' IQBAL HAMEED-UR-RAHMAN, C.J.---Through the instant constitutional petition under Article-199 of the Constitution of the Islamic Republic of Pakistan, 1973, the petitioners have made the following prayer:-- "It is, therefore, respectfully prayed that:-- ' This petition may kindly be allowed. The impugned order dated 21-7-2010 may graciously be declared to have been passed without lawful authority, without jurisdiction and of no legal consequence qua the rights of the petitioners.
(ii) That the respondents may be directed to register the courses opted by the petitioners without retrospective effect and the petitioners may kindly be allowed to undergo the final examination Fall-2010.
(iii) That the petitioners may be allowed to retake/submit all their mid-term exam, assignments, quizzes, lab work that they were previously deprived of on account of impugned order of penalty.
(iv) That since the petitioners were not allowed by respondent No,2 to take the classes hence the requirement of certain percentage of attendance may be exempted as it was beyond the control of the petitioners and respondent No,2 may be directed to refrain from using ifs and buts in allowing the petitioners to continue their studies and other extra-curricular activities as admissible to other students of the university.
2 Precisely, the facts necessary for the adjudication of the lis in hand are that the petitioners are regular students of respondent No, 1/National University of Computer and Emerging Sciences (NU- FAST). The petitioners appeared in sixth semester of Bachelor of Science (Telecommunication Engineering) but thereafter they were not allowed to attend the classes. On 21-7-2010 an office order was issued by respondent No,2 whereby the petitioners were suspended for one semester i,e.
Fall-2010 due to their involvement in unfair practices and violation of the university rules. The petitioners have alleged that the impugned order dated 21-7-2010 is illegal and have prayed that the same be declared as unlawful, without jurisdiction and having no legal effect, hence the instant petition.
3. In pursuant to the notice issued to the respondents, report and parawise comments have been filed on behalf of respondents Nos.1 and 2.
4. Learned counsel for the petitioners argued that the impugned order whereby the petitioners have been suspended for one semester i,e. Fall-2010, is a non-speaking order and no specific reason for suspending the petitioners for one semester has been mentioned therein. Learned counsel further argued that an Inquiry Committee was constituted to probe into the matter but in the inquiry report nothing wrong has been attributed to the petitioners. The only allegation which has been surfaced against the petitioners is that their grades were found to be changed, however, the same has not been done by the petitioners as they had already obtained good marks in their previous seitiesters and change in grades of the petitioners was done by a group of students who had not only changed the grades of the present petitioners but also changed the grades of a number of other students of the University by using "dropcourse-add-course-assign-grade" procedure and even in the inquiry report of the Inquiry Committee no fraud/cheating has been attributed to the petitioners. The petitioners have not been served with any Show-Cause notice and even are not afforded an opportunity of being heard prior to punishing them which is against the rules of natural justice as well as the principle of audi alteram partem.
5. Conversely, learned counsel for the respondents at the very outset has seriously raised objection that the instant writ petition is not maintainable before this Court inasmuch as the rules of the University are non-statutory, hence, the jurisdiction of this Court under Article-199 of the Constitution of the Islamic Republic of Pakistan, 1973 cannot be invoked. Learned counsel argued with vehemence that the petitioners in connivance with other students managed change of their marks and grades as they were fail in certain subjects of Spring-2010 semester, however, the university detected the fraud at a proper stage and an inquiry was conducted in order to trace out the real culprits. The Inquiry Committee after a thorough probe recommended that Mr. M. Saad iftikhar and Mr. Hasham Saeed (petitioners) should be suspended for two exclusive jurisdiction upon Federal Shariat Court in all Hudood related offense. The Federal Government, however in exercise of its power under section 34 of Act XXVII of 1997, amended the Schedule vide Notification No,SRO 663(i)197 dated 21-8-1997 and brought certain Hudood offences within the jurisdiction of the Special Court without corresponding amendment in section 25 of Act XXVII of 1997 by adding a proviso that appeals in Hudood matters would lie before the Federal Shariat Court. This omission violated the constitutional provision contained in Article 203-DD. In this view of the matter it becomes crystal clear that the offences relating to narcotic drugs are within the purview of Hudood and consequently an order, final or interim including grant or refusal of bail, passed by any court, special or ordinary, under any law, regarding an offence relating to Hudood is within the jurisdiction of the Federal Shariat Court and no other court, including a High Court, has the power to entertain bail matter or an appeal or revision in any such matter. Consequently the text of sections 48 and 49 of Act XXV' of 1997 has now to be suitably amended to restore jurisdiction of Federal Shariat Court in matters relating to enforcement of Hudood. No legal instrument, other than constitutional amendment, as stated earlier, can limit or ignore the exclusive jurisdiction of Federal Shariat Court mandated under Article 203-DD of the Constitution. Similarly if an offence of the nature of Hudood is tried under Anti-Terrorism Act, 1997 (Act No, XXVII of 1997) the appeal in all such cases under section 25 of Act XXVII of 1997 or for that matter bail under section 21-D ibid shall lie before the Federal Shariat Court and not a High Court. Consequently the following two steps will have to be taken to set the matter right:-- a. Words Federal Shariat shall be substituted for the words High Court occurring in Sections 48(i) and 49(i) of Control of Narcotic Substances Act, 1997 (Act XXV of 1997) and a rider will have to be put in section 25 of the Anti-Terrrorism Act, 1997 (Act XXVII of 1997) to state that appeal in cases relating to Hudood shall lie to the Federal Shariat Court. Any order, interim or final, passed by a Terrorist Court constituted under Act XXVII of 1997, in relation to a Hadd offence, shall be appealable or revisable only before the Federal Shariat Court. The wordings of section 25 Act XXVII of 1997 should be suitably amended to make it clear that a High Court shall have jurisdiction in all cases under the Act except Hudood matters. The above findings shall become operative after the specified period. The basic reason is that no legal instrument other than a Constitutional provision can limit the jurisdiction of Federal Shariat Court.
47. In this view of the matter and for reasons recorded under Issues (a) through (d) as well, this issue is answered in the affirmative. Sections 48 and 49 of Act XXV of 1997 and section 25 of Act XXVII of 1997 are hereby held to be violative of Article 203-DD to the extent that the jurisdiction of the Federal Shariat Court is ousted in matters relating to grant of bail or hearing appeals or ordering transfer of cases from one court to another court in cases registered or charged with Hudood offences.
ISSUE NO.(g)
LIAN
48. Section 25 of the Act has repealed subsections (3) and (4) of section 14, Ordinance VIII of 1979 and section 28 of the Act adds clause (vii a) Lian in section 2 of the Dissolution of Muslim Marriages Act, 1939. Both the interpolations have altered the legal composition of the institution of Lian which developed on the basis of express injunctions of Holy Quran contained in Ayaat 4 through 9 of Surah 24, An-Nur. Section 14 of Ordinance VIII of 1979 had in fact given legislative effect to an.
Injunction of Islam. The effect of repealing subsections (3) and (4) of Section 14 of Ordinance VIII of 1979 is to stifle the operation of an Injunctions of Holy Quran relating to the enforcement of Hudood which is not only repugnant to the injunctions contained Ayaat 44, 45 and 47 of Surah 5 and Surah An-Nur but is also a clear violation of Article 203DD of the Constitution. Similarly section 28 of the Act becomes repugnant to the Quranic Injunctions because as soon as the Tian proceedings conclude the following results ensue:
(i) the husband is not liable for punishment for making false accusation,
(ii) the wife is absolved of the calumny and
(iii) on account of such a serious breach between the couple, the court without further proof or additional proceedings, declares the, marriage to be dissolved with all legal consequences of a valid divorce.
49. It is time that attention is paid to the style in which Surah AnNoor was revealed. It opens with the words: "This is a Sura which WE have revealed and the Ordinance which WE have Made obligatoty emphasis on the mode and style of revelation lends added importance to the injunctions contained in the Surah . This is extraordinary way adopted by Holy Quran. Like Shirk the illicit sex and false accusation against chaste woman have been dealt with seriously. Even though the whole of Quran is Divine Revelation yet the revelations in Surah Nur have been specifically declared as His revelation. In this view of the matter the repeal effected by the Act is in utter violation of the Injunctions of Islam as mentioned above.
ISSUE NO.(h)
CLASSIFICTION OF PUNISHMENTS AND OFFENCES COVERED BY HADOOD
50. This issue deals with categories of punishment that can be awarded under Islamic Jurisprudence. This issue will be discussed in two parts. Part-A will deal with classification of punishments and Part-B will deal with Offences covered by the term Hudood. The punishments may therefore be classified as under:-- A. CLASSIFICATION OF PUNISHMENTS
51. i. Primary Punishments, i,e, Punishments prescribed for homicide, fornication, adultery, theft, etc. These punishments are prescribed by NASS wherein the Judge has no discretion in deciding the nature and quantum of sentence when the case has been proved; ii. Substitutory Punishments: i,e, cases where instead of primary punishments, discretionary penalties can be sanctioned by State and awarded by courts; iii. Consequential Punishment: It is in the nature of an additional penalty consequent upon commission of an independent but cognizable offence; e.g. When a killer on proof of his guilt, by operation of law, is also deprived from inheriting the estate of the victim whose death was caused by his criminal act i,e, the act of the prospective heir, or where the property recovered from a thief is directed by the court to be restored to its real owner; iv. Maximum or Minimum Punishment: i,e, a situation where the Judge exercises discretion, in given circumstances and facts of a particular case not covered by primary punishments, to award maximum or minimum penalty i,e, a penalty between the two extremes; v. Discretionary Punishments: i.e, instances where the Judge has the discretion even to let off an accused after administering rebuke or he may award any other appropriate sentence in the facts and circumstances of the case; vi. Section 53 of the Pakistan Penal Code was substituted as a result of the process of Islamization of laws initiated under Article 227 of the Constitution through the medium of Criminal Law (Second Amendment) Ordinance, 1990. (Later on it became permanent law as Act 11 of 1997) and the following ten categories of punishments, duly recognized by Islamic Jurisprudence, were incorporated therein.
' Firstly ................................ Qisas ' Secondly .......................... Tazir ' Thirdly .............................. Diyat ' Fourthly ............................ Arsh ' Fifthly ................................ Daman ' Sixthly .............................. Death ' Seventhly ......................... Imprisonment for life ' Eighthly ............................. Imprisonment of either description, namely:- ( i) Rigorous with hard labour; (ii) Simple ' Ninthly ............................. Forfeiture of Property; ' Tenthly ............................. Fine.
' As noted elsewhere these amendments in the Penal Code were the consequence of certain verdicts of the Federal Shariat Court and the recommendations made by Council of Islamic Ideology.
52. Section 299 occurring in Chapter XVI of the Pakistan Penal Code, entitled: of Offences Affecting The Human Body, defines Arsh, Daman, Ikrah-e-tam, Ikrah-e-Naqis, Qatl, Qisas and Tazir. It is worth noting that section 299 of Pakistan Penal Code, inter alia, defines. Qisas. The various definitions are detailed below:-- "299 Definitions.---In this Chapter, unless there is anything repugnant in the subject or context,--
(a) "arsh" means the compensation specified in this Chapter to be paid to the victim or his heirs under this Chapter;
(b) "daman" means the compensation determined by the Court to be paid by the offender to the victim for causing hurt not liable to arsh;
(c) "diyat" means the compensation specified in Section 323 payable to the heirs of the victim;
(d) "Government" means the Provincial Government;
(e) "ikrah-e-tam" means putting any person, his spouse or any of his blood relations within the prohibited degree of marriage in fear of instant death or instant permanent impairing of any organ of the body or instant fear of being subjected to sodomy or zinabil-jabr; "ikrah-e-naqis" means any form of duress which dOes not amount to Ikrah-i-tam;
(g) "qatl" means causing death of a person;
(h) "qisas" means punishment by causing similar hurt at same part of the body of the convict as he has caused to the victim or by causing his death if he has committed Qatl-e-amd, in exercise of the right of the victim of a wali. (Emphasis Added)
' The definition of Qisas adopted by Pakistan Penal Code is indicative of the fact that the retributive punishments prescribed by Holy Quran have been enforced as Hudood under the criminal jurisdiction in the courts of Pakistan. In this view of the matter the appellate or revisional jurisdiction over trials in cases of injuries against human body would be the exclusive domain of Federal Shariat Court. The word Hadd has also been defined in the Enforcement of Hudood Laws of 1979.
Different kinds of hurts and punishments, as prescribed by Islamic teachings, are also included in this newly added Chapter XVI of the Penal Code. Section 338-F ibid, occurring in this chapter, additionally mandates as follows:- "Interpretation:--In the interpretation and application of the provisions of this Chapter, and in respect of matters ancillary or akin thereto, the court shall be guided by the Injunction of Islam as laid down in the Holy Quran and Sunnah."(Emphasis Added)
' It is in this background that the expanse of the term enforcement of Hudood as used in Article 203-DD of the Constitution has to be appreciated, understood and interpreted. It is now time to analyse the term enforcement of Hudood.
