considered by classical Muslim jurists (fuqahÉ) as a sub-branch (far‘) of regular adjudication (qaÌÉ).1 This work is, however, confined to ÎulÍ with a further confinement to ÎulÍ in dispute between ordinary litigants, not being spouses. The focus mainly remains on procedure and effect of ÎulÍ in cases pending in courts. SulÍ between the States (nations), political warring factions and ÎulÍ in matrimonial issues have been kept out of its ambit and would be dealt within some other academic project. The work investigates the concept of ÎulÍ in the context of modern ADR mechanism with particular reference to the Pakistani legal system. For the purpose, analytical approach of quantitative research has been applied. What has been discovered in this work could be ultimately assessed from the thorough study of its content, it is, however, briefly stated that the work has examined the reasons of inefficacy of Pakistani laws and inefficiency of the learned judges of the trial courts, on the subject. It has also explored the factors responsible for such defects, as it has offered suggestions for improvement in the shape of amendments, rectifications, and purpose-based fresh legislation. Most significantly, the work has examined the compatibility of relevant provisions of the Pakistani laws on the subject with SharÊ‘ah and has pointed out the areas which are not in consonance with the rulings of Islamic Law and Jurisprudence despite the fact that consistency of laws with the SharÊ‘ah is a constitutional obligation.2 Hamdard Islamicus 198 Vol. XLI, Nos. 1 & 2 Need of Ascertaining the Meaning and Limits of ØulÍ (Compromise) Since long, various phrases like MuÎÉliÍat, RÉzinÉmah (in Urdu), ØulÍ, iÎlÉÍ, ØalÉÍ, MuÎÉliÍat and MusÉlamah (in Arabic), ‘compromise’, ‘mediation’, ‘conciliation’ and ‘reconciliation’ (in English) are not carefully used. This careless, or to be more lenient, interchangeable usage would have been acceptable if kept confined to common conversations, but, unfortunately, this practice is not being given up even during sharing of talks, delivering lectures and authoring research papers on the subject and then its reading out in national and international conferences, seminars and workshops, specially arranged for resolution of disputes through amicable settlements. A damaging confusion has, therefore, been created that has placed the academicians, researchers and predominantly the practitioners at nowhere. This confusion is quite similar to that which is being faced by cotemporary mediators due to the unstopped number of approaches towards the meaning and limits of mediation in conventional law.3 So, it is the right time for ascertaining the meaning of ØulÍ and defining its limits in the SharÊ‘ah – through a process of expurgation of all other relevant phrases including the meanings of its cognates. ØulÍ, also known as musÉlamah, is an Arabic noun used for a ‘peace restored state’ arising out of a peaceful settlement that operates as a contract between the disputing parties. Its nearest synonym is ØalÉÍ; the antonym of fasÉd/brawl. The second antonym of ØulÍ, could be mukhÉÎamah (a state of disagreeing). The most appropriate translation of ÎulÍ and its nearest fellow in meaning would ‘compromise’ or reconciliation [not conciliation in its technical sense which is covered by IÎlÉh. IÎlÉh refers to efforts for reform and restoring of peace through peaceful process. It means every procedure that ensures good and prevents evil. In brief, iÎlÉÍ refers to efforts for reforms and efforts to set aright the affairs of people; as opposed to ifsÉd which means efforts for chaos and turmoil. In the present legal scenario, the phrase iÎlÉÍ would cover all modes of alternative dispute resolution; including arbitration,4 and, as such iÎlÉÍ, would be the appropriate similitude of the present day ADR. ØulÍ is the name of a contract of peace and also refers to a state of peace as opposed to a state of turmoil. To be more specific, the antonym of ÎulÍ is fasÉd whereas the antonym of is ifsÉd.5 The relation of iÎlÉÍ Hamdard Islamicus 199 Vol. XLI, Nos. 1 & 2 and ÎulÍ is also that of a source and product. The termination of a dispute through the process of iÎlÉh may either be in the shape of reconciliation (ÎulÍ) or other mutually accepted shape as an award. In the following, the methodology of Qur’Én, using iÎlÉÍ and ifsÉd as antonyms inter se could be observed. It shall also be comprehended that how Qur’Én condemns the later and how it appreciates the former. The fact shall also surface that what the modern World knows as mediators or conciliators, the Qur’Én calls them muÎliÍËn. What the contemporary writers know as miscreants, the Qur’Én lists them as mufsidËn. When it is said to them: “Make not mischief on the earth,” they say: “Why, we only want to make peace!”6 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.”7 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.8 “And follow not the bidding of those who are extravagant, – Who make mischief in the land, and mend not (their ways)9 There were in the city nine men of a family, who made mischief in the land, and would not reform.10 All the above verses and many other like it use both phrases of Hamdard Islamicus 200 Vol. XLI, Nos. 1 & 2 iÎlÉh and ÎulÍ; as opposite words. Similarly, the Holy Qur’Én has also used ÎulÍ and fasÉd as antonyms and referring to a ‘state of peace’ and a ‘state of disorder’ respectively. This could be seen in the following verses: If a wife fears cruelty or desertion on her husband’s part, there is no blame on them if they arrange an amicable settlement between themselves; and such settlement is best;11 Mischief has appeared on land and sea because of (the meed) that the hands of men have earned …12 All the above verses clearly differentiate between iÎlÉÍ and ÎulÍ; and also mention their antonyms for further clarification. So, they should not be confused inter se and both should be clothed with their separate meanings, particularly in research works, more particularly, when such works specifically focus on amicable settlements. The above distinction is also evident in the work of some famous commentators. For example AllamÉ Shabbir, while interpreting verses No. 9 and 10, of chapter No. 49 (Al-×ujurÉt) writes: “make excessive efforts for the removal of differences. Do not be a spectator to confrontation of your brothers, try to the best of your strength and intervene between disputants. You must fear Allah while making such efforts”.13 Mufti MuÍammad Shafi has also taken iÎlÉÍ in its broader sense and has not confined it to ÎulÍ.14 The significance of this distinction has also attracted the attention of the legal scholarship and the cotemporary researchers have concluded that ÎulÍ is a descriptive noun whereas iÎlÉÍ (the use of its verb) refers to an act that brings ÎulÍ and removes its opponent i.e. fasÉd.15 It is probably because of the above distinction that the learned Imam Muslim, in his ØÉhiÍ, has captioned the relevant chapter with iÎlÉÍ, not with ÎulÍ.16 Similarly, ImÉm BukhÉri has also captioned one of his chapters with iÎlÉÍ.17 Hamdard Islamicus 201 Vol. XLI, Nos. 1 & 2 From the above, it can be easily concluded that, technically speaking, ÎulÍ under the Islamic law competes with rÉÌinÉmah (Urdu) ‘reconciliation’ and ‘compromise’ of conventional law. IÎlÉÍ competes with all modes of ADR: the ‘arbitration’, ‘mediation’, ‘conciliation’ and even the ‘negotiation’. This distinction has also discovered that what the modern world knows under the generic phrase of “ADR”.18 The SharÊ‘ah has recognized it under the broad heading of iÎlÉÍ. It is, nonetheless, highly expedient to explain at this place that unlike the conventional law, the SharÊ‘ah does not recommend the complicated classification of informal modes of dispute resolution. The problems and confusions that has caused the division of these modes to arbitration, mediation, conciliation, negotiation and a dozen more could, therefore, not find in room here. The SharÊ‘ah has a simple two fold division of informal techniques; (a) TaÍkÊm; the adjudicatory process and (b) MaÎÉlaÍat; the non-adjudicatory process. The former terminates in a binding decision whereas the later, if succeeds, results in ØulÍ. The procedure for taÍkÊm and qaÌÉ (formal adjudication) is the same. The modus operandi for maÎÉlaÍat may be mediation, conciliation, negotiation or any other.19 ØulÍ: The Technical Aspect What has been explained above about the meaning and limits of ÎulÍ could also be observed in the work of classical jurists (fuqahÉ). Almost all of their definitions reflect the contractual nature of ‘ÎulÍ’ and do describe it as a noun and not as an action or process of efforts for