admin – Page 2 – AskWakeel

Cyber-crimes and their Punishments in Pakistan

Cyber-crimes are the offences that are committed against individuals or groups of individuals with a criminal motive to intentionally harm the reputation of the victim or cause physical or mental harm to the victim directly or indirectly, using modern telecommunication networks such as Internet (Chat rooms, emails, notice boards and groups) and mobile phones (SMS/MMS).

Cyber criminals use computer technology to access personal information, business trade secrets, or use the Internet for exploitive or malicious purposes. They use computers for communication and document or data storage.

In Pakistan the government is not allocating fair resources to tackle cyber-crimes. Resultantly, the crime has been doubled and there is alarming number of pending cases. The number of the complaints has been increasing day by day. A total of 50,505 complaints had been registered during the last year out of which 11,389 complaints were converted into enquiries and total 1,071 cases were registered till September 30, 2019. It is due to immense pressure on the cybercrime cell of FIA and the state is not making effective investment in the field of enhancing manpower as well as rendering training to the NR3C staff.

According to prevention of electronic crimes Act, 2016 following punishments should be given to the person committing cyber-crime:

Cyber stalking:

Whoever commits this office is liable for imprisonment up-to three years or fine up-to one million rupees or both and in case of minor, imprisonment will be up to-five years and fine up-to ten million rupees or both.

Data diddling:

This is called “electronic forgery” in Pakistani legal system and the criminal is awarded punishment up to three years and fine up to two hundred and fifty thousand rupees or both and if the criminal commits this crime is respect to critical infrastructure, he will be imprisoned up to seven years and fine up to five million rupees or both.

Criminal defamation:

Whoever intentionally and publicly exhibits or displays or transmits any information through any information system, which he knows to be false, and intimidates or harms the reputation or privacy of a natural person, shall be punished with imprisonment for a term which may extend to three years or with fine which may extend to one million rupees or with both.

Spamming:

Anyone (an individual or an organization) can be fined with up to Rs. 50,000 for the first and three months of jail if they:

Send spam emails/SMS without permission of receiver
Send emails without unsubscribe options
Send emails with
harmful fraudulent emails
misleading email
Illegal email.

Spoofing:

Up to 3 Years in Jail or fine up to Rs. 500,00 or both .

Whoever with dishonest intention establishes a website or sends any information with a counterfeit source intended to be believed by the recipient or visitor of the website to be an authentic source commits spoofing.

Unauthorized Access to Information or Data:

Law says that if you access any information system or data with dishonest intents then you can go to jail for up to three months or be liable to pay a fine up to Rs. 50,000 or both.

Unauthorized Copying or Transmission of Data:

Whoever with dishonest intention and without authorization copies or otherwise transmits or causes to be transmitted any data shall be punished with imprisonment for a term which may extend to six months, or with fine which may extend to one hundred thousand rupees or with both.

Unauthorized Access to Critical Infrastructure Information System or Data:

Whoever with dishonest intention gains unauthorized access to any critical infrastructure information system or data shall be punished with imprisonment which may extend to three years or with fine which may extend to one million rupees or both.

National Response Centre for Cyber-crimes

The Government of Pakistan has established the “National Response Centre for Cybercrime,” (NR3C) under the administrative control of Federal Investigation Agency (FIA), to investigate the cybercrimes, trace the criminals and use their efforts to stop misuse of the internet.

NR3C has expertise to deal in the following subjects’ i.e. digital forensics, information system security audits, technical investigation, penetration testing and training in these fields. Since its establishment, it is working for the capacity building of law enforcement agencies, Bench and bar, and other Government organizations. This institution needs to be more vigilant towards the identification of these crimes. There are many challenges to overcome cyber-crimes successfully, to prevent such crimes education and public awareness is necessary. Due to lack of awareness of existing cyber-crimes, the general public is facing many problems. Even the law enforcement agencies are unaware of these crimes due to complex nature of these crimes. Therefore, the proper understanding of such crimes is necessary to

Significance of DNA Evidence in Criminal Litigation

DNA evidence has revolutionized the world of forensic sciences in technologically advanced countries. Many of them maintain DNA databases for the investigation of crimes. Many crimes that were once difficult to investigate due to lack of evidence are now being revisited, and offenders are being put behind bars.

