The Reinvention of "Sharīʿa" under the British Raj: In Search of Authenticity and

Certainty
Author(s): ELISA GIUNCHI
Source: The Journal of Asian Studies , NOVEMBER 2010, Vol. 69, No. 4 (NOVEMBER
2010), pp. 1119-1142
Published by: Association for Asian Studies

Stable URL: http://www.jstor.com/stable/40929286

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 The Journal of Asian Studies Vol. 69, No. 4 (November) 2010: 1119-1142.
© The Association for Asian Studies, Inc., 2010 doi: 10. 1017/S002191 1810002895

The Reinvention of Sharfa under the British Raj:

In Search of Authenticity and Certainty

ELISA GIUNCHI

Influenced by Orientalist assumptions and Utilitarian ideals, and ne

enforce a system of adjudication that responded to their interests,
India Company's officers selected among varied religious texts a set of
and tried to apply them consistently. The decision to rely on texts rath
practice, the choice of certain precepts at the expense of others, and th
application ran counter to the traditional administration of justice, wh
been fluid, contextual, and plural They also distorted the meaning o
fikh, turning what had been an instrument of legitimation, a moral re
and a source of social standing into a system of organized dispute settle
The emphasis on religious textual sources and the attempt to use t
basis for codification coincided with the idea, which gained ground in t
teenth century among Muslim reformist movements, that political wea
could be countered by returning to a pristine scripturalist Islam, fo
its legal aspects and seen as a systematic doctrine devoid of ambiguities
ideas can be also found in the Islamist thought that subsequently
among urban reformist movements and in legal reforms adopted in Pak
A review of case studies, however, suggests that the flexibility and cont
that characterized the enforcement of Islamic law in precolonial Islam
be found in legal practice.

"Give me the words of the Koran . . . and out of them I unde

produce you a code. "
- Jeremy Bentham, 1843

recent years, a number of authors have observed that the Islamis

plays an important role in uprooting traditional cultures, which are
under attack from globalization (Roy 2002). In harking back to a dis
that of the Prophet Muhammad and of the "well-guided" caliphs, as an
be transplanted into a morally corrupt present, Islamist leaders are
these authors argue, a new religious identity, one severed from its links
dition in terms of both social and legal practice. It is what Edward
would have called "abandoning history." Like the creation of "invented t

Elisa Giunchi (elisa.giunchi@unimi.it) is Assistant Professor of History and Institutions of Islami

the Department of International Studies at the Università degli Studi di Milano, Italy.

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1120 Elisa Giunchi

described by Eric Hobsbawm (Hobsbawm and Ranger 1992), this return

past can be read as an attempt to mitigate the insecurity created by a con
vast, rapid changes and to provide a sense of permanence to the flux of h
and social relations. The living past, considered unsuitable to face externa
lenges, is replaced by a remote and mythicized past that, by coinciding w
birth of Islam, has a particularly strong emotional appeal.
The legal dimension is an important but neglected aspect of this const
tion. The multiform and varied local traditions are replaced by a set of n
whose foundations are to be found in the Qur'an and the Sunna, inte
on the basis of a literalist hermeneutics that transforms them into closed t
to be applied regardless of practice and context. Religion itself is transfo
into an ideology. For Abul Ala Mawdudi, the founder of the Pak
Jamaat-e-Islami and one of the main ideologues of political Islam, Isla
well-ordered system, a consistent whole, resting on a definite set of clear-
tulates" (1960, 133). The perspective of religion as a system (razara), a recu
feature of Mawdudi s works,1 can be found among other Islamist thinkers
trickled through Pakistani historiography and political thinking from th
1950s.
The idea that beneath a substratum of local beliefs and traditions lies an
essence to be reintroduced as a panacea for all evils, and that it can be found
in the main textual sources of sharta is not new, of course, but has periodically
characterized, particularly at times of social upheaval and political change, the
entire history of the Muslim world. To this we may add that the dialectic
between what is and what should be is, after all, part and parcel of a religion
whose main doctrinal source, the Qur'an, is considered by the majority of fol-
lowers as divine word, valid for all time and in all places. But it was during the
nineteenth century, when European colonialism was at its apex, that there
were increasing attempts in the Muslim world, by neotraditionalists and moder-
nists alike, to return to a pristine essence and from this start anew, skipping cen-
turies of history, to reconstruct a coherent doctrine that could be applied
systematically. Although it is difficult to establish cause and effect precisely, it
is reasonable to imagine a connection between this endogenous search for con-
sistency and authenticity and the European emphasis on coherence and uniform-
ity, which was spreading in the same period with the growth of colonialism. The
reconstruction oí shan a in the Anglo-Muhammadan legal system, in particular,
might have shaped the Muslim conception of Islamic law on the Subcontinent,
contributing to the transformation of what had been a morally driven and contex-
tual method of reasoning into a "system."

xSee, e.g., Mawdudi, Purdah and the Status of Women in Islam (1992), a collection of articles dating
back to the 1930s.

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 The Reinvention of Sbari'a under the British Raj 1121

Legal Practice under the Mughals

The scarce and fragmentary information that can be gleaned from c

chronicles, memoirs, and travelers' anecdotes indicates that at the time of t
Delhi sultanates, and then under the Mughals, the application of sharfa
an important form of legitimacy for the rulers, as well as a way of justify
social hierarchy at the top of which was the knowledge of adab - the ru
good conduct. The actual application of shan a was not, however, a prim
concern of these rulers - not even the more orthodox ones such as Aura
(Akbar 1984; Fyzee 1963; Jain 1970; Sangar 1967; Sarkar 1920; Yusuf 196
was through formal abidance to Islam, which was administered independ
by the 'ulama, and patronage of Islamic institutions and holy men that
rulers secured support for their own assertions of authority, rather than enfo
the details of Islamic law. In observance of the prevailing relationship betwe
political power and religion, as well as for pragmatic reasons - the actual imp
bility of imposing shan a on a population in which the majority was non-M
and that was spread over extremely vast territories, and the need to ensure
acquiescence of prominent non-Muslim lineages - the authorities left
freedom to their subjects in settling their disputes autonomously, through
arbiters and forms of assembly that enforced customary laws that ofte
little to do with the religious prescriptions to be found in the written
(Ahmad n.d.; Hussain 1935; Sharma 1951). The distinction between the
applied to Muslims and the law applied to non-Muslims, a stereotype in the
erature on the subject, was extremely blurred. Not only was the jurisdiction
same in the case of crimes, but also both communities settled their disputes
the most part without the intervention of the state. Some research also sug
that disputes concerning members of a religious community were often med
by individuals belonging to other communities (Torri 1987, 705-7). The dista
from central power was enormous, particularly in the family sphere, as dis
regarding honor were settled almost exclusively out of court.
Only particularly serious breaches of public order or crimes involving pro
nent persons who lived in urban areas were settled through formal channel
referred to shan a laws. However, even in these courts, Islamic penalties
not considered mandatory or enforced consistently (Jain 1970, 67-71).2
even when Islamic laws were actually enforced according to the prescrip
contained in the treatises of Hanafì jurisprudence, the courts took into con
ation a vast set of factors in deciding which opinion to follow, sometimes (
might say "even") dissenting from the opinions of jurists (Jain 1970, 32

2See also the cases reported in the tales of some European travelers, which, despite their Orien
connotations, can be considered useful in corroborating or rejecting more sound testimon
court chronicles, memoirs, and fikh treatises (Bernier 1826; Manucci 1907; Monserrate
Roe 1732).