53. In the field of criminal law, the Holy Quran has employed the term QISAS as retaliatory punishment for certain categories of offences against human body. The punishments are mentioned in the revealed text. Hence these are INJUNCTIONS and have to be implemented. This is also a constitutional obligation. The following Ayaat of Holy Quran will illustrate the point:- "(i) Ayah 178 Surah 2 (Al-Baqarah)
"Believers! Retribution is prescribed for you in cases of killing: if a freeman is guilty then the freeman; if a slave is guilty then the slave; if a female is guilty, then the female. But if something of a murderer's guilt is remitted by his brother this should be adhered to in fairness, and payment be made in a goodly manner. This is alleviation and a mercy from your Lord; and for him who commits excess after that there is a painful chastisement."
(ii) Ayah 179 Surah 2 (Al-Baqarah)
"People of understanding, there is life for you in retribution that you may guard yourselves against violating the law."
(iii) Ayah 194 Surah 2 (Al-Baqarah)
"The sacred month for the sacred month; sanctities should be respected alike (by all concerned).
Thus, if someone has attacked you, attack him just as he attacked you, and fear Allah and remain conscious that Allah is with those who guard against violating the bounds set by Him."
(iv) Ayah 45 Surah 5 (Al-Maidah)
"And therein We had ordained for them: "A life for a life, and an eye for an eye, and a nose for a nose, and an ear for an ear, and a tooth for a tooth, and for all wounds, like for like. But whosoever foregoes it by way of charity, it will be for him expiation." Those who do not judge by what Allah has revealed are indeed the wrong-doers." (Emphasis Added)
54. It may be useful to refer to Ayah 24 Surah 4, An-Nisa of Holy Quran, at the risk of repetition, which proclaims that the commandments given by Allah in the Holy Quran have a binding force upon the believers. This declaration comes at the end of the list of prohibitions prescribed by Holy Quran. This edict cannot be ignored and has to be taken seriously.
55. Let us now revert to the term Hadd/Hudood as used in various legal instruments in force in Pakistan. The term Hudood has been employed in Article 203-DD (1) of the Constitution but this term, it appears, has purposely not been defined therein. It indicates clearly that this question was left for the Federal Shariat Court to define because this very clause proceeds to confer exclusive jurisdiction upon this Court to deal with matters relating to Hudood. Moreover, the Constitution has created only one forum under the designation Federal Shariat Court, which has the exclusive jurisdiction (Article 203-D) to examine the question whether any law is repugnant to the Injunctions of Islam. It is therefore the domain of the solitary constitutional institution, known as Federal Shariat Court, to lay down what the law on the subject is. Reference may be made to the case of Asma Jilani versus Government of the Punjab, reported as PLD 1972 Supreme Court 139 Justice Yaqub Ali (as his Lordship then was) at page 230 held as under:- "Law" was not defined in the Constitution. It is, therefore, for the Courts to lay down what "law" is, and if any decree, or behest of Yahya Khan expressed as a Martial Law Order, Martial Law Regulation or Presidential Order, or Ordinance, does not conform to the meaning of the term law' in Article 2 these Regulations, Orders and Ordinances will be void and of no legal effect." (Emphasis Added)
' It is thus the domain of Superior Courts to assign meanings to those words and terms which, used technically by jurists, and employed in legislative instruments, have been wilfully left undefined by legislature. The definition of the term Hudood, as may be settled in the light of Injunctions of Islam by the Federal Shariat Court, will therefore determine the meaning of the term as well as the extent of its jurisdiction.
56. The term Hadd as mentioned above, has also been given a meaning in Ordinance VI of 1979, Ordinance VII of 1979, Ordinance (VIII Of 1979) and President's Order No,4 of 1979. This meaning is in tune with the arguments advanced above. According to this definition the term Hadd means a punishment "ordained by Holy Quran or Sunnah". This definition has not been held to be repugnant to the Injunctions of Islam in the three decades of its application.
' Chapter 3-A of Part VIII of the Constitution, dealing with the Federal Shariat Court, contemplates very vividly that the Shariat Court, shall be guided in its decisions and findings by the Injunctions of Islam as laid down in the Holy Quran and the Sunnah of the Holy Prophet (PBUH). Likewise, Article 227 (1) of the Constitution prescribes that all existing laws shall be brought in conformity with the Injunctions of Islam as laid down in the Holy Quran and the Sunnah and further that no law in future shall be enacted which is repugnant to these injunctions. The ultimate role of examining the vires of an impugned legal instrument on the touchstone of Injunctions of Islam is therefore the exclusive preserve of the Federal Shariat Court as mandated by Article 203D of the Constitution of Islamic Republic of Pakistan. The parliament is debarred from enacting a law which is repugnant to the Injunctions of Islam. This reality amounts to a declaration in loud terms that the statute book of Pakistan has to be in conformity with the Injunctions of Islam and consequently the term Hudood has, in fact, to be defined in the light of Injunctions as laid down in the Holy Quran and the Sunnah.
The term Hudood according to the meaning and scope of various Injunctions of Islam, referred to above, includes every activity which falls directly or indirectly within the mischief of 11 offences tabulated in the next section.
58. In literary and legal parlance some words in the field of law, science, philosophy etc. Assume a wider meaning than the actual dictionary meanings. This is also the case with the expression Hudood. It includes the term Tazir. A parallel may be conveniently drawn from the term viz major or force majeure. The term force majeure according to law lexicons means irresistible force or compulsion; circumstances beyond one's control. The expression force majeure 'is not a mere French version of the Latin expression vis major.' The term force majeure has therefore become a term of wide import. Strikes, breakdown of machinery, which, though normally not included the term vis major are included in force majeure. B. OFFENCES COVERED BY THE TERM HUDOOD
59. It is therefore time to recapitulate the scope of the term Hudood. In the light of the foregoing discussion the following categories of offences are therefore covered by the term Hudood:
(i) Zina = Adultery, Fornication and Rape.
(ii) Lawatat= Sexual intercourse against the order of nature;
(iii) Qazaf= Imputation of Zina;
(iv) Shurb = Alcohlic drinks/Intoxicants/Narcotics etc;
(v) Sarqa = Theft simplicitor;
(vi) Haraba = Robbery, Highway Robbery, Dacoity. All categories of offences against property as mentioned in Chapter XVII of Pakistan Penal Code.
(vii) Irtdad= Apostacy;
(viii) Baghy =Treason, waging war against State; All categories of offences mentioned in Chapter VI of the Pakistan Penal Code and
(ix) Qisas = Right of retaliation in offences against human body. All these offences are covered by definition Hadd because penalty therein has been prescribed by Nass/Ijma.
' Islamic Republic of Pakistan (Syed Afzal Haider, J)
' Abdul Qadir Audah, has discussed to some extent the scope of Hadd in his treatise Tashree ul Janai al Islam, Volume 1 at page 119.
(x) Human Trafficking.
' Reference Ayah 90 Surah 16 of Holy Quran where Fhashaa, Munkar and Baghee have been forbidden.
60. It is immaterial for the purpose of the petitions under discussion whether penal provisions relating to Qisas/kidnapping/abduction/ enticing/fornication/adultery/rape/un-natural offences/prostitution/buying or selling a person for sexual purposes; heft/Haraba/Drinking alcoholic liquor or sale, purchase, manufacture, import or export or possession of intoxicants/Narcotic, alcoholic liquors of various categories, theft, extortion, waging war against state or offences against human body, false imputations., etc, are retained in Pakistan Penal Code, or `President's Order No,4 of 1979, Ordinance VI of 1979, Ordinance VII of 1979, Ordinance VIII of 1979, or even Control of Narcotic Substances Act No, XXV of 1997, Prevention and Control of Human Trafficking Ordinance, 2002 (Ordinance LIX of 2002) or any other legal instrument for the time being in force. What is material is that all such offences relating to enforcement of Hadd as ordained by Holy Quran and Sunnah are within the exclusive jurisdiction of the Federal Shariat Court before or after the trial has been initiated or completed by any criminal court (of course under any law) and no other court would exercise appellate or revisional powers over such criminal cases initiated either on police report or by way of complaint direct in the court or at the instance of the Court itself.
61. In the case of Dr. Muhammad Aslam Khaki v. Federation of Pakistan reported in PLD 2010 FSC page 191 a Bench consisting of four Hon'ble Judges of the Federal Shariat Court, after considering different view points found that a sin does not mean Haram only. There is no doubt in the mind of any Muslim that Quran and Sunnah shall always serve as a sure guide in determining what are major sins. In many societies sins are distinguishable from crimes but in some cultures sins are inseparable from crimes. In an Islamic society sins are crimes and not separate entities. In the said report it was also held in paragraph 24 that the State is duty bound to enforce that which is prohibited and inflict requisite punishment to the transgressors.
ISSUES NOs.(b) and (i)
JURISDICTION AND JUDICIAL POWER AND JURISDICTION
62. We consider it expedient to examine this issue relating to the Judicial power, Jurisdiction and allied matters as these points are intrinsically related to Issues Nos.(b) and (c) discussed above.
This issue will therefore be discussed under 08 following distinct heads:- A. JURISDICTION IN GENERAL B. NATURE OF ARTICLE 203-DD C. REVISIONAL CUM APPELLATE JURISDICTION D. TERMS: ANY CASE, ANY COURT, ANY LAW E. TERM: ENFORCEMENT OF HUDOOD F.
FOUNDATION AND SCOPE OF ARTICLE 203D G. DECISIONS OF FEDERAL SHRIAT COURT H. FEDERAL SHARIAT COURT AND COUNCIL OF ISLAMIC IDEOLOGY.
A. JURISDICTION IN GENRAL
63. Jurisdiction is the right to hear and determine and the result of this exercise is the judgment of the Court. Deniels v. Tarney, 102 U.S. 415, 26 L.ED.
187.
64. Justice Hamood-ur-Rehman, Hon'ble Chief Justice Supreme Court of Pakistan, in the case of State Versus Zia-ur-Rehman PLD 1973 Supreme Court 49 at pages 69-70, explained the scope of the terms "Judicial Powers" and "Jurisdiction" in the following words:- "So far, therefore, as this Court is concerned it has never claimed to be above the Constitution nor to have the right to strike down any provision of the Constitution. It has accepted the position that it is a creature of the Constitution; that it derives its powers and jurisdictions from the Constitution; that it derives its powers and jurisdictions from the Constitution; and that it will even confine .Itself within the limits set by the Constitution which it has taken oath to protect and preserve but it does claim and has always claimed that it has the right to interpret the Constitution and to say as to what a particular provision of the Constitution means or does not mean, even if that particular provision is a provision seeking to oust the jurisdiction of this Court.
This is a right which it acquires not de hors the Constitution itself. It is not necessary for this purpose to invoke any divine or super-natural right but this judicial power is inherent in the Court itself. It flows from the fact that it is a Constitutional Court and it can only be taken away by abolishing the Court itself.
' In saying this, however, I should make it clear that I am making a distinction between "judicial power" and "jurisdiction". In a system where there is a trichotomy of sovereign powers, then ex- necessitate rei from the very nature of things the judicial power must be vested in the judiciary. But what is this judicial power. "Judicial Power" has been defined in the Corpus Juris Secundum, Vol. XVI, Paragraph 144, as follows:- "The judiciary or judicial department is an independent and equal coordinate branch of Government, and is that branch thereof which is intended to interpret, construe, and apply the law, or that department of Government which is charged with the declaration of what the law is, and its construction, so far as it is written law." (Emphasis added)
' This power, it is said, is inherent in the judiciary by reason of the system of division of powers itself under which, as Chief Justice Marshal put it, "the Legislature makes, the executive executes, and the judiciary construes, the law." Thus, the determination of what the existing law is in relation to something already done or happened is the function of the judiciary while the predetermination of what the law shall be for the regulation of all future cases falling under its provisions is the function of the Legislature.
' It may well be asked at this stage as to what is meant by "jurisdiction"? How does it differ from "judicial power"? Apart from setting up the organs the Constitution may well provide for a great many other things, such as, the subjects in respect of which that power may be exercised and the manner of the exercise of that power. Thus it may provide that the Courts set up will exercise revisional or appellate powers or only act as a Court of a cessation or only decide Constitutional issues. It may demarcate the territories in which a particular Court shall function and over which its Writs shall run. It may specify the persons in respect of whom the judicial power to hear and determine will be exercisable. These are all matters which are commonly comprised in what is called the jurisdiction of the Court. It expresses the concept of the particular res or subject matter over which the judicial power is to be exercised and the manner of its exercise. Jurisdiction is, therefore, a right to adjudicate concerning a particular subject-matter in a given case, as also the authority to exercise in a particular manner the judicial power vested in the Court." (Emphasis added)
' In this very report the Hon'ble Chief Justice at page 70 was pleased to hold as under:-- "In exercising this power, the judiciary claims no supremacy over other organs of the Government but acts only as the administrator of the public will. Even when it declares a legislative measure unconstitutional and void, it does not do so, because, the judicial power is superior in degree or dignity to the legislative power; but because the Constitution has vested it with the power to declare what the law is in the cases which come before it. It thus merely enforces the Constitution as a paramount law whenever a legislative enactment comes into conflict with it because, it is its duty to see that the Constitution prevails."
