Criterion of Justice Prerequisites for justice

Defining a Crime Investigation Process of Conviction Punishment Who can Forgive Judicial immunity Independence of Judiciary Qualification of a Judge

Types of Qadhies Accounting the Ruler Swift Justice Judicial rights of non Muslim citizens (Zimmi) & Foreigners Only Khilafah can provide Justice

Basis for providing justice

Devine

Human Mind

Human mind
Freedoms Equality

Religion

Expression

Personal

Ownership

Race

Gender

Creed

Same rights and duties for Man & Woman

 The basis of equality can only produce justice if human beings are identical In this case same rights and duties for every human being will produce justice

 Science has proven that Man and Woman are similar in a lot of attributes but at the same time they differ in many others They differ in terms of
physiology, emotions, mental capabilities, hormones, child birth etc

Common Attributes

Man

Woman

Man is unable to precisely identify the commonalities and differences between man and woman and hence is incapable to assign precise rights and duties corresponding to their respective capabilities

Attributes specific to Men

Attributes Specific to women

 Capitalism gives a simplistic solution to this very complex human problem and declares that man and woman will be considered completely identical and thus will be assigned same rights, duties and roles Asking a weak and a strong pupil of the same class to lift 40Kg weight may be equality but this is not justice given the abilities of the two students Similarly same rights/duties for inherently different genders (man & woman) may be seen as equality but definitely it cannot be seen as justice The West also recognizes these differences and this is why men and woman compete separately in all types of sport

 In the eyes of Islam and society Man and Woman are equal but they are different and hence must have different roles

When Woman happens to be a mother she has authority over man who happens to be his son
Man when assuming the role of father and husband has a leading role over his daughter and wife

Man
Woman

Complementary role of man and woman in society

 Only Allah knows man and woman precisely and hence He alone can assign rights and duties for human being which match their abilities In areas where man and woman have similar abilities their rights and responsibilities are also the same; such as praying, fasting, doing dawa, giving charity, seeking Jannah by pleasing Allah etc. But the attributes in which man and woman differ, their duties and rights also vary; such as providing for the family, Jihad, ruling, inheritance etc.

 Once the children are grown up they are allowed to leave their parents at their own and take no responsibility of them under the pretext of personal freedom; but is this Justice? Multinationals are allowed to own natural resources which Allah has created for all humans and sell them at inflated prices under the cover of freedom of ownership but is this not exploitation of the masses? A man is legally allowed to humiliate or mock Allah, His messenger or Islam on the basis of freedom of expression but should this be allowed? Can a Qadiyani or any cult be allowed to propagate falsehood and cause confusion about Islam under the guise of freedom of religion A woman is allowed to sell her body by claiming personal freedom but is this our idea of a civilized world?

 Mind cannot provide the correct basis for Justice

Only the Creator can provide the correct basis for justice, following which we can create a Just society

This inference is completely false that by implementing any system correctly one can serve justice to the people

 Justice cannot be achieved until the following principles are not built on just laws
Laws that define a Crime Laws of Investigation Laws related to witnesses and conviction Punishing the guilty as much as he deserves Laws related to forgiveness of the criminal Legal Immunity Independence of Judiciary Qualification of Judges Khilafah Capitalism

Laws related to all the above Laws related to above points are points are derived from Quran legislated by the parliament or by and Sunnah various commissions

Khilafah
All the laws are derived from and all procedural codes are built upon Quan and Sunnah Without sharii evidence Khaleefah or representatives cannot alter them
Defining the crime Investigation Process of Conviction

Capitalism
Laws and procedural codes related to following issues are made either by the parliament or by various commissions
Judicial immunity Pressure from the ruler Judges Qualifications

Justice
Punishment Who can forgive

Capitalism: Propagation of Kufr religions Interest GST Private ownership of Oil, gas etc
Khilafah: Islam consider all the above acts as Crimes

Capitalism: Torture Harassment Jail for 1 year on suspicion Entering homes without warrants Spying
Khilafah: All the above is Haram

Capitalism: Wada Maaf Gawah Even a fasiq witness is acceptable Circumstantia l evidence acceptable
Khilafah: Witness should be Adl No concept of Wada Muaf Gawah

Capitalism: Thief jailed for years

Capitalism: President of Pakistan can forgive anything Plea bargain Khilafah: Only the worasa can forgive a killer Nobody can forgive a theft, rap, highway robbery

Khilafah: Witness should be Adl Burdon of proof is on All the above is Haram

Capitalism: President PM Governors Ministers Cannot be brought to court Khilafah: No citizen is above the law Ambassadors and envoys enjoy diplomatic immunity.

Capitalism: President can terminate any judge anytime Khilafah: Khaleefah cannot remove a Qadhi if he is in hearing a case against the Khaleefah

Capitalism: No compulsion to be Adl (not fasiq)

Khilafah: All Qadhies has to be Adl. In addition Qadhi Mazalim should be a Mujtahid as well

1. 2. 3.

