By Miss Sumaira Rafaqat Kahloon Advocate
(Nazima Minhaj-ul-Quran Women League)

[The contents of this article have been acquired from various reports already published on the subject].

Introduction

Shaykh-ul-Islam Dr Muhammad Tahir-ul-Qadri was studying in grade eight when he accompanied his parents to perform Hajj and visit Medina. But this was not an ordinary event as appears to be. Those who have firm faith in spiritualism can easily understand how spiritual uplift takes place through affinities, affiliations and nearness to pious souls. Similarly, this visitation of Medina had divine connotations as the saintly father of “Tahir” was obeying a spiritual command from the “Mercy for all the worlds”, the Most venerable Messenger of Allah (blessings and peace be upon him): “Bring Tahir over to me.”

In 1963, he was taken to the mausoleum of the Beloved Messenger of Allah. The Holy Prophet showered his blessings on him. He had not only sent for “Tahir”, but also confirmed the fulfillment of the purpose he had been called for. “Muhammad Tahir was given a vat full of milk, commanded to distribute it among the people.” True dreams are a part of one’s spiritual life and this dream was translated into reality very soon.

Later in 1966, the lucky recipient of the guidance of Sayyidina Ghauth-ul-Azam, he pledged allegiance at the hand of Sayyidina Shaykh Tahir Ala-ud-Din Al-Gilani al-Qadri, the head of the Qadriyyah chain, and stepped towards his spiritual development through the countless attentions and blessings of his mentor.

From his early years he was educated in both Islamic and secular sciences at the same time, imbued with the belief that his entire life would be devoted to the renaissance of Islam. Although his religious education had commenced under his father two years earlier, his formal classical education started in Madina at the age of 12, in Madrasa al-‘Ulum ash-Shar‘iyya situated in the blessed house of Sayyiduna Abu Ayyub al-Ansari, the first residence of the Holy Prophet (blessings and peace be upon him) after his migration.

By the time he had received a First Class Honours Degree from the University of the Punjab in 1970, he had also completed his Classical Islamic Studies, having spent over ten years under the guidance of his father and other eminent Shuyukh of his time. From them he received an unparalleled understanding of the classical Shari‘a sciences and Arabic language. He obtained his Master degree in Islamic Studies in 1972 with the University of the Punjab Gold Medal, qualified his LLB in 1974, and began to practise as a lawyer in the district courts of Jhang. He moved to Lahore in 1978 and joined the University of the Punjab as a lecturer in law, and completed his doctorate in Islamic Law.

In Punjab University Law College

With this spiritual affluence, he joined the Punjab University Law College in April 1978 as lecturer in Islamic Law and warmed the hearts of his students with the fire of keenness to seek knowledge and applying it to the wide expanse of human experience. The crowning achievement of his formal education was his doctoral thesis on “Punishments in Islam, their Classification and Philosophy” which he completed early in 1984.

After joining the Punjab University Law College, his reputation travelled to other departments and faculties like fragrance, and soon he became one of the most popular figures of the University. On the crest of his popularity, he was elected to some of the most prestigious offices like member of the Syndicate, Senate and the Academic Council, the most august bodies of the University. The short span of time in which he created a niche in the hearts of his colleagues speaks volumes of his qualities of head and heart.

The tidal wave of his popularity had its base in his goodness of intention, sincerity of purpose, genuineness and spiritual transparency he had been especially endowed with. Dr Tahir-ul-Qadri had the courage and the guts to call a spade a spade, which, in the age of diplomacy and dissimulation, only few people could afford. He preferred losing the election to articulating spurious promises. Other factors also contributed to his incredible success: his balanced approach towards problems, persuasive mode of reasoning, eloquence and a drive to reduce everything to Islamic parameters and evaluate day-to-day issues in terms of the imperatives of Islam. These qualities impressed his University colleagues who would place him on a special pedestal and give exceptional import to his suggestions and recommendations.

Dr Tahir-ul-Qadri was a syndic with a difference: instead of the needy people approaching him, he would approach them and ask them about their problems. His sympathy would spill over into the world of reality. He helped people out to the best of his resources and powers. This applied to both the teachers and the students. No wonder people miss him even though he is no longer on the regular staff of the university. It is a privilege rarely accorded to anyone who has served on the staff of this highest seat of learning.