reconciliation. For instance, according to Ibn ‘ÓbidÊn,“It is a contract which uproots the dispute and terminates the litigation”.20 Its essentials are offer and acceptance”.21 Here, the jurist has not only mentioned the ‘contract’, but has also stated its basic essentials, known as ÊjÉb and qubËl or sÊghah under Islamic law of contract. According to ImÉm SarakhsÊ, “It is a contract permitted by the KitÉb and Sunnah”.22 Ibn FarhËn MÉlikÊ has said,“SulÍ on account of admission is a contract of a sale”.23 Here, the learned jurist has further specified it and has counted it as a ‘sale’ if the defendant submits a cognovits. The compilers of al-Mujallah hold that “ØulÍ is a contract that terminates a dispute consensually and is concluded through offer and acceptance”.24 This definition inter alia focuses on the objective of the contract of ÎulÍ and tells that how this contract could be concluded. The best definition is, however, that of Hamdard Islamicus 202 Vol. XLI, Nos. 1 & 2 Ibn al-HummÉm who says that, ÎulÍ literally means termination of a dispute and technically refers to a contract for resolution of dispute.25 Being a contract, a ÎulÍ agreement must fulfill all requirements of a valid contract, such as, free consent of the parties, the parties being major, consistency with the objectives of the SharÊ‘ah, determinacy of the subject matter, consideration being lawful and many more. SharÊ‘ah Places More Emphasis on Peaceful Resolution of Dispute. To It, Regular Determination of Issues Could be the Last Resort As compared to the other legal systems of the world, the SharÊ‘ah places more emphasis on the peaceful resolution of dispute. Recourse to regular adjudication is the last option under it. There are numerous verses in the Holy Qur’Én that prohibit ifsÉd and call for efforts for reformation. As a rule, for instance, the change in the will of a testator and telling a lie for a witness are major sins. For the purpose of reform, change in the will is, nonetheless, allowed. Similarly, in making efforts for reform, telling a lie has been made permissible.26 Besides, it is mandatory for a Muslim to honor his vow; otherwise he shall pay various kinds of expiations. But if someone makes a vow that he shall not make any efforts for reform (to make peace between people), he is under obligation to break his vow, to pay expiation and should make iÎlÉÍ between the people. By doing this, he will commit no sin.27 The relevant verse runs as: “And make not Allah, by your oaths, a hindrance to your being righteous and observing your duty unto Him and making peace among mankind. Allah is Hearer, Knower.”28 The sayings of the Holy Prophet MuÍammad ( ) explain it further: “Whenever one made a vow (not to do), and the otherwise he thought better, then he must adopt what is better”.29 Another Tradition offers the same concept as; “Not the liar is he who makes peace between the people and speaks for welfare. I never heard the Prophet ( ) permitting telling lies in any case except during war, in making reforms between people, and in talking to one’s wife or to one’s husband”.30 Hamdard Islamicus 203 Vol. XLI, Nos. 1 & 2 Some other Tradition of the Holy Prophet MuÍammad ( ), like the following, further strengthen the importance of ÎulÍ “The Prophet ( ) said to Abi AyyËb ( ), Should I tell you about the best of charity? He said, Why not. The Prophet ( ) said, Make efforts for restoration of peace between the people when they began to make affray, and bring them closer to when they have repelled each other (IÎlÉÍ dhÉt al-bain)”.31 Khair is a phrase used by the Holy Qur’Én in a number of places. It means a good deed. For the purpose of this topic, focus should remain on its use in three different chapters of the Holy Qur’Én; the Al-NisÉ’, the Al-MujÉdalah and the Al-QalÉm. Admittedly, a mediator, off and on, holds secret meetings with each disputant party. These meetings are essential part of efforts to set aright the affairs of the people. In the Qur’Énic parlance, these meetings are known as NajwÉ. It also denotes the concept of counseling or conferring. A najwÉ should be aimed for unification and betterment (al-birr, al-ma‘rËf and iÎlÉÍ bain al-nÉss) of the people. There is a great reward for such counselors. If it is aimed at creating differences between the masses and deepening of already tense relations between them, it would be a satanic act (najwÉ min al-shaiÏÉn), and hence, prohibited for being aimed for injustice (ithm and ‘udwÉn). Such counselors are hinderers of the good because they are detractors and spreaders abroad of slanders, transgressors, and malefactors and intrusive. Here, the phrases ‘detractor/hammÉz and spreader abroad of slanders/mashshÉen be-namÊm particularly refer to the person who strives to create hatred and intensify enmities between people.32 The later phrase especially points to the go-between for creating misunderstandings. It is nothing else but ifsÉd; the opposite of iÎlÉÍ. These are the characteristics of infidels and a Muslim must avoid it.33 Soon shall We brand (the beast) on the snout!34 What is being stated here may be found in the verse: A slanderer, going about with calumnies, (habitually) hindering (all) good, transgressing beyond bounds, deep in sin, violent (and cruel),- with all that, base-born,35 Hamdard Islamicus 204 Vol. XLI, Nos. 1 & 2 The same idea can be inducted from the following verses: Most of their secret conferrings are devoid of good, unless one secretly enjoins in charity, good deeds, and setting the affairs of men right. We shall grant who ever does that seeking to please Allah a great reward.36 O ye who believe! When ye hold secret counsel, do it not for iniquity and hostility, and disobedience to the Prophet ( ); but do it for righteousness and self-restraint; and fear Allah, to Whom ye shall be brought back. (9) Secret counsels are only (inspired) by the Evil One, in order that he may cause grief to the Believers; but he cannot harm them in the least, except as Allah permits; and on Allah let the Believers put their trust.37 In Islamic Judicial History, the judicial policy of Caliph ‘Umar b. KhattÉb ( ) has got its own significance. Once he issued a directive and used the phrase yaÎÏaliÍu. It is an intransitive verb, tracing back to the family of ifti‘Él. It denotes the performance of some act by one’s own self.38 It requires no other person or thing as an object. On this analogy, the correct translation of his directives would be as: “Return the disputants [pointing to pre-trial proceedings] so that they may themselves work out a peaceful settlement”.39 Sometimes, recourse to amicable settlement becomes highly expedient. The MÉliki jurists are of the strong opinion that a judge should refer the litigants to affect compromise/ÎulÍ; if the case is deadly complicated or the litigants are relatives inter se.40 Even a partial compromise (the partial adjustment of the suit) has been highly recommended. Narrated ‘Abdulläh bin Ka‘b bin Mãlik: Ka‘b ( ) demanded his debt back from Ibn Abi ×adrad in the mosque and their voices grew louder till Allah’s Messenger ( ) heard them while he was in his house. He came out to them raising the Hamdard Islamicus 205 Vol. XLI, Nos. 1 & 2 curtain of his room and addressed Ka‘b ( ) “O Ka‘b!” Ka‘b replied, “Labbaik, O Allah’s Messenger ( ).” (He said to him), “Reduce your debt to half,” gesturing with his hand. Ka‘b said, “I have done so, O Allah’s Messenger ( )!” On that the Prophet ( ) said to Ibn AbÊ ×adrad, “Get up and repay the (remaining) debt to him.”41 Amazing is the fact that elucidationists (scholars with expertise in interpreting dreams) interpret the conciliation-revealing dreams as indicating goodness, welfare, health and prosperity. So, the inviting of a debtor to conciliation with no payment would mean guiding an astray to the right path. Similarly, a compromise with the debtor on a part of the debt [partial adjustment] would mean the coming of good to the dreamer.42 For the above significance of ÎulÍ, almost every jurist, to whatever School of thought he may belong, has allocated a considerable part of his book to ÎulÍ. For instance, Aalim b. al-Ala; the author of al-FatÉwÉ al-TÉtÉrkhÉniyah has stated nine thousand six hundred and fifty five (9655) cases of reconciliation/ÎulÍ. ImÉm al-SarakhsÊ had discussed ÎulÍ in six separate chapters.43 Ibn QudÉmah al-Maqdasi has given ten pages to ÎulÍ despite his extreme inclination to brevity throughout in his book.44 All other imminent jurists, such as Ibn Taimiyah, Ibn Qayyem, MuÍammad al-Sharbini, MuÍammad b. ‘Ali al-ShawkÉni, ShamsuddÊn MuÍammad al-Ramali, Mansoor b. YËsuf al-Bahooti, ShamsuddÊn MuÍammad al-DasËqi, IbrÉhÊm b. ‘Ali al-SherÉzÊ, Ibn al-HummÉm and al-KÉsÉnÊ have