Allah (SWT) says: "And judge between them by that which Allah has revealed." [Al-Mai'dah: 49] Criminal procedure Code (CrPC) was originally written in 1898 which defines crime and investigation. Indian evidence Act of 1872 was changed it become Islamic Qanun-e-Shahadat by introducing Article 17. Its article 3 still reads as: Court shall determine the competence of a witness in accordance with the qualification prescribed by the injunctions of Islam as laid down in the Holy Quran and Sunnah for a witness, and, where such witness is not forthcoming, the court may take the evidence of a witness who may be available.

Khilafah

Capitalism

Allahs Ahkam define what is a crime and The Elite group in the parliament will what is permissible 1 decide among themselves what should be legalised and what should be declared a crime State cannot impose ban on trade under Import and export becomes a crime the pretext of protecting local industries. under the title of smuggling where as Hence there is no such crime as robbery is legalised under the names of smuggling GST, Toll Tax, Wealth Tax, Income Tax etc Islam sees imposing GST, Toll Tax, Wealth Tax, Income Tax as a Crime States is responsible to protect the Propagation of Kufr is legalised under aqeedah of the people hence it is not the pretext of freedom of religion. allowed to publicly propagate any creed Riba is permissible and private or ideology other than Islam. ownership of public property is allowed Anybody dealing in Riba, or owning a under freedom of ownership. public property secretly will be brought to justice.

Khilafah
Hoarding of wealth is a crime

Capitalism

People are free to use their money or hoard them. It is not a crime Drinking, fornicating, not covering Under the strict definition of in public, mixed gathering etc all personal freedom all of these acts are crime are perfectly legitimate. Blasphemy is a crime Salman Rushdie is protected under freedom of expression Jihad and Suicide bombing Terrorism in the eyes of the West against military targets highest form of reward in Islam Islam consider maltreatment of US considers Camp Xray prisoners of war, a crime legitimate
Only the Creator knows what is a crime and what is not If the crime is not identified properly then justice can not be served

1.

2.

3.

Ibnu Maja reported in his Sunan on the authority of Ibnu Abbas who said: The Messenger of Allah (saw) said: If I were to stone anyone without proof I would stone such and such woman. The Prophet (saaws) said the above due to the fact that the woman was known to be an adulteress, as understood from the words of Ibn Abbas. If torturing was allowed to obtain a confession, that woman would have been tortured to confess. Hence, it is haram to inflict any kind of punishment before proving the guilt. Muslim narrated from Abu Hurairah that the Messenger (SAW) also said: "There are two types of the people of Hellfire I have not seen yet: some people who have whips like the tails of oxes by which they flog the people". It is reported from Ibn Abbas "A man drank till he got intoxicated and was seen drunk by the people in the street. While, he was being taken to the Prophet (saaws), he escaped and entered the house adjacent to the Abbas house. Then Abbas held him. When the incident was reported to the Prophet (saaws), he laughed and said, "He did it?". He ordered no punishment to be carried out." The messenger (saaws) did not implement the punishment because the man did not confess nor was he proven guilty in the front of the Messenger Allah I says: "O you who believe, avoid suspicion as much as possible, for suspicion in some cases is a sin, and do not spy on each other." [Al-Hujurat: 12] He (SAW) also said: "He who peeps into some people's house without their permission, it is allowed for them to gouge out his eye", narrated by Ahmed from Abu Hurairah. The Messenger of Allah (SAW) said: Avoid suspicion, for suspicion is the gravest lie in talk, and do not be inquisitive about one another and do not spy on one another, and do not turn one's back to each other, do not hate each other, and be servants to Allah and be brothers (narrated by Al- Bukhari and Muslim from Abu Hurairah)

Khilafah

Capitalism

Cannot torture an accused or a suspect Torture in Guantanamo Bay and Abu Guraib 1 is a perfect example how legislation is done in Democracy to legalise crime Cannot send anybody to jail just based People are picked up only based on on suspicion suspicion or on a false FIR. People are confined to jails based on laws such as If somebody is a habitual criminal and Maintenance of Public Order (MPOs) and there are enough evidences against him colonial Security Act of 1923 then the court can allow his custody for limited time. And once that time expires A man can be picked up and thrown in jail he is free. He doesn't need to provide without any proof and legal proceedings for bond to free himself. 1 year Accused is innocent until proven guilty 2 In the US, according to Patriot Law, a person can be imprisoned without any proof just Spying on the Muslims, watching them, based on suspicion to have links with chasing them and looking into their terrorists confidential and personal news is forbidden 3 Laws keep on changing according to what the Elite Group likes. Justice can never be served in such a system So called civil liberties and freedoms have already been violated by the champions of the Free World. Yes they are Free to perpetrate injustice and oppression until the return of the alternative System - the Khilafah

1.