Some of His Historical Contributions

1. During his regular university tenure, he was nominated as an expert on the “National Committee for Islamic Syllabi”.
   
2. The Government of Pakistan also appointed him as Juris-Consult (Advisor on Fiqh) of the Federal Shariat Court in February 1982. This court benefited from his guidance on the most delicate and sensitive religious issues.
   
3. When the Federal Sharia Court of Pakistan gave its verdict against “Rajm” (stoning to death) as Hadd, the Government of Pakistan filed a review petition against the decision of the court. In his capacity as Juris Consult, Dr Muhammad Tahir-ul-Qadri came to the help of the Government at this crucial juncture, and through cogent reasoning and profuse illustration spread over four days from 20th to 23rd June, 1982, forced the Federal Sharia Court to reverse its decision and uphold Rajm as Hadd. The detailed Judgement of the Federal Sharia Court is recorded in PLD, 1983 (PP.255-480). The learned judges of the Court expressed their deep gratitutude and appreciation of his cooperative assistance at various places in their Judgment.
   
4. In the same way, he defended the Government of Pakistan when the Qadianis filed a writ against its decision in July-August 1984. His precedence-loaded and reference-padded intellectual defense of the rights and religious liberties of non-Muslim minorities in Islamic state, carries a historic significance on the basis of his convincing arguments. The Federal Sharia Court rejected the petition of the Qadianis on 20th July, 1984 by furnishing a legal justification on the philosophy of finality of Prophethood, They were disallowed to use for them Islamic terminology and call their worship places as mosques. The details of the Judgment of the learned Court are recorded in PLD, 1985 (PP.8-120).
   
5. On July, 1984 he addressed an International Islamic Coneference. A large number of Christians accepted Islam on this occasion.
   
6. In another case the Blasphemy Law protecting the esteemed station and reverence of the Holy Prophet (blessings and peace be upon him) was also passed for the first time in the history of Pakistan after Shaykh-ul-Islam presented his arguments to the court, over a period of three days, culminating in an Act of Parliament. Shaykh-ul-Islam presented his arguments to the federal Sharia Court for long 18 hours which culminated into formulation of section 295-C.
   
7. Another landmark and famous enactment of Parliament concerning ad-diya (blood-money) of a murdered woman resulted after Shaykh-ul-Islam presented arguments in the President House of Pakistan during a special legislative session chaired by President Zia’ al-Haqq. This session was attended by all Federal Ministers, Secretaries, Governors of all provinces, all judges of the Federal Shari`a Court and Appellate Shari`a Bench of the Supreme Court, members of the Islamic Ideology Council, selected top ranking classical scholars and Shuyukh belonging to all schools of law. Shaykh-ul-Islam presented arguments in favour of equality of rights of women concerning ad-diya for eight hours followed by a question and answer session. This was a unique and unprecedented event in the judicial and legislative history of Pakistan. As a result of his arguments the discrimination clause was removed and women were given equality of redress. This shows the amount of concern that Shaykh-ul-Islam has for the respect and safeguarding of women’s rights in Islam. Moreover during the 1980s hundreds of un-Islamic clauses from the old civil and criminal laws of Pakistan, which had existed since the period of colonial rule, were amended according to Islamic principles upon the juristic recommendations of Shaykh-ul-Islam.
   


8. Early in 1982, the Government instituted the Apellate Sharia Bench, Supreme Court of Pakistan. Dr Muhammad Tahir-ul-Qadri was appointed Juris-Consult on the Bench.
   
9. In spite of his multifarious activities, he is still actively engaged in discharging his national and religious obligations. His recent historical edict against terrorism and suicide bombing has strengthened the hands of the Government and the Defense Forces of Pakistan in continuing their operation against the miscreants and militants at war against the innocent Muslims and the law enforcing agencies. This has quieted the sporadic roar of some elements demanding of discontinuation of the operation against terrorist rebels who are in fact the Khawarij of modern times sworn to damage Umma. The edict by Shaykh-ul-Islam has been appreciated the world over in view of its significance in face of the plague.

At the Quranic Congress, 1985

During his brief and tempestuous career, Dr Qadri participated in a large number of international conferences both in-country and abroad. The International Quranic Congress held in the month of November 1985 in Islamabad under the auspices of Hamdard Foundation, Pakistan and the International Seerat Conference arranged by the Federal Government are of particular interest.