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1122 Elisa Giunchi

fikh texts were to the kadi a source of moral reference, which opened up d
possible applications. The judges were familiar with the context and, on t
of this context - what Bayly calls "the sense of the neighbourhood" (1983
applied the law. One might be tempted to claim that there was no rule of l
this would not be quite true. What determined the decision was the inter
the community, or maslaha, a term that indicated the desire not to distu
peace and to avoid all forms of fitna, to which the concept of equity was i
ably linked as a means of preventing one group from prevailing over the
and protecting the most vulnerable sections of the population, albeit w
altering the status quo. The written prescription was associated with socia
siderations, but also with a certain empathy for human weaknesses. It is
worthy that the courts usually paid attention to the good faith of the pa
(Briggs 1919, 352), an attitude that often led to cases of clemency (
1939, 61, 130, 155). The duality of procedure - the use of custom for ord
justice and the use of fikh for extraordinary justice - served to reestablis
reiterate the religious ideal in "prominent" cases. But, as mentioned
even in these cases, idjtihãd was practiced, guided by attention to the con
The attitude of the judges was not the result of their arbitrariness, or
arbitrariness of the rulers, as would be claimed by the British, but was in
with what was proposed by the jurists themselves. Islamic jurisprudential
tises were made up of individual contributions, and it was not unusual to
contrasting positions. This is evident by reading the Hidãya, a collection o
twelfth century that sets out the opinions of Abu Hanifa (d. 767), the fo
of the Hanafi legal school, and those of his disciples Abu Yusuf (d. 798) and
bani (d. 804), which rarely coincided. To cite just a few examples: Abu
considered that in the case of discrepancies in testimonies as to con
relation to an act of unlawful sexual intercourse (zina), the alleged perpet
were to be acquitted, while in the view of his disciples, only the woman wa
acquitted; according to his disciples, in the event of an error regarding the
contractual error, an irregular union that was based on apparent legality
the good faith of the parties should not lead to a hadd conviction of zina, w
the case of an error on the individual, the couple could be prosecuted
if they were aware of the irregular nature of the union; for Abu Han
mere existence of a matrimonial contract, irrespective of the good faith
parties, impeded hadd punishment (Hamilton 1870, 184). Clearly, these th
cal questions take on fundamental importance in the courts: following on
rather than another may have very different consequences, in the a
which Islamic criminal law applies. Even the Fatãwã-i-'Ãlamgíri, a set of r
decrees and extracts from Hanafi treatises that was compiled under the e
Aurangzeb in the seventeenth century to systematize and simplify legal pr
contains contradictory opinions.
The reason behind these inconsistencies is that the treatises were p
an evolving jurisprudential tradition that accepted internal contradiction

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 The Reinvention of Shari'a under the British Raj 1123

allowed the judge wide decision-making freedom. Islamic law was a doctrine in
fieri, which was meant to respond to the historical context and social consider-
ations, while observing the ultimate meaning of religious prescriptions (Hallaq
1997, 258). In other words, both legal practice and legal theory indicate that
Islamic law was "a fluctuating, elastic quid9' (Carusi 1919, 198), in which ultimate
ideals and context were closely linked in a constant dialogue. This idea was not, it
may be argued, unique to the milieu in which the Hanafi/i/c/i was compiled: after
all, the structure of the Qur'an itself, as has been argued in a compelling way by
Nasr Abu Zayd (2006), and the theory of abrogation subsequently elaborated,
indicate that the relationship between the sacred text and the context was
dialogical.

Also the consideration of the judges for human weaknesses was not unre-
lated to doctrine: in the fikh treatises, above all the Hanafi ones, one can
see the attention to maslaha, and particularly the premise that the well-
being of the community and the intentions of the litigants in performing
certain actions are to be taken into consideration in interpreting and
applying the law.

This is a far cry from the image, common in much writing on Islamic law, of a
monolithic and well-defined doctrine, which, after being systematized, would
be completed with the "closing of the gate of idjtihãd" after the ninth century
by the jurists themselves and then blindly reproduced in the following centuries
until the arrival of European colonialism, which was to set a static situation again
in motion.3 Sociologists, too, when describing in Weberian terms the creation of a
closed corpus completing the transition from revelation to rationalization, pre-
suppose the same scheme of things: namely, that the systemization in the first
centuries after the death of Muhammad concluded with the closure of the
gate of idjtihãd, and that this gate would only be reopened thanks to the influence
of European thought in the colonial era. Behind this, there is clearly the idea that
it is Europe that imprints movement on what is static, a central axiom of Orien-
talist thought. This perspective is not true in terms of doctrinal developments
(the idea of the closure of the idjtihãd only actually appeared in discussions in
the twelfth century, and there has never been any subsequent consensus on
this issue) or, as we have seen, in terms of legal practice. In India, as elsewhere,
it was the colonial administrators and scholars who, driven by their stereotypes as
well as by their needs, helped make Islam a rigid law-centered entity in the lives
and minds of the colonized peoples. The same process has occurred with regard
to Hindu tradition, as many studies have highlighted (Derrett 1968; Galanter
1968; Menski 2003).

Joseph Schacht (1964) is one of the most eminent scholars oflslamic law to consider the "closure
of the gate of idjtihãd" proclaimed by the Sunnis as final.