It has been narrated by Amr b. Shuayb on the authority of his father who narrated from his grandfather that the Prophet (saw) said: The burden of proof lies on the plaintiff and the oath is to be sworn by the defendant. Al-Bayhaqi reported with a sound Isnaad (chain of narraters) that the Prophet (saw) said: The burden of proof lies on the plaintiff and the oath is to be sworn by the person who denies.

Khilafah

Capitalism

The burden of proof lies on the plaintiff In the US the government the defendant doesnt have to doesnt have to prove anthing to provided any proof his oath is seen to keep a person behind bars be enough except for accusing the person with terrorism charges In general to prove any crime Shariah requires two Bayyinat (evidences). A Bayyinah is considered to be:
Shahadah (Eye witness) Yameen (Oath) Iqrar (confession) Mustanidat-e-Qatayiah (Documentary evidences)

In the Capitalist system rules continues to change according to the whims and desires of the elite group sitting in the parliament

1.

2.

3.

4.

Abdullah b. Umar narrated that the Messenger of Allah (saw) said: The testimony of two women is equal to one man. Abu Saeed al-Khudri narrated that the Messenger of Allah (saw) said, Isn't the testimony of a woman equal to half of that of a man? It is narrated from Abu Saeed Al-Khudry that the Messenger of Allah said in a hadith: isnt the witness of the woman equivalent to half of the testimony of the man? We said, Yes O messenger of Allah. Uqbah b. Abi Harith, reported : that he married Umm Yahya, the daughter of Abu Ihab. A black slave woman came and said: I suckled you and your wife. He sad: I mentioned that to the Prophet (saw), but he turned his face away from me. I turned away, then I mentioned it to him. He said: How can you marry her after she (the blach woman) claimed she suckled both of you? So he forbade him from her.) In this hadith, the Prophet (saw) instructed the man to leave his wife based on the testimony of a single woman that she had suckled them. It was reported by Al-Bukhari from Basheer ibn Yasaarclaimed that an Ansari man called Sahl ibn Aby Hatmah told him, that some of his folk went to Khaiber, and they dispersed there, and found one of them killed. They said to the people amongst whom they found him, you killed our friend. They said, we did not kill, and know who killed. So they went to the Prophet (saw) and said: O Rasool Allah. We went to Khaiber, and found one of us killed. He said: It is a grave sin; it is a grave sin (al-kibr, al-kibr). He said to them: Bring testimonial evidence about his murder. They said: We do not have evidence. He said: Then they give an oath. They sad: We do not accept the oaths of Jews. The Messenger of Allah disliked that his blood becomes unavenged, so he paid his blood money (diyyah), as one hundred camels from the camels of the zakah (sadaqah). This hadith indicates that the Messenger asked them for evidence about a murder happened amongst the Jews. This is because they sad to him: We went to Khaiber, and found one of us killed. Though he knew the incident took place in Khaiber, amongst the Jews, and within their tribe, he mentioned the evidence (bayyinah) without specifying that it must be from Muslims, with the presence of the indication (qareenah) that the incident was among the Jews. This indicates that if it came from the Jews he would have accepted it. This is confirmed by his offer to the claimants that Jews take an oath. It came in the narration of Sahl ibn Aby Hatmah; Thus, Jews releave you by fifty oaths; so they said how can we take oaths of kuffar people. The oath is one of the testimonial evidences (bayyinaat). This indicates that, regarding the the bayyinah of jinayaat, the non-Muslim witness is accepted, as well as his oath. Allah (SWT) says: When death approaches any of you, and you may bequest than take the testimony of two just (Adl) men from your own folk or two others from outside (non-Muslims) .

Khilafah
A Muslim is by default trustworthy hence the witness doesnt have to prove that he is Adl (trustworthy) rather others have to prove that he is a fasiq or not qualified to be a witness Qualification of Witness
Sane Mature (Baligh) dl (Opposite of Fasiq, or somebody who is not generally known as corrupt)

A Woman can be a witness in all matters including that of Hudood In general the witness of one woman is half as that of man 1 But in matters where only women have access to, like childbirth, suckling, lineage etc Islam accepts testimony of a single woman as sufficient to pass a judgment 2 Non-Muslims are accepted as witnesses3 unless someone could prove that he is corrupt or not an upright person. His witness is accepted in all matters except Financial matters, Raju, Divorce and Marriages, Wasiyyat (Will) and Moonsighting 4

1.

2. 3.

It is reported by Ali (ra) he said the Messenger (saw) said: Oh ali, if two people come to ask you to judge between them, do not judge to the first one unitl you hear the word of the second one in order to know how to judge. (Ahmad, Abu Daud) Allah (swt) says: "So when they fulfil their appointed term, either take them back on equitable terms or part with them on equitable terms, and take for witness two persons from amongst you endued with justice." T.M.Q [65-2]. Imam Jassas reports in Ahkam ul Quran and Ibn Taymiyya in his book Al hisba fil Islam that Umar punished and judged tazir for a scholar who gave false testimony. He shaved his hair, painted his face black, removed some clothes, put him on a donkey backwards and paraded him all day in front of the people.