65. The Supreme Court of Pakistan in its Appellate Jurisdiction, in the case of Dr. Munawar Hussain v. Dr. Muhammad Khan, District Health Officer, Sargodha and two others, reported as 2004 SCMR 1462 (at page 1466) and PLJ 2005 SC 64 (at pages 67, 68) while dilating upon the question of jurisdiction of the Federal Shariat Court held as under:-- "Article 203-A of the Constitution provides that the provisions of this Chapter i,e, Chapter 3-A relating to Federal Shariat Court shall have effect notwithstanding any thing contained in the Constitution meaning thereby that provisions of this Chapter containing Article 203-A to Article 203-J have overriding effect on the other provisions of the Constitution. Article 203-G of the Constitution imposes bar on the jurisdiction of the Courts and Tribunal including the Supreme Court and the High Court to entertain any proceedings or exercise any power or jurisdiction in respect of the matters within the power or jurisdiction of the Federal Shariat Court, as such, the High Court neither had the jurisdiction under Section 561-A, Cr.P.C. Nor under Article 199 of the Constitution in the matter which fell within the jurisdiction of the Federal Shariat Court, as such, the jurisdiction exercised by the High Court under Article 199 of the Constitution after conversion of quashment petition, was coram non judice. It may be noted that the Federal Shariat Court had already directed the trial Court vide its judgment dated 11-5-1994 passed in Criminal Revision No,110-L of 1993 to issue process against Dr. Muhammad Khan respondent and to decide his case along with other respondents in accordance with law. This judgment which was rendered by the three Hon'ble Judges of the Federal Shariat Court was binding on the High Court and all other Courts subordinate to it under Article 203-GG and a Single Judge in Chambers of the High Court had no jurisdiction to sit in judgment over the judgment of the Federal Shariat Court which had exclusive jurisdiction in the matter and its decision had a binding effect as stated earlier. Since the matter was exclusively amenable to the jurisdiction of the Federal Shariat Court under Article 203- G, therefore, the impugned judgment passed by the Single Judge of the High Court was without lawful authority and of no legal consequence. Consequently, this appeal is allowed, the impugned judgment of the learned Single Judge in Chambers of the High Court being coram non judice is set aside and the trial Court is directed to proceed with the complaint as directed by the Federal Shariat Court vide its order dated 11-5-1994 and decide the same in accordance with law as expeditiously as possible." (Emphasis added)
66. In this context perusal of Article 203G would be useful:-- "Save as provided in Article 203F, no Court or tribunal, including the Supreme Court and a High Court, shall entertain any proceedings or exercise any power or jurisdiction in respect of any matter within the power or jurisdiction of the Court." (Emphasis added)
' This provision read with Article 203-DD(2) establishes beyond doubt that all offences relating to Hudood are within the exclusive jurisdiction of Federal Shariat Court. All matters connected with Hudood would therefore automatically be included in the jurisdiction of Federal Shariat Court. This is precisely what is meant by enforcement of Hudood as prescribed in Article 203-DD of the Constitution.
67. It is indeed true that all judicial powers are lodged with the judiciary and wide powers have undoubtedly been conferred by the Constitution upon the Federal Shariat Court which include:-
(a) To administer punitive and remedial justice to and between parties subject to Constitution and law;
(b) To exercise exclusive jurisdiction in matters relating to examination of laws on the touchstone of Injunctions of Islam and in cases relating to Hudood laws;
(c) To exercise the special jurisdiction without further legislative sanction;
(d) To define the scope and extent of its jurisdiction within the parameters identified in Chapter 3-A of Part VII of the Constitution;
(e) To determine the meaning and scope of the undefined terms used in Chapter 3-A ibid;
(f) To exercise powers of a Civil Court in respect of certain matters;
(g) Authority to conduct its proceedings and regulate its procedure in all respects as it deems fit;
(h) To punish its own contempt;
(i) To make rules for carrying out the purposes of Chapter 3-A ibid;
(j) Exercising such other jurisdiction as may be conferred on it by or under any law;
(k) To call for and examine the record of any case decided by any criminal court under any law relating to the enforcement of Hudood; and
(1) Exclusive authority and the jurisdiction to examine and decide the question whether or not any law or provision of law is repugnant to the Injunctions of Islam as laid down in Holy Quran and Sunnah.
68. On the question of jurisdiction, the Supreme Court of Pakistan in the case of Asma Jilani v.
Government of the Punjab, reported as PLD 1972 Supreme Court 139 at page 197, held as under:-- "The Courts undoubtedly have the power to hear and determine any matter or controversy which is brought before them, even if it be to decide whether they have the jurisdiction to determine such a matter or not. The Superior Courts are, as is now well settled, the Judges of their own jurisdiction.
This is a right which has consistently been claimed by Supreme Court and other Courts of superior jurisdiction in all civilized countries."
' It may be useful to refer also to the case of Yousaf Ali Khan v. The West Pakistan Bar Council Tribunal, Lahore PLD 1972 Lahore 404, a Full Bench case of the Lahore High Court, wherein it was held as under:-- "It is not possible for the executive to wrest from the judiciary its jurisdiction to interpret any law promulgated in the country. The superior judiciary is clothed with this jurisdiction as a delegate of the sovereign who, in the Islamic Republic of Pakistan, is God Almighty Himself exercising His Will and Sovereignty through the people of this country. It is hardly possible to deny that the making of laws, their implementation by three independent delegates of the sovereign in respect of its own particular field. The Legislature exercises that delegated sovereign power of the sovereign to make laws and the executive exercises it to implement them, the judiciary does, by interpreting laws made in pursuance of the exercise of the legislative part of the powers of the sovereign by the Legislature. The right of the superior judiciary delegated to it by the sovereign which can neither be curbed nor can it be taken away. "
69. It is necessary for a Judge to know the meaning and the scope of the term law because he is under oath to administer law. He should be clear in his mind that the law under consideration was made by an authority legally competent to make laws. The Federal Shariat Court has the additional but onerous constitutional responsibility to examine whether the impugned law or provision of law is in accordance with Injunctions of Islam. This authority of the Federal Shariat Court is necessary extension of the mandate given in Article 227 of the Constitution. The notion of legitimacy and efficacy therefore becomes relevant because not only the law making authority should be legally competent but the law should be capable of being enforced according to the Injunctions of Islam and the principles established by the Constitution.
70. The ouster of jurisdiction of Federal Shariat Court can be accomplished by only one jurisdictional fact: that the act complained of is not covered by the mischief of an offence covered by the term Hudood. If however the impugned transgression falls in the ambit of Hudood then the jurisdiction of Federal Shariat Court cannot be ousted. This element is the key to the question of jurisdiction. It is immaterial whether the offence complained of is mentioned in the four Hudood laws of 1979 or any other law. The issue stands settled by the terminology employed in Article 203- DD - any case; any criminal court and under any law. The term any case is relatable to all such offences which might be covered in the definition of Hudood. All actions which are ancillary or auxiliary or related to or germane to or connected with offences falling in the ambit of Hudood are also included in the term any case related with Hudood. Any case also includes all those cases in which one of the alleged offences is covered by the definition of the term Hudood. It may be mentioned here that the principle identified by the Supreme Court of Pakistan in the case of State v. Khalid Masood, PLD 1996 Supreme Court 42 is that when a matter has been dealt with by the Constitution and it is not subject to any statute then no statute can control or curtail the power conferred upon a superior court by the Constitution.
B. NATURE OF ARTICLE 203-DD
71. Allied with the question of jurisdiction of Federal Shariat Court is the subject regarding determination of the exact scope and nature of Article 203-DD incorporated in the Constitution. The language employed in this Article shows that a calculated step was taken to give legislative effect to the principles and commandments relating to Hudood enumerated in Holy Quran and Sunnah.
While interpreting Article 203-DD of the Constitution of Islamic Republic of Pakistan it becomes imperative to ascertain the nature of this constitutional provision. Does this Article contain a policy?
Does it provide only a guideline? Does it contain a principle of law? The answer goes beyond these questions. An examination of this Article demonstrates that it confers power upon the Federal Shariat Court to exercise jurisdiction in all cases, pending or decided by any criminal court under any law in relation to the enforcement of Hudood. The Hudood laws were in existence and being implemented at the time Article 203-DD was made operational in the Constitution with effect from 22nd March 1982. The analysis of the contents of this Article therefore leads to the irresistible conclusion that the nature of this Article is self-executing. Justice Shafiur Rehman in the case of Hakim Khan v. Government of Pakistan, reported as PLD 1992 Supreme Court 595, at pages 633-634 (para 16 of the Report), while approving a passage from Bindra's Interpretation of statutes, observed as under:-- "A Constitutional provision is self-executing if it supplies a sufficient rule by means of which the right which it grants may be enjoyed and protected, or the duty which it imposes may be enforced without the aid of a legislative enactment. It is within the power of those who adopt a Constitution to make some of its provisions self-executing, with the object of putting it beyond the power of the Legislature to render such provisions nugatory by refusing to pass laws to carry them into effect.
Where the matter with which a given section of the Constitution deals is divisible, one clause thereof may be self-executing and another clause or clauses may not be self-executing.
Constitutional provisions are self-executing when there is a manifest intention that they should go into immediate effect, and no ancillary legislation is necessary to the enjoyment of a right given of the enforcement of a duty imposed. That a right granted by a Constitutional provision may be better or further protected by supplementary legislation does not of itself prevent the provision by question from being self-executing, nor does the self-executing character of the Constitutional provision necessarily preclude legislation for the protection of the right secured. A Constitutional provision which is merely declaratory of the common law is self-executing. A Constitutional provision designed to remove an existing mischief should never be construed as dependent for its efficacy and operation on Legislature.
' Constitutional provisions are not self-executing if they merely indicate a line of policy or principles, without applying the means by which such policy of principles are to be carried into effect, or it appears from the language used and the circumstances of its adoption that subsequent legislation was contemplated to carry it into effect. Provisions of this character are numerous in all Constitutions and treat of a variety of subject. They remain inoperative until rendered effective by supplemental legislation. The failure of the legislation to make suitable provision for rendering a clause effective is no argument in favour of self-executing construction of the clause. Self- enforcing provisions are exceptional.
' The question whether a Constitutional provision is self-executing is always one of intention, and to determine intent, the general rule is that Courts will consider the language used, the objects to be accomplished by the provision, and surrounding circumstances. Extrinsic matters may be resorted to where the language of the Constitution itself is ambiguous."
72. A scrutiny of Article 203-DD of the Constitution consequently illustrates that exclusive powers of judicial nature in relation to matters pertaining to Hudood, a particular branch of administration of Criminal Justice, have been conferred upon the Federal Shariat Court to:
(i) call for and examine the record of
(ii) any case
(iii) decided by any criminal court
(iv) under any law
(v) relating to enforcement of Hudood.
' The Hudood laws were made part of the Statute Book of Pakistan on 9th February 1979 Chapter 3A entitled Federal Shariat Court was incorporated thereafter as substantive provision in Part VII of the Constitution of Pakistan with effect from 26th May 1980 vide Constitution (Amendment) Order, 1980.
The opening provision of this Chapter i,e, Article 203A reads as follows:- "The provisions of this Chapter shall have effect notwithstanding anything contained in the Constitution."
73. It is this Chapter which contains Article 203DD. The present text of Article 203-DD substituted the original Article 203-DD vicje section 5 of Constitution (Second Amendment) Order, 1982 with effect from 22nd March 1982. The previous text of Article 203-DD was incorporated in the Constitution vide section 4 of the President's Order No A of 1980, Constitution (Second Amendment) Order, 1980 with effect from 21st June, 1980 which provided simply that: "The Court shall have such other jurisdiction as may be conferred on it by or under any law."
