Islamic scholar and Law Commission member Tahir Mahmood has strongly criticised the Lahore High Court’s order to release Mumbai terror attacks accused and Jamiat-ud-Dawa (JuD) chief Hafiz Mohammad Saeed, saying the decision runs counter to Islamic law.
Saeed, accused of masterminding the November 26 strikes that killed over 180 people, was put under house arrest on December 11, 2008 after the UN Security Council designated the JuD a terrorist group.
The high court on June 2 ordered his release for want of sufficient evidence, evoking sharp reactions from India.
Mahmood expressed surprise over the court citing a 1993 UK ruling, according to which “rule of law prevails over public interest when prosecuting a crime”.
“This is not always the position of Islamic law on correlation between rule of law and public interest,” Mahmood said. “By all means, the verdict merits a review by the country’s apex court.”
“The Pakistan Constitution of 1973 directs all organs of the State to adhere to Shari’ah (Islamic jurisprudence) in the discharge of their obligations and the pre-partition Indian Penal Code of 1860 has been extensively amended there to revive Islamic criminal law. It is, therefore, surprising that instead of Islamic law precepts, the court should have relied on a British ruling,” Mahmood said.
“The doctrine of public interest is well recognized in Islamic jurisprudence and is pervasive in contemporary Muslim legal discourse. Known as ‘maslehah’, the doctrine is regarded as ‘embodiment of the spirit of Islamic law’ and has been described as an ‘authentic Islamic concept unrelated to western legal traditions.”
Quoting great Islamic jurist Al-Ghazali, Mahmood said “maslehah meant considerations which secure a benefit or prevent harm”. Another Islamic scholar Al-Tufi ruled: “maslehah should take precedence over all other proofs and considerations,” he added.
Heeding these Islamic legal tenets, the court should have given due weight to international public opinion and the need for good-neighbourly relations with India, Mahmood said, demanding a review of the order.