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1124 Elisa Giunchi

Orientalism and Asia

Between the eighteenth and nineteenth century, Europe produced an ahistori-

cal vision of the Orient in which the peoples observed were attributed immutable
specificities, rather than defined as the product of historical circumstances. Th
quintessence of the Orient was India: the changes that took place in the course o
its history were seen as superficial in nature, and, as such, they did not affect the
"basic" rules and institutions that were presumed to be unchangeable. In a dual con
notation, which had already emerged at the time of Herodotus, the Orient was con
trasted with the dynamic West, on which befell the moral duty to impose movement
on all that which by its nature was not. The legal dimension, an aspect neglected b
Edward Said, was the expression of this opposition between the stagnant and fluid
for the British in India, Islamic law, like Hindu law, was a fixed, timeless entity that in
the course of time had been submerged by traditions. Uncovering it and "moderniz
ing" it would be, as we will see, one of their first tasks.
At first, the Orient, and specifically India, was not seen as necessarily inferior. As
Warren Hastings, the governor-general of Bengal from 1772 to 1785, noted, with
relativism that informed other early Orientalists, "it is not unreasonable to suppos
that the power of the mind is distributed in equal perfection among all the human
races" (Marshall 1973, 257). The example of the Roman Empire strengthened their
conviction that a great empire had to respect the colonized society and tolerate
differences. Accordingly, indigenous law should be applied to the extent that it
was more "consonant to the ideas, manners and inclinations" of the population
than other legal systems (Jones 1918, 337-38). Expecting the local population to
adhere to an external value system would be, in fact, both irrational and unjust.
Respect for India was enhanced by the early Orientalists' view of history
Influenced by their classical education, they thought that India had been th
seat of a great civilization that had undergone, like all other civilizations, progress
ive deterioration. This state of decline could be reversed by returning to the pris
tine authenticity of Indian civilization, which was to be found in its religious texts
Behind the idea of reinstating ancient religious law, there was the conviction of a
pristine purity, the myth of a primitive society not only better than the one the
encountered but also, in some respects, better than European society of the time.
Legal transformation was indeed marked, at least until the second half of the
nineteenth century, by a certain idealization of the Orient and by a parallel dis
content with British society. Reliance on religious texts rather than unwritten
customs also responded to practical motives - the need to ascertain legal rule
quickly; to limit the complexities of local mores, in the assumption (which was
to prove wrong) that textual sources contained clear-cut rules; and to forge an alli
ance with the religious establishment, thus ensuring the loyalty of a population
that was imagined as deeply religious.
As time went by, Indian culture was increasingly seen in a negative light. Whil
the main ingredients of Orientalism, such as the opposition of a rational Europe an

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 The Reinvention of Shari'a under the British Raj 1125

a traditional India, continued to influence the European vision, the law-centered

theories of Utilitarian liberals, focused on the ideals of uniformity and certainty,
gradually gained ground, shaping the image of India. The respect for local laws
preached by Hastings and his aides contradicted the utilitarian quest for a
"modern" society based on a uniform legal system, the protection of individual
rights and freedoms, and equal and impartial protection under the law. These
ideas were seen as the final and inescapable products of civilization: to Jeremy
Bentham and his followers, history was not cyclical but rather progressive, and pro-
gress coincided not with the reinstatement of India's ancient past, but with the
implementation of Utilitarian ideals. Legislation, which was seen as an essential
instrument of social change, was what was needed: reliance on religious norms,
which were seen as lacking the necessary ingredients of a "modern" legal system,
should be replaced by a single, comprehensive, and uniform code (Kopf 1969;
Marshall and Williams 1982).
Criticism by Utilitarians of the Indian legal system reflected their criticism of the
English legal system, characterized by what to them seemed to be unsystematic,
unequal, and overly flexible norms and multiple systems of judicial administration.
To these reformers, who thought that certainty was a fundamental component of a
modern legal system, ambiguity, in England as well as in India, had to be removed
from the law. For some like Lord Macaulay, who served on the Supreme Council of
India between 1834 and 1838 and was a prominent member of the Law Commis-
sion, legislative reforms in India would actually lead the British to change their own
laws: India was a testing ground, a laboratory of ideas that could, and should, have
repercussions on the home country (Singha 1998, 299, 310).
Reformists were not homogeneous in their approach to change, however.
Early Utilitarians, including Bentham, despite preaching the adoption of Utilitar-
ian ideas by Indians, admitted that time and space were determining factors in
deciding what was a good law (Bentham 1843). Macaulay agreed that change
had to be tempered out of respect for local feelings. Subsequent reformers
such as James Mills (the author oí The British History of India who, significantly,
had no firsthand knowledge of India) had no such qualms, and saw India as a
tabula rasa on which law should be injected from the outside (Majeed 1990).
This progressive devaluation of Indian culture was reinforced by an increasing
self-confidence among the British following Napoleon s defeat and the techno-
logical breakthroughs of the industrial revolution, and by the evangelical dis-
course, which increasingly influenced the Company's higher echelons: to most
missionaries, India was backward not because customs had watered down a pris-
tine golden age, but because the religion of the local population was itself inferior.

From Religious Experts to Translation

The exercise of judicial power by the East India Company began with the
Charter of 1661, about fifty years after its first trading colony was set up in

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1126 Elisa Giunchi

Surat, in Gujarat. Subsequently, the Company gradually extended, along w

commercial network, its administrative and judiciary activities. The Comp
officials, who were judges and executors at the same time, limited thems
to applying the customary laws of the local populations, with one importan
dition - that they were considered not to differ excessively from the Engl
and values of the time. So, for example, in 1748, the East India Company
lished that sex offences were to be punished "in such a way as shall by th
found most efficatious and agreeable to the nature of the people and not c
to the laws and statutes of the Kingdom of England" (Fawcett 1979, 25). I
a new charter established that the indigenous peoples were to use their ow
gious laws instead of those of the East India Company on issues related
private sphere. In 1772, the Hastings Regulations reaffirmed the pr
whereby religious law would be applied to Hindus ("gentoos") and M
("mahomedans") on issues of inheritance, marriage, caste, and "other r
customs and institutions," precisely the topics that would have been with
jurisdiction of ecclesiastical English courts of the time (Derrett 196
Lord Cornwallis, governor-general between 1786 and 1793, further ex
Hastings s preservationist policy so as to avoid "collision with the habits and
dices" of local people (Stokes 1990, 23).
By reinstating indigenous law, the Company was not only responding to the
tural milieu of eighteenth-century England, but also furthering its own in
The study of society and its religious "roots" responded to the necessity t
the colonized society, while the implementation of religious norms might
won the allegiance of elite groups. These two elements were essential t
control, to minimize resistance, and to collect tax revenues and debt (Coh
It should be remembered that the Company, as the legatee of Mughal rul
bound to respect the religion of the local people. It was hoped that un
guise of respect for Mughal nominal authority, external dominion would
acceptable to the local population. This was, after all, what had happened in
centuries, when the acceptance of local mores by Muslim rulers had ensured
In order to supervise the application of religious law and adapt it t
needs, it was, first of all, necessary to know that law. To this end, the B
attached to the district and appeal courts experts on sacred matters -
for the Hindus and maulvis for the Muslims - who were asked to retrieve
norms contained in religious texts. These local advisors, however, were de
of the possibility of performing their traditional role: the English judge lis
the parties through a translator and asked the religious officials what the d
position was on the matter. The questions were asked in an abstract manne
no contextual details, and, as a consequence, the answers were equally abst
as law reports indicate.4 This meant, among other things, that it w