The Hamdard Foundation Pakistan organized the International Quranic Congress. The renowned scholars and intellectuals from across the world attended it. Dr Qadri, in his capacity as a delegate from Pakistan, spoke in English on the Quranic concept of guidance. His address almost hypnotized the audience. When his lecture ended, all the delegates, who were persons of international repute in their respective fields, embraced him warmly. They lavished spontaneous praise on him, which reflected the depth of their love and affection in unmistakable accents, and acknowledged Pakistan’s prominent role in the Quranic interpretation.

The noteworthy episode was the instant response to his lecture by an American professor, Abduh Khaoli, professor of Sociology at the Northern Illinois University. He was the head of the American delegation. At the end of the lecture, he came over to Dr Tahir-ul-Qadri and candidly appreciated the contents of his speech. He told him that he had been working on the Quranic concept of “Ihsan” (benevolence and beneficence) for a long time. He had consulted distinguished scholars in the world of Islam to seek enlightenment on the subject, but no one could give him a satisfactory explanation. He thanked God that Dr Qadri’s address had unfolded the concept in its true essence and simplified an issue whose complexity had tantalized the intelligence of scholars all over the world. The genuineness of his praise was established by his offer of a full professorship to Dr Qadri at the Northern Illinois University, and he added that his positive response would enhance the prestige of the University. Dr Qadri enumerated his diverse engagements, connected mainly with his international mission for Islamic Renaissance. He expressed his apologies that he could not accept any permanent assignment both inside and outside the country, as it was most likely to interfere with the mission of his life which was to revitalize the Muslims of the world with a sense of their past glory, in order to put them back on the rails. Professor Khaoli then modified his offer and asked him to accept the assignment for at least a year so that his University could boast of the presence of a scholar of his eminence on its staff. Dr Qadri, however, once again expressed his apologies. Finally, on account of his persistent soliciting, it was decided that he would visit the University for a short period and work there as a visiting lecturer as he was too busy to spare more time.

Islamic Penal System and Philosophy

Let us know what all this great work by Shaykh-ul-Islam is about!

Dr Muhammad Tahir-ul-Qadri authored this book to provide the essential guidance the intellectuals, judges, lawyers and students of law would need in their day-to-day work of varied nature. It provides great learning on the subject for the experts and the students alike!

For a very brief survey of the history of pre-Islamic penal law, he has discussed in this book the Hummurabi Law, Egyptian Law, Jewish Law, Greek Law and Roman Law. Since the Western standards of human life, moral values, governmental objects, ethical obligations, ideas of justice, sources and principles or legislations are always changing from age to age, no persistent characterization of law in Western jurisprudence is possible. The Western law is a complete failure in defining crime, specifying its nature and appreciating its permanent standard and character.

When we turn to Islamic law, it appears superior to the Western law because it is free of ambiguity in its details. Law in Sharia is a legal value established from divine communication which can be proved either through the text of the Quran or Sunna or definite consensus of the Muslim scholars. Islamic concept of crime, like the concept of law, is permanent, unchanging and unanimous among all the scholars and schools of law: “Crime is an unlawful act for which punishment has been prescribed by the Sharia by way of fixation or discretion.”

All the theories of criminality, propounded by the Western criminologists originate from the distorted vision of human nature, based on ‘Trial and Error Method’. On the contrary, according to Islam, it is absolutely false and baseless to say that some of the human beings are created with bad natures, or are given birth with inherent criminal tendencies. Human nature, the Quran and traditions emphasize, is absolutely free of all bad potentials and wrong tendencies, and no criminal characteristic is inherent in it: “No child is born but conforms to the right nature, then his parents make him a Jew, a Christian or a Magian.”

Lombrosians and Freudians throw the responsibility of crime on nature, whereas Islam declares that nature is perfectly good and the seeds of criminality are not inborn but self-sown during the life of an individual. The theory of inborn criminality advanced by the Biological school of criminologists is absolutely wrong and does not find any place in Islamic philosophy of criminality. As man is free to accept and develop the influence of right or wrong instinct, criminality cannot be accepted as an ingrained character of human nature.

