' KARIMULLAH DURRANI, J.-Mumtaz Khan son of Muamber Khan, resident of village Gadi, District Swat, has moved the Shariat Bench of this High Court by this application under section 5 of the Contempt of Court Act, 1976, for initiation of contempt proceedings against the Government of Pakistan, Attorney General of Pakistan and six others for having not complied with the order of this Bench passed on 1-10-1979 in Shariat Petition No, 7 of 1979.
2. The case of the applicant is that the Shariat Bench in Shariat Petition No, 7 of 1979, namely Gul Hassan v. Government of Pakistan and others, decided on 1-10-1979, had declared certain provisions of the Pakistan Penal Code and the Code of Criminal Procedure and relevant parts of the 'Schedule repugnant to the injunctions of Islam in so far as these provisions of law on offences affecting human body listed in Chapter XVI of Pakistan Penal Code did not provide for compromise between the parties concerned on the bases of payment of `Diyat' or 'Pardon' by the affected party and while making the said declaration had proposed some changes in law and specified the period bringing about the desired changes in the following terms:-- "(i) The penalties prescribed in the Chapter XVI of the Pakistan Penal Code with respect to offences against human body particularly section 302 are not in accordance with the Injunctions of Islam inasmuch such offences can be condoned by pardon or on payment of `Diyat' and particularly a non-pubert cannot be subjected to `Qisas'.
(ii)Neither a Provincial Government nor the Federal Government can remit, reduce or commute any sentence such powers can only be exercised by a Court in accordance with the Injunctions of Islam.
(iii) There is not going to be any violation of the Injunctions of Islam if law provides Taazir (e. g.
Imprisonment or death) in the case of a recidivist including the one accused of theft or a murder other than accidental even if there is pardon by the heirs of the deceased on payment of blood money.
(vi) There can be no `Qisas or 'Had' when the accused is non-pubert but he can be awarded any other punishment by way of Taazir."
The Shariat Bench further directed that : "The legislation giving effect to this decision as from today shall be made within two months."
3. This declaration was made after dealing exhaustively with Islamic Law on the subject wherein the Shariat Bench made the following observations vis-a-vis the existing section 302 of the Pakistan Penal Code :- "The absence of any provision regarding pardon by the heirs in the P. P. C. Will show that section 302, P. P. C. Does not reproduce all the requirements of the Injunctions of Islam. It will also appear that imposition of imprisonment for a murder is also not indicated by the injunctions of Islam. `Qisas' or `Diyat' or pardon are the only three options which are available for disposal of a murder case by a Court.
'Again section 302 does not provide that the person who was not pubert at the time of the commission of the offence should not be punished with death. It is certainly against the Injunctions of Islam when it makes an accused person liable to fine. The Injunctions of Islam which have been already quoted would show the liability extends to `Qisas' and `Diyat' and that both can be waived by the heirs of the murdered man. `In this context we should, however, like to place on record that though the general law regarding murder is as already noticed earlier there are exceptions as well. If in a grave crime 'Had' or `Qisas' cannot be exacted for extraneous reasons the Court can exact Tazir even if it extends to death penalty provided public interest so required. In such a case minor can also be punished with death."
4. The Shariat Bench in the decision under reference after laying down Islamic law on the subject of pardon by State came to the conclusion that this power does not lie with any functionary of the State, but according to Shariat the heirs of the deceased in the case of murders and the injured party in the case of other bodily hurts could only effect compromise with the aggressor either on payment of `Diyat' or by Pardon'. The Bench declared the law impugned before them as under :- "For the reasons we will bold that sections 54 and 55 of the Pakistan Penal Code as also sections 345(7), 401, 402, 402-A and 402-B of the Code of Criminal Procedure and relevant parts of its Schedule are repugnant to the Injunctions of Islam in so far as offences affecting human body listed under Chapter XVI of the Pakistan Penal Code are concerned. We are not unmindful of the limited scope of the petition herein the challenge is confined to section 302 of the Pakistan Penal Code but cannot overlook that the Government in its anxiety to expediate Islamization of the Penal Code would appreciate if such amendments are suggested as will cover Chapter XVI of the Pakistan Penal Code in its entirety. Such a recourse will in any case forestall numerous petitions that are likely to be made before this Bench no sooner our views regarding section 302 of the Pakistan Penal Code are published. We also feel that the Government may like to provide in the legislation to be made in pursuance of this decision that petition for pardon or 'Diyat' in respect of persons awaiting execution or serving terms of imprisonment will have to be disposed of in accordance with the injunctions of Islam inasmuch as `Qisas' is not exacted even if one of the heirs pardons or accepts `Diyat' at the last moment of the sentenced person's life. We will add that such petitions shall be disposed of by the High Court if it involves life imprisonment or death and by the Sessions Court in all other cases.