' This very portion has now become clause (3) of Article 203-DD by virtue of President's Order No,5 of 1982. It is therefore amply clear that the four Hudood laws i.e, Ordinance No,VI of 1979, Ordinance No,VII of 1979, Ordinance No,VIII of 1979 and President's Order No,4 of 1979 had come in force before Article 203-DD was reconstituted in an elaborate manner. In the domain of legislation it is presumed that the legislature is fully cognizant of previous legislation on the given subject. The effect of this amendment i.e, incorporation of clauses (1) and (2) in Article 203-DD in the Constitution is as follows:- i. All the offences mentioned in the above mentioned laws fall within the ambit of Hadood; ii. As such all the offences are within the jurisdiction of Federal Shariat Court; iii. These offences are no more susceptible to amendment or repeal through an ordinary or routine legislative measure other than amendment of Article 203-DD of the Constitution; iv. The Constitution did not limit the scope of Article 203-DD to the offences covered by the said four Hudood laws alone but mandated that the Court shall have, such other jurisdiction as may be conferred on it by or under any law. It was a clear indication that the meaning and scope of the term Hudood is wider than what the four above mentioned Hudood laws have professed. This clause pre-supposes that in due course of time when the scope of the term Hudood has been defined appropriately, the jurisdiction of the Federal Shariat Court will keep on expanding. v. The Constitution purposely refrained from defining the term "enforcement of Hudood" and left it for the Federal Shariat Court to spell out the scope of term Hudood for a safe and progressive evolution of law in the light of Injunctions of Islam; and vi. It was after lapse of a period of five years that it was ultimately decided to incorporate 'the term Hudood for the first time in the Constitution so that a complete range of offences falling within the purview of Hudood would progressively become part and parcel of the penal law of Pakistan. It is in this way that gradual fulfillment of Islamic tenets becomes possible.
74. During the three decades of its existence, a lot many Articles of the Constitution were amended on as many as 10 occasions and very recently far reaching amendments have been effected through Eighteenth Constitutional Amendment Act which have been made operative from 20-4- 2010. However during this long period, the successive Parliaments did neither disturb the powers conferred upon Federal Shariat Court under Article 203DD nor limit the scope of the term Hudood to the four Hudood laws with the result that this self-executing provision, which had become operational in 1982, continues holding the field. It was and continues to be operational and shall remain operational so .Long as any criminal court under any law takes cognizance of a matter in the domain of Hudood. The operational character of this Article was never made dependent upon any subsequent legislation or existence of any other condition. The nature of this Article is not at all different from the nature of Articles 184 through 190 as well as Articles 199, 201 and 203 of the Constitution. These are all self contained and self executing provisions of the Constitution. It may be added that the exclusive jurisdiction of the Federal Shariat Court has remained intact throughout.
75. It is, therefore, clear that the words used in any legal instrument relating to the jurisdiction of the Court, if not defined in the enactment, will be interpreted and construed by the court exercising that jurisdiction. The term law for the purposes of Article 203-D has been defined in clause (c) of Article 203B of the Constitution in the following terms: -
(c) "law" includes any custom or usage having the force of law but does not include the Constitution, Muslim personal law, any law relating to the procedure of any court or tribunal or, until the expiration of [ten] years from the commencement of this Chapter, any fiscal law or any law relating to the levy and collection of taxes and fees or banking or insurance practice and procedure.
' The scope of the term law will have to be determined by the Court.
76. It is noteworthy that the term Law includes the judge made law. In support of this argument it might as well be stated that Article 189 mandates that the decisions of the Supreme Court shall, to the extent that it decides a question of law or is based upon or enunciates a principle of law, be binding on all Courts in Pakistan. Article 203-GG of the Constitution straight away directs that the decisions of Federal Shariat Court shall be binding on a High Court and all Courts subordinate to a High Court. The Constitution does not say that the decision of the Federal Shariat Court shall be binding only if "it decides a question of law or is based upon or enunciates a principle of law." In the case of Kundan Bibi and 4 others v. Walayat Hussain, Controller of Estate Duty, Government of Pakistan, Karachi and another, reported as PLD 1971 Lahore 360 (D.B. Case at page 365), Justice Sardar Muhammad Iqbal (as his lordship then was) held that "law" does not mean only the statute law but includes the principles which are laid down by the judicial pronouncements of Superior Courts. Reliance in that report was placed on the case of Government of West Pakistan, v. Begum Agha Abdul Karim Shorish Kashmiri PLD 1969 SC 14 where Justice Hamood-urRehman (as his Lordship then was) held that the term law includes judicial pronouncements laid down from time to time by the superior courts. This constitutional provision as well as the Hudood laws promulgated in 1979 partake of the nature of mandating absolute enactments. These provisions are not directory. An absolute enactment is defined to be an instrument which must be obeyed or fulfilled exactly. It is only in the case of a directory enactment that it may be obeyed substantially.
These constitutional provisions confer powers for the enforcement of Hudood. It would be useful to refer to another related principle which was settled long ago in re-Dudlay Corporation (1882)8 QBD 86 (93,94) by Brett, L.J. Wherein it was held that where legislature gives power to do anything, the legislature "means also to give the public body all rights without which the power would be wholly unavailable."
C. REVISIONAL CUM APPELLATE JURISDICTION
77. It was hinted at the bar that revisional power and not appellate power was conferred upon the Federal Shariat Court under Article 203DD of the Constitution meaning thereby that the powers of the Federal Shariat Court are limited. The argument is erroneous. It would be useful to refer to relevant provisions relating to appeals and revisions as incorporated in the Code of Criminal Procedure.
78. Chapter XXXI of Part VII of the Code of Criminal Procedure deals with appeals. Section 404 of the said Code mandates' that no appeal shall lie from any judgment or order of criminal court except as provided for by the Code or any other law for the time being in force. Section 412 commands that where an accused person has pleaded guilty and has been convicted by a High Court, a Court of Session or Magistrate of 1st Class on such plea, there shall be no appeal except to the extent or legality of the sentence. Similarly sections 413 and 414 do not permit appeals from petty cases/certain summary convictions. Section 417 deals with appeals in cases of acquittal. Section 418 concedes that an appeal may lie on a matter of fact as well as matter of law. Section 423 deals with powers of appellate Court in disposing of appeals and section 426 deals with suspension of sentence and release of appellants on bail during pendency of appeal. Section 428 enables the appellate Court to take further evidence itself or direct it to be recorded by the lower court. Under section 431, every appeal under section 411-A (2) or section 417 shall finally abate on the death of the accused and every other appeal under this chapter (except an appeal from a sentence of fine) shall finally abate on the death of appellant.
79. It will be noticed that piecemeal power was given to appellate courts under twenty eight consecutive sections of Chapter XXXI of Part VII of the Code of Criminal Procedure. The power to enhance the sentence was however not provided in the chapter relating to appeals. Chapter XXXII of Part VII of the Code of Criminal Procedure deals with Revisional Jurisdiction. Section 439 singly enables the High Court to perform any of the powers conferred on a court of appeal by virtue of sections 423, 426, 427 and 428. This section also enables the revisional court to enhance the sentence after providing an opportunity to the accused of being heard. A comparison with Article 203-DD of the Constitution shows that the revisional jurisdiction conferred upon Federal Shariat Court, at constitutional plane, not only encompass at one place the power that are exercised by an appellate Court under different sections of the Code but at the same time, in exercise of the same jurisdiction, the Federal Shariat Court in its capacity as the revisional court, has the additional potential of enhancing any sentence if, after examination of the record of any case decided by any criminal court, it is convinced that punishment awarded was scanty. It is for this reason that Article 203-DD of the Constitution of Islamic Republic of Pakistan conferred revisional jurisdiction alone on the Federal Shariat Court because powers of a revisional Court are much wider than that of the powers of an appellate Court.
80. Section 439 of the Code of Criminal Procedure, authorizes the High Court to enhance the sentence of the convict in the exercise of revisional jurisdiction. The Constitution could have been content by providing that the Federal Shariat Court will exercise the same powers as conferred on High Court under section 439 ibid. But it was not done for the obvious reason that section 439 ibid places an embargo on the powers of High Court to convert an order of acquittal into conviction while exercising revisional jurisdiction. In the case of Muhammad Babar v. Muhammad Akram and three others, PLD 1987 Federal Shariat Court 38 (at page 41) it was held that the power of Federal Shariat Court to order retrial remains intact under the constitutional provisions because "the Court may pass such orders as it deems fit." However in appropriate cases, in order to save time, expense, and harassm ent the Federal Shariat Court may straight away convict the accused, if after hearing him, it finds that there is sufficient evidence on record to do so (Page 42 of the report)
81. The concept of Appeal is not unfamiliar to the Constitution. Articles 185 and 203-F of the Constitution confer appellate jurisdiction upon the Supreme Court of Pakistan. Article 203-DD of the Constitution does not confer appellate jurisdiction simplicitor upon the Federal Shariat Court. It confers revisional and other jurisdiction. Appeal is a right conferred upon a person by a legislative instrument to move a superior tribunal against an order whereas Revision is a privilege, prerogative, discretion and power conferred upon a Court to examine proceedings conducted by a lower tribunal. Appeal is re-examination of case at judicial level by a Superior Court. The object of appeal in contradistinction to revision under the Code of Criminal Procedure, is to examine the correctness and legality of the impugned order. The powers vesting in this Court under Article 203- DD of the Constitution with regard to any case decided by any criminal court under any law relating to the Enforcement of Hudood are all in-collusive in nature. A statute may or may not confer a right of appeal but the Constitution has provided a permanent remedy for every aggrieved person to invoke revisional jurisdiction of this Court in appropriate proceedings. Revision is a wider jurisdiction. This is what the head note of Article 203-DD indicates. The term Revision includes re-examination, re-assessment, careful reading over for correction and improvement.
Holy Quran, in Ayah No,90 Surah 16, An-Nahl enjoins Justice tempered with Kindness. The words in the Nass are ADL and IHSAN. The Federal Shariat Court has also to see whether justice, as tempered by kindness, has been done by the trial Court. This power of Adl with Ihsan is not prescribed upon any Appellate Court in the Code of Criminal Procedure. It is therefore abundantly clear that wide powers have been conferred upon the Federal Shariat Court by way of revisional jurisdiction to do complete justice according to relevant Injunctions of Islam in cases decided by any criminal court under any law relating to the enforcement of Hudood.
82. It would be advantageous at this stage to look up the meaning and scope of the technical term Revision in legal parlance.
83. The term Revision is wider in meaning and scope than the term Appeal. The term Revision also includes revision of statutes which in substance is the re-examination of laws. It is different from an amendment. ' It implies re-examination and restatement of law. Reference volume 35-A of WORDS and PHRASES, Permanent Edition. The well known book entitled: STATUTORY CONSTRUCTION by Crawford published by Pakistan Publishing House records at page 184: that the "Legislators are often authorized by constitutional provisions to revise and to restate all the statute law of a general and permanent nature of the State up to a certain date, in corrected and improved form". This legislative function has been conferred on the Federal Shariat Court to undertake examination of laws on the touchstone of the Injunctions of Islam. This is precisely the jurisdiction of the Federal Shariat Court under Article 203-D of the Constitution. The Court at the same time enjoys the jurisdiction under Article 203-D ibid to examine any law on its own motion. There could be cases when the court is called upon to exercise its jurisdiction under both the Articles in one and the same case. This special type of jurisdiction is enjoyed only by the Federal Shariat Court in the judicial hierarchy of Pakistan.
84. In this view of the matter I am of the confirmed view that the absence of the word "appeal" does not in any way limit the widest possible jurisdiction of the Federal Shariat Court conferred upon it by virtue of Article 203-DD of the Constitution which enables it to call for and examine the record of any case decided by any criminal court under any law relating to the enforcement of Hudood. In fact very' wide powers have been conferred upon this Court by virtue of just one Article of the Constitution without enumerating twenty eight sections in quick succession as has been done in Chapter XXXI of Part VII of the Code of Criminal. Procedure. The Federal Shariat Court would, in view of this constitutional provision, exercise widest possible jurisdiction in cases decided by any criminal court under any law relating to an offence covered by the term Hudood. All the recognized incidents of the term Appeal have been included in the powers conferred upon Federal Shariat Court by Article 203-DD of the Constitution under the so called title Revision. The Constitution does not concede such broad based revisional powers to the High Courts. The revisional jurisdiction of a High Court is certainly dependent upon an enabling provision in the Code of Criminal Procedure which can be omitted, altered, substituted, or even restricted by ordinary legislative measure.
85. The revisional jurisdiction conferred upon Federal Shariat Court by Article 203-DD of the Constitution is not a mere power but is in essence a sacrosanct duty because the said constitutional provision speaks in terms of enforcement of Hudood. Reference in this context may be made profitably to the following seven Nusoos in quick succession ie. Ayaat No,43 through 49 Surah 5, Al-Maidah which enunciate the principle: - ' Enforce the Injunctions of Quran and judge people according to the mandated provisions.
' This principle has been mentioned seven times in these Ayaat of Holy Quran. This repetitive emphasis is a pointer towards the significance attached to the implementation of Injunctions of Islam. These verses were addressed to the Holy Prophet (PBUH) which means that it is the duty of a Muslim State to enforce these principle/injunctions. Translation of the said seven Ayaat is as follows:- "Yet how will they appoint you a judge when they have the Torah with them, wherein there is Allah's judgment and still they turn away from it? The fact is, they are not believers."