Khilafah

Capitalism

A judge should not judge without In the wake of Oklahoma bombing listening to both the parties 1 the US government has wide powers to arrest detain and deport Islam gives the defendant the right aliens based upon secret evidence to defend himself -- evidence that neither the alien The defendant and the complainant nor his attorney could view or refute have the right to a lawyer of their Prisioners at Camp Xray do not own choice have the basic right to a lawyer In the Capitalist system rules continues to change according to the whims and desires of the elite group sitting in the parliament Witness should be Adl (just) 2 Even a fasiq witness is acceptable No concept of Wada Muaf Gawah Wada Muaf Gawah accepted False witness is punished 3 False witness is not accounted Innocent people are implicated in crimes through false witnesses No justice without correct laws relating to scrutiny of witness

Khilafah

Capitalism

In cases of Hudood any shred of evidence which Circumstantial evidence produces doubt would evade a guilty verdict are acceptable In cases other than Hudood punishment is pronounced based on Galabat-uz-Zaan (Most probable) Once the verdict is pronounced the judgment is considered the Law of Allah on the issue and cannot be revoked by any other judge Scores of innocent people rot in jail for years or are hanged, as the principle of definite proof is not followed in the man-made system
No concept of jury. Judgment is not In American judicial system common people who are neither lawyers nor judges are left to people who are ignorant of made to pass a decision as happened in the Sharai ahkam and evidences infamous O. J. Simpson case in the US

How can the matter be left to incompetent people, ignorant about the law and matters related to legal decision making

1.

The evidence of this article is reflected in the fact that the Messenger of Allah (saw) never appointed two judges for a single case. He always appointed one Qadhi for the one case. Besides the Judiciary is conveying the Shari'ah rule for implementation, and the Shari'ah rule with respect to a Muslim is not diverse. It is the rule of Allah and the rule of Allah is one. It is true that the understanding of the rule could be diverse. But with respect to a Muslim in terms of acting upon it, the rule is one and can never be diverse. Hence, whatever the Muslim understands as the Hukam of Allah it becomes the rule of Allah related to him. Any other understanding does not represent the rule of Allah as far as he is concerned, though in his view, it is still a valid Sharai opinion, provided it is extracted through the process of Ijtihad. When the Qadhi conveys the rule of Allah pertaining to the case, for implementation, this judgment must be one, because it is the conveyance of Allahs rule for implementation not merely conveying his opinion for an intellectual discourse. This means that in essence it is acting upon the rule of Allah, and the rule of Allah with regard to acting upon it, does not diversify, even if the understanding is diversified. Therefore, it would be wrong for the Qadhi to be more than one since this will diversify the rule of Allah.

Khilafah

Capitalism

The verdict is passed by a single judge There are Double benches and full based on what he finds to be correct 1 benches There could be other judges assisting Sometime they contradict each other the main judge yet the final decision is based on the majority as happened in Z.A. Bhuttos The majority or minority is not case considered

The truthfulness of the matter cannot be gauged by the number of people carry a certain view, rather it is gauged by the strength of the evidence

Khilafah

Capitalism

The plaintiff has the priority to chose the The registrar chooses which judge would hear the case. Qadhi in case there are more than one Qadhies in the specified court because he is the one who is seeking the justice

The cases against the government are automatically funneled to the judges who are known to have inclinations towards the government The powerful elite influence the registrar to send the case to the judge of their choice In the Danial Perl case, the government not only moved the court to different location but she also changed the Judge after the case proceeding had already started, to get the desired judgment

1.

It is narrated that Mohammed (saw) said that: to free someone criminal is better than to punish someone innocent.

Khilafah

Capitalism

The principle of the Punishment System is to, prevent the punishment as much as possible 1 Only Allah knows what is a Just Man decides what should be a punishment for a crime. He has divided just punishment punishments into four sub categories:
Hudood
It is the Right of Allah (swt) and no one can forgive. Punishment is already decided by Allah such as in fornication, slandering etc.

Al-Jynayaat
It is the right of the person and he/she can forgive. The compensation is set by Allah not the person himself, e.g. money equivalent to 100 camels for unintentional killing etc.

In America various states keep changing the punishment for a murderer. Alcohol was legal then made illegal and then legalized again

When justice is not served it doesnt teach the society a lesson and the crime breads

Khilafah

Capitalism
in these

In matters related to the community and Man decides State Allah has left it on the state to adopt matters as well a punishment keeping in view the gravity of the issue and its implications:
Al-Taazir
This is considered the right of the community. It covers those issues which affect the society in every day life like, shouting in the streets and throwing rubbish onto the street etc. The state adopts the punishment for the crime.

Al-Mukhalafat
This is the right of the state, and it covers the issues which the state enacts such as breaking the speed limit, parking in no parking areas etc... Again, the state will adopt the punishment for the crime.