Now a days DNA fingerprint technique is used world widely to solve the criminal cases that may be very difficult to solve without it. DNA test is only a part of biological evidences that are very important in the solution of a criminal case. No doubt a judge can make decision only if he has surety about the occurrence of the crime and the persons involved in it. For the identification of culprit, judge may order for forensic test of samples collected by an investigating officer. These material evidences are speechless and non-intelligent evidences, consequently cannot tell a lie, hence have great importance. Such evidences are not new and are being used throughout the history, although modified with the development of awareness and technology and hence their status of accuracy is also increasing day by day.

It is common in judiciary not to bind the judge with specific legal evidences hence independence in legal evidences is gradually coming common so that the judge may come to an accurate and certain evidence. The purpose of this freedom of evidence is not to restrict the performance of judge by making him sticky with certain evidences, but it aims at maximizing the surety of his decision.

In Pakistan, there is no particular legal framework that specifically deals with DNA evidence, and hence the courts have to maneuver while remaining within the legal framework hitherto available. DNA evidence is evaluated in the context of Articles 59 and 164 of the Qanun-e-Shahadat Order 1984 (‘QSO’). The former provision states that expert opinion on matters such as science and art falls within the ambit of ‘relevant evidence’, whereas the latter provision provides grounds for admissibility of various modes of proof made available due to advancements in science and technology.

Punjab Forensic Science Agency (PFSA), being the largest forensic DNA laboratory in Pakistan, has been helping in solving rape, murder, dead body identification, sibship, and parentage cases. Having started its operations since 2012, PFSA has received approximately 44,417 cases for DNA analysis out of which 36,954 cases have been solved successfully while approximately 7463 cases are pending for several reasons. One of the landmark cases solved in Pakistan is the famous Zainab’s murder case. The suspect had committed 12 cases of sexual assault and murders within a radius of 2.5 km. Extensive crime scene investigation led to the apprehension of the suspect, whose involvement in all the cases was confirmed with the help of DNA testing. A total of 1187 samples were collected for DNA analysis, whereas the 814th sample proved to be of the criminal.

Despite eye-witness importance, Pakistani courts are now relying heavily on DNA-based evidences which are probabilistically measurable and also help in getting rid of false witness statements often encountered in the courts. Zainab’s murder case, solved through DNA analysis, has also led to public awareness regarding the importance of forensic DNA analysis in solving cases. In addition to PFSA, other laboratories working in the country are going towards capacity building. As far as statistical weightage of DNA evidence is concerned, development of local population DNA database, for allele frequency calculation, is still desired in the country.

Registration of FIR: Issues and Solutions

Registration of FIR is the most complicated problem of administration of criminal justice system of Pakistan. As per the interpretation of Section 154, CrPC the SHO is duty bound to register every information disclosing commission of any cognizable offence but unfortunately ground reality is totally different. It depends upon multiple factors whether a FIR should be registered or not. It is the daily routine of almost all SHOs to violate the mandatory directions of Sections 154 and 155 CrPC, 1898. Sometimes, police officers have been guilty of floating the court orders for registration of FIRs as well.

For registration of a FIR following factors have to been seen by police officers; firstly, who is the complainant? Secondly who is the expected accused? Thirdly what are the allegations? And lastly the face behind the case. But in many cases like theft, robbery and dacoity police officers are hesitant to register FIRs in order to conceal their bad performance and sometimes political influence also does matter.

FIR is the button; which initiate the criminal justice system; no FIR, no investigation, no conviction. FIRs are registered to evaluate the criminal statistics. Hence whenever a complaint is denied to be converted into FIR; it resulted in miscarriage of Justice in every such case. It is the legal right of every person who has knowledge of any offence to cause the criminal machinery into motion through FIR. The SHO is the operator of this criminal justice system machine.