4See, e.g., Khajah Hidayut Oollah v. Raijan Khartum (1844), 3 MIA, 295; Jesivunt Sing-J
Sing-Jee v. Chuter Sing-Jee Deep Sing-Jee Uby Sing-Jee (1844), 3 MIA, 245; Ameer-on

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 The Reinvention of Shari'a under the British Raj 1127

uncommon to receive contradictory answers. This state of affairs also confirmed

stereotypes that were increasingly common among British civil servants: because
the true indigenous law was imagined by early civil servants, as we will see, to be
homogeneous, the contradictory/öfötw given by the religious officials were inter-
preted as the product of ignorance or corruption. This might have been true in
many cases, but the point to make here is that the maulvis contradicted them-
selves precisely because they lacked what had been the mainstay of Islamic
legal practice on the Subcontinent, that is, connection to the context (Anderson
1996). The fatãwã had another drawback: as the maulvis were expected to give
concise and coherent responses, they necessarily glossed over many subtleties of
fikh, of which, as a consequence, British judges were for some time unaware.
The Company, which considered fatãwã, and the norms that the fatãwã elu-
cidated, as binding rules, was exasperated by their lack of uniformity. Driven by a
desire for consistency, and possibly perceiving their dependence on local advisors
as a form of disempowerment, they soon decided to seek a direct relationship
with the source texts. Starting in the second half of the eighteenth century, indi-
genous religious texts were translated from Sanskrit, Arabic, and Persian, and
transposed into manuals aimed at instructing practitioners and aiding judges.6
The contextual consistency of the fikh, which had inspired the contextual consist-
ency of the kadi, was to be thus transformed into formal and substantial consist-
ency through precise formulas, procedures, and concepts that the British judges
could understand.
Thanks to the efforts of Hastings, who was an expert in Urdu and Persian,
David Anderson began, in 1774, translating part of the Fatãwã from Arabic
into Persian, and then from Persian into English. At the same time, translation
of the Hedãya was begun into Persian; in 1783, Charles Hamilton completed
the translation from Persian into English, which was published in 1791. Soon
after, other texts on the Islamic inheritance law were translated by William
Jones and Neil Baillie. A similar process occurred in relation to Hinduism,
whose essence was found in the Dharma Sastra. The first compilation and trans-
lation ofthat text was prepared by a group oí pandits, again under the supervision
of Hastings. Following its translation from Sanskrit into Persian, a young official
from the East India Company, Nathaniel Brassey Halhead, completed the trans-
lation into English. The text was published in 1776 under the symbolic title A
Code of Gentoo Laws - symbolic because translated texts were seen as codes.

others v. Moorad-on-nissa and others (1855), 6 MIA, 211; Mirza Himmut Bahadoor v. Mussumut
Sahebzadee Begum (1873), 1 IA, 23; and Muhammad Ibrahim v. Altagan and others (1925), 47 All,
243.

5See, e.g., the fatwa on the legitimacy of offspring, which glossed over the issue of the "sleeping
foetus": Ashrufood Dawlah Ahmed Hossein Khan Bahadoor and Wazeroon Nissa Begum v.
Hyder Hossein Khan (1866), 11 MIA 94, 113.
For a list of the textbooks most used in court, see Faiz Badruddin Tyabji (1940, 89-93).

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1128 Elisa Giunchi

Significantly, Hamilton stated in relation to Islamic law that "[t]he Mussalm

code has been the standard of judicial determination . . . , as an invariable pri
of all Mussalman governments, namely a rigid and undeviating adherence to
own Law" (Kugle 2001, 270).
As this and similar statements indicate, the underlying Orientalist assum
of many Company administrators was that the religious texts were internally
sistent.7 This assumption conveniently fit into the British imperative of iden
ing precise norms to apply: it was a product of their Orientalist assumptio
well as their imperial needs. However, the Company soon recognized that r
gious texts could not offer clear-cut solutions. Translation made it clea
the original texts reflected "the perpetual conflict of discordant opinio
jarring deductions" of Muslim scholars, as Thomas Edward Colebrooke, a pr
nent expert of Sanskrit and later on director of the Royal Asiatic Society, ob
(1884, iii). This made it imperative to determine what were the "true princ
upon which that law was founded."8 Translation, which in Hamilton's word
intended "to clarify the ambiguities of the text" (1870, xliv), was the starting
in this process of simplifying. William Jones, judge at the Crown Court of
cutta from 1773 until his death in 1794 and translator of numerous texts fr
Arabic and Persian, underlined that his knowledge of these languages a
him to read the original texts and therefore to choose the "correct" op
from among the contradictory ones given by the religious experts (Cannon 1
666-80, 718; Mukharjee 1968). This assumption influenced the translat
effort, undermining its accuracy. It was not uncommon for translators to int
their own views with the translation, loosely paraphrase, or omit some parts
original text (Ali 1929, 1:23). To undermine translation further, mistakes abou
and sometimes, as in the case of the Hedãya, the copies available to the Eng
translator were not the original Arabic text, but a Persian commentary.
Translations were followed by commentaries and reference manuals
were arranged in ways that could be understandable to British judges, so as
overcome what were seen as the "extravagant hypotheses" and the "immeth
cal" approach of the original texts, where "each argument, however absurd
urged and combated" (Macnaghten 1825, i-vi). Important manuals such a
naghten s Principles and Precedents of Muhammadan Law, as well as
written later on by prominent justices such as Ameer Ali, Abdur Rahman,
Tyabji, admitted that texts of Islamic jurisprudence contained differing op
but tended in their expositions to gloss over areas of contradiction,9 in ord
simplify and systematize the discussion. Nor could it have been otherw

7See also Thomas Edward Colebrooke (1884, iii) and Judge J. Woodroffe in Kusom Bee
Golam Hossein Cassim Arif (1905), 10 CWN 449.
8Judge Garth, as quoted in M. A. Abdur Rahim (1911, 43).
See, e.g., Abdur Rahim s (1911) exposition on the concept of doubt in Hanafi/i/c/i, which do
mention the difference between Abu Hanifa and his disciples on the subject.