rich and valuable contributions to the subject. The contemporary contributors include ‘Abdullah al-×Émid, Ali al-HammÉdi, Hasan al-NidÉni, MaÍmood al-Sayyed, and KÉmil AÍmad.45 Wahbah Al-Zuhaili has specified near about three dozen of pages to ÎulÍ.46 In SharÊ‘ah, there is the concept of compromise between the plaintiff/claimant and a third stranger, not being a party to the dispute even. The stranger includes an uncalled mediator and self-appointed conciliator. If a third person, without permission of the defendant negotiates the dispute with the plaintiff, and they both arrive to an amicable agreement, the contract of a valid ÎulÍ is concluded. It would, however, be subject to the subsequent approval of the defendant. Interestingly, if the third person himself accepts the responsibility of payment, if any, again the ÎulÍ is good. More fascinatingly, if a conciliator, during highly strained relations between the spouses, negotiates khul‘ with the husband on his own risk, without permission of the wife, nothing goes wrong with the Hamdard Islamicus 206 Vol. XLI, Nos. 1 & 2 khul‘. Even in the absence of such risk, khul‘ shall take place if the wife approves it subsequently.47 One can guess the significance of ÎulÍ from the fact that when once a compromise/ÎulÍ is affected and the parties accepted it, its revocation is not allowed even at the consent of both parties.48 Discovering the Criterion for Fitness of a Case for ØulÍ This twofold subtopic points to twofold objective i-e (a) what issues are capable to admit ÎulÍ and what are not so capable? (b) In what kind of cases, the court would accept compromise? This would require us to answer some basic questions. For example: (a) Whether civil and criminal nature of a case matters? (b) Whether the punishment of an offense being ‘Íadd’ is one and the only responsible factor to render a case unfit for ÎulÍ? It is Incorrect to Presume that Civil and Criminal Nature of a Dispute Matters while Considering a Case for ØulÍ The prime objective of a civil case is to provide remedy to the effected claimant. For the reason that almost all civil cases carry the element of infringement of a private right, the jurists of Islamic law are at concurrence that civil issues are, as a rule, fit for compromise. Of course, some cases may be exempted on the basis of public policy. For instance, the civil cases that necessarily require the decree of the court or the sanction of the court is the requirement of some Act, may also be exempted such as the probate of a will or faskh al-nikÉÍ (Annulment of marriage contract) on the basis of a husband being not equivalent (ghair kufwË), or on the basis of dower being less than that of her equivalent (mithl), or on refusal of wife to accept Islam after embracing Islam by her husband, annulment under the plea of missing of husband and annulment on the plea of khiyÉr al-bulËgh (option of puberty).49 Similarly, the cases where the rights of children, and weaker litigants are exposed to risk, should not be referred to conciliators under public policy. This list could, however, not be kept rigid Hamdard Islamicus 207 Vol. XLI, Nos. 1 & 2 and will always remain open to decrease and increase according to the demand of circumstances. The inclusion and exclusion in the list is the sole domain of legislature and the courts must not encroach thereupon. On the other hand, a number of criminal cases, particularly, the offenses against human body (JinÉyat) including murder cases (qiÎÉÎ) admit ÎulÍ. ImÉm AbË ×anÊfah argues that when ‘afw (absolution of murderer for no value) by the heirs of the deceased is allowed, how affecting a ÎulÍ (compromise against value that may exceed the limit of diyat) could be prohibited. Clarifying the consequents of ÎulÍ further, he says that ÎulÍ renders the murderer as innocent in terms of life security, and if the heir kills him after affecting a proper compromise with him, the heir shall be executed in qiÎÉÎ (retaliation).50 Ibn QudÉmah has claimed the concurrence of all schools in this regard.51 Criminal offenses punishable with ta‘zÊri punishment, on the same way, could be the subject of ÎulÍ. In most of such cases the compromising party would be the State, and in a very little number of such cases, the victim would be the compounding side. This later kind is currently known as victim-offender conciliation.52 The former kind (when the State compounds) is now-a-days dealt with under the concept of “Plea Bargain”.53 Discussion in the following would also suggest that ÍudËd issues, even, could be the subject of conciliation. From here, it can be concluded that although most of the civil disputes could be resolved through ÎulÍ, it would, nonetheless, not lead to presume that civility of a dispute is necessary for rendering a case fit for ÎulÍ. Had it been so, all civil cases would have been fit for ÎulÍ without any exception and no criminal case would have been fit for compromise. Presumption of Absolute Bar on Conciliation/ØulÍ in ×udËd Offences is Unfounded A presumption has dominated the field that there is no room for compromise/ÎulÍ in ÍudËd issues. The presumption is due to our insufficient legal and judicial education and, more dominantly, lack of information about the Islamic Law and its jurisprudence. This absolute negation of ÎulÍ is not correct jurisprudentially. The legal fraternity, both academicians and practitioners, must differentiate between composition Hamdard Islamicus 208 Vol. XLI, Nos. 1 & 2 of a case and composition of an offence; as far as ÍudËd issues are concerned. The commission of an unlawful act is an offence. When the event of this offence is reported to the authorities or the authorities themselves take cognizance of such offence, it becomes a case. No doubt, ÍudËd cases are not compoundable but ÍudËd offences, other than those of moral turpitude, may be compounded. Abdullah b. ‘Amru b. al-‘ÓÎ ( ) has reported the Prophet ( ) to have said; “Resolve ÍudËd issues amongst you by mutual apologizing (exonerating), because when they are reported to me, execution becomes obligatory”.54 Another episode is that of ØafwÉn b. Umayyah when he forwarded the burglar of his cloth-sheet to the Prophet ( ). The Prophet ( ) ordered the amputation of hand. ØafwÉn said, “I didn’t mean that! This may be a charity for him”. The Prophet ( ) replied, “Why didn’t you do that before you brought him to me”.55 MÉlik b. al-Zubair b. al-‘AwwÉm ( ) narrates that once Zubair ( ) saw a person taking a thief to the caliph/sulÏÉn. Zubair ( ) wanted him to release the detainee. He responded that he would take him to the Authority/SulÏÉn first. Zubair ( ) then said, “When you will bring him before SulÏÉn, then say curse upon the interceder and the interceded for”.56 As a counter argument, it may be contended that the Prophet ( ), as reported by AbË Hurairah and Zaid b. KhÉlid ( ), had nullified the compromise in a case of adultery, where the father of the offender had compensated the husband of the women, by giving him a servant and hundred sheep. The Prophet ( ) executed the lady and punished the offender with hundred whips/lashes and a year of exile. “O Onais, take her early in the morning, if she (still) confesses, then stone her to death”.57 This story negates the admissibility of ÎulÍ in ÍudËd. The objection is jurisprudential in nature and, therefore, has to be responded on the same way. It has already been explained, in the previous lines, that when the Authority takes cognizance, no room for compromise remains. Had this case not been reported to the Prophet ( ), no punishment would have been inflicted? The incident, albeit, points to the power of the authority that on taking cognizance, he may declare the earlier compromise null and void. The following discussion will further clarify the above discussion. Qadhaf is admittedly Íadd irrespective of the fact whether the Hamdard Islamicus 209 Vol. XLI, Nos. 1 & 2 right of Allah or the right of victim is dominant. The jurists holding the later opinion advocate the admissibility of ÎulÍ in qadhaf. The ShÉfi‘Ê School is of the view that the right of victim is dominant, inheritance would, therefore, run in qadhaf and that, on compromise, the punishment would stand dropped.58 This is an example of a situation where compromise be given effect at a very belated stage, long after the cognizance of the executive. ImÉm MÉlik has also been reported to have permitted composition of qadhaf offence.59 ImÉm MÉwardÊ is also of the same opinion.60 The Law Reforms Committee of Egypt has recommended the legislation on this view.61 The above evidences are sufficient to convince that it would be wrong to presume an absolute bar on ÎulÍ in ÍudËd offences. It may also be noted that the