Khilafah

Capitalism

The aggrieved party can forgive the The plaintiff can withdraw his/her criminal without bringing him to case anytime he/she likes court. But if he is brought to court then the charges cannot be dropped and judgment will be passed by the judge. There are few exceptions to this rule e.g. death sentence etc. If a person is brought to the court then he will be judged upon

No concept of legalised bribery Plea bargain is allowed (plea bargain)

The rich gets off the hook since he has money to strike a deal with the government in the shape of plea bargains or bribery etc. People like Nawaz Sharif loot and plunder and then legalize this money by giving a part of it as ransom

1.

2.

The ambassadors and their likes are excluded from this and the rules of Islam would not be implemented upon them, for they would be given diplomatic immunity. This is so because Ahmed reported on the authority of Abu Wail who said: Abdullah said when Ibnul Nawwaha was killed: This one and Ibnu Uthal had once come to the Messenger of Allah (saw) as envoys of Musaylima the liar and the Messenger of Allah (saw) said to them: Do you bear witness that I am the Messenger of Allah? They said: We bear witness that Musaylima is the Messenger of Allah. Upon this the Messenger of Allah (saw): If I were to kill an envoy I would strike your necks. Since then, a tradition has been established stipulating that the envoy does not get killed. As for Ibnu Uthal, Allah (swt) has taken care of him, as for this one he remained immune until Allah enabled us to slay him now. This Hadith indicates that it is forbidden to kill the envoys who are dispatched by the Kuffar, and likewise all the other rules. However, this is exclusively applicable upon those who have the capacity of an envoy, such as the ambassador and the Charg d'affaires and the like. As for those upon whom the capacity of an envoy does not apply, such as the Consul and the Commercial Attach and the like, they would not have any immunity, for they do not have the capacity of an envoy. This matter should be referred to the convention, because it is a terminological expression whose reality should be perceived by way of looking into the convention, and it is part of establishing the Manat (reality) i.e. establishing whether they fit the description of envoys or not Article 48(4) of constitution reads: The question whether any, and if so what, advice was tendered to the President by the Cabinet, the Prime Minister, a Minister or Minister of State shall not be inquired into in, or by, any court, tribunal or other authority. Article: 248 Protection to President, Governor, Minister, etc (1)The President, a Governor, the Prime Minister, a Federal Minister, a Minister of State, the Chief Minister and a Provincial Minister shall not be answerable to any Court for the exercise of powers and performance of functions of their respective offices or for any act done or purported to be done in the exercise of those powers and performance of those functions: Provided that nothing in this clause shall be construed as restricting the right of any person to bring appropriate proceedings against the Federations or a Province. (2) No criminal proceedings whatsoever shall be instituted or continued against the President or a Governor in any Court during his term of office. (3) No process for the arrest or imprisonment of the President or a Governor shall issue from any Court during his term of office. (4) No civil proceedings in which relief is claimed against the President or a Governor shall be instituted during his term of office

Khilafah

Capitalism

Nobody is above the law, even According to article 48(4) & 248 of the Khaleefah can be brought to the Pakistani Constitution the court for his personal or following people have judicial administrative actions immunity and cannot be brought to court, inquired or imprisoned by Ambassadors and envoys enjoy any authority in disposing of their diplomatic immunity 1 responsibilities 2
President Prime Minister Governor Chief Minister Federal & Provincial Ministers Minister of State

Capitalism gives rise to legalized corruption. No wonder why everybody wants to be a Minster

1.

The Khaleefah has the right to look into the Mathalim and he has the right to appoint a Qadhi of Mathalim and he also reserves the right to remove them. Hence in origin it is permitted for the Khaleefah to appoint and dismiss all Qadhies i.e. it is part of the Mubah actions of the Khaleefah. However, if the authority of removing the Qadis of Mathalim remains with the Khaleefah, and other charged with ruling, under all circumstances, then there is a high chance that the Qadhies wouldnt be able perform there job such as removing the Kahleefah and other people in authority, if found guilty. Since the Qadhies of Mathalim could be removed before they could remove them; they could be even unable to look into the cases of Mathalim tabled against the Khaleefah. Hence, the competence of looking into some of the cases of Mathalim remains stalled or subject to the threat of removal against the Qadhies, and this leads to stalling the Shari'ah rules in one specific area. And the stalling even a single Shariah rule is forbidden. Thus, if the competence of removing the Qadis of Mathalim remained with the Khaleefah under all circumstance, this would become a means to the suspension of the Shari'ah rules in a specific aspect, which is Haram. Therefore according to the Shari'ah principle: The means to Haram is forbidden., the Mubah action of the Khaleefah would become forbidden as it would lead to something which is Haram. This principle is deduced from Allahs (swt) saying :"And do not insult those who call to other than Allah lest they insult Allah out of spite in their ignorance....." . [T.M.Q 6-108] Therefore, the Khaleefah, Muawin Tafweed or the Qadhi al Qudah (the Chief Judge) does not have the right to remove the Qadhi of Mathalim while he is in the process of hearing a case against them.