FIR is the first step toward administration of justice. Upon registration of FIR investigation is started. After complication of investigation a trial starts which results in convictions or acquittals. Simply, rapist, murderer, thief etc cannot be tried and convicted without registration of FIR. The legislature is very clear upon this point. Whenever a complaint is received it shall be converted into FIR. In spite of this clear command, there are still 47,029 cases pending for registration of FIRs in Lahore High Court.

The jurisprudence of Criminal Procedure Code, 1898, and Police Rules, speak loudly that a police officer is not allowed to inquire into or investigate of any offence unless an FIR is not registered. It is common practice in every police station that after receiving complain, FIR is not registered, instead of incorporating it, the police officers have made an illegal register No. 5B. The police officers decide whether FIR should be registered or not. It is not only illegal but also unconstitutional and against the spirit of CrPC because every investigation prior to registration of FIR is illegal.

Unsuccessful applicant starts first round of litigation in shape of application under sections 22 A/B CrPC and knocks the door of justice of peace. The second round of litigation starts before High Court under Article 199 of the Constitution of Pakistan. The judges of higher courts spend their valuable time in deciding such applications. The judiciary has to suffer an unnecessary burden of work just because of inefficiency of police officers.

A huge disadvantage of non-registration of FIR is missing of criminal statistics of accused and relevant statements. Late registration of FIR is another big problem as it is well settled principle that justice delayed justice denied.

All the above issues need some solutions. First of all non-registration of FIR must be declared as a penal offence having severe punishments for police officers. A new chapter must be legislated and inserted in PPC.

Secondly the applications received by the existing computer cells may be given status of FIR through delegated legislation or notification.

Lastly FIR registration booths should be constructed in police station with inbuilt camera installations. Any person can go there and record his audio/video which should be converted into FIRs.

Custody of Minor Child

In 1988 in Sultana Begum vs Mir Afzal, the Karachi High Court defined custody as the ‘upbringing of a minor child by the mother or by someone legally entitled to it’. The custody of a child generally rests with the mother in tender age; afterwards it goes to the father. It is considered in the welfare of the child that the child should be with the mother in his/her tender years so the mother will get preference over other relatives including the father.

The law pertaining to guardianship and regulating the custody of children in Pakistan is known as the Guardians and Wards Act, 1890.

Circumstances which are to be seen by Court while granting custody of a child:

I. Qualification of a Custodian:

According to the case law there are certain qualifications for the custodian of the child. In Imtiaz Begum v Tariq Mehmood, the Lahore High Court while discussing qualifications of the custodian declared that the custodian should not be sinner and dishonest. A person would be disqualified if the court has reason to believe that they were a sinner or dishonest. There is no need for conviction of the court. The character of the custodian is important to determine custody issues.

Another condition for a custodian is that s/he should be mahram to the child. If the custodian is the mother she should not be married to a person who is a stranger to the child especially where she has custody of a female child. The reason behind the principle of disqualification of the mother on remarriage is that after remarriage her attention will be diverted to her new household and children from the second marriage. Although this is a general rule, the welfare of the child is still paramount. Sometimes remarriage of the father and his having children from such marriage is considered as an impediment to custody and courts consider it against the welfare of the child to award custody to the mother. In Rafiqan v Jalal Din, the Supreme Court of Pakistan decided that after termination of a second marriage the bar to

custody is removed and the parent may become qualified for custody again. In the case of remarriage of both parents the courts consider the circumstances of both parents and decide accordingly.

II. Welfare of the Minor

Welfare of the minor is given paramount importance within our domestic jurisprudence. Welfare is determined by taking into account the minor’s age, sex and religion. Weight is also given to the character and capacity of the guardian and his/her nearness of kin to the minor. A person who has custody of a minor is responsible to look after the minor with regards to its health, education and support him/her in all respects.

In every matter related to a minor, the court will give preference to child’s welfare and interest over that of parents’ rights. Section 17 of the Guardians and Wards Act 1890 declares the ‘welfare of a minor’ a paramount consideration. According to the courts the welfare of a child means a child’s health, education, physical, mental, and psychological development. The minor’s comfort and spiritual and moral wellbeing along with his/her religion is also considered. Considerable attention is given to the minor’s happiness and emotional attachment with a custodian. It is considered in the interests of the child to live with his/her siblings.