SharÊ‘ah does not recommend the reporting of ÍudËd issues to authorities, it rather discourages the same. In the famous case of MÉ‘iz al-Aslami, reported by Hazzal b. Nu‘aim, the Prophet MuÍammad ( ) alerted Hazzal62 saying, “Had you veiled him with your sheet, it would have been better for you”.63 Necessary to be noted in this connection is that composition of such offences at the pre-reporting stage would not mean the expunging of the offence. The offenders shall remain sinful until sincerely repented. The composition would merely keep the commission unnoticed and the offender will escape proceedings only. The above details support the utilization of mediation and conciliation in ÍudËd offences before they are reported to the concerned authorities. In case of qadhaf, these mechanisms may be utilized even during the pendency of the case and even just before the execution of punishment; the extremely belated stage. The Response of the Defendant Plays Significant Role in the Classification and Effects of ØulÍ on the Case ØulÍ may be between Muslims and non-Muslim fighters (ahl- ul-Íarb). It may be between the rebellions and the ruler (caliph). It may also be between disputing spouses. But this work would be kept confined to the ÎulÍ which may take place between ordinary litigants in connection with some property, transactions and commercial matters. While filing the written statement, a defendant either admits or denies the contents Hamdard Islamicus 210 Vol. XLI, Nos. 1 & 2 of the plaint. Sometimes, he submits an evasive reply that amounts to his silence (sukËt). A compromise may take place in any of these three situations, resulting in different effects.64 This can be elaborated profoundly in the following. Compromise on Account of Admission of the Defendant (ØulÍ Ma‘ IqrÉr al-Mudda‘É ‘Alaihi) This may occur in a situation where the plaintiff claims the ownership of some property, which is in the possession of the defendant. The defendant, while submitting a cognovits,65 admits the claim. Thereafter, if he affects a compromise with the plaintiff, giving him a part of the suit- property or property other than the suit-property, or usufruct of a property for a determined period, there would be nothing bad in this agreement. All schools of thought concur on the validity of this agreement.66 Now, if the subject of compromise is a property, other than the claimed one, the agreement shall take the color of a contract of sale; for there is a consensual exchange of two properties. All rules of the sale contract would become applicable in this situation. As effect, inter alia, it will create right of pre-emption in case the property was immovable. Similarly, indeterminacy (gharar) may prove fatal for such compromise. Various kinds of contractual options, such as, option of defect, option of examination and option of keeping certain conditions, shall also run. The existence and capability of handing over of the subject matter at the time of conclusion of ÎulÍ will become compulsory.67 The compromise will take the effect of a lease contract; if its subject matter happens to be a usufruct. Resultantly, its period must be determined. The death of either party would vitiate the contract as it occurs in a lease contract.68 All schools of thought are at concurrence that all factors, that would invalidate a lease contract, would also invalidate this kind of ÎulÍ and the vice versa.69 Compromise on Account of Denial of Defendant (ØulÍ Ma‘ InkÉr al-Mudda‘É ‘Alaihi) It will take place where the defendant denies the claim of the plaintiff. In Pakistani courts, this occurs in 99% suits. If the defendant, Hamdard Islamicus 211 Vol. XLI, Nos. 1 & 2 during the hearing of the case, affects compromise with the plaintiff on a portion/part of the claimed property, as it occurs in near about 60% suits in Pakistani courts. This type of ÎulÍ is permissible according to the ×anafi, MÉliki and ×anbali Schools.70 They argue that the plaintiff believes himself justified and the defendant also believes himself right; but gives a part of the claimed property just to put an end to the dispute and to get rid of it as early as possible. This happens when some people, due to their noble status and undisputed repute in the society, or business in some significant enterprises, or to avoid oath proceedings in case of non-availability of plaintiff’s witnesses, do not want to be indulged in litigation. The ÎulÍ is a recommended/mandËb act, and that no part of this type of ÎulÍ renders a lawful as unlawful and the vice versa.71 That’s why ImÉm AbË ×anÊfah says, “I see ÎulÍ ‘ala al-inkÉr permissible, for it satisfies the need of amicable resolution of disputes”.72 ShÉfi‘Ê School and Ibn Abi LailÉ, on the other hand, see this kind of ÎulÍ impermissible. They argue that if a plaintiff takes the property falsely, it will be the devouring of another’s wealth which is taboo. If he takes it in a good belief, yet he takes a thing before the declaration of his title by a competent court.73 Al-Øan‘Éni has expressed a middle view. He says that the absolute approval of this kind of ÎulÍ is as incorrect as its absolute denial. The ruling about this ÎulÍ shall vary from case to case. There is no bar on plaintiff to take something in return of his compromise; if he believes the genuineness of his claim. The denial of the defendant would make no difference. If he (plaintiff) knows the falsehood of his claim, the compensatory property or amount (badal al-ÎulÍ) would be taboo for him. As far as the defendant is concerned, there would be two situations. He would be under obligation (wujËb) to hand over the compensatory property to the plaintiff, if he believes the rightness of the plaintiff’s claim but denies it for some reasons. If the defendant believes the correctness of his own denial, his ÎulÍ would be permissible (mubÉÍ) and he may give the compensatory property to the plaintiff to get rid of his fatigue.74 On the analysis of arguments forwarded by all the learned jurists, it could be easily concluded that they concentrated more on the religious side of the issue as compared to its judicial effect. By considering both Hamdard Islamicus 212 Vol. XLI, Nos. 1 & 2 aspects of the matter, it would surface that in case of falsehood of claim, the plaintiff would be no doubt sinful but the court would give effect to the compromise, giving effect to the apparent facts and circumstances. In the absence of any malafide on his part, there could be no blame on him. As far as the defendant is concerned, he is, by law, allowed to dispose his property for any lawful objective, and what could be a lawful objective more than to get rid of cumbersome, lengthy, uncertain and counter-productive litigation. Compromise on Account of Silence of Defendant (ØulÍ Ma‘ SukËt al-Mudda‘É ‘Alaihi) In this case, the defendant neither admits nor denies the claim. So it also covers evasive written statement. In connection with the validity of compromise in this situation, controversy between the jurists is the same as in the preceding kind of ÎulÍ i.e. ÎulÍ ma‘ al-inkÉr.75 The above ShÉfi‘Ê’s opinion in ÎulÍ ma‘ al-inkÉr seems to have been based on his famous statement “no word can be attributed to one who keeps silence”.76 The opinion of the majority seems to have been based on the exception to the general rule “silence, in response-wanting situations, amounts to affirmation.77 In brief, according to majority, including ×anafis, all the three kinds of ÎulÍ, above mentioned, are lawful and permissible. Resultantly, the title of the defendant in the subject matter of compromise shall cease.78 No retreat from compromise would be allowed. A subsequent suit for nullifying of compromise and restitution of such property shall be liable to dismissal. As a procedural effect, It is evident from the above that compromise/ÎulÍ operates as res judicata in the SharÊ‘ah whereas, in Law, it creates estoppels by conduct only. Legal Effects of ØulÍ When the contract of ÎulÍ is concluded, the law comes into action and clothes it with some legal effects- both substantial and procedural. Those could be concluded as below.79 1) It terminates the suit permanently and operates as res judicata,80 meaning-thereby; the court would not reopen the issue for regular hearing between the same parties. Here, the SharÊ‘ah defers Hamdard Islamicus 213 Vol. XLI, Nos. 1 & 2 with law and goes a step ahead of it by placing a bar on the fresh suit. In law, the ÎulÍ operates as estoppels81 only, and as such it does not bar the subsequent suit. In criminal side, ÎulÍ also terminates the case to the extent of victim and the right of ta‘zÊr remains with the State. 