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 The Reinvention of Shart'a under the British Raj 1129

they were all trained in England or according to a British syllabus, and had no
deep knowledge of their own legal traditions.10 The opinions that corresponded
to their own perspectives were highlighted, as is evident in the writings of Ameer
Ali, who glossed over opinions that did not suit his idea of a modern society. At
the adjudication level, judges, when confronted with differing views, favored-
some opinions over others,11 though they seemed to be increasingly at pains to
distinguish between rules of greater and lesser authority.12
The attempt to classify the Indian population into strict religious categories
proved increasingly complex, and led judges in some cases, typically concerning
Khojas and Kutchi Memons, to state that litigants could be governed by custom-
ary law in derogation of textual Islamic law, though the existence of custom
required very high standards of proof,13 or to choose between differing options
by recurring to the formula of justice, equity of good conscience.14
Reliance on precedents helped make the solutions adopted by the British
judges binding. In line with the desire to find a secure essence in what was per-
ceived as a labyrinth of fluid norms, they had, in fact, established the procedure
oí stare decisis, or binding precedent, which was unknown to Islam, although it
had an apparent similarity to the principle of takltd, the observance of one legal
school at the exclusion of others. However, whereas taklid had not stopped legal
theory and, above all, legal practice from evolving, and it recognized contradic-
tions within single judicial schools, the influence of precedent, accompanied by
the reluctance to differ from established positions on religious matters and to
accept fresh interpretations,15 including those based on Islamic primary
sources,16 limited the flexibility that the judiciary had previously possessed to
maneuver between different scriptural authorities and, within them, between
different opinions.
As a consequence of these processes, the rules of the Hanafi school, which
under the Mughals had been confined to the urban and gentry groups and inter-
preted liberally, spread beyond these groups as the colonial courts disseminated a
unified "Muhammadan law," something that the Mughals in the long centuries of

10For their background, see Gregory C. Kozlowski (1985, 116 ss).

See Tyabji (1919, 71, esp. n. 11) for cases involving the issue of which opinion to choose among
those expressed in the Hedãya. See also the cases in the Bengal law reports (1868-75) reported in
T. V. Woodman (1878, 420-30).
12Agha Ali Khan v. Altaf Hasan Khan (1892), 14 AIL, 429, 448; Kusom Beebee cit.; and Aziz Bano v.
Muhammad Ibrahim Husein (1925) 47 All., 823.
13 Jan Mohamed Abdullah Datu and others v. Datu ¡offer and others, AIR 1914 Bombay 59; Advo-
cate general v. Jimba Bai and other, AIR 1915 Bombay 151; and Narayanaswami Naidu v. Balije-
palli Sunduramiah and others, AIR 1915 Madras 1127. On this issue, see also Tvabii (1940, chao. 2).
14See Aziz Bano v. Muhammad Ibrahim Husein (1925), 47 All., 823; and Raj Bahadur v. Bishen
Dayal, (1882) 4 All., 343.
Aga Mahomed Jaff er v. Koolsom Beebee (1897), 25 Cal. 9, 496.
Aga Mahomed Jaffer v. Koolsom Beebee; and Baqar Ali v. Anjuman (1902), ILR 25 All., 236.

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1130 Elisa Giunchi

their rule had proved unable to do (and which, in all likelihood, they h
interested in doing).
These Hanafi rules, however, were only part of a wide array of pos
that had been open to traditional judges. The subtleties of fikh, th
of alternative voices, and the idea itself of the legitimacy of differin
were increasingly forgotten by Indian lawyers and judges with Br
training.

The Process of Codification

Already at the end of the eighteenth century, British judges were referring t
the Roman law formula of "justice, equity and good conscience," by which they
meant British laws, "if they could be applied to the Indian society and circum-
stances" (Tyabji 1919, 74) though there were differing opinions as to its sco
and whether it could supersede explicit Islamic norms.17 Hastings thought that
when the administration of law seemed "repugnant to the principles of goo
government and common sense," the British should step in with a remed
(Misra 1959, 324). Allied with these principles - common sense and good gov
ernment - was the presumption of the English, which gained ground beginning
at the end of the eighteenth century, that they could "elevate" the coloniz
societies by extending to them more "humane" principles and norms. In th
name of these moral aims, the Company increasingly did away with religio
tenets: for example, in 1792, it was decided that, contrary to Islamic law
Muslims could be convicted on the testimony of non-Muslims. The purpose
the Raj, in the words of one British high official at the end of the eighteenth
century was, after all, to "preserve . . . the institutions and laws of the natives o
Hindoostan, and attemper them with the mild spirit of British governmen
(Bruce 1793, quoted in Kugle 2001, 257). As Sir Roland Knyvet Wilson was
write a century later, "British statesmanship determines from time to time ho
much of Oriental precept is to be treated as Law in the English sense, an
how much left to the consciences of those who acknowledge it as religious
binding, and how much forcibly suppressed as noxious and immoral" (1894, 2).
Out of increasing dissatisfaction with texts, which were considered uncertain
and obsolete, under the influence of Utilitarian ideas and evangelicalism, an
faced with the growing contradiction between the preservation of tradition
law, based on status, and the introduction of free market principles, whic
required the free movement of goods and labor (Washbrook 1981, 652-55
the British gradually stepped up the introduction of English concepts an
norms. Religious law, however, was not simply done away with, but rather was

1 illuminating in this regard is Moonshee Buzlar Ruheem v. Shumsoonnissa Begum and Jodonat
Bose v. Shumsoonissa Begum (1867) 11 MIA, 551.