If the court thinks that to live with the mother in the child’s tender years is not in the child’s welfare the court may deprive her from custody. If there is a clash between the rights of the parents and the welfare of the minor the latter prevails.

III. Financial Status of Custodian

Education and financial status of the parties are considered and custody is given to the parent who is more educated and is financially stable. In Amar Ilahi v Rashida Akhtar, the Lahore High Court decided that if the father failed to maintain the child he will lose his right to custody and guardianship. In this case the father did not take any interest in the daughter until the time of her mother’s remarriage. He failed to maintain the child but at the marriage of the mother claimed guardianship of the child. The court gave the right of custody and guardianship to the mother despite her remarriage.

IV. Emotional Attachment of Minor:

The courts also give due importance to the factor that the minor is emotionally attached to one parent as compared to the other. In 2004 in Sardar Hussain and others v Mst. Parveen Umar, the Supreme Court gave custody of the minor of seven years to the mother despite her remarriage due to the fact that the minor was emotionally attached to her and regarded his father as a stranger despite living with him for fifteen days.

V. Religion of Custodian

According to Pakistani courts the custodian should be of the same religion as of the minor. A child follows the religion and social status of her father. Apostasy and slavery are disqualifications for the mother to have custody of the minor but a Christian or Jewish mother can have custody of her child. Being sane and free from mental or bodily diseases and being of good moral character and reputation are essential requisites for a custodian. A person not fulfilling any of the above-mentioned conditions could not be a custodian.

In Imran Ali v Mst. Iffat Siddiqui, however, the Karachi High Court while giving custody of the minors to the father considered the fact that he was an Isma’ili Shi’a and would be in a better position to raise his children in accordance with his sect. The court opined that the child follows his/her father’s religion. In the case of sunnī-shī‘a marriages the child is supposed to follow the sect of the father.

VI. Custody of Illegitimate Child: If the child is illegitimate, custody goes to the mother irrespective of the mother’s religion. According to Islamic as well as Pakistani law, an illegitimate child only belongs to her mother and the father has no right to claim custody. In Roshni Desai v Jahanzeb Niazi (2011 PLD 423), the court awarded the custody of an illegitimate child to the mother. The father of the child was a Muslim whereas the mother was a Hindu. They were living in Canada and had a son without marriage. The mother claimed custody of the minor when the father took her son to Pakistan. The Lahore High Court decided that Islamic law did not recognize such a relationship. And the child was declared illegitimate. The court noticed that in Islamic law and

in Pakistani law, the father has no relation with his illegitimate child and an illegitimate child belongs to her mother. The court gave custody of the minor to the mother and held that in case of absence or disqualification of the mother only maternal relatives are entitled to claim custody of an illegitimate child. The father could not claim custody on the ground of the mother being non-Muslim.

VII. Minor’s Preference:

As far as the minor’s choice is concerned, the approach of the courts is not consistent. In some cases, the courts have asked for the minor’s preference if it is old enough to make a choice. In some other cases, the courts have not asked for the minor’s choice by not considering it important. In Abdul Razzaque v Dr. Rehana Shaheen, the Karachi High Court decided that choice of the minor is a factor to be taken into consideration but it cannot be a decisive factor in matters related to custody. The court also noticed that children can be influenced by older people to make a particular choice.

Conclusion:

A full-bench of the Supreme Court has recently issued a detailed plan for custody of minor children. The judgment provides that the children will stay with their mother (till they attain the age of puberty) and that the father shall be responsible for “education, uniform(s), books, and pick-and-drop from school”. The father shall also provide Rs 5,000 every month for the miscellaneous needs of the children. The visitation schedule is also provided in the judgment. None of the parents will incite the children against the other parent. All these guidelines should be used as precedent by lower courts while deciding the matter of custody of minor and visitation right of parents.

Can a woman claim maintenance for herself and her children from her husband without going to the court?