2) When the ÎulÍ is on account of admission of the defendant in respect of immovable property, it will create right of pre-emption in the favor of a third adjoining person; as per details stated above. 3) When ÎulÍ takes the effect of contract of sale, it creates all requirements and consequential effects of sale, such as, all essentials of validity, transfer of title, option of return on account of defect (khiyar-e-‘aib) and option of examination (khiyar-e-rËyat) and many others. The rules of dissolution of contract of sale (iqÉlah) shall also apply. IqÉlah may be entered into by the parties, and the ÎulÍ contract may come to an end in all civil and criminal cases with the sole exception of ÎulÍ in murder (qiÎÉs). 4) If the ÎulÍ turns to a lease contract, the relevant lease rules will govern it. Fixation of the duration, death of one of the parties and the devastation and destruction of the subject matter would bring about many changes.82 5) When the ÎulÍ becomes as sale or gift, it will prevent any disposition in the subject matter of ÎulÍ, before taking possession, more particularly when the property is a movable one.83 6) Once a compromise/ÎulÍ is affected and the parties accepted it, its revocation is not allowed; even at the consent of both parties.84 Revocation through iqÉlah is a sole exception to this rule. Problem with Pakistani Statutes and Courts Pakistani statutes do not mention the phrase “ÎulÍ” except Shara‘i NiÐÉm-i ‘Adl Regulation 2009 wherein the terms ÎulÍ and muÎliÍÊn (conciliators) could be found.85 The mechanism provided by the Regulation is highly confusing and the judges and advocates could not ascertain its contemplation whether it is arbitration or conciliation. The relevant provision contains the phrase ÎulÍ which points to non-adjudicatory process and at the same time, it provides for recording of evidence, inspection of the documents and visit and inspection of the spot which are the main features of taÍkÊm.86 This anomaly could be removed either Hamdard Islamicus 214 Vol. XLI, Nos. 1 & 2 by some rule made under section 17, or by some judgment of the apex courts, but unfortunately neither the Government has framed the required rules nor any judgment of the appellate fora has emerged in the long span of eight years. Another such term is sÉlis (or thÉlith) which has been used in the Small Claims and Minor Offences Courts Ordinance 2001.87 This law also suffers from the same defect. On one side, it requires the thÉlith to issue a certificate of voluntariness (being pleased with the settlement) of the parties, and on the other, it requires him to issue an award which means his findings based on evidence and other solid material.88 One wonders how voluntariness and award would run together and how a process could be adjudicatory and non-adjudicatory at the same time with the same persons.89 This feature of the Ordinance has rendered it almost redundant, and one could hardly find a court decision under it, particularly in the criminal jurisdiction. In the KP Province, all judicial magistrates, civil judges and ‘ilÉqah qÉÌÊs are notified as judges of the Small Cases and Minor Offenses Court, nonetheless, none of them have ever inked down a judgment under the Ordinance.90 The Conciliation Courts Ordinance 1961 is still intact. Truly speaking, it is a dead piece of legislation and is poor to the extent that it even does not define conciliation. Almost all its contents carry the features of binding arbitration, such as the mandatory adjudication of the scheduled civil and criminal cases by the conciliation courts, recording of evidence, the issuance of decree and then its execution, and the provisions of judicial review.91 The remaining statutes contain the phrases like ‘mediation’, ‘conciliation’, ‘reconciliation’, ‘compromise’ and ‘amicable settlement’. Some of the examples of such laws could be the Federal Excise Act 2005, Finance Act, 2007, Income Tax Ordinance 2001, Industrial Relation Ordinance, KP Local Government Act 2013, Sindh Local Government Act 2013, Punjab Local Government Act 2013, Income Tax Ordinance 2001 and many more. Worth mentioning is also the fact that this country has no specific law on the subject where proper meaning and definition could be found, with ease, for the relevant terms. The multiplicity of phrases has created hardships, rather confusions, in understanding and ascertaining their meanings. Whether all these terms carry the same meaning, similar meaning or distinct meanings? If they carry the same meaning, then why conciliation and mediation have been Hamdard Islamicus 215 Vol. XLI, Nos. 1 & 2 collectively used in the Code of Civil Procedure 1908?92 Why the Family Courts Act 1964 mentions both words of compromise and reconciliation?93 Why the Urdu terms of Arabic origin “thÉlith” and “muÎleÍ” were preferred in some special legislation? On the other hand, the present trend of internationally interchanged use of mediation and conciliation has further intensified the situation. The apex Pakistani courts have also not touched this aspect in their judgments and the prevailing confusion, as a result, has been adversely affecting the impact and productivity of all provisions, calling for amicable and peaceful settlements. A proper legislation on the subject is, therefore, needed where all these anomalies should be cleared in the definition clause with further necessary explanations and details, such as, who could be a party to compromise and who couldn’t be, what could be the subject of compromise and what couldn’t be, and what would be the legal effects of a compromise in a civil case as well as in criminal? Similarly, the procedure, scope and limits of compromise should also be clarified. As explained above, Pakistan has no specific substantive law on conciliation and compromises, however, its legal system provides for procedure to be adapted by the courts at the time when the parties have already entered into a compromise. In civil cases, the Pakistani courts invoke Order 23 of the Code of Civil Procedure 1908, for passing orders on the basis of compromise (ÎulÍ). In order to achieve the required number of monthly disposal, more particularly when the case is old and falls in the targeted zone under the Judicial (Policy Making) Committee, they accept compromises haphazardly and mostly remain unobservant. Being in such a state of affairs, they give no consideration to denial or admission of the defendant. The details forwarded by jurists in this regard are altogether alien to them. The maximum they know is the fact that ÎulÍ is highly valued in the SharÊ‘ah. To them, a compromise merely means an agreed upon settlement, it has nothing to do with the stance of the defendant or any type of contract of sale, lease or gift. When the senior judges of the District Judiciary were asked about the maintainability of the pre-emption suit, where the cause of action has been shown as a compromise on account of admission of the defendant, they replied that they would dismiss the suit for the want of absence of sale contract and would not accept the plea that the compromise of the present defendant in a previous case has amounted to contract of sale. Similarly if the Hamdard Islamicus 216 Vol. XLI, Nos. 1 & 2 compromise would carry the element of usury (ribÉ), they would accept it as valid agreement and would grant a decree accordingly. Another good example could be given from pre-emption (shuf‘ah) cases pending in courts. If a pre-emptor affects a compromise with the defendant on some value against his right of pre-emption, the learned judge would allow it and would announce his judgment accordingly. He remains ignorant of the unsaleable nature of the right of pre-emption. In such a situation, a judge should, following all schools of thought, reject the compromise and dismiss the suit for the absence of element of harm (Ìarar).94 Had there been any harm, the pre-emptor would have never accepted value against it. In brief, they would have no care for the different legal effects of various kinds of compromise under the SharÊ‘ah. The situation is not different on criminal side and the learned magistrates and judges accept compromises in criminal cases as inattentively as they do in civil cases. Whenever a compromise is presented before them, they follow section 345 (6) of Code of Criminal Procedure 1898, and deal composition of an offence as acquittal and as such do not grant ta‘zÊrÊ punishment even in appropriate cases. The Pakistan Penal Code provides for ta‘ziri punishment in section 311 and section 338(E), under the warranting circumstances despite composition or wavering, in the offenses of hurts and qatl-i‘amd (murder). This confinement is not inconsonance with the SharÊ‘ah which permits rather calls for ta‘zÊrÊ punishment