Khilafah

Capitalism

The Qadhi could not be removed The head of state has the if he is in the process of hearing a authority to remove the judge any case against the Khaleefah, time. The perfect example was Muawin Tafweed or the Qadhi al Nawaz Sharifs tussle with the Qudah (the Chief Judge) 1 Chief justice Sajjad Hussain Shah In the Khilafah system, Qadhi feels secure and free to serve justice

1.

With regards to the Qadhi Hisba and Aamit is allowed for the women to be a Qadhi in these courts. As for the Qadi of Mathalim, he must be a man just like the Supreme Judge, because his job involves judging and ruling, for he passes judgement on the ruler and implement Shari'ah upon him, thus he must be a man, in addition to all other requirements of the Qadi which include the requirement of being Faqih. It is because People who hand their affairs to a woman shall not succeed. Moreover, he should also be a Mujtahid because part of the Mathalim into which he looks is the possibility of the ruler ruling by other than what Allah has revealed, namely if he were to rule by a rule that has no Shari'ah evidence, or if the evidence he uses did not agree with the matter at issue; thus this type of Mathlama could only be looked into by a Mujtahid. If he were not a Mujtahid, he would be judging out of ignorance, and that would be forbidden. As the Hadith says And a man who judged for people with ignorance, he is in hell-fire. Hence, in addition to the requirements of the ruler and those of the Qadi, he should be a Mujtahid.

2.

Khilafah

Capitalism

All Qadies must have the following A non-Muslim could be a judge necessary conditions for appointment: A judge doesnt have to be Adl and Sane Faqih to implement British Law in Mature Pakistan
Muslim Adl (opposite of fasiq) Faqih (knowledgeable in Islamic Law)

For Qadhi Mazalim there are two No such conditions in any level of additional conditions judiciary in Pakistan
Male 1 Mujtahid 2

Qualifications such as Adl, Faqih and Mujtahid are not needed in the current colonial judicial system of Pakistan

1.

Allah (SWT) says: "And judge between them by that which Allah has revealed." [Al-Mai'dah: 49]

Khilafah

Capitalism

All the laws related to Judicial All laws and procedural codes related to system are derived from Quran judiciary are man made either through and Sunnah and all procedural parliament or through various codes are built upon Quan and commissions etc Sunnah Pakistani justice system is a legacy of Without a shari evidence, these the British Colonial system laws cannot be altered by neither The Elite group in the parliament is the the Khaleefah nor the final authority to alter these laws who representatives, to suit themselves are mostly involved in the themselves to avoid justice persecution and injustices with the common people The Qadhi judges based on The Judges have no option but to pass Quran and Sunnah and nothing judgement based on what is legislated 1 else by the parliament

Laws given by Allah are free from any kind of bias hence provide justice where as Elite Group will always look for its own interest or the interest of the colonialist master
Qadhi is forced to rule according to what has been revealed by the Creator and hence the laws and the rights given by the creator to His creations do not change with the whims and desires of the rulers

1.

Hisba means: 'Conveying the divine rule for the purpose of enforcing it regarding that which causes harm to the rights of the community. This is highlighted in the Hadith of the heap of food. It has been reported in Sahih Muslim on the authority of Abu Hurayra that the Messenger of Allah (SAW) passed by a heap of food. As he put his hand inside it his fingers got wet, so he said to the vendor: "What is this?" He said: "It was dampened by the rain O Messenger of Allah." He (SAW) said: "Why don't you put it on the top so that people can see it? He who cheats does not belong to me."

Khilafah
Qadhi Mohtasib Qadhi Aam Qadhi Mazalim

Capitalism

There are three types of courts dealing with Different levels of courts different issues. No concept of higher or Magistrate lower courts District Courts
Session Courts High Courts Supreme Courts

Qadhi Mohtasib
Deals with crimes committed against the society and violations of the communitys rights such as cheating on the scales, encroachments etc 1 He may not sit in a court or place but he moves around in the society. He has police officers accompanying him. He judges at the spot and passes judgement and punishment such as fines etc

1. 2.

The evidence for the judge who settles disputes between people, i.e. Qadhi Aam, is derived from the actions of the Messenger of Allah (saw), and from his appointment of Mu'az Ibnu Jabal over an area of Yemen. The Mazalim (unjust acts) were mentioned in the Hadith of the Messenger of Allah (saw) regarding the fixing of prices where he said: "And verily I hope that I will meet Allah Azza wa Jall without having anyone claiming against me a Mazlama (complaint) I inflicted on him, be it of blood or funds" as narrated by Ahmad on the authority of Anas. The evidence for the judge of Mazalim (unjust acts), is derived from Allah (SWT) saying: "O you who believe obey Allah and obey the Messenger and those in authority from amongst you. If you dispute about something refer it to Allah and the Messenger." [An-Nisa: 59] Therefore, any dispute between the citizens and the people in authority should be referred to Allah and His Messenger i.e. to the rule of Allah. This necessitates the presence of a judge to give judgment on this dispute, and this is the judge of Mazalim. Evidence is also derived from the action of the Messenger of Allah (saw), for he (saw) appointed Rashid Ibnu Abdullah (ra) as judge of Mazalim.