"Surely We revealed the Torah, wherein there is Guidance and Light. Thereby did Prophets- who had submitted themselves (to Allah) - judge for the Judaized folk; and so did the scholars and jurists.
They judged by the Book of Allah for they had been entrusted to keep it and bear witness to it. So, (0 Jews), do not feat' human beings but fear Me, and do not barter away My signs for a trivial gain.
Those who do not judge by what Allah has revealed are indeed the unbelievers."
"And therein We had ordained for them: "A life for a life, and an eye for an eye, and a nose for a nose, and an ear for an ear, and a .Tooth for a tooth, and for all wounds, like for like. But whosoever foregoes it by way of charity, it will be for him an expiation." Those who do not judge by what Allah has revealed are indeed the wrong-doers."
"And We sent Jesus, the son of Mary, after those Prophets, confirming the truth of whatever there still remained of the Torah. And We gave him the Gospel wherein is Guidance and Light, and which confirms the truth of whatever there still remained of the Torah, and a Guidance and Admonition for the God-fearing."
"Let the followers of the Gospel judge by what Allah has revealed therein, and those who do not judge by what Allah has revealed are the transgressors."
"Then We revealed the Book to you, (0 Muhammad), with Truth, confirming what-ever of the Book was revealed before, and protecting and guarding over it. Judge, then, in the affairs of men in accordance with the Law that Allah has revealed, and do not follow their desires in disregard of the Truth which has come to you. For each of you We have appointed a Law and a way of life. And had Allah so willed, He would surely have made you one single community; instead, (He gave each of you a Law and a way of life) in order to test you by what He gave you. Vie, then, with one another in good works. Unto Allah is the return of all of you; and He will then make you understand the truth concerning the matters on which you disagreed."
"Therefore, judge between them, (0 Muhammad), by what Allah has revealed and do not follow their desires, and do not follow their desires, and beware lest they tempt you away from anything of what Allah has revealed to you. And if they turn away, then know well that Allah has indeed decided to afflict them for some of their sins. For surely many of them are transgressors. "
(Emphasis added)
' It is for the purposes of correcting miscarriage of justice, doing substantial justice, removing any illegality or perversity that the Federal Shariat Court has been clothed with vast powers under the title of Revisional Jurisdiction. One of the fundamental object of this jurisdiction is that the Federal Shariat Court would watch carefully that no Injunction of Islam relating to the enforcement of Hudood is violated in any case by 'virtue of any order or decision by any criminal court exercising power under any law.
86. Existence of law is not sufficient. It is just one aspect of administration of justice. The emphasis of Holy Quran is in fact upon enforcing the law. Constitution, in particular, has laid emphasis on enforcement of Hudood. Chapter 3A of Part VII is the solitary instance where the Constitution speaks in terms of enforcement. This element of enforcement only in relation to Hudood, according to the Constitution, is the exclusive domain of Federal Shariat Court through revisional jurisdiction.
87. Jurisdiction is the power to hear and determine the cases as well as power to entertain an action or petition or any other proceedings. The term jurisdiction, therefore, connotes authority and power to act in a given matter. The jurisdiction of the Federal Shariat Court under Article 203-DD not only refers to the power to examine the record of any case pending in a criminal court but also enables it to examine the propriety of any decision or order passed by any criminal court under any law relating to Enforcement of Hudood. The word any means all, each and every case pending or decided and each law under which the criminal Court takes cognizance of a matter. The term any case used in Article 203DD is therefore very wide and includes any matter which is within the initial cognizance of the criminal trial Court. Any case therefore means any matter under any law connected with the Enforcement of Hudood.
88. Even otherwise, as stated earlier, the appellate power over orders passed by Court of Session in matters relating to Hudood, once conferred upon this Court under Ordinance VII of 1979 could not be disturbed through Act VI of 2006 by transferring Hudood Offences to Pakistan Penal Code. This is an inroad by subordinate legislation in the realm of constitutional provisions contained in Article 203-A, sub-Articles (1) and (3) of Article 203-DD and Article 203-G and consequently of no legal effect. D. TERMS: ANY CASE, ANY COURT AND ANY LAW
89. The word any has been used four times in Article 203-DD of the Constitution. In clause (1) the words are: "of any case," "any criminal court" and "under any law" while in clause (2) the words used are: "in any case". This calls for determination of meaning of the word any. Mr. Justice Zaffar Hussain Mirza, in the case of Inamur Rehman v. Federation of Pakistan reported as 1992 SCMR 563 at 587, with regard to the meaning of the term ANY observed as follows:- "These expressions are of very wide amplitude. The term "any" according to the Black's Law Dictionary (Fifth Edition) page 86 means: one out of many; an indefinite number; one indiscriminately of whatever kind or quantity. With reference to case law it has been stated: Word "any" has a diversity of meaning and may be employed to indicate "all" or "every" as well as "some" or "one" and its meaning in a given statute depends upon the context and the subject-matter of the statute."
' The word "any" as employed in Article 203-DD has been expressed without any qualification. The word any in the context in Article 203-DD would mean: any person, any court or any law under which a trial or proceedings as regards offences relating to Hudood are being held or have been concluded. The word any is wide enough to include every case, covered by the term Hudood or related to Hudood and would also cover situations when any case is sought to be transferred in the manner and circumstances visualized by sections 526 and 528 of the Code of Criminal Procedure.
The three terms i,e, "any law", "any criminal court" and "any law" as used in Article 203-DD not only tend to enlarge the amplitude of the term Hudood but lay emphasis on the fact that all type of proceedings related to offences covered by the meaning and scope of the term Hudood would remain the exclusive preserve of the Federal Shariat Court. There is no earthly reason to exclude any one matter connected with the proceedings under Hudood laws from the jurisdiction of this Court. The term "any" in its meaning and scope, has been discussed inter-alia in the following four precedents which may be consulted to appreciate that the word "any" as used in Article 203-DD is a word of "expansion indicative of width and amplitude sufficient to bring within the scope and ambit of the words it governed, all that could possible be included in them."
(i) Ch. Zahoor Elahi MNA v. The State PLD 1977 SC 273
(ii) M. Amjad v. Commission of Income Tax and 2 others 1992 PTD 513
(iii) N.-W.F.P. v. Muhammad Irshad PLD 1995 SC 281
(iv) Commissioner of Income Tax v. Media Network PLD 2006 Supreme Court 787 ' In conclusion it may be said that term criminal court used in Article 203-DD is not restrictive in the sense as mentioned in section 6 of the Code of Criminal Procedure. It means any court exercising criminal jurisdiction under any law of the land relating to an offence in the domain of Hudood. The term criminal court extends to every category of Courts, Tribunals or Authorities competent under any law of the land to try and decide cases in which the offence complained of pertains to Hudood.
E. TERM: ENFORCEMENT OF HUDOOD
90. Article 203-DD of the Constitution of the Islamic Republic of Pakistan confers revisional and other jurisdiction on the Federal Shariat Court. Following is the text of Article 203-DD.
' 1203-DD. (1) The Court may call for and examine the record of any case decided by any criminal court under any law relating to the enforcement of Hudood for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed by, and as to the regularity of any proceedings of, such court and may, when calling for such record, direct that the execution of any sentence be suspended and, if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record.
(2) In any case the record of which has been called for by the Court, the Court may pass such order as it may deem fit and may enhance the sentence: ' Provided that nothing in this Article shall be deemed to authorize the Court to convert a finding of acquittal into one of conviction and no order under this Article shall be made to the prejudice of the accused unless he has had an opportunity of being heard in his own defence.
(3) The Court shall have such other jurisdiction as may be conferred on it by or under any law.]"
' Before we discuss the philosophy and purport of this Article, let us summarize the extent and scope of the powers bestowed upon the Federal Shariat Court by this Article. The following issues appear to have been contemplated:--
(i) The jurisdiction of the Court in respect of enforcement of Hudood;
(ii) The responsibility of the Court to satisfy itself as to the correctness, legality and propriety of any finding, sentence or order recorded or passed by any court;
(iii) The power of the Court to decide the regularity or otherwise of any proceedings related to enforcement of Hudood;
(iv) The power of the Court to direct suspension of any sentence awarded in cases relating to Hudood;
(v) Power of the Court to release any accused on bail;
(vi) Power of the Court to pass any order it may deem fit in relation to any proceeding related to the enforcement of Hudood;
(vii) Power of the Court to enhance any sentence passed by any court in relation to Hudood; and (viii)Any other jurisdiction conferred on the Court by or under any law.
' A cursory glance over the contents of Article 203-DD clearly establishes that the framers of Chapter 3A of Part VII of the Constitution perceived a much broader role for the Federal Shariat Court in relation to Hudood . It was an all-inclusive role which is certainly wider than mere customary appellate jurisdiction. Revisional power granted to the High Courts under section 439 of the Code of Criminal Procedure can be interfered with by routine legislative measure through ordinary routine process of amendment or even repeal. A bill, in order to amend the Constitution, is passed only if "votes not less than two-thirds of the total membership of the House", from where the Bill has originated and also "two-thirds of the total membership of the House to which it has been transmitted" have been secured as provided in Article 248 of the Constitution. But this is not the case in relation to other laws which may be amended, repealed or enacted by simple majority. The Constitution has made it certain that the Revisional jurisdiction conferred upon the Federal Shariat Court by it is taken out of the scope of ordinary legislative functions of Majlis-eShoora. The Constitution conceded not only wide powers to the Federal Shariat Court but it proceeded to protect these powers from the vicissitude of legislative procedure prescribed under Article 70 of the Constitution. Additionally the Constitution proclaimed that Federal. Shariat Court shall have such other jurisdiction as may be conferred upon it by or under any law. The consequence of this provision of the Constitution is that the Government or the Legislature has been restrained firstly from omitting any item from the prescribed jurisdiction of Federal Shariat Court in matters relating to Hudood, and secondly the additional power which may subsequently be included in the jurisdiction of this Court under sub-Article (3) of Article 203-DD will be of the nature that it cannot be taken away by routine legislative measure. The additional jurisdiction, whenever conferred would be saved by constitutional provision. The Constitution commands in unambiguous terms that Federal Shariat Court shall, to the exclusion of any other court in Pakistan, have exclusive jurisdiction to control, supervise and streamline the process of the enforcement of Hudood under any law by any court or judicial forum. In Article 203-DD the term used is "enforcement of Hudood" and not mere Hudood. The word enforce, according to Oxford, Advanced Learner's Dictionary means: to make sure that people obey a particular law or rule, to make something happen or force somebody to do something. The word enforcement consists of two parts. Part one is enforce and part two is ment. The portion ment is a suffix. According to Oxford Dictionary this suffix means: the action or result of. In this context the word enforcement means the action of making sure that people obey the Islamic law relating to Hudood or the result of making sure that people obey the law. The intent of the authors of this constitutional provision is clear. It confers wider powers and jurisdiction on the Federal Shariat Court so that not only the enforcement or implementation of Hudood law is ensured but judicial guarantee is provided to ensure correctness, legality and propriety as well as regularity of proceedings in relation to the enforcement of Hudood as prescribed by Injunctions of Islam in the administration of criminal justice with a view to protecting Din, Life, Intellect, Progeny and Family as well as the legitimately acquired property of the citizens and the people of Pakistan. The positive law must be aimed at protecting and advancing the objectives of Shariah so as to achieve a correct and proper enforcement of Hudood. Laws have to be implemented in that spirit. The Constitution authorizes the Federal Shariat Court to interfere and exercise its jurisdiction in any case from any criminal court under any law with a view to ensuring the correctness, legality and propriety of such implementation. The word enforcement has been used by the constitution only in relation to offences relating to or covered by the term Hudood. This is clearly wider expression and includes all those steps which may technically be termed as appellate jurisdiction.
91. Whatever has been stated above demonstrates very clearly that the intent and purport of Article 203-DD is to provide a single and a central judicial forum which should have exclusive jurisdiction of ensuring correct, legal, proper and regular enforcement of the laws of Hudood throughout Pakistan. The word "revisional" appearing in the head note of Article 203DD has not been used in narrow and limited sense but it has been used in a broader sense. The right of appeal is conceded to an aggrieved party whereas Revision is conferring of power, privilege and discretion upon the Court to undertake examination of proceeding of a lower tribunal on the application of an aggrieved person or on its motion. If this Article is read with Articles 203-G and 203-GG, it establishes beyond any shadow of doubt that revisionary power includes the appellate powers in relation to Hudood laws and the enforcement of Hudood vest in the Federal Shariat Court to the exclusion of any other court in Pakistan. The words "any power or jurisdiction in respect of any matter within the power and jurisdiction of the Court" in Article 203-G makes it abundantly clear that no court will exercise appellate or revisional jurisdiction in matters relating to enforcement of Hudood except the Federal Shariat Court. The power of a High Court to reverse an order of acquittal into conviction, on appeal, is stipulated only under section 417 of the Code of Criminal Procedure but this power which a High Court enjoys under a legislative instrument is conferred upon the Federal Shariat Court specifically through a superior piece of legislation i,e, the Constitution. The Constitution authorizes the Court to convert an order of acquittal into conviction. The Constitution therefore preserves and consolidates all the legally conceivable powers and jurisdiction in Federal Shariat Court in all matters relating to the enforcement of Hudood which any other court may enjoy collectively as an appellate and revisional court under ordinary law.