in all offenses and criminal cases having regard to the facts and circumstances of the case, despite composition and wavering.95 Sad to say that no case of conviction could be found even under these two sections, what to say of the remaining penal sections. At present, in the KP Province only, 201 Civil Judge-cum-Judicial Magistrates, 25 Section 30 Magistrates, 25 Session judges, 100 Additional Sessions Judges, and 12 judges of Anti- Terrorism Courts are functioning,96 and none of them has ever convicted any accused under the above sections. Worth mentioning are the compromises in common murder cases i.e. the cases not falling within the meaning of terrorism. Across the country, the session judges acquit the accused on production of compromise. Usually, they do not ask the State’s representative (Public prosecutor) of his opinion about ta‘zÊr. In the SharÊ‘ah, when qiÎÉs could not be imposed due to compromise, ta‘zÊrÊ punishment becomes mandatory in appropriate cases and it may extend to imprisonment for life.97 MÉlikis are even of the opinion that the Hamdard Islamicus 217 Vol. XLI, Nos. 1 & 2 judge is under legal obligation to award ta‘zÊr if qiÎÉs is taken away by compromise. They have even fixed the ta‘zÊr in such a situation as hundred lashes and imprisonment for one year.98 During a training session on ×udËd laws in KP Judicial Academy, the participant judges were extremely astonished on hearing that there was an effective difference between ×udËd cases and ×udËd offenses and that there could be a space for ÎulÍ in the later. They were stunned on knowing that ÎulÍ could be affected in qadhaf cases; even at a very belated stage of hearing. Under Islamic Law and jurisprudence, ta‘zÊrÊ punishments have their own characteristics in terms of required proof, objectives and effects of compromise. Except a very few number of cases where the ta‘zÊr could be the right according to some jurists, punishment under ta‘zÊr is the right of the ruler (government), technically known as Íaqq al-salÏanah. This right remains with the qÉÌÊ/judge despite compromise of the complainant and accused in criminal cases. In the SharÊ‘ah, compromise in criminal cases does not necessarily mean acquittal of the accused. The contents of the section 345(6) of the Code of Criminal Procedure 1898 and ultimately the judgments of some apex Pakistani courts on this subsection, which call for the necessary acquittal of the accused on the basis of compromise, are apparently inconsistent with injunctions of SharÊ‘ah or, at the least; they are misunderstood and misinterpreted as well. A qÉÌÊ/judge is supposed to see and check the contents of the compromise. In Pakistan, at times, compromises reveal the statement of the complainant about the innocence or non-involvement of the accused in the occurrence. Here the compromise shall lead to acquittal because it is not a compromise in the real sense; it is rather an admission by the complainant of baseless or inadvertent allegation against the accused. In most of the cases, compromises are affected in a way where the accused accepts the pardon of the complainant as against his transgression. Here, the compromise amounts to the admission of fact by the accused. The courts in Pakistan acquit the accused on the basis of compromise then and there. This practice is against the spirit of SharÊ‘ah. Here, a qÉÌÊ or judge is required to consider whether the circumstances and facts of the case warrant infliction of punishment as ta‘zÊr, and on finding reasons for doing so, he shall be under obligation to convict the accused and impose punishment despite compromise between the parties. Of course, section 338(E) and section 311 of the Pakistan Penal Code Hamdard Islamicus 218 Vol. XLI, Nos. 1 & 2 1860 permit the relevant trial courts to award punishments as ta‘zÊr despite of compounding of the offense by parties, having regard to the facts and circumstances of the case. This much is not sufficient and the discretion of judges and qÉÌÊs should be expanded to all offenses, punishable with punishment other than Íadd. Once, in response to the query of three-member bench of the Supreme Court, Mr Munir A. Malik, the then Attorney General of Pakistan (AGP) had formulated eighteen points and has sought the guidance of august Supreme Court of Pakistan in connection of composition of offenses under section 345 of the Code of Criminal Procedure 1898. The Supreme Court has observed that the trial courts and the High Courts should not accept compromises with closed eyes. In one of his points, the learned AGP claims that acceptance of the commission of the offence is a condition precedent for compromise.99 This stance is quite similar with ÎulÍ ma‘ al-iqrÉr (compromise on account of admission). To cope with the situation, on one hand section 345(6) of the Code of Criminal Procedure 1898 should be amended accordingly, and on the hand, the judges, magistrates and qÉÌÊs should be imparted comprehensive training on the subject. Conclusion The SharÊ‘ah has its own scientific system of informal techniques of dispute resolution. The system offers two modes for amicable and peaceful resolution of disputes: the taÍkÊm (self-binding resolution) and the ÎulÍ (non-binding settlement). This system is more practicable, expeditious, simpler and easier as compared to the modern ADR mechanism. The ADR is, no doubt, cheaper but the ÎulÍ and taÍkÊm are basically probono publico (free of cost). Necessary difference should, however, be drawn up between IÎlÉÍ and ÎulÍ. The former refers to a procedure where every effort for amicable settlement of dispute is made and, as such, it corresponds to the generic phrase ADR, whereas the later means a contract between the disputants which uproots the dispute and terminates the litigation; and is similar to the total sum of mediation and conciliation of the ADR modes. The SharÊ‘ah and law both recognize the resolution of disputes through peaceful modes, nonetheless, the former places more emphasis on it as compared to the later. In the SharÊ‘ah, if ÎulÍ is the important part of pre-trial proceedings on one hand, it is also Hamdard Islamicus 219 Vol. XLI, Nos. 1 & 2 a process to be rewarded for in the eternal life on the other. Worth mentioning is the fact that ÎulÍ operates as res judicata in the SharÊ‘ah, and operates only as estoppels in law. ØulÍ can be affected both in civil and criminal cases. Civil or criminal nature of a dispute does not determine the fitness of a case for ÎulÍ. The sole criterion is this connection could be the involvement of element of public policy in a case. Necessary distinction should also be made between commission of ×udËd offenses and ×udËd cases. The former could be the subject of amicable settlement whereas the later couldn’t be so. Qadhaf offences could be the subject of compromise; even long after it becomes a qadhaf case. Almost in all cases of ta‘zÊr, the compromising party is the government, and the judge or qÉÌÊ may award punishment despite the compromise between the parties, having regard to the facts and circumstances of the case. In the SharÊ‘ah, compromise in a criminal case does not necessarily amount to the acquittal of the accused, as it is required by section 345(6) of the Code of Criminal Procedure 1898. The section should necessarily be amended, for it speaks against the injunctions of SharÊ‘ah . In the process of compromise in a civil case, stance of the defendant in his written statement plays a significant role and his ÎulÍ shall operate as sale, lease or gift as the circumstances may demand. There is multiplicity of phrases in ADR enabling provision of Pakistani statutes and it has caused confusions in understanding and ascertaining the meanings of those phrases. A comprehensive legislation on the subject of ÎulÍ has, therefore, become the need of the hour. The learned judges have developed a habit of accepting compromises blindly. This practice has largely defeated the purpose of laws, both on criminal and civil sides. To handle with the situation, judicial academies of the country should develop comprehensive refresher courses and should invite the judges for specialized trainings. The pre-service training manuals of the academies should also contain separate modules on the subject. Notes and References 1. IbrÉhÊm b. Muhammad Ibn Farhun, TabÎÊrÉt-ul- ÍukkÉm, Beirut, Dar-ul Kutub al-‘Ilmiyyah, 1995, p. 17. Hamdard Islamicus 220 Vol. XLI, Nos. 1 & 2 2. Article No. 227(1), the Constitution of Islamic Republic of Pakistan. 