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 The Reinvention of Shari'a under the British Raj 1131

transformed. Thus, in the case of criminal law, in the first half of the nineteenth
century, the "barbaric" punishment of stoning for the crime of adultery was
banned, flogging was restricted, and women were exempted from it, but all
those expedients contained in the fikh and particularly in the Hedãya that made
it practically impossible to convict someone oí zinã' were not taken into consider-
ation. The consequence was that under the British, the number of persons con-
victed of zina grew drastically, while the fikh had made it punishable only in more
obvious cases, that is, in the more blatant breaches of order and of religious law.18
The growing weight of English norms went hand in hand with an increasing
interest in "a known and intelligible code" that would replace "the hidden mys-
teries" of religious experts (East India 1842, 717), with dissenting voices
mostly limited to a few Indian scholars (Menski 2003, 203). The Indian Law
Commission created by the Charter Act of 1833, which strongly argued in
favor of codification, decided as its first task to focus on criminal law, possibly
a reflection of the fact that this had been the main preoccupation of the reformist
movement in England (Raman 1984; Skuy 1998). Macaulay, who was asked to
draft a criminal code, thought that in the name of uniformity, the Indian legal
system should give preeminence to one system of law only (Macaulay 1898,
11:579) and that that system of law had to be the English system as tempered
by Utilitarian ideals. The process of replacement of Indian religious law
through the enactment of codes accelerated after the 1857 mutiny, when the
Crown government took a more active role in the "modernization" of the
Indian administration. By 1875, Anglo-Muhammadan law was replaced in all
matters except for family law, for certain transactions, and for some offenses
affecting the human body.
The new legislation, although taking into consideration local circumstances,
radically distanced itself from classical Islamic law, particularly in the field of
criminal law. The Penal Code of 1860 only considered adultery a crime, but
not fornication, and prescribed that women should not be subject to corporal
punishment, contrary to the fikh; the code, in addition, did not consider zina
a crime against God, but against the husband, with the consequence that if the
latter withdrew the charge, criminal proceedings were automatically dropped;
finally, custody and fines replaced the penalties prescribed by the fikh and estab-
lished that women could not be prosecuted for sexual crimes. In 1872, the Indian
Evidence Act also reformed the law on evidence, establishing, unlike classical
sharia, that the testimony of men and women was of equal value, even in crim-
inal cases related to hudüd sex offenses, where before women did not have the
right to testify. Not all legal changes were beneficial to women: the British, for
instance, introduced two principles, the grave and sudden provocation clause
and the restitution on conjugal rights, that negatively affected women,

18Regulation no. 17 of 1817 and no. 7 of 1819: Jörg Fish (1983, passim).

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1132 Elisa Giunchi

particularly those belonging to vulnerable groups, and discouraged local cu

that gave women greater freedom and rights, for instance by legitimizing
archal lineage even where it was not in force, and by limiting women's co
over their sexuality (Poonacha 1996, 39-63). 19
These changes were made possible by the formal abolition of the M
empire, which resolved the internal contradictions in the political and cul
construction of British India, divided between the need to respect the nom
authority of the Mughal rulers and its increasing confidence in its own sup
ity. European dominance in the second half of the nineteenth century was s
irreversible. As James Bryce would write toward the end of the nine
century, "Europe [has spread] over their native customs and beliefs a la
European ideas which will sink deeper and deeper until the old native life
out . . . European forms of thought and ways of life will come to prevail
where" (1914, 2). In the face of the "rising tide of European law," Bryc
cluded, with evident satisfaction, that "both Hinduism and Islam may . . .
within a century or two to show signs of approaching dissolution" (131
The codes adopted in the second half of the nineteenth century completed
his view and in those of many other British observers, a process that had
initiated in the second half of the eighteenth century, that is, rationa
("order was evoked out of chaos") and uniformity ("the progress of the wo
towards uniformity in law") (118, 133).
In the meantime, maulvis and pandits had been made irrelevant by the
changes in Indian society and economy, which created situations for which
ence to texts provided no answer,20 and by the increasing reception of Briti
Their role gradually diminished, and their fatãwã were increasingly overr
until, following the abolishment of the Mughal rule, the religious experts
no reason to exist, and in 1864, it was decided to do without them. T
demise was also a product of a shift to village elders and landed class
sources of correct practice, particularly in areas that were absorbed at
stage, such as the Punjab and the North-West Frontier Province. This deve
ment in favor of customary law, which is evidenced by several cases,21 part
before the enactment of the Shariat Act in 1937, was rooted in the imperat
British rule: less rigidity was thought to be more suitable to newly annex
ritories of great strategic significance; reinforcing local power networks
also cement alliances with established elites, thus facilitating govern
provide economic advantages (e.g., in Punjab by furthering the colonizatio
wastelands), and facilitate tax collection (Tupper 1881). Customs were a
to prevail over religious law, provided that their existence was proved. Cu

19See also Budansa Rowther and another v. Fátima Bi and others, AIR 1914 Madras 192
20See the recommendations in East India, Copies of the Special Reports of the Indian Law Co
sioners (1842).
21See., e.g., Shakinallah K V Abdulla K (1912), 15 IC, 939.

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 The Reinvention of Shari'a under the British Raj 1133

to be considered valid, had to be "ancient, certain and invariable" - the charac-

teristics that had been initially assigned to religious texts - in addition to not con-
travening express law and British ideas of morality encapsulated in the formula of
justice, equity, and good conscience.22 As it had happened with the collection of
religious norms from textual evidence, customs also were collected, written
down, and "rationalized" so as to turn them into fixed norms and ensure uniform-
ity. Ambiguities and differences were ironed out, and what did not conform to the
prevailing discourse - which, in turn, was consonant with British interests and
sensibilities - was termed anomalous and rejected (Bhattacharya 1996, 20-51).

Orientalism and the Orientals

The British influence is easy to see today in those institutions, procedure

and laws introduced by the Raj that were enacted by the states born after de
lonization. Examples include the use of written documents instead of oral tes
monies, which reflects the strong presumption by the colonial power in favor
written texts; the focus on punishment rather than on reconciliation; and the
sumption that one party is guilty and the other innocent, without consideratio
the wider social context in which the crime occurred. However, it is in anoth
less evident, and more complex epistemological area that British influence
had long-lasting and profound consequences: the sharing on the part of colon
society of Orientalist and positivist axioms in the perception of its own relig
The insistence on the part of the British on a systematic and uniform leg
system, in particular, fed local perceptions of law, turning many of them, inc
ing the renowned reformist Sayyid Ahmed Khan, into champions of codificati
The British search for clear and uniform principles and their reliance on relig
texts also came to coincide with the efforts of Indian reformist movements to
cleanse their religion of what they regarded as negative customary encrustatio
Starting in the mid-nineteenth century, the elites who made up the leadership
the reformist movements, whether at Deoband, in the Ahl-e-hadith, o
Aligarh, tried to systematize their core values and eliminate inconsistencies,
vinced that straying from "authentic" sharia had been the main cause of poli
decay. Whereas before, scriptural sharia had been an unattainable ideal a
source of moral reference and social preeminence, now divergence from
ideal contained in the primary sources could not be tolerated any longer.
status of the 'ulama was given increased importance by this revaluation of sc
tural Islam and by the formal demise of the Mughal power, which altered th
relationship between religion and political authority. The 'ulama', deprive
their traditional role as legitimizers of the Muslim rulers, increasingly focus
on correct behavior and adherence to the ideal in everyday practice.

22 'Abdul Hussein v. Sona Dero (1917), 45 IA 10.