92. Be it the Psalms of David, Gospel of Jesus, Tablets of Moses or the Scripture revealed upon Muhammad PBUH, Allah Almighty made His promise abundantly clear that the weak and the oppressed, the meek and the browbeaten shall inherit this earth. Allah was Gracious to those who were oppressed in the land and in His infinite mercy, He made them leaders of humanity and helped them succeed to the resources of this world. The Righteous servants of God, in turn, uphold the guiding principles and permanent values ordained and preserved in the Revelation and come forward to implement the regulations proposed by the Lord Creator. They do not hesitate to implement and enforce the Injunctions prescribed by Allah. Reference in this context may be made to Ayaat Nos. 133 and 165 of Surah No,6, Ayaat Nos. 100, 130 and 134 of Surah No, 7, Ayah No, 14 of Surah No,10, Ayah No, 57 of Surah No,11, Ayaat Nos. 11 and 105 of Surah 21, Ayah No,55 of Surah 24, Ayah No,62 of Surah 27, Ayah. No,5 of Surah 28, Ayah No,39 of Surah.
35, Ayah No, 26 of Surah 38, Ayah No,38 of Surah 47, Ayah No,7 of Surah 57, Ayah No,41 of Surah 70.
F. FOUNDATION AND SCOPE OF ARTICLE 203-D
93. The basis of Article 203-D can be traced to Ayaat 59 through 65 of Surah 4, An-Nisa. The meaning of these Ayaat is as follows:-- "0 ye who believe!
Obey Allah, and obey the Apostle, And those charged With authority among you. If ye differ in anything Among yourselves, refer it To Allah and His Apostle, If ye do believe in Allah And the Last Day: That is best, and most suitable For final determination."
"Hast thou not turned Thy vision to those Who declare that they believe In the revelations That have come to thee And to those before thee?
Their (real) wish is To resort together for judgment (In their disputes)
To the Evil one, Though they were ordered To reject him. But Satan's wish Is to lead them astray Far away (from the Right)."
When it is said to them: "Come to what Allah hath revealed. And to the Apostle": Thou seest the Hypocrites avert Their faces from thee in disgust. How, then, when they are Seized by misfortune, Because of the deeds Which their hands have sent forth?
Then they come to thee, Swearing by Allah: "We meant no more Than good-will and conciliation!
"Those men,- Allah knows What is in their hearts; So keep clear of them, But admonish them, And speak to them a word To reach their very souls."
"We sent not an Apostle, But to be obeyed, in accordance With the Will of Allah.
If they had only, When they were unjust To themselves, Come unto thee And asked Allah's forgiveness, And the Apostle had asked Forgiveness for them, They would have found Allah indeed Oft-Returning, Most Merciful."
"But no, by they Lord, They can have No (real) Faith, Until they make thee judge In all disputes between them, And find in their souls No resistance against Thy decisions, but accept Them with the fullest conviction."
A perusal of these Ayaat shows that the following two standards have been identified by Holy Quran for the resolution of disputes particularly between the citizenry and the State:-
(i) The first point of reference is the Word of God;
(ii) The second point of reference is the Sunnah of the Holy Prophet PBUH; ' Those who deny this procedure/process are termed hypocrites by Holy Qur'an. The nutshell of Ayah 62 Surah 4, An-Nisa and Ayaat 47 through 52 is that those who do not observe what Allah or His Chose.
' Messenger PBUH has ordained may fall in the category of Munafiqeen i,e, the hypocrites. This is the situation which a believer would certainly avoid in all circumstances.
94. The message of the above mentioned seven Ayaat of Surah 4 is restated with full vehemence in Ayaat 43 through 50 of Surah 5, AlMaida whose translation has been referred to in a section of this judgment. The nutshell of the Divine verdict in these Ayaat is that those who do not judge between people in accordance with what has been revealed are Disbelievers, Wrong-doers and Evil-livers. It is in this background that Article 203-D and Article 227 of the Constitution of Islamic Republic of Pakistan has to be understood, appreciated, construed, interpreted and implemented.
95.. Ayah 49 of Surah 5 as well as Ayah 65 of Surah 4 declare and direct in very vivid terms:- "So Judge between them by what Allah has Revealed."
(AND)
"But nay, by the Lord, they will not believe (in truth) until They make thee (0 Muhammad) a Judge of what is in dispute between them and find within themselves no dislike of that which thou (0 Muhammad) decided, and submit with full submission."
96. Article 203D of the Constitution provides a practical mechanism to: (a). Ensure implementation of the mandate contained in Article 227 of the Constitution that no law shall be enacted which is repugnant to the Injunctions of Islam contained in Holy Quran or Sunnah; (b). Achieve the goal, visualized in clause three of Objectives Resolution that the Muslims shall be enabled to order their lives in the individual and collective spheres in accordance with the teachings and requirements of Islam as set out in the Holy Quran and Sunnah, and (c). Provide machinery at national level not through an ordinary piece of legislation but through the agency of the fundamental law of Pakistan by way of creating a Superior Court with exclusive jurisdiction to undertake solemn exercise of adapting the Statute Book of Pakistan with Injunctions of Islam.
97. The reason that a constitutional provision has empowered the Federal Shariat Court to examine laws on the touchstone of Injunctions of Islam can be traced to Ayah 85 of Surah 28, Al-Qasas which proclaims that Allah made the teachings of Holy Quran binding upon the believers. The other reason is furnished by Ayah 23 Surah 3, Ale-Imran, Ayah 105 Surah 4, An-Nisa; Ayaat 44, 47 Surah 5, Al-Maidah; Ayah 114 Surah 6, Al-Anam. All these verses proclaim that people should be judged according to the teachings and principles handed over by Revelation. Still another reasons is that the Holy Quran proclaims itself as FURQAN i,e, Distinguisher. In other words Quran is the litmus test.
Human conduct in Muslim societies should not be opposed to the spirit and teachings of the Holy Book.
G. DECISIONS OF FEDERAL SHARIAT COURT
98. The criteria for resolving conflicts among people at judicial level is best illustrated by the instructions given by Holy Prophet PBUH to Maaz bin Jabel on the eve of his appointment as Governor of Yamen. Decisions were to be given in the light of Injunctions contained in Holy Quran and if no guidance was available in the primary source, the judgment was to be based upon the guiding principles provided by Sunnah and in the absence of any precedent or Injunction available in the above two basic sources, then the judge was to undertake Ijtehad i,e, application of mental faculties to the maximum in resolving the issue without violating the spirit of guiding principles provided by two primary sources. This was the first occasion when the term Ijtehad was employed in the realm of administration of justice by a Companion in the presence of Holy Prophet (PBUH) who approved it whole heartedly. This was the time and occasion when the exercise of Ijtehad for the resolution of disputes received formal sanction. From that point onward Ijtehad played an important role in the evolution of Islamic jurisprudence and the administration of justice.
99. A careful reading of Article 203-GG as well as Articles 189 and 201 of the Constitution indicates that the Federal Shariat Court is not bound even by its own decisions. There is no institutionalized taqlid in so .Far as this Court is concerned. It is the continuation of the time honoured practice in Muslim Societies that the judges were not bound by previous decision in mattes within the ambit of uncovered field. The reason was simple: In the given circumstances of a situation when no legal provision was available to resolve a controversy, an effort to discover a remedy was resorted to by undertaking Ijtehad in the larger interest of Justice. Justice is indeed related to the restoration of rights. Resolution of human problems does not brook a vacuum. A still better view is always possible on account of practical experience gained by all the stakeholders in the administration of justice particularly on account of change of conditions and circumstances. Human thought is not stagnant. Human mind is a dynamic faculty. It progresses and develops by experience. The process of development and evolution is ongoing.
This course is not static. Injunctions of Islam do not enjoin negation of movement. Islamic teachings beckon a person to look forward for a better future.
100. It may be useful to refer Ayah 46 Surah 34, Saba which gives primacy to the thought process and the element of scrutiny, examination, analysis and reflection. This is precisely what the Holy Quran describes as: {{URDU TEXT}} ' Translation of Ayah 46 is as under:- "Say to them, (0 Prophet): "I give you but one counsel: stand up (for heaven's sake), singly and in pairs, and then think: what is it in your companion (to wit, Muhammad) that could be deemed as madness?" He is nothing but a warner, warning you before the coming of a grievous chastisement."
(Emphasis added)
101. The Superior Courts, particularly in matters relating to Islamic jurisprudence, are under an obligation to develop law in the light of Injunctions of Islam as laid down in Holy Quran and Sunnah.
Exercise of ljtehad implies that the Courts are not bound by one interpretation in the uncovered field for all times to come. Wisdom and saner counsel is the common heritage of humanity. The net result of incorporating Article 203GG is that any decision of the Federal Shariat Court in exercise of its jurisdiction, is binding on a High Court and on all Courts subordinate to such High Court. The trial courts are subordinate to provincial High Courts with the result that the findings of Federal Shariat Court, as regards its jurisdiction over trials relating to enforcement of Hudood as well as its interpretation and decisions shall be binding on provincial High Courts and the courts subordinate to the High Courts.
102. Another aspect is worth considering. Let us first examine the language of Articles 189 and 201 and then read Article 203GG:- "189. Any decision of the Supreme Court shall, to the extent that it decides a question of law or is based upon or enunciates a principle of law, be binding on all other courts in Pakistan.
"201. Subject to Article 189, any decision of a High Court shall, to the extent that it decides a question of law or is based upon or enunciates a principle of law, be binding on all Courts subordinate to it.
"203-GG. Subject to Articles 203-D and 203-F, any decision of the Court in the exercise of its jurisdiction under this Chapter shall be binding on a High Court and on all courts subordinate to a High Court." (Emphasis added)
103. The phrase "to the extent that it decides a question of law or is based upon or enunciates a principle of law" mentioned in the first two articles is conspicuous by omission in Article 203-GG. It therefore means in very clear terms that the ratio as well as dicta in a judgment of the Federal Shariat Court is binding upon the four provincial High Courts as well as all the courts throughout the country as these courts are subordinate to one or the other High Court. Any judgment, order or decision delivered, passed or given by a High Court or a court subordinate to a High Court, contrary to the decision of Federal Shariat Court will be a judgment per incuriam. The Supreme Court of Pakistan, in the case of Dr. Munawar Hussain, referred to above, while dilating upon the jurisdiction of the Federal Shariat Court under Article 203-DD had held that High Court had no jurisdiction under section 561-A of the Code of Criminal Procedure and Article 199 of the Constitution in matters which fell within the jurisdiction of Federal Shariat Court. Decision of the High Court in such matters was declared as Coram non judice. This jurisdiction of the Federal Shariat Court therefore is exclusive in nature and is not shared by any superior Court/Tribunal created by the Constitution.
Reference may be made to the following reports:--
(i) Zaheer ud Din versus. The State 1993 SCMR 1718 (at page 1756)
"The Chapter 3A of the Constitution was inducted in the Constitution on 26th May, 1980. It contains Articles 203A to Article 203-J. The Article 203-A of the Constitution lays down that the provisions of Chapter 3A shall have effect notwithstanding anything contained in the Constitution. Further Article 203-G provides that "Save as provided in Article 203F, no Court or tribunal, including the Supreme Court and a High Court, shall entertain any proceedings or exercise any power or jurisdiction in respect of any matter within the power or jurisdiction of the Court."
' These provisions when read together, would mean that a finding of the Federal Shariat Court, if the same is either not challenged in the Shariat Appellate Bench of the Supreme Court or challenged but maintained, would be binding even on the Supreme Court. Consequently, the above given findings of the Federal Shariat Court cannot be ignored by this Court."
(ii) Aurangzeb v. Massan 1993 CLC 1020 (at page 1023)
"Judgments of the Supreme Court, its Shariat Appellate Bench and Federal Shariat Court were binding on other Courts, by force of a Constitutional mandate. The act of a Court in disregard of the judgments of the above Courts was denuded of legal authority and was clearly equivalent to an act without lawful authority and jurisdiction."