Maintenance under Muslim law is known as “nafkah”. It includes all amounts which a man spends on his family. Nafkah basically includes food, clothing and lodging. A Muslim husband is bound to maintain his wife and children under Muslim as well as Pakistani Laws. The quantum of the maintenance depends on the social and economic status of husband. It is his duty to maintain his family but if he denies or shows negligence in paying the maintenance to his wife and children then wife has two remedies against his husband. She has the right to file a family suit for the recovery of maintenance from his husband or she can file an application to the chairman of Union Council of her area to fix maintenance for herself and her children.

In Pakistan women suffer a lot. They are being oppressed and tortured by her husband and his family. They have not courage to go the court and take legal action against their husbands for their maintenance because they are being threatened of divorce if they will take any legal action.

The family law of Pakistan has given a relief to such women. Under Section 9 of the Muslim Family Laws Ordinance, 1961 a woman can apply to the Chairman of Union Council for the maintenance against that husband who fails to maintain his wife and children. The Chairman shall constitute an Arbitration Council to determine the matter. The Arbitration Council will issue a certificate specifying the amount which shall be paid as maintenance by the husband. Any amount which is payable by the husband, if not paid in due time, shall be recoverable as arrears of land revenue.

It shows that a husband cannot escape himself from the maintenance of his wife and children. A woman even without going through any legal action against her husband can claim her maintenance.

Advocate Anum Younis

#maintenance, #womenrights, marriage law in pakistan

KHULA-DIVORCE FOR OVERSEAS

Divorce/ Khula Procedure For Overseas Pakistanis

If you are an overseas Pakistani and you wish to divorce your wife or obtain a decree of khula from a Pakistan family court, you can do it without your presence in Pakistan.

PROCEDURE:

1. DIVORCE

(i) An overseas Pakistani husband wishing to divorce his wife (who is residing in Pakistan or whose ‘last known address’ in Pakistan is known), will execute a divorce deed and a special power of attorney, nominating any person present in Pakistan as his representative, and get these documents attested from Pakistan High Commission in the country of his stay and send these documents to Pakistan.

(ii) The divorce deed and special power of attorney will be counter-attested by Pakistan Foreign Office.

(iii) After attestation of these documents from Foreign Office, the representative, nominated through the special power of attorney, can file for Divorce Certificate in Arbitration Council of the area where wife is currently residing or where her ‘last known address’ is and initiate divorce proceedings.

(iv) After initiation of proceedings, the Arbitration Council takes 90 days to issue the Divorce Certificate.

2. KHULA

A Pakistani woman residing outside Pakistan can also file a case for obtaining a khula decree from a Pakistan court without coming to Pakistan, through the following procedure:

(i) She will execute a special power of attorney nominating any person as her personal representative. This power of attorney will be attested from Pakistan High Commission in the country of her stay and counter attested by the Foreign Office in Pakistan.

(ii) The personal representative nominated by the wife should have power to represent her, appoint a lawyer and sign documents on her behalf for proceedings in the family court.

(iii) The personal representative then can file a case, through a lawyer, in a family court for obtaining khula decree.

(iv) After obtaining khula decree, proceedings in Arbitration Council can be initiated for obtaining Divorce Certificate.

Can a Dependant Mother retain custody of her minor child?

In a recent court case 2019 SCMR 520, the question whether mother can retain custody became the bone of contention and it was argued before the Supreme Court that the mother was financially dependant on her parents.

The Supreme Court decision by Honorable judge Mr. Faiz Isa ruled in favour of the mother. The court whilst decling appeal of the Petitioner father held that Petitioner was directed immediately and peacefully hand over the minor girl to her mother. In case of failure, the Social Welfare Department was directed to ensure that the child was handed over to her mother through a lady officer of the Department and in case of no lady officer, police women constable was directed to do the same.

Apart from other legal points that came into consideration, an important point decided by the August court was that the plea of father that the mother lived with her parents and was financially dependent on them, therefore, presumably she was not able to support the minor, was dismissed and held that such presumption was contrary to law since the father was legally obliged to maintain his child and poverty on the part of mother was no ground to disentitle her from the custody of the minor child.