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1134 Elisa Giunchi

In reconstructing the ideal, they concentrated on the legal aspect, se

main component of Islamic identity, without realizing that, but for a f
tions, it was a component whose characteristics had been deeply altere
Muslim lawyers and judges graduating from "modern" schools, on
primary sources were the reported cases of the Anglo-Indian co
their terminology and assumptions had little in common with Indian
dition. Although in some cases, they were critical of the way in whic
law had been applied by the British,23 they did not challenge the p
Anglo-Muhammadan law and, in particular, the idea that Islamic relig
trine consisted of a set of norms,24 and that idjtihãd had ceased to be
fairly early.25 Scholars such as Sayyid Mahmood, who attempted to hig
intricacies of fikh and their context-base nature, had minimal inf
British and Indian lawyers and judges. Differences within fikh,
been increasingly glossed over, gradually disappeared from the M
science: it thus became common among Pakistani lawyers and scho
that there had never been any substantial difference between mediev
The British emphasis on scriptural religion also facilitated the esta
of boundaries between Muslims and non-Muslims, customs and sh
and be-adab (Gilmartin 1988, 43-62): the self was created through
with respect to the other. The British distinction between treatise
applicable to Hindus, and others that were applicable to Muslims, had
lar the effect of leading the people to choose which category they belo
was this that led the nizãri Ismaili community to feel obliged in the se
the nineteenth century to define itself explicitly as such, and to aband
rituals and behavior (Nanji 1988, 63-78). Groups such as the Khojas wh
of themselves as Muslims but followed Hindu law in some areas were
choose: as a British judge said, "they cannot have it both ways."27
The effects of British legal constructions would also be felt in the
sphere: first of all, the sacralization of the Indian distant past allowed
population to define its own identity with respect to the British R
the reconstruction of the past by the British into an ingredient of th
against the colonial power (Guha 1997, 3). There was also a legal e
this: Islamic law, upon transformation into a consistent system like t

23Among them Tahir Mahmood (1982); Abdur Rahim (1911); and Tyabji (1940).
Muhammad Bashir Ahmad, for example, would define the Fatawa as "a code of ve
laws" (n.d. xiii, 22). It is significant that Ahmad, in order to explain how Islamic law
in the country before the British, mostly cites British scholars. The same is done
Asghar Fyzee (1963). Also, Abdur Rahim and Tyabji refer to fikh as to a code (A
1911, 37-38; Tyabji 1919).
25See, e.g., Fyzee (1955); and Mahmood (1982).
26Cf., e.g., Syed Riazul Hassan (1974).
2iDahyabhai Moziram Bhat and others v. Chunilal Khishoredan Pandya and othe
Bombay 120.

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 The Reinvention of Sharia under the British Raj 1135

one but, unlike the British one, also endowed with religious consensus, became
grounds for pride and moral superiority. Religious self-definition according to
rigid rules would lead to well-known consequences in the relationship between
Hindus and Muslims: it would contribute to the increase in clashes between

the two communities and to the fortunes of the nationalist movement led by
the Muslim League, which led in 1947 to the partition of the Subcontinent
along religious lines. Significantly, many prominent politicians in the Muslim
League, including Mohammed Ali Jinnah, the "founding father" of Pakistan,
were lawyers who had been trained in British law and in some cases had practiced
in England. Rehmat Ali himself, when devising the name of Pakistan, was study-
ing law at Cambridge. It should also be pointed out that it was ultimately the need
to establish clear identity borders that led to an increasingly exclusionary dis-
course within Pakistan, causing the disenfranchisement of the Ahmadiyya,
growing clashes against the Shia, and the attempt to "objectivize" Islam, as
became evident when the Supreme Court compared it in 1993 to a product
covered by copyright laws.28

The Islamization Process in Pakistan

The myth of a fixed law, to be found in a distant past and detached from prac-
tice, is inherent in the attempts to "Islamize" the Pakistani legal order by way of
codification. As the debates in the Constituent Assembly reveal, already in the
early 1950s, Islam was widely seen by the Pakistani political class as an ideology
containing a set of norms to be applied consistently29 In the aftermath of the
secession of eastern Pakistan and in the context of growing ethnic grievance
and persistent territorial disputes with India and Afghanistan, upholding
sharia became part of the state s search for legitimation and unity and allowed
it to cements its alliance with religious groups, while at the same time preserving
its legal structure, which was heavily influenced by British procedural norms, in
the face of increasing Islamist and ethnic challenges. Thus, while in Mughal
times, the legitimacy of the rulers derived from formal abidance to Islam and
from patronizing religious institutions and holy men, in Pakistan, the govern-
ments legitimacy became increasingly associated with the actual implementation
of Islamic law, where the latter was interpreted as a set of norms extrapolated
selectively from the doctrine.30
General Zia ul-Haq, who came to power in 1977 by promising the introduc-
tion of the nizãm-e-islãm, issued with the support of Islamist and neoconservative
groups ordinances that restored some elements of classical sharia: in the field of

28Zaheer-ud-Din v. the State (1993), SCMR 1718.

Government of Pakistan, Constituent Assembly (Legislature) of Pakistan Debates, 15, 7 (1953),
175; 15, 8 (1953), 193; and 195; 15, 14 (1953), 473.
30On the subject, see Mayer (1990).

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1136 Elisa Giunchi

criminal law, for example, fornication was made a crime; stoning, flo
mutilations were reintroduced for hudüd crimes; and it was establ
women could be subjected to corporal punishment. This return t
however, was affected by Indias colonial past: Zias Islamic laws we
according to procedural laws inherited from the British and, very
Anglo-Muhammadan law, were devoid of the nuances that had cha
Hanafi jurisprudence and legal practice under the Mughals. To men
few examples, consideration was not given in the new ordinance
Hanafi precepts that would have mitigated the severe punishments
for sexual crimes and made them difficult to apply, such as the atten
bona fide of the litigants, the concept of "legal appearance" of ma
the legal fiction of the "sleeping foetus."
The Islamization of the law implemented in Pakistan also differed f
precolonial tradition on another point: while under the Mughal, th
been independent of the center, the codification of Islamic law in Pak
accompanied by the attempt to control the higher echelons of the jud
was evident in 1981, when a decision of the government on the religio
macy of stoning was imposed on a reluctant Federal Shariat Court.31 Th
tion between state and 'ulama' that had characterized the Mughal p
became increasingly blurred.
However, if we look at how the law on hudud offenses introduced
actually enforced, we note that judges continue to exercise ra'y, that
opinion guided by contextual considerations, thus following a long tra
has clearly not been completely forgotten. Moreover, the refere
opinion rather than another, and the use of the talfiq - that is to say, t
of combining principles used by the different Islamic law schools - is f
the judges on the basis of the concept of maslaha and, in particular, th
maintain the status quo while protecting the most vulnerable sections
from abuses of the law.32 Pakistani courts have also been referring in s
to the bona fide of the litigants by claiming that mens rea is a fundame
dient of conviction.33 Although similar cases can result in differing s
according to the religious source the judges refer to, the aim of en
status quo while protecting vulnerable groups still inspires the cou