The dissertation further analyses that, in order to decide whether the idea of ‘pre-determined criminality’ either biological, psychiatric, psychological or in any other name is acceptable to Islam or not, we are positively obliged to study the concept of ‘human freedom’. As for the concept of freedom of man in his acts, there is a delicate distinction between ‘creation of an act’ and ‘performance of an act’. The view of the Muslim Jurists is that man is neither the ‘creator’ of his deeds, nor are his actions divinely ‘predetermined’. The reality is that all the acts and deeds have been indiscriminately created by Allah, yet human beings have not been deprived of their free will and choice regarding commission or omission of their acts. Thus Allah is the Creator of the acts, whereas man is their performer and operator. Now, if it is accepted that the sin of crime originates from some biological causes due to which the criminal is compulsorily supposed to possess some brutal characteristics, then no question of free will in adopting a particular conduct does arise. So, man cannot be considered a moral agent, because he is a born criminal and no choice has been left for him to earn either good or bad behaviour. According to Islamic theory, human conduct is not predetermined in any sense: it is exclusively self-earned during his moral struggle, since he is free in his acts of commission and omission. This is the only factor that makes man morally and legally responsible for his acts and deeds. Hence, Islamic concept of human freedom completely nullifies the philosophy of pre-determined criminality.

According to the Psychiatric/Pathological Theory, the cause of every criminal act and delinquency is traced in the form of mental disorder, because it supposes that all crimes originate from various kinds of psychiatric diseases. This theory leads us to the contemptuous concept of “determined criminality”, which is absolutely unacceptable to Islam.

Divine justice demands that every adult and sane person should be responsible for his/her own criminal behaviour. The Holy Quran says: "On me is the guilt of my crime and I am clear of that you are guilty of."

This verse clearly emphasises the fact that the criminal liability can neither be transferred nor explained away. The Western criminologists have indiscriminately explained the criminality in such a way that the crime, in spite of being an intentional and voluntary act, has become absolutely involuntary and unintentional. They have expressed the phenomenon of crime in terms of determinism; hence, no liability can be placed upon the individual. Therefore, there can be no justification of punishments, and the whole penal system becomes a futile and aimless exercise.

Islam has provided the balanced view because the liabilities of the individual and the society are separately determined. The cause of criminality is appreciated in such a manner that, instead of justifying the crime, effective means and devices are suggested to eliminate it from the society.

Regarding psychology of the criminal we must remember that if the external factors, such as circumstantial influences, opportunities and temptations go on affecting the internal character and psychology of the person constantly, and no measures are adopted to reform them, he becomes a habitual criminal, and if those factors influence the man incidentally, he becomes the occasional one. If proper moral and spiritual training and adequate socio-economic circumstances are provided to the individuals, their instinctive urges and mental faculties are organised to function towards the right direction. Human instincts and desires, when properly fulfilled in a balanced manner, do not create any tendency of criminality.

Therefore, lack of spiritual and moral training and unsuitability of socio-economic conditions are the basic factors, which may render the psychological make-up of a person criminal.

Punishments in Islam have been classified into three kinds. Some of the punishments are fixed as per their nature and quantum, while others are variable. This classification is one of the basic requirements of an ideal penal system to provide justice and make society a peaceful place. Since the gravity and heinousness of crimes vary from situation to situation, the respective punishments should also vary to tackle the crime. Legal philosophers and criminologists believe that it is an essential requirement for a viable system to be inclusive of both the fixed and variable elements in its penal postulates. In the history of penology, Islam has provided a unique penal system that perfectly fulfils the stipulated requirements of law as outlined and elaborated by legal experts.

The author has devoted a chapter to a detailed discussion on the legal structure of punishments in Islam – Hadd (fixed punishment), Qisas (retaliation) and Ta’zeer (discretionary punishment) – and their respective constituting elements, conditions, juristic characteristics and their modes of execution.

Islamic punishments – Hadd, Qisas and Ta’zeer – and their kinds are based on the arguments of the Quran and Sunna.

Men are instinctively inclined towards the establishment of a clean and pure society. These punishments, therfore, are primarily focused on the achievement of this primary goal. The charge of the hostile critics of Islam that its penal system is based on vindictiveness and a deep-rooted sense of vengeance is baseless. The penal system of Islam is rooted in an objective and dispassionate assessment of criminal situations, and the severity of the punishment depends on the sanguinity of the crime. What could be a more just and natural system of punishment! Islam believes in the creation of an absolutely clean society. It believes in both physical and moral cleanliness. Therefore, its penal laws are geared to the formation of such a society. Since Islam is also fundamentally concerned with a peaceful society, its punishments are expressly oriented to achieve practical results.

Western philosophy of punishments gives us two viewpoints regarding the punishments:

1. Punishment as a method of protecting the society by reducing the occurrence of crimes
2. Punishment as an end in itself.

The punishments in Islamic penal system are not prescribed as ends in themselves, as propagated by the