3. In conventional law, the mediation is, sometimes, defined by what it is actually not. Several models of mediation have been invented and a number of approaches have been developed towards it. Some differentiate between mediation and conciliation while some do not admit any difference between the two. Some others have clothed it with the features of arbitration. Almost all Pakistani statutes have used mediation in the meaning of conciliation. The Conciliators Commission of Japan treats mediation and conciliation in the same meaning. The UNCITRAL Model Law on International Commercial Conciliation 2002 has expressly washed out any distinction between mediation and conciliation. The Indian Arbitration and Conciliation Act 1996, has used ‘conciliation’ in the meaning of arbitration. Resultantly, no universal definition has been surfaced so far despite the overwhelming popularity of mediation as compared to the remaining modes of Alternative Dispute resolution (ADR). This has confused the mediators and practitioners what to do and what should not. Unfortunately, the boundaries between arbitration, mediation and conciliation are blurring day by day. [See the Explanation attached to Section 1(2) of the Indian Arbitration and Conciliation Act 1996. The Free Dictionary by Farlex, Newton Arbitration, available at, http://legal-dictionary.thefreedictionary.com/Mediation-Arbitration, last accessed on June 5, 2016. Madabushi Sridhar, Alternative Dispute Resolution, 244, 245. Article 1(3) of the UNCITRAL Model Law on International Commercial Conciliation 2002. The text is available at http://www.sccinstitute.com/filearchive/ 2/21748/ml-conc-e.pdf (last accessed on Feb. 26, 2015)]. 04. The specific mentioning of arbitration (TaÍkÊm) is due to the fact that the SharÊ‘ah recognizes it as a sub branch (far‘) of regular adjudication (qÉÌÊ), for the reason that its process is adjudicatory and the award is binding. The jurists (fuqahÉ) are, therefore, at concurrence that an arbitrator must have the qualifications required for a qÉÌÊ (judge). So, it is not an alternative mode though informal. Even a considerable number of western writers do not accept arbitration as a member of ADR family. See, Zainuddin Ibn Nujaim, al-BaÍr-ur RÉ’iq, Beirut, Dar al-Ma’arifah, n.d., vol. VII, p. 24. Also see IbrÉhÊm b. Muhammad Ibn Farhun, TabÎirat-ul HukkÉm, Beirut, Dar-ul Kutub al-‘Ilmiyyah, 1995, vol. XVII, p. 50. Alaed Din Ali b. KhalÊl, Mu‘Ên-ul ×ukkÉm, p. 27. Also see Ibn ‘ÓbidÊn, ×Éshiyah Radd-ul-Muhtar, vol. VIII, p. 141. See also Al-Ghuzzi Esa b. Uthman, ÓdÉb-ul-QaÌÉ, p. 35. 05. Al-SulÍu min al-SalÉÍi wa Huwa Did-ul FasÉd, wa al-IslÉÍu nÉqid-ul IfasÉd) please see for this text and the related discussion, al-Shaikh QÉsim al-Quunuwi, AnÊs-ul FuqhÉ fita‘rifÉt al-MutadawilÉti bain al-FuqhÉ, Jeddah, Dar-ul Wafa, 1986, p. 245. Also see Mudghamish Jamal Abd-ul Ghani, al-FurËq fi al-Lughah, Beirut, al-Resalah Publishers, 2006, p. 369. See also Muhammad Amim-ul-Ihsan, al-Ta‘rÊfÉt al-Fiqhiyah, Beirut, Dar al-Kutub al-‘Ilmiyah, 2009, p. 130. See also Ali b. Muhammad al-Jurjani, KitÉb-ul Ta‘rÊfÉt, Beitut, Dar Al-Ma’arifah, 2007, p. 124. 06. The Noble Qur’Én, II:11. 07. Ibid., VII:142. 08. Ibid., VII:85. Hamdard Islamicus 221 Vol. XLI, Nos. 1 & 2 09. Ibid., XXVI:151-152. 10. Ibid., XXVII:48. 11. Ibid., IV:128. 12. Ibid., XXX:41. 13. ShabbÊr Ahmad UsmÉni, TafsÊr UsmÉni, III:527. 14. Mufti Muhammad ShafÊ, Ma‘Érif al-Qur’Én, I:544. 15. Kamil Ahmad Abd-ud Daim al-Qazi, IslÉÍ DhÉt al-Bain fi Daw al-SharÊ‘ah al-IslÉmiyah, al-Eskandariyyah, Dar Al-eeman, 2014, p. 22. The author writes, Al-SulÍu Huwa al-Wasfu, wal-IslÉÍu Huwa al-FÊ‘lu li IhlÉli DhÉlikaal-WaÎfi wa IzÉlati DiddihÊ”. 16. Muslim b. HajjÉj, ØaÍÊÍ Muslim, KitÉb al-‘Aqdiyah, BÉb IslÉÍ al-ÍÉkim bain al-Khasmain. 17. MuÍammad b. Isma’Êl al-BukhÉri, al-BukhÉrÊ, KitÉb al-ØulÍ, BÉb IÎlÉÍ bain al-NÉss. 18. Pertinent here to note is the fact, that the phrase ADR was invented in 1970s. Before this, the terms ‘dispute settlement’ ‘conflict resolution’ and ‘ mediation’ etc were dominating the field. In the United States, no one used the phrase ADR even in the 1970s. During this whole decade, libraries and other book-shelves were dominated by books titling ‘Labor-management Mediation’ and the term ADR was yet to come in common usage. [Jerome T. Barrett & Joseph P. Barrett, A History of Alternative Dispute Resolution, San Francisco, Jossey-Bass, 2004, pp. 188-189, 256-257]. 19. Even in law, the conciliation does not mean a compromise. Conciliation is a noun from conciliate, a transitive verb. It literally means to pacify, to appease, and to make somebody less angry or friendlier especially by a kind deed. It is the action of stopping someone being angry. The word has got a Latin origin: Conciliatus, the past participle of conciliare that means to assemble or to unite. In other words, it is the bringing of two persons/things nearer to each other. This last meaning is very much closer to the technical sense of the term. Technically, it means an effort of a third neutral person for bringing two opponents together to end a disagreement. Some hold that conciliation is the settlement of dispute without litigation. [A S Hornby, Oxford Edvanced Learner’s Dictionary, 310. Merriam-Webster Online Dictionary, available at http://www.merriam- webster.com/dictionary/conciliate, last accessed on July 7, 2015. Avtar Singh, Law of Arbitration and Conciliation, Lucknow, Eastern Book Company, 2007, p. 433]. 20. Ibn ‘ÓbidÊn, Radd-ul-MuhtÉr ‘Ala al-Dur al-MukhtÉr, vol. XII, pp. 282-283. 21. Ibid. 22. Al-SarakhsÊ, al-MabsËÏ, Quetta, Maktaba Rashdiah, n.d., vol. XX. p. 146. 23. Ibn Farhun, TabÎiraÏ-ul ×ukkÉm, vol. II, p. 55. 24. Al-Mujallah, Section No. 1531. 25. Ibn al-HummÉm, Takmilah FatÍ al-QadÊr, Quetta, Maktabah Ashrafiah, n.d., vol. VIII, p. 423. 26. Mufti Muhammad Shafi, Ma‘Érif-ul Qur’Én, Karachi, Idarat-ul-Ma‘arif, 2012, vol. I, pp. 438-39. See also Abd-ul-Qayyum, Guldasta-i TafÉsir, Multan, Idara Ta’lifat Ashrafiyah, 1428 A.H., vol. II, p. 156. Hamdard Islamicus 222 Vol. XLI, Nos. 1 & 2 27. Wahbah al-Zuhali, al-TafsÊr al-MunÊr, Quetta, Amir Hamza Kutubkhana, n.d., vol. II, pp. 679-680. 28. The Noble Qur’Én, II:224. 29. Muslim b. al-HajjÉj al-Qushairi, ØaÍÊÍ Muslim, KitÉb al-Aiman, , reported by Abu Hurairah, Lahore, Islami Kutubkhana, n.d., p. 474, (the ÍadÊth has also been reported by all SiÍÉÍ Sittah, Except Ibn Majha]. 30. Imam Ahmad b. Hanble, Musnad Ahmad, narrated by Ummi Kulthum, Lahore, Little Star Printers, n.d., vol. XII, p. 292. [In the reign of Caliph ‘Umar, a person asked his wife to disclose on oath whether she really loved him. The wife replied that if she was required to declare on oath, then the answer was ‘No’. The husband filed a complaint with ‘Umar, and he summoned her. On her appearance, the caliph inquired about the statement. Confirming the statement, she replied that she was under compulsion of oath to speak the truth. She asked astonishingly whether she could tell a lie after oath. ‘Umar said, “You ought to do that. A connubium (legal co-habitation) need not to be necessarily love-oriented. People do live with each other as regard for religion and honor for their families”. See Taufiq al-Wa‘i, al-Kitbah wa I‘adad al-Khatib, Al-Mansurah Egypt, Dar Al-Yaqin, 1999, p. 291. 31. Al-ÙabarÉnÊ, Al-Mua’jam al-Kabir, vol. III, Asif Sadeeq Printers Lahore, p. 100, ×adÊth No: 3825. 32. Muhammad b. Ali al-Shaukani, FatÍ-ul-qadÊr, Riyadh, Dar Al-muayyed, 2009, p. 1901. 33. Shabbir Ahmad Usmani, TafsÊr UsmÉnÊ, Karachi, Dar-ul-Isha’at, 2007, vol. III, p. 745. 34. The Noble Qur’Én, LXVIII:16. 35. Ibid., 11-13. 36. Abul’l A‘la-Maududi, The Meaning of Qur’Én, English Trans. by Ch. Muhammad Akbar, Al-Nisa, IV:114, Lahore, Islamic Publications, 2011, vol. I, p. 377. 37. The Noble Qur’Én, LVIII:9-10. 38. Professor Ahmad al-Hamlawi, Shazh al-‘Urf fi fan al-Sarf, Beirut, Dar-ul-Fikr, 2003, p. 30. 39. Ali b. Khalil al-Tarablasi. Mu‘in al-×ukkÉm, pp. 122-123. Also see Mahir Abdul Majid Abbud, al-UÎËl al-QÉdaiyah fÊ RisÉlati al-FÉrËq ‘Umar (RA), Beirut, Dar al-Lutub al-Ilmiah, 2009, pp. 76-78. 40. Abn Farhun, Tabsirat-ul-×ukkÉm, vol. II, p. 54. See also Ali b. Khalil, Mu‘in al-×ukkÉm, p. 123. 41. ØaÍÊÍ al-BukhÉrÊ, KitÉb al-KhuÎËmat, Darussalam, Riyadh, 1997, Vol. III, p. 345, ×adÊth No. 2418. 42. Muhammad Ibn Sirin, TafsÊr al-AÍlÉm, Chapter No. 53, Cairom Dar al-Iddah li al-Turath al-Islami, n.d., p. 383. It may be noted that dream’s interpretation has been a separate and permanent discipline of SharÊ‘ah. The Prophet MuÍammad ( ) said, “Ru’ya (Genuine dreams) come from Allah and unreal dreams from sitan”. He said further that real dream is forty sixth of Prophecy”. See the reference above and also ØaÍÊÍ al-BukhÉrÊ, ×adÊth No. 7005, and SaÍÊÍ Muslim, ×adÊth No. 2261, as narrated AbË QatÉdah. 43. MuÍammad b. AÍmad al-SarakhsÊ, al-MabsËÏ, Beirut, Dar al-Ma‘rifah, n.d., vol. Hamdard Islamicus 223 Vol. XLI, Nos. 1 & 2 XX, pp. 58, 133-170, 178. 