It was urged by the learned judge Advocate General of the Army that in Islam there is no provision of appeal. This argument is fallacious.
From the several traditions reproduced above, it may be clear that after the fight was over, in some cases, the decision of the Commander was challenged before the Prophet and he set aside the order of the Commander.
There is another tradition which was related by Salem on the authority of his father. The Holy Prophet sent Khalid bin Walid to Banu Jazima.
He invited them to Islam but instead of saying “we embraced Islam” they started jocking by saying ‘sabana’, ‘sabana’ (we got out from our religion to another religion). So Khalid started killing them and making them prisoners.
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He handed over to every person his prisoner and ordered that every one of us should kill his prisoner that very day. I (relater) said, “I will never kill my prisoner nor any of my companions will kill his prisoner”. Then we came to the Holy Prophet and informed him of the situation. The Prophet raised his hands and said, “Oh Allah! I am not responsible for what Khalid did in this matter”. He said so twice.(Faithful Bari, Vol. VIII, pp. 56, 57).
There is yet another tradition that two persons came to the Holy Prophet. One of them charged the other that the latter’s cow had killed his donkey. The Holy Prophet ordered Hazrat Abu Bakr to decide this case.
Hazrat Abu Bakr decided that animals do not incur any liability for their acts. The Holy Prophet then ordered Hazrat Umar to decide the matter but he decided according to the same principle as enunciated by Hazrat Abu Bakr.
Then the Prophet ordered Hazrat Ali xo decide. Hazrat Ali asked the complainant whether both the animals were tethered, He replied in the negative. He then asked whether the cow was tied and the donkey free.
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He again answered in the negative. He then enquired whether the donkey was tied and the cow was free.
This was admitted to be the case by both the parties. Hazrat Ali decided that the owner of the cow was liable (for damages). (Adab al-Qazi by al-Mawardi, Vol. VI, page 388, printed at Baghdad, 1972)
The Hadith amply justifies appellate jurisdiction since the Holy Prophet acted as an appellate court by setting aside the judgements of Hazrat Abu Bakr and Hazrat Umar and approved of the judgement of Hazrat Ali.
It also justifies the remanding of the case for retrial by the appellate court since the Holy Prophet had remanded the matter twice when it was decided first by Hazrat Abu Bakr and then by Hazrat Umar.
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The right of appeal also emerges from the Quran (4 : 59) in which it is laid down that in case of dispute with the person in authority the matter is to be referred to Allah and his Prophet (Peace be on him) This reference is nothing but an appeal to the law of the Quran and Sunnah.
The above argument of the learned Judge Advocate General of the Army was addressed because no statutory appellate Court was formed during those days but that it is no reason to hold against the appellate jurisdiction.
The formality may not be there but as stated above, if the Holy Prophet acted as an appellate Court in matter of dispute inter alia against the order of the Commander, no objection can be taken to the establishment of appellate courts (P.L.D. 1985 Fsc 365).