(iii) Hafiz Abdul Waheed v. Mst. Asma Jehangir PLD 2004 Supreme Court 219 (at page 230)
"The argument is fallacious. The Federal Shariat Court is itself the creation of Chapter 3-A. Article 203-D confers, what may be described as original jurisdiction on the Federal Shariat Court. Under this jurisdiction, the Federal Shariat Court, on its own motion or on the petition of any citizen of Pakistan or Federal Government or a Provincial Government, can examine and decide the question whether or not any law or provision of law is repugnant to the Injunctions of Islam as laid down in the Holy Quran and the Sunnah of the Holy Prophet (PBUH). Article 203-DD empowers the Court to call for and examine the record of any case decided by any criminal Court under any law relating to the enforcement of Hudood for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed by any such criminal Court. Sub- Article (3) of Article 203-DD lays down that "the Court shall have such other jurisdiction as may be conferred on it by or under any law". It may be noted here, that right of appeal was provided to the Federal Shariat Court by adding second proviso to section 20(1) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter to be referred to as "the Ordinance)", in the year 1980."
104. Sub-Article (9) of Article 203-E of the Constitution makes the things further clear. It states: "The court shall have power to review any decision given or order made by it."
' This power of review is not subject to any Act of Parliament like Article 188 which confers power of Review upon the Supreme Court on the following terms:- "The Supreme Court shall have power, subject to the provisions of any Act of Majlis-e-Shoora (Parliament) and of any rules made by the Supreme Court to review any judgment or any order made by it." (Emphasis added)
' It will be noticed that the High Courts have no Constitutional mandate to review its orders or judgments. The power of review is conferred upon the High Courts by operation of subordinate legislation. Reference: Section 114 read with Order XLVII of the Code of Civil Procedure.
105. The vast power of review conferred upon the Federal Shariat Court is in effect the acceptance of the principle of IJTIHAD for the development of Islamic Jurisprudence through the agency of this Court of original jurisdiction. The objective in conferring this power upon the Federal Shariat Court has it genesis in Ayah 17 Surah 13, Ar-Rad, Holy Qur'an: ' Thus does Allah depict truth and falsehood. As for the scum, it passes away as dross; but that which benefits mankind abides on the earth. Thus does Allah explain (the truth) through examples.
' The decisions of the Federal Shariat Court are supposed to cleans the existing law of any dirt or possible trash.
106. The constitutional mandate of review is quite wide in scope. It includes the power of revisiting, on its own motion, any decision given or order made by itself. This is evident from the cases of Hazoor Bux v. Federation of Pakistan reported as PLD 1981 FSC 145 decided on 21st March, 1981 but reviewed by this Court on 20' June, 1982 in the case entitled Federation of Pakistan v. Hazoor Bux and 2 others PLD 1983 FSC 255.
107. The historic opening words of the first Ayah of Surah Mujadilah is very significant as it is the solitary instance in the history of revealed literature where a woman, aggrieved by an inhuman custom, having the force of law, entered a caveat. Her rights as a wife had been suspended unilaterally by oral pronouncement made by the husband. She lodged a protest before Muhammad (PBUH), the head of the nascent Islamic polity, because she knew that Allah through His Apostle had the power to promulgate, amend, change, alter, substitute or even repeal any prevalent rule or custom having the force of law. Her supplication was answered. The prompt revelation proclaimed: "0 protesting lady! Your petition has been heard."
This declaration is preserved in Holy Quran as Ayah No,1 Surah 58, AlMujadilah. The following principles of law can therefore be deduced from this very Injunction of Islam:-
(i) Right of protest is conceded to an aggrieved person;
(ii) Every person aggrieved of an inhuman rule, law, custom or practice, having the force of law, has a right to get it reviewed by competent authority;
(iii) The aggrieved person in such a situation should have free access to justice;
(iv) The aggrieved person shall have the right of audience at the time of initiating the complaint;
(v) The Authority is under an obligation to probe into the complaint and may for that purpose undertake examination of any impugned law or practice;
(vi) The Authority must examine the issue and deliver a speaking and an effective order; and
(vii) The Authority, may in the facts and circumstances of the case not only introduce necessary amendments in law but may also provide a remedy to rectify the wrong.
108. In this view of the matter the creation of Federal Shariat Court is in fact practical realization of the remedy contemplated by Holy Quran for persons aggrieved by anti-people laws and inhuman practices having the force of law. The Federal Shariat Court, in exercise of its jurisdiction under Article 203-D, in fact discharges the obligation imposed by Ayah 103 of Surah 3, Ale-Imran because the power to declare a law to be in conflict or otherwise to the Injunctions of Islam is not only a message to the people to follow what is good and avoid what is wrong. The yardstick to determine what is good or bad according to Muslim belief, is certainly the Revealed principle. H. FEDERAL SHARIAT COURT AND COUNCIL OF ISLAMIC IDEOLOGY
109. Allama Dr. Muhammad Iqbal, the philosopher poet of East, gave considerable thought to the question of reconstruction of modern Islamic jurisprudence during the second and third decade of twentieth century. This is evident from his letters to Sahibzada Aftab Ahmad Khan, Secretary Muslim Educational Conference dated 4 June, 1925 wherein he also discussed the scheme then under consideration of Dr.Arnold. Allama Iqbal was of the view that the right to undertake Ijtehad should be conceded to the Muslim Parliament but he was also conscious of the fact that technical assistance should be available to the legislative bodies to ensure correct interpretation and enforcement of Shariah. The creation of the Council of Islamic Ideology and the Federal Shariat Court in due course of time after the creation of Pakistan, through constitutional apparatus, is in fact realization of the aspirations of Dr.Muhammad Iqbal because the Council of Islamic Ideology provides technical assistance/recommendations to the Parliament/ Provincial Assemblies before finalizing legislation while the Federal Shariat Court examines, whenever any question arises, any law or provision of law on the touchstone of Injunctions of Islam after a proposed Bill has materialized into on Act. The Council of Islamic Ideology appears to be an adjunct of the Parliament/Provincial Assemblies/President/Governor but it does not provide remedies to general public. The Federal Shariat Court is not part of the legislative wing of the State but it has the potential to provide relief to any person who is aggrieved of or is critical of any legislative measure.
This Court on the other hand gives personal hearing to a petitioner and undertakes an examination of the question submitted for its consideration. The procedure for invoking jurisdiction of Federal Shariat Court is not only simple but has been made inexpensive as well. Persons desirous of seeking examination of a given law or a provision of law or even custom, having the force of law, may not be permitted an ingress in the premises of legislative bodies to demand review of impugned legal instruments but the Constitution has provided a forum at the federal level to the citizens of Pakistan enabling them to invoke its extra-ordinary jurisdiction by making an application, without stamp duty and claim examination of any law, on the touchstone of Injunctions of Islam without constraint of period of limitation. The application for examination can be made at any provincial head-quarter or the principal seat of this Court at Islamabad. Once a Shariat Petition is submitted, it cannot be dismissed on the sole ground of absence or death of the petitioner. The Court may proceed with the examination of the impugned law which has been brought to its notice.
110. The creation of Federal Shariat Court is a natural sequel to Article 227 of the Constitution. There is yet another equally weighty consideration for creating Federal Shariat Court. The possibility cannot be ruled out that the recommendations of the Council of Islamic Ideology are not laid for discussion before both the Houses and each Provincial Assembly. In such an event the jurisdiction of the Federal Shariat Court can be invoked by any citizen of Pakistan to get the impugned laws or provision of law examined on the touchstone of Injunctions of Islam. This convenient, unproblematic, cost-free and simple remedy provided by clause (8) of Article 203-E read with The Federal Shariat Court (Procedure) Rules, 1981 may also be successfully availed and the jurisdiction of this court be invoked under Article 203D in the event the provisions contained in clause (4) of Article 230 of the Constitution are not complied with. Such a thing would be tantamount to resurrecting the basic principle enunciated in Ayah No,1 Surah 58, Al-Mujadalah of Holy Quran. The enunciation of this principle in Holy Quran was a great step towards developing jurisprudence based upon justice, equity, even handedness, and good conscience. This Ayah also proclaims the principle that the purpose of promulgating positive laws is to secure peace and welfare of the people. In other words the laws should not be made and implemented to stifle or suspend the basic rights of people. The laws and customs ought to work to the advantage and good of the neglected and weak section of society in particular. The spirit and essence of this Ayah is that social justice has to be promoted and social evils have to be eradicated. This Ayah though related with Family Laws, yet it enunciates a general principle that man-made rules, customs or laws should be constantly and vigilantly reviewed in the larger interests of justice and fair-play. This principle finds support also from Ayah No,17 Surah 13, Ar-Raad of Holy Quran which lays down that the rubbish is destined to perish but that which benefits humanity tarries on this earth. Another principle enunciated by Holy Quran may also be referred here in support of the above principle: Amar bil Maaroof wa Nahee anil Munkar. This maxim has been repeated for not less than fifteen time in Holy Quran. This principle refers to the obligation of prescribing what is good and forbidding what is not good. Ayah 111 of Surah 3, Al-e-Imran, while addressing the Muslims, declares, that Muslims are the best people because they have been raised for the betterment of humanity and are therefore under a religious obligation to enjoin good and forbid what is evil and also believe in one God alone.
111. In view of our discussion on the question of enforcement of Hudood, I would go to the extent of holding in absolutely unambiguous terms that even if the Parliament were to repeal Order No, IV of 1979, T Ordinance, VI of 1979, Ordinance, VII of 1979 and Ordinance, VIII of T 1979, even then the Federal Shariat Court will continue having exclusive jurisdiction, under Article 203-DD, to call for and examine the record of any case decided by any criminal court under any law relating to the enforcement of Hudood.
112. It is therefore abundantly clear that the basic object of creating Federal Shariat Court at the national level was to provide a vigilant and effective forum to oversee that no legal instrument, made enforceable in the Federation, remains de hors the Injunctions of Islam. This particular aspect is in fact the practical realization of the second part of clause (1) of Article 227 of the Constitution of Pakistan which proclaims that no possibility of a legal provision, being incorporated in a Federal or a law shall be enacted which is repugnant to Injunctions of Islam. The Provincial law, which is contrary to one or more Injunctions of Islam, cannot be ruled out because to err is human.
The powers vesting in the Federal Shariat Court to examine the provisions of any law in fact provide a speedy and an effective remedy to rectify any error which might creep in while drafting the legal instrument.
113. The power conferred upon the Federal Shariat Court under Chapter 3A of Part VII of the Constitution is mandatory. The imperative nature of a decision of the Court is mentioned in Article 203-G of the Constitution which states that the final decision of the Federal Shariat Court is binding on all the High Courts and on all courts subordinate thereto. This is at par with the obligatory nature of the decisions of the High Court under Article 201 as well as the provision contained. In Article 189 which makes the decision of the Supreme Court conclusive and binding on all other courts in Pakistan. This power is therefore more than what is visualized commonly about mandatory statutes. Without even alluding to the power of contempt stipulated for the three above mentioned constitutional courts when we examine these constitutional provisions closely we discover that the intention of legislature was indicated in unequivocal terms by mandating that the order passed by courts have to be obeyed, implemented and acted upon and further that the jurisdiction mandated for these three constitutional courts shall have to be honoured and preserved. Clause
(2) of Article 5 of the Constitution states that obedience to the Constitution and law is the inviolable obligation of every citizen wherever he may be and of every other person for the time being in Pakistan.
ISSUE NO.(j)
CONCLUSIONS
114. The conclusions arrived at in this judgment may be summarized as under:-- A. Final or interim orders passed or judgments delivered by trial courts exercising jurisdiction on criminal side with regard to offences covered by the term Hudood, whether mentioned in Ordinance VI of 1979; Ordinance VII of 1979; Ordinance VIII of 1979; Presidents Order No,4 of 1979; Act No,XXV of 1997 (Control of Narcotic Substances Act, 1997); The Anti Terrorism Act, 1997; Act No, XLV of 1860 (The Pakistan Penal Code, 1860) or any other law for the time being in force, can be challenged by way of appeal or otherwise only before the Federal Shariat Court and no other court of criminal jurisdiction is competent to entertain and adjudicate upon proceedings connected with Hudood offences. Initiation of proceedings to quash First Information Report or pending criminal proceeding related to Hudood mattes are within the exclusive jurisdiction of Federal Shariat Court in view of the mandate of Article 203DD of the Constitution of Pakistan.
B. Remedy against grant or refusal of bail before or during the trial of any of the above mentioned offences lies before Federal Shariat Court alone and no other court has jurisdiction to entertain any proceedings in such matters. Sections 11, 28 and 29 of Act VI of 2006 have been found to be violative of Article 203-DD of the Constitution of Pakistan. The overriding effect given to Ordinances VII and VIII of 1979 was doubly fortified as the provisions of Chapter 3A Part VII of the Constitution, which deal with the powers and jurisdiction of Federal Shariat Court, were mandated to have effect notwithstanding contained in the Constitution.