3lHazoor Bakhsh vs. the Federation of Pakistan and M. /. Chaudhry and others v
Republic of Pakistan (PLD 81 FSC 145); and Federation of Pakistan vs. Hazoor Buh
others (PLD 83 FSC 255).
These observations are based on an analysis of 186 cases arising under the zina' or
decided between 1980 and 2000 by the Federal Shariat Court and the Shariat Se
Supreme Court; the findings of the research can be found in Elisa Giunchi (2005).
Cf., e.g., Muhammad Imtiaz and another v. the state (PLD 1981 FSC 308); Muhamm
and another v. the State (PLD 1983 FSC 173); Muhammad Ashrafv. the State (PL
323); Noor Khan v. Haq Nawaz and two others (PLD1982 FSC 265); and Muham
and others v. the State (PLD 1983 FSC 522).

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 The Reinvention of Sharfa under the British Raj 1137

religious law has retained at the adjudication level some of its traditional flexi-
bility, though, in a significant departure from pre-British tradition, it is not
only religious figures sitting in the Federal Shariat Court or in the Shariat
Bench of the Supreme Court, but also lay judges, with no formal schooling in
Islamic law, who refer to sharia, sometimes giving precedence to it over statutory
norms. Finally the continuing recourse to customs, particularly to settle matters
related to honor and the domestic sphere, and to informal systems of adjudication
indicates that the actual legal practice has largely remained free of government
interference (Chaudhury 1999). The hiatus between written and "living" law
that surfaced under the British has thus remained a defining characteristic of
Pakistani society.

Conclusion

Acting on Orientalist assumptions, Utilitarian ideals, and imperial needs, th

British created Anglo- Muhammadan law by selectively unearthing legal prece
from religious texts and attempting to turn them into a "rational" legal syste
thus crystallizing them at the expense of alternative discourses. And yet, a def
ing characteristic of Islamic law, at least on the Subcontinent, has been its fle
bility, its ability over the centuries, through both its jurists and kadi, to provi
solutions which reconciled contextual considerations with ultimate religio
ideals. This view of the law as a "discursive bridge" (Singha 1998, viii), wh
has clear similarities with the "systemic openness" of Hinduism (Menski 20
and possibly of all traditional religious discourses, was what, after all, not jus
on the Subcontinent but in a large part of the Muslim world, allowed a law of
divine origin that is in theory immutable to evolve, well beyond the ninth centu
The British legal efforts found fertile ground in a context in which the dism
sal of Mughal power had brought about a change in the role of the 'ulama' and
stimulated a renewed interest among the Muslim elite in a "high Islam." The sh
in interpretation of sharia that occurred in colonial times under internal
external pressures has influenced the way Muslims on the Subcontinent articu
late their values and religious ideals, and can be found in Pakistani attempts t
Islamicize their legal system. However, the analysis of judicial cases indica
that the tradition of flexibility and contextuality is still alive. Beneath the conc
tualization of a pristine scripturalist Islam that has the contours of a strict le
system remains a judicial practice in which religious ideals, social context, and
awareness of human weakness are still interwoven.

Acknowledgments

I am grateful to the anonymous Journal of Asian Studies reviewers for helping me

widen and at the same time strengthen my argument.

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1138 Elisa Giunchi

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Law Reports

Pré-Partition India

Aga Mahomed Jaffer v. Koolsom Beebee (1897), 25 Cal. 9

Agha Ali Khan v. Altaf Hasan Khan (1892), 14 All., 429
Abdul Hussein v. Sona Dero (1917), 45 IA 10
Advocate general v. Jimba Bai and other, AIR 1915 Bombay 151
Ameer-on-nissa and others v. Moorad-on-nissa and others (1855), 6 MIA, 211
Ashrufood Dawlah Ahmed Hossein Khan Bahadoor and Wazeroon Nissa Begum v.
Hyder Hossein Khan (1866), 11 MIA, 94
Aziz Bano v. Muhammad Ibrahim Husein (1925), 47 All., 823
BaqarAli v. Anjuman (1902), 25 All., 236
Budansa Rowther and another v. Fátima Bi and others, AIR 1914 Madras 192

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1142 Elisa Giunchi

Dahyabhai Motivam Bhat and others v. Chunilal Kishoredan Andya and othe
1914 Bombay 120
Khajah Hidayut Oollah v. Rai Jan Khanum (1844), 3 MIA, 295
Kusom Beebee v. Golam Hossein Cassini An/ (1905), 10 CWN. 449
Jan Mohamed Abdullah Datu and others v. Datu Jajfer and others, AIR 1914 Bom
Jestvunt Sing-Jee Ubby Sing-Jee v. Chuter Sing-Jee Deep Sing-Jee Uby Sing-Jee
MIA, 245
Mirza Himmut Bahadoor v. Mussumut Sahebzadee Begum (1873), 1 IA 23
Moonshee Buzlar Ruheem v. Shumsoonnissa Begum and Jodonath Bose v. Shumso
Begum (1867), 11 MIA, 551
Muhammad Ibrahim v. Altagan and others (1925), 47 All., 243
Narayanaswami Naidu v. Balijepalli Sundaramiah and others, AIR 1915 Madr
Raj Bahadur v. Bishen Dayal (1882), 4 All, 343
Shakinallah K. V. Abdulla K (1912), 15 IC, 939

Pakistan

Hazoor Bakhsh vs. the Federation of Pakistan and M. I. Chaudhry and others vs. the
Islamic Republic of Pakistan, PLD 81 FSC 145
Federation of Pakistan vs. Hazoor Buhksh and two others, PLD 83 FSC 255
Muhammad Imtiaz and another v. the state, PLD 1981 FSC 308.
Muhammad Siddique and another v. the State, PLD 1983 FSC 173
Muhammad Ashrafv. the State, PLD 1981 FSC 323
Noor Khan v. Haq Nawaz and two others, PLD 1982 FSC 265
Muhammad Nawaz and others v. the State, PLD 1983 FSC 522
Zaheer-ud-Din v. the State, 1993 SCMR 1718

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