Khilafah
Qadhi Aam 1
Settles disputes among the people in transactions and punishments Judges on crimes committed against the state includes Hudood and Tazeerat

Qadhi Mazalim 2
Judges upon disputes between the State/Rulers and the people Complaints against all judges and civil servants Judges upon conflicts between the Muslims and the State about the interpretation of any Shari'ah texts Can take suo moto action against the State and its machinery

1.

2.

The Khaleefah is removed from the Khilafah post in situations where he becomes out of the Khilafah bounds, thus the obedience would not become obligatory. This would be in case if he apostatises, becomes completely insane or falls prisoner in the hands of a powerful enemy from where he cannot deliver himself. However, there are other cases when his removal becomes incumbent but his obedience remains obligatory until he is actually removed through the process laid down by the Shariah. This would be the case if he becomes flagrantly Fasiq, becomes partially insane, for any reason is unable to bear the burdens of Khilafah or in case he is experiencing subjugation that prevents him from disposing of the interests of the subjects by his own opinion and within the boundaries of Shari'ah. In such cases he must be removed and should be deliberated in the Mathalim court and nowhere else. 'Ubadah Ibnus-Samit reported: "The Messenger of Allah (SAW) called us and we gave him the Bai'ah (oath of allegiance). Among the injunctions he made binding upon us was to listen and obey to the Ameer in our pleasure and displeasure, in our adversity and prosperity, and giving (others) preference over ourselves, and not to dispute the authority with its people, he said: "Unless you see a flagrant disbelief on which you have clear proof from Allah," narrated by Muslim.

Khilafah

Capitalism

Qadhi Madhalim can take sua According to article 48(4) of the moto action against the injustices Pakistani Constitution President, of the State Prime Minister, Governors, Federal & Provincial Ministers, Can even impeach the Khaleefah cannot be brought to court or if found guilty of crime for which inquired by any authority in Islam requires his impeachment disposing of their responsibilities such as becoming a fasiq, or ruling with kufr etc. 1 Hence an important issue of impeachment of the ruler is not decided on the whims and desires of the people rather one of the most responsible citizen of the society, Qadhi Mazalim, passes a judgement based on rules laid down by the Shariah, not on his personal desires or grudges. The ruling has to be very obvious for which there is a Clear Daleel from Quran and Sunnah. The whole Ummah is a witness over such a high profile decision, which even keeps the Qahdi Mazalim in check as well.2

Khilafah
There are four types of crimes in islam:
Qadhi Mohtasib Qadhi Aam Qadhi Mazalim

Capitalism
Different levels of courts
Magistrate District Courts Session Courts High Courts Supreme Courts

Qadhi Mohtasib
Deals with crimes committed against the society and violations of the communitys rights such as cheating on the scales, encroachments etc 1 He may not sit in a court or place but he moves around in the society. He has police officers accompanying him. He judges at the spot and passes judgement and punishment such as fines etc

1.

There is no Court of Appeal since court proceedings are only undertaken when the evidence is proven to be 100% definite. The ruling of the Qadhi cannot be revoked, be it by him or by any other Qadhi. Abu Bakr (ra) judged on certain issues according to his Ijtihad and Omar (ra) differed with him, but he did not revoke his rulings. Ali (ra) also differed with Omar (ra) in his Ijtihad, but he did not rescind his rulings. The people of Najran came to Ali (ra) and said to him O Amir of the believers, your book is in your hands and your intercession is by your tongue. He replied: Woe to you! Omar was rightly guided and I shall never quash a ruling delivered by Omar. It has also been reported that Omar (ra) has ruled in Al-Mashrakah (sharing inheritance) by excluding the brothers by two fathers; then in another case he included them in the share and said: That was my ruling then and this is my ruling now. When the Qadhi passes judgement in the case, he is in fact putting the rule of Allah into action, thus its execution becomes obligatory. Hence, it must not be quashed at all, because it would be a quashing the rule of Allah, and that is forbidden.

Khilafah

Capitalism

The decision made by the Qadhi There are appeals starting from is final and there are no appeals Magistrate to the Supreme court to higher courts 1 Provides swift and speedy justice. The rightful owner doesnt have to run from one court to the other Speedy and free justice discourages corrupt from committing crime The aggrieved party can take the The judges decision can be overQadhi to the Madhalim courts if ruled by the superior court but he his judgment is seldom punished for his corruption contradicts definite text in the
Qur'an, Sunnah or Ijma'a assahabah or contradicts a true reality

Keeps the Qadhi in-check from corruption

1.