How to become a barrister

Pursuing a career as a barrister is a route not to be taken lightly. The profession is extremely charming, however the road to becoming a successful barrister is extremely competitive and challenging. Only the highest caliber graduates make it to the profession or stand a chance to success. Note that advocacy is a key element of being a barrister; therefore you must possess extra ordinary speaking talent and must have the ability to express yourself in simple clear words and aptly. It is your job to convince jury or judge as the case may be depending on which jurisdiction you intend to practice. You must be persuasive and strong willed as the slightest appearance of nerves or a fault in your dialogue could lose the case and the freedom of your client, particularly in a criminal case. Although it may be true that justice demands that it ought not to be dependent on performance of a lawyer and the facts and evidence must be important in determining the outcome of the case, however, the system of law that we have in England or Pakistan or other common law jurisdictions, role of a lawyer is imperative. A barrister, who is eloquent and well prepared and puts the case of his client as smartly as he can, often wins. This may be a shortcoming of the system that often injustice can prevail when a superior lawyer is representing a culprit, but that unfortunately is how the system works.

For a barrister, a large part of his job will involve public speaking. So as a barrister you must possess excellent interpersonal skills. You must also be able to improvise, as the twists and turns of the court will always bring up subjects that you may not have prepared for. An ability to deal with stress is vital as late nights are common and the pressure of court appearances high.

Moreover, as most barristers operate independently, you must be prepared to endure the possibility of financial hardship at the start of your career, with delayed earnings a common occurrence. You must also have a very competitive nature as places are few and far between. Only around a third of students undergoing the vocational stage of training (BPTC) will get a pupillage (a kind of legal apprenticeship) and, even after that, there are fewer tenancies in chambers than there are people on pupillages.

To become a barrister in Pakistan, you must complete you’re O and A Levels after which you must pursue your undergraduate degree in either London University affiliated Pakistan colleges or go abroad and do you undergraduate. Depends on the type of budget you have for your education. It is cheaper to study in Pakistan as compared to UK.

After completing your undergraduate education in Pakistan or aboroad,, you must then apply to one of the few colleges that do a Bar Vocational Training Course. Once you sign up for this course, you are required to undertake Bar Membership from one of the four Inns. The most notable or famous Inn for Pakistani students is The Honorable Society of Lincoln’s Inn because of Mohammad Ali Jinnah who was its member and a barrister.

Common law and Civil law Jurisdiction Pakistan

Civil law and Common Law are terms used interchangeably in Pakistan, however, both legal concepts are diverse and relate to different methods of legal interpretation. Civil Law is referred to as a system of interpretation where judicial precedents are given lesser weight as opposed to a judge’s interpretation of the statute in light of scholarly literature which is afforded greater preference. Common law is a system of laws where judges in light of earlier precedents or cases decide the matter at hand. They apply to analogy or principle derived from earlier decided cases with similar legal or factual scenarios. This affords much greater certainty to legal decisions. For instance, a litigant can to some extent predict outcome of his case particularly when a court higher in the hierarchy has decided a similar case. The lower courts are often bound by decisions of the higher courts. This is referred to as the concept of binding precedents.

As a general rule of thumb, common law systems trace their history to England, while civil law systems trace their history to Roman law and the Napoleonic Code.

Common law is law developed by judges through decisions of courts and similar tribunals (also called case law), rather than through legislative statutes or executive branch action. Common law of England evolved from the rules and practices of the community, which are gradually formalized by decisions made by judges. The term ‘common law’ distinguished it from local laws, the canon laws of the Roman Catholic Church (which until the Reformation in the sixteenth century, was the established church in England), and the ‘law merchant’ practiced in mercantile courts.

In the Anglo Saxon period (roughly the fifth to the eleventh century) the principles applied in the courts were based on the customs of the local community as declared by the freemen of those communities, who acted as judges. After the Norman Conquest of 1066, the Kings judges gradually established a body of general principles based on the many local customs. These principles were applied uniformly during the judges’ periodic circuits through the country and later at the royal courts in London – the courts of Common Pleas, King’s Bench and Exchequer.