44. QudÉmah Al-Maqdasi, Al-MuqhnÊ‘, Al-Rawhahh, Qatar al-Wataniyyah, n.d., vol. II, pp.122-131. 45. Their books are Lil-IÎlÉÍÊ Hadf wa MinhÉj (2004), QawÉ‘id al-T‘amul bain al-NÉÎÎ, 1998, Al-ØulÍ al-QÉÌÊ, 2001, Al-ØulÍ wa al-TaÍkÊm, 2003, IÎlÉÍ dat al-Bain, 2014, respectively. 46. Wahbah Al-Zuhaili, al-FiqÍ al-IslÉmi wa Adillatuhu, Damascusm, Dar-ul-Fikr, 1989, vol. V, pp. 293-324. 47. See Fariduddin Aalim b. al-‘Ala, al-FatÉwÉ al-TÉtÉrkhÉniyah, pp. 230-237. Also see Wahbah al-Zuhaili, al-FiqÍ al-IslÉmi wa Adillatuhu, vol. V, p. 320. 48. Muhammad bin Muhammad bin Asim al-Undulusi, SharÍ Ibn al-NÉÐim li TuÍfat al-HukkÉm, Beirut, Dar Ibn Hazm, 2013, vol. II, p. 635. 49. Muhammad Muhyuddin Abdul ×amÊd, al-AÍwal al-ShakhÎiyah, Beirut, al-Maktabah al-Ilmiah, 2003, pp. 244-246. In faskh, some situations do not require the decree of the court such as faskh on the basis of apostasy or under the plea of falling within prohibited degree. Here, the spouses may get self- separation. The situations that necessarily require the decree of the court, as discussed above, are of very fragile nature. Here, if recourse is not made to the qÉÌi or the qÉÌi is yet to decree the suit and one of the spouses dies, the surviving shall have no entitlement to legacy. For more details, consult the above reference. Also see Mufti Aziz-ur-Rahman, FatÉwÉ DÉr-ul-UlËm Deoband, Karachi, Dar-ul-Isha’at, 1986, vol. VII, pp. 146-151. 50. Al-KÉsÉni, BadÉ’i‘ al-ØanÉ’i‘ fÊ TartÊb al-SharÉ’i‘,vol. X, pp. 4653-4655. See also Abdul Karim Zaidan, Al-QiÎÉÎ wa al-Diyat fi al-SharÊ‘ah al-Islamiyyah, Beirut, Resalah Publishers, 2007, pp. 125-127. 51. Al-Mughni, vol. VII, p. 755. 52. Madabhushi Sridhar, Alternative Dispute Resolution: Negotiation and Mediation, p. 228. 53. Section 25 and 25-A of NAB (1st and 2nd Amendments) Ordinance, 2000. 54. Sulaiman b. al-Ashath, Sunan AbË DÉwËd, KitÉb al-×udËd, ×adÊth No. 971. The author has captioned the chapter as “Appology in ÍudËd when unreported]. 55. MÉlik b. Anas, al-Mu’ÏÏa, KitÉb al-×udËd, reported by Safwan b. Abdullah b. Safwan, with Urdu trans. by Allama Wahid-uz Zaman, Lahore, Maktabah Rahmaniah, n.d., p. 584. Also see Imam Muhammad b. al-×assan, Mu’aÏÏa al-ImÉm MuÍammad, KitÉb al-×udËd, with Urdu Trans. of Mawlana Shamsuddin, Lahore, Maktabat-ul-Ilm, n.d., pp. 375-376. 56. MÉlik b. Anas, al-Mu’aÏÏa, KitÉb al-×udËd, p. 585. 57. Al-BukhÉrÊ, ØaÍÊÍ al-BukhÉri, KitÉb al-×udËd, ×adÊth No. 6827. 58. AbË IsÍaq al-Sherazi, al-Muhadhdhab, vol. II, p. 286. 59. MuÍammad b. AÍmad Ibn Rushd, BidÉyat-ul-Mujtahid, Beirut, Dar Ihya al-Turath al-‘Arabi, 1992, vol. II, p. 572. 60. Abu Al-Hassan Ali b. MuÍammad al-MÉwardi, al-AÍkÉm al-SulÏÉniyah wal WilÉyÉt al-DÊniyah, Beirut, Dar al-Arqam, n.d., p. 307. Hamdard Islamicus 224 Vol. XLI, Nos. 1 & 2 61. Aadil Abd al-Maujud, Supervisor of the Committee, TaqnÊn al-SharÊ‘ah al-IslÉmiyah, Beirut, Dar al-Kutub al-Ilmiyah, 2013, p. 734. 62. Hazzal was the person who convinced MÉ‘iz to confess. 63. Sulaiman b. Al-Ashath, Sunan AbË DÉwËd, KitÉb al al-×udËd, ×adÊth No. 972. 64. See al-Mujallah, Section 1535. Also see Fariduddin Aalim b. al-‘Ala, Al-FatÉwÉ al-TÉtÉrkhÉniyah, Quetta, Maktabah Rashidiah, 2010, p. 227. 65. It is a written confession by a defendant in an action that he had no defense. John Burke, Osborns Concise Law Dictionary, p. 79. 66. Al-Sarakhsi, al-MabsËÏ, vol. XX, p. 147. Al-KÉsÉni, BadÉi‘ al-ØanÉ’i‘ fi TarÏÊb al-SharÉ’i‘, vol. VI, p. 101. Ibn Al-×ummam, Takmilah FatÍ al-QadÊr, vol. VII, p. 423. Ali b. Khalil, Mu‘in al-×ukkÉm, p. 123. Ibn Rushd, BidÉyat-ul-Mujtahid, vol. II, p. 377. Abn Farhun, TabÎirat-ul-×ukkÉm, vol. II, p. 54. Al-Sherazi, Al-Muhazhab, vol. I, p. 333. Al-Sharbini, MughnÊ al-MuhtÉj, vol. II, p. 177. Ibn Qudamah, Al-MughnÊ, vol. IV, p. 482. 67. See Fariduddin Aalim b. al-‘Ala, al-FatÉwÉ al-TÉtÉrkhÉniyah, p. 228. 68. Ibid. 69. KÉsÉni, BadÉi‘ al-ØanÉ’i‘ fi Tartib al-SharÉ’i‘, Urdu Trans. by Mufti Abdul Wahid, Lahore, Diyal Singh Trust Library, 2013, vol. VI, p. 135. Ibn al-Hummam, Takmilah al-FatÍ al-QadÊr, vol. VII, p. 31. Al-Dardir, al-SharÍ al-KabÊr, vol. III, p. 310. Al-Sharbini, MughnÊ al-MuÍtÉj, vol. II, p. 178. Ibn Qudamah, al-MughnÊ, vol. IV, p. 483. 70. Ibid. See also al-Mustafa Al-Khinn, AthÉr al-IkthilÉf fi al-QawÉ‘id al-UÎËliyah fi IktilÉf al-FuqahÉ, Beirut, Muassasah al-Risalah, 2012, pp. 545-546. 71. Ibid. See additionally, al-Sharbini, MughnÊ al-MuÍtÉj, vol. II, p. 179. Ibn Qudamah, Al-MughnÊ, vol. IV, p. 486. 72. Muhammad Al-Khudhari Bic, TÉrÊkh al-TashrÊ‘ al-IslÉmi, Beirut, Dar al-Qalam, 1983, p. 210. See Wahbah al-Zuhaili, al-FiqÍ al-IslÉmi wa AdillatuhË, vol. V, p. 296. 73. Al-Sherazi, al-Muhadhdhab, vol. I, p. 333. Al-Sharbini, Mughni al-Muhtaj, vol. II, p. 179. See also al-Mustafa al-Khinn, ‘AthÉr al-IkthilÉf fi al-QawÉ‘id al-UÎËliah fi IktilÉf al-FuqahÉ, pp. 545-546. 74. Muhammad b. Ismail al-ØanÉ‘ani, Subul al-Salam, Beirut, Dar al-Ma’arifah, 2005, vol. III, p. 93. 75. Ibid. See also Wahbah, al-FiqÍ al-IslÉmi wa AdillatuhË, vol. V, p. 297. 76. Al-Mujallah, Section No. 67. Wahbah Al-Zuhaili, UÎËl al-FiqÍ al-IslÉmi, vol. I, p. 555. 77. Dr. Ramzi Muhammad Ali Daraz, AÍkÉm al-SukkËt fi al-FiqÍ al-IslÉmi, Beirut, Manshurat al-Alabi Al-Huquqiyah, 2011, pp. 283-286. Al-Mujallah, Section No. 67. Zuhaili Wahbah, UÎËl al-FiqÍ al-IslÉmi, vol. I, p. 555. 78. Wahbah al-Zuhaili, al-FiqÍ al-IslÉmi wa AdillatuhË, vol. V, p. 298. 79. Al-Kasani, BÉdÉ’i‘ al-ØanÉ’i‘ fi TartÊb al-SharÉ’i‘, vol. VI, p. 53. Ibn al-Hummam, Takmilah al-FatÍ al-QadÊr, vol. VII, p. 29. Wahbah al-Zuhaili, al-FiqÍ al-IslÉmi wa AdillatuhË, vol. V, p. 322. 80. Res judicata is a rule of civil procedure that bars a fresh suit between the same parties on some issue already decided by a court of competent jurisdiction. It has been based on the principle that a thing decided should be received as truth Hamdard Islamicus 225 Vol. XLI, Nos. 1 & 2 and that a judicial decision is conclusive until reversed, Johan Burke, Osborn’s Concise Law Dictionary, London, Sweet & Maxwell, 1981, p. 289. 81. Estoppels is a rule of law of evidence which precludes a person from denying the truth and correctness of a fact deposed by him in his previous statement and has led others to believe such, Johan Burke, Osborn’s Concise Law Dictionary, p. 136. 82. Wahbah Al-Zuhaili, al-FiqÍ al-IslÉmi wa AdillatuhË, vol. V, p. 324. 83. Ibid., vol. V, p. 322. 84. Muhammad bin Muhammad bin ‘AÎim al-Undulusi, SharÍ Ibn al-NÉÐim li TuÍfÉt al-×ukkÉm, Beirut, Dar Ibn Hazm, 2013, vol. II, p. 635. 85. The Sharai NiÐam-e-‘Adl Regulation, 2009, Section 13. 86. Section 13(1) of the Sharai NiÐam-e-‘Adl Regulation 2009. It may be noted here that the first part of this law has been repealed by the Establishment of Civil Mobile Courts Act 2015. This repealing law is, however, not yet inforce for want of notification from the Provincial Government of KP. The relevant section reads as under: (1) Short title, extent and commencement. – (1) This Act may be called the Establishment of Civil Mobile Courts Act, 2015. (2) It shall extend to such areas of the Province of the Khyber Pakhtunkhwa as Government, in consultation with the Chief Justice of the High Court, notifies from time to time. (3) It shall come into force on such date as Government may, by notification in the official Gazette, notify in this behalf. 87. The Small Claims and Minor Offences Courts Ordinance 2001, Sections 2, 14. 88. The Small Claims and Minor Offences Courts Ordinance 2001, Sections 14-16 89. One of the authors, Dr. ‘Attaullah, in his capacity of trainer at the KP Judicial Academy since its inception, has been, off and on, inquiring the learned trainee judges of such judgments but has not received a single reply in affirmative. 90. See Sections 3, 8 and 11 of the Ordinance. 91. The Code of Civil Procedure 1908, Section 89(A). 92. The Family Courts Act 1964, Section 12. 93. Al-KÉsÉni, Bad’i‘ ØanÉ’i‘ fi TartÊb al-SharÉ’i‘, vol. VI, p. 53. Ibn Qudamah, Al-MughnÊ, vol. V, p. 17. Al-Mardawi, Al-InÎÉf, vol. V, p. 247, Malik b. Anas, Al-Mudawwanah, vol. IV, p. 377. 94. Abdul Qadir Awdah, al-TashrÊ‘ al-JinayÊ al-IslÉmi, Beirut, Muassasat al-Risalah, 1984, vol. II, p. 686. 95. https://www.google.com.pk/#q=Peshawar+high+court, last accessed on September 25, 2016. 96. Ibn ‘Óbidin, ×ashiyatu Radd-ul-MuhtÉr ‘l al-Dur-ul-MukhtÉr, vol. III, p. 196. Al-Mawardi, al-AÍkÉm al-SulÏÉniyyah wal wilÉyÉt al-DÊniyyah, p. 269. Abdul Qadir Awdah, al-TashrÊ‘ al-JinayÊ al-IslÉmi, vol. II, p. 183 97. Muhammad b. Ahmad Ibn Rushd, Bidayat-ul-Mujtahid, Beirut, Dar Ihya al-Turath al-‘Arabi, 1992, vol. II, p. 96. 98. See for all eighteen points, http://nation.com.pk/national/02-Oct-2013/agp-files- formulations-regarding-pardon-cases, last accessed on 10th Feb. 2015.