2.

3.

4.

Allah (SWT) says: And if you judge between people that you judge with justice. [TMQ: 4-58] Also in His (SWT) says: And let not the hatred of others to you to make you swerve to wrong and depart from justice. Be just, that is next to piety and fear Allah, for Allah is well acquainted with all that you do. [TMQ: 5-8] It is also reflected in Allah (swt) saying pertaining the judgement between the people of the book: If you judge, judge with equity between them; for Allah loves those who judge in equity. [TMQ: 5-42] A Muslim who had killed a Jew was brought to the Messenger of Allah (saw), so he killed him and said: We are the worthiest in fulfilling our oath. The Messenger of Allah (saw) approved the drinking of Khamr (alcohol) by the Jews and Christians as well as their rules for marriage and divorce. The Messenger's (saw) approval is a specification for the general evidence. Regarding marriage and divorce, the Messenger's (saw) approval applies only when both mates are Kuffar. In situations where the husband is a Muslim and the wife is a Christian or a Jew, the rules of the Shar'iyah must be implemented on them. It is not possible that the wife is a Muslim and the husband is a Kafir, because such a marriage is invalid by the saying of Allah (swt): "Then send them not back to the unbelievers. They are not lawful (wives) for the unbelievers, nor are the unbelievers lawful (husbands) for them." Islam also outlined that the Zimmi enjoy the same justice we enjoy and that they should abide by the same rules which we abide by. As for abiding by that which we abide by, this is derived from the actions and sayings of the Messenger of Allah (saw). He (saw) used to exact the same punishment upon the Kuffar and the Muslims. The Messenger of Allah (saw) punished a Jew by killing him for killing a woman. A Jewish couple were brought to the Messenger of Allah (saw) because they committed adultery, so he ordered their stoning to death. Allah (swt) says There is no compulsion in the Deen T.M.Q [2 -256]. and the Messenger of Allah (saw) said: He who has embraced Judaism and he who has embraced Christianity, they should not be coerced away from their faith. Hence, any action, which to them is considered as a matter of faith, we should not interfere with them and we should allow them to practise what they believe, even if this were not in our Deen part of Aqeedah matters. Also any action which the Messenger of Allah (saw) allowed them to perform, such as drinking alcohol, and getting married, we should also not interfere with them in regard to these actions.

Khilafah
All people are equal before the Law. The law provides justice to all irrespective of colour, race and creed1 In matters of food, clothing and marriage the non-Muslims are treated according to their religions within the limits allowed by Ahkam Shariah 2 In matters related to systems such as economic, social, ruling etc Islam is implemented on all citizens alike 3 Non-Muslims are allowed to follow their own beliefs and worships and they are not forced to accept Islam 4

Capitalism
US has passed discriminatory laws for alien residents such as bugging their phones etc. A Muslim citizen is not allowed to marry more than one wife in the US In certain Capitalist states Muslim women are not allowed to wear Hijab UK law denies entry to under-18 wives

Only Islam can protect the rights of the all people living under the authority of the State irrespective of their colour, race, creed and nationality

Justice
Defining the crime Investigation Process of Conviction Punishment Who can forgive Above the Law Pressure from the ruler Judges Qualifications

To provide justice all the above 8 elements have to be built on just laws & principles Judicial system has a direct relationship with the process of legislation i.e. Ruling System Capitalist System can never serve justice since laws related to justice system are also legislated by the Elite Group. As most of them are involved in the persecution of the masses themselves, they would never legislate laws and procedures that would bring justice to people Hence to provide justice to the people we will have to establish Khilafah where all the above 8 elements are derived from the sources given to us by the Creator which are neither biased in favor of the poor nor the rich

Khilafah
o To implement Islams Judicial System we require its corresponding ruling system i.e. the Khilafah. In the Khilafah no one has the authority to change Allahs laws or abrogated them o Dictatorship and Democracy cannot implement Islams Judicial System as man is the legislator in both these systems and the powerful can easily change the just laws of Islam in their personal interests to subjugate the rights of the weak and the poor

Decision making
Legislative Mubah
(General issues)

Mubah
(needing expertise)

The ruler

The ruler

The ruler

Economic

Ruling

Social

Judicial Education

Foreign Policy

Decision making
Legislative Mubah
(General issues)

Mubah
(needing expertise)

Elite Group

Elite Group

Elite Group

Economic

Ruling

Social

Judicial Education

Foreign Policy

Decision making
Legislative Mubah
(General issues)

Mubah
(needing expertise)

Allahs Ahkam
Are implemented derived from the sources, Quran, Sunnah, Ijma us Sahaba Qiyas

Khaleefah
is final authority after discussing with experts

People
Through their representatives decide based on majority

Economic

Ruling

Social

Judicial

Education

Foreign Policy