In order to achieve consistency, the judges placed great reliance on previous judgments given in similar cases. This practice has given rise to the doctrine of judicial precedent on which all law, other than legislation passed by Parliament, is based. Judges are bound to follow the decision of the courts above the in the hierarchy, and the appellate courts are generally bound follow previous decisions at their own level.

Since Pakistan was a British Colony, it inherits a legal system that was present in Britain. English courts had evolved the law case by case, and English lawyers derived their law from the reports of the judges’ decisions rather than from jurists’ writings.

Due to this fine distinction, it is far more important to assign your case to a lawyer well conversant with the case laws and statutes, since these precedents form the main basis of decision in Pakistani Courts. Most of the case law is and was developed through interpretation of statutes it is also a imperative for a lawyer to have keen eye on Statutes and change proposed in them for resolving of civil dispute.

ADJUDICATING COMMON LAW CASES (CIVIL LAW DISPUTES)

In a common law jurisdiction several stages of research and analysis are required to determine what “the law is” in a given situation. First, one must ascertain the facts. Then, one must locate any relevant statutes and cases. Then one must extract the principles, analogies and statements by various courts of what they consider important to determine how the next court is likely to rule on the facts of the present case. Later decisions, and decisions of higher courts or legislatures carry more weight than earlier cases and those of lower courts. Finally, one integrates all the lines drawn and reasons given, and determines what “the law is”. Then, one applies that law to the facts.

Child Adoption law in Pakistan

With regard to the concept of adoption in Islam, we seek guidance from Sunnah of the Prophet Muhammad (P.B.U.H). At the time of prophet’s marriage (P.B.U.H) with Hazrat Khadija (R.A), she gave a slave namely Zayd Bin Haritha to Prophet Muhammad (P.B.U.H) and the Prophet Muhammad (P.B.U.H) took good care of him and their relationship changed from that of master and a slave into one of father and son. Zayd was one of the first persons to have accepted Islam

. When his father and uncles came to know about his whereabouts, they came to Makkah and told Prophet Muhammad (P.B.U.H) that Zayd had been captured by some thieves and sold into slavery. The Prophet set him free, but Zayd refused to leave Prophet Muhammad (P.B.U.H) and go home with his father. Haritha the father of Zayd, became very angry and openly declared that from now on “Zayd is not my son”. The Prophet immediately responded by adopting Zayd. Zayd came to be know as Zayd Bin Muhammad. This continued till after the Prophet Muhammad (P.B.U.H) migrated to Medina. Zayd had grown up and was now a married man. However, his marriage did not work out. Allah revealed some verses related to Zayd’s divorce in which Almighty also talks about the issue of ‘re-naming’ the adopted children.

The Almighty says:

‘And Allah did not make your adopted children your sons. This is only your words coming from your tongues. And Allah says the truth and He guides you to the right path. Call them with reference to their (real) fathers. It is more just in the sight of Allah”. (33.4)

What this means is that adoption does not change the relationship of a person with his real parents and siblings, nor does it create real relationship between him and his adoptive parents and their children. The practical implications of this view on the one hand is that all the rules which apply between blood relatives are still valid; for example the child will still be mahram; that an adopted child cannot marry his/her real siblings; he or she is also eligible for inheritance from the real parents; and there is no need for hijab between the child and his or her real family. On the other hand, the rules that apply between non-related persons are still valid. For example, adoption would not create the mahramiyyat between child and the new family. In Islam, the right of inheritance is based on uterine relationship.

However, there is only one case of adoption where a sort of semi-familial relationship and mahramiyyat is created between the adopted child and the adoptive family: when the adopted child is below two years of age and is also breast-fed directly by the adoptive mother for at least a day and a night. This creates a foster rizai relationship , and the child is mahram to the new family- there is no need for hijab, nor can the child marry the real children of the adoptive parents. However, in case of inheritance, even a rizai child has no right in the estate of the adoptive parents. But as mentioned above, the adoptive parents can write up to one third of their estate for their adopted child.