' It may be clarified that the Draftsman is to improve the language and form of the amendments suggested by us. He may also find appropriate place for them.
' The Shariat Bench then proceeded to make the declaration quoted in extenso in the beginning of this order.
5. From the above summary of the decision of this Bench, it would be apparent that the Bench, while declaring the certain provisions of law mentioned therein as repugnant to the Injunctions of Islam proposed and recommended to the Executive to bring about the changes suggested by them in the Statute Book by necessary amendments and incorporation of fresh provisions of law in order to bring the whole state of law on offences affecting the human body in accordance with the holy Qur'an and Sunnah of the Holy Prophet (Peace be upon him) and specified a period of two months for bringing about the said changes.
6. It has been alleged on behalf of the applicant that the Executive has not so far brought about the desired changes in the relevant Codes and have thus by disobeying the said order attempted to bring this Court into disrepute and have, therefore, committed contempt of Court.
7. After going through the decision of this Bench referred to and the provisions of the Constitution for the Constitution of Shariat Benches as provided by President's Order No, 3 of 1979, we are of the opinion that the matter is not so simple as the learned counsel for the petitioner would have us to believe. The function of the Shariat Benches of the superior Courts as laid down under Article 203-B, are confined to the examination of impugned provisions of law in the context of the Holy Qur'a and Sunnah of the Holy Prophet (Peace be upon him) and to declare the whole of the law or part thereof, as the case may be, if found so, repugnant to the Injunctions of Islam. This jurisdiction is again no extended to any suo motu examination of law by the Shariat Bench of High Court but has been confined to only those matters which are brought before the Bench by an application in this behalf. The declaration given is in a negatory form and the effect of such declaration as provided under Sub-Article (4) of Article 203-B is that such law or provision shall, to the extent to which it is held to be repugnant to Injunctions of Islam, cease to have effect on the day on which the decision of the High Court takes effect.
8. It, therefore, does not require any act on the part of any authority such as Executive or Legislator to remove the law declared repugnant to the Injunctions of Islam from the Statute Book of the Country, as it gets extinct from the date on which the decision of the Shariat Bench take effect. But it does not require much imagination to visualise that in certain situations a mere nullification of law could not by itself serve the purpose and some legislation in the positive form may also be required to fill in the lacuna, which may be created by removal of the law subject to such declaration from the Statute Book or by some amendment in the existing law might become desirable in order to bring the law on the subject into conformity with the Injunctions of Islam. This situation is met with by clause (a) of Sub-Article (4) of Article 203-B of the Constitution, which is as under :- "The President in case of law with respect to a matter in the Federal Legistative List or the Concurrent Legislative List, Governor in the case of a law with respect to a matter not enumerated in either of those Lists, shall take steps to amend the law so as to bring such law or provision into conformity with the Injunctions of Islam."
' A perusal of the above provision of the Constitution would make it crystal clear that while it has been enjoined upon the authorities mentioned E therein to take steps to amend the law so as to bring the same into conformity with the Injunctions of Islam, no period for doing so has been prescribed. If would, therefore, be for the authorities concerned to take steps in due course of time for giving effect to the necessary intendment of the declaration of a Shariat Bench. Thus it is apparent that although it is mandatory upon the authorities concerned to take steps to bring about the necessary legislation, it has been left to their discretion to choose time for taking such steps. If the Executive or for that matter the Legislature due to some reasons of their own do not act promptly it would not necessarily mean that they have disregarded or disobeyed the decision of the Shariat Bench or otherwise have brought the authority of the High Court into disrespect or disrepute. The time limit of two months from the date of the declaration set up by this Bench could only mean the specified date on which their decision was to take effect by rendering the so declared repugnant provisions of law non-existent on the Statute Book. As the Constitution does not provide specification of any time limit by the Shariat Benches for the Executive or the Legislator to implement their decision by necessary legislation, any such period, if set up by the Bench, would not, on its violation, in strict technical sense of the matter, entail any contempt of Court.
For the foregoing reasons, this application is found without substance and is therefore dismissed in limine.