D. Section 48 of The Control of Narcotic Substances Act, 1997 (Act: XXVII of 1997) whereby the High Court has been empowered to entertain and decide appeals arising out of the orders passed by the Special Court as well as the power of High Court under section 49 ibid to transfer cases, at any stave, from one Special Court to another Special Court are inconsistent with X the provisions contained in Chapter 3A of Part VII of the Constitution. The power to entertain appeals against orders passed or judgments delivered by a Special Court established under section 46 ibid in matters related to Hudood offences and other proceedings including transfer of cases from such court vests in the Federal Shariat Court because offences related to Narcotics are covered by the term Hudood. The word High Court occurring in these sections shall be substituted with the words Federal Shariat Court.
E. Section 25 of Act VI of 2006 (Woman Protection Act) is declared repugnant to Article 203-DD of the Constitution because it makes Lian a ground for divorce and thereby causes additional and uncalled for hardship to the "wife" which is contrary to the principal of Ease (Yusr) enunciated by Holy Qur'an.
F. According to the amendment effected in item 2 of Schedule of Act XXVII of 1997 dated 21-8-1997, the Federal Government in exercise of power vesting in it under section 3 of the Anti-Terrorism Act, 1997 authorized the Anti-Terrorism Courts to try some categories of offences relating to Hudood without providing a rider in section 25 (i): ibid that appeals in cases involving Hudood offence would lie to the Federal Shariat Court. This amendment in the Schedule without corresponding change in section 25(i) offends the constitutional provision contained in Article 203-DD which confers exclusive jurisdiction upon this Court in cases relating to the enforcement of Hudood. "Any case decided by any criminal court under any law relating to the enforcement of Hudood" is to be heard and decided by the Federal Shariat Court alone. (Article 203-DD). This position is therefore travesty of legal constraint imposed by the Constitution. No authority is superior to the Constitution.
Constitution has to be upheld at all costs.
G. The following ten categories of offences are inter-alia covered by the term Hudood as contemplated by Article 203-DD of the Constitution and hence within the exclusive appellate and revisional jurisdiction of the Federal Shariat Court:
(i) Zina = In all its forms including Adultery, Fornication and Rape.
(ii) Liwatat= Sexual intercourse against the order of nature;
(iii) Qazf= Imputation of Zina;
(iv) Shurb = Alcohlic drinks/Intoxicants/Narcotics etc;
(v) Sarqa = Theft simplicitor;
(vi) Haraba = It includes Robbery, Highway Robbery, Dacoity and all other categories of offences against property as mentioned in Chapter XVII of Pakistan Penal Code.
(vii) Irtidad= Apostacy. It includes all offences mentioned in Chapter XV of the Pakistan Penal Code, namely: Of Offences Relating to Religion.
(viii) Baghee =Treason, waging war against State; All categories of offences mentioned in Chapter VI of the Pakistan Penal Code.
(ix) Qisas = Right of retaliation in offences against human body. All these offences are covered by definition Hadd because the penalty therein has been prescribed by Nass/Ijma. [Abdul Qadir Audah, has discussed to some extent the scope of Hadd in his treatise Al-Tashree ul Jinai al Islami, volume 1 at page 119, and
(x) Human Trafficking.
'Appeal or Revision against any order, final or interim, passed by any criminal court under any law with regard to proceedings connected with or ancillary to or contributing towards commission of any of the above-mentioned offences, shall not be entertained by any court other than the Federal Shariat Court. Section 338-F of the Pakistan Penal Code has, in very clear words, prescribed that in the interpretation and application of its provisions and in respect of matters ancillary or akin thereto, the Court shall be guided by the Injunctions of Islam as laid down in Holy Quran and Sunnah. The determination of what is in accordance with Injunctions of Islam is the sole province of Federal Shariat Court and no other court. Additionally all those matters relating to the Family life of Muslims, for which the term Hadood Allah has been used in Holy Quran are covered in the abmit of Hudood and hence within the appellate and revisional jurisdiction of the Federal Shariat Court.
H. The term "enforcement of Hudood" encompasses all categories of offences and matters mentioned above. These offences are included in the scope of the term Hudood wherein the punishments have been prescribed by Holy Quran or Sunnah of the Holy Prophet PBUH and subsequently through legislative measures. Such punishments can be awarded by trial courts duly constituted under law. The term tazir when applied to any offence which partakes of the nature of Hudood or is ancillary or akin to or contributing towards commission of offences covered by the term Hudood or even where the proof prescribed for establishing Hadd is lacking, would of necessity fall within the ambit of the term Hudood and hence within the jurisdiction of Federal Shariat Court. Consequently all matters within the parameters of Hudood, detailed in the main judgment including offences in which cognizance has been taken in any form as stipulated in section 190 of the Code of Criminal Procedure or under any other law dealing with offences relating to 'Hudood', are, for all purposes, enshrined in the jurisdiction of Federal Shariat Court as mandated by the Constitution, which jurisdiction includes, appeal, revision, review, grant or refusal of bail, transfer of cases, calling and examining record of proceedings, and applications to quash proceeding initiated before or during trial and all matters ancillary to such cases, at any stage of investigation, enquiry or trial. I. It is an established axiom of law that vires of an Act are to be examined in the light of the limitations imposed by the Constitution. However if the court finds a law or a provision of law to be inconsistent with constitutional provisions, it is competent to strike it down to the extent of such inconsistency. The Federal Shariat Court is additionally empowered to examine a law on the touchstone of Injunctions of Islam. The Court will therefore keep in mind three elements: The legislative competence; the touchstone of Fundamental Rights and the yardstick of IslamiC Injunctions. Such an exercise is resorted to not because Judiciary is superior but on account of the fact that:-
(a) Dignity of law and legal principles have to be maintained;
(b) Constitution has to be upheld and enforced;
(c) Above all the people of Pakistan have to be enabled to live upto the permanent values and guiding principles enunciated by Islam; and
(d) Members of Superior Judiciary are under oath to do all these things.
J. CERTAIN LEGAL PRESUMPTIONS
115. In this Judgment the following propositions have been presumed. These assumptions are based upon various Injunctions of Islam, the constitutional provisions and the Judge made law:-
(i) The sole repository of the authority to interpret legal instrument is the Court constituted under the Constitution;
(ii) Members of the superior judiciary are under oath to uphold the Constitution and the law; '
(iii) The Preamble, Articles 2A and 31, Chapter 3A of Part VII and Part IX of the Constitution make it incumbent upon the State to create conditions which may enable the Muslim of Pakistan, individually and collectively, to order their lives in accordance with fundamental principles and basic concept of Islam and to provide facilities whereby they may be enabled to understand the meaning of life according to the Holy Quran and Sunnah;
(iv) That Holy Quran prohibits very strictly any extra-marital activity between man and woman and is consequently full of praise for those who shun illicit activity, i,e, those who guard their chastity and private parts. Reference Ayat 35 Sura 33, AlAhzab and Ay at 29 Sura 70, Al-Ma 'arij
(v) Human dignity, honour and human life has to be preserved. Laws which protect property of persons have also to be upheld.
(vi) Legal provisions are enacted to establish peace, order and balance in the society both at domestic level and among nations at International level. Reference Ayaat 1 to 6 Sura 83, Al-Taffit; Ayat 38 Sura 2, Al-Baqara; Ayat 55 Sura 24, Al-Noor.
(vii) Wisdom and saner counsel wherever recorded, according to the well known tradition of the Holy Prophet PBUH, is the lost treasure of believers and they are exhorted to acquire it as and when available. In this view of the matter all the legal principles relating to the domain of interpretation of legal instruments, or reflecting permanent values, from any jurisdiction, if not opposed to the letter and spirit of Holy Quran and Sunnah, will be considered part of principles of Islamic Jurisprudence.
(viii) The Court has to be extremely vigilant on the issue of implementation of the Injunctions of Islam because a stern warning has been given to those who cover up the Divine Commandments.
Reference Ayah 159, Surah 2, Al-Baqarah: "Those who conceal anything of the clear teachings and true guidance which We have sent down even though We have made c them clear in Our Book, Allah curses such people and so do all the cursers."
116. It would be pertinent to mention that while writing this judgment in exercise of jurisdiction vesting in this Court under Article 203D of the Constitution, guidance has been sought inter-alia, from the above mentioned principles.
(ISSUE No, (k)
DECLARATION
117. In view of the reasons recorded in this judgment under different issues it is hereby declared: i. That all those offences whose punishments are either prescribed or left undermined, relating to acts forbidden or disapproved by Holy Quran, Sunnah, including all such acts which are akin, auxiliary, analogous, or supplementary to or germane with Hudood offences as well as preparation or abetment or attempt to commit such an offence and as such made culpable by legislative instruments would without fail be covered by the meaning and scope of the term Hudood. ii. The extent of jurisdiction of Federal Shariat Court in matters relating to Hudood under Article 203DD is exclusive and pervades the entire spectrum of orders passed or decisions given by any criminal court under any law relating to the enforcement of Hudood and no other Court is empowered to entertain appeal, revision or reference in such cases. No legislative instrument can control, regulate or amend this jurisdiction which was mandated in Chapter 3A of Part VII of the Constitution of Pakistan. iii. An order granting or refusing bail before conclusion of trial in all categories of offences within the ambit of Hudood is covered by the word proceedings, as used in Article 203DD, and hence within the exclusive jurisdiction of the Federal Shasriat Court and can be impugned only in this Court. iv. The following ten offence are covered by the terms Hudood for the purpose of Article 203DD of the Constitution:
(i) Zina = Adultery, Fornication and Rape.
(ii)Liwatat= Sexual intercourse against the order of (iii)nature; Qazf= Imputation of Zina; (iii)Shurb = Alcohlic drinks/Intoxicants/Narcotics etc;
(5) Sarqa = Theft simplicitor;
(6) Haraba = Robbery, Highway Robbery, Dacoity. All categories of offences against property as mentioned in Chapter XVII of Pakistan Penal Code.
(7) Irtdad= Apostacy;
(8) Baghy =Treason, waging war against State; All categories of offences mentioned in Chapter VI of the Pakistan Penal Code and
(9) Qisas = Right of retaliation in offences against human body. All these offences are covered by definition Hadd because penalty therein has been prescribed by Nass fijma. Abdul Qadir Audah, has discussed to some extent the scope of Hadd in his treatise Tashree ul Janai al Islam, volume 1 at page 119.
(10) Human Trafficking.
' The declaration in the above four items shall take effect immediately because all the learned counsel representing the respondents, the jurisconsult as well the amicus curiae have, as mentioned in paragraph 17 of this judgment agreed on the four issues which are reflected in the above declaration. These conclusions having been consented to by the parties need nothing more to be done. v. That sections 11 and 28 of the Protection of Women (Criminal Laws Amendment) Act, 2006 (Act VI of 2006) are hereby declared violative of Article 203DD of the Constitution because these provisions annul the overriding effect of Hudood Ordinances VII and VIII of 1979; vi. That the portions of sections 48 and 49 of The Control of Narcotic Substances Act, 1997 (Act XXV of 1997) whereby the High Court has been empowered to:
(a) entertain appeals against the order of a Special Court consisting of a Sessions Judge or an Additional Sessions Judge and
(b) transfer within its territorial jurisdiction any case from one Special Court to another Special Court at any stage of the proceedings, are violative of the provisions contained in Chapter 3A of Part VII of the Constitution because the offences envisaged by Act XV of 1997 are covered by the term Hudood. Both the, sections are consequently declared violative of Article 203DD of the Constitution. The portion which contains the words High Court should be deemed to be substituted by the words Federal Shariat Court in both the above mentioned sections. Vii. Section 25 of the Protection of Women (Criminal Laws Amendment) Act, 2006 (Act VI of 2006) is declared violative of Article 203-DD of the Constitution as it omits subsections (3) and (4) of section 14 of The Offence of Qazf (Enforcement of Hadd) Ordinance, 1979 with the result that it has adversely effected the operation of Injunctions of Islam relating to Lian. Consequently section 29 of Act VI of 2006 is also declared violative of Article 203DD as it adds clause (vii a) Lian in section 2 of the Dissolution of Muslim Marriages Act, 1939. This addition in the latter Act also becomes invalid on account of repugnancy with the Injunctions of Islam relating to Lian. viii. Section 25 of the Anti-Terrorism Act, 1997 (Act No,XXVII of 1997) does not make provision for filing an appeal before the Federal Shariat Court in cases where the Anti-Terrorism court decides a case relating to some of the Hudood offence included in the Schedule as from 21-8-1997. This omission is violative of Article 203-DD. The Federal Government should rectify this error by the target date fixed by this Court otherwise the following rider shall be read at the end of clause (i) of section 25 of Act XXVII of 1997 after omitting the full stops. "but where a private complaint or a First Information Report or information, as stipulated in section 190 of the Code of Criminal Procedure, relating to an offence falling within the purview of above mentioned ten categories of Hudood Offences, is decided by any court exercising criminal jurisdiction under any law of the land, the appeal therefrom shall lie to the Federal Shariat Court." ix.
The declaration relating to Protection of Women (Criminal Laws Amendment) Act, 2006 (Act VI of 2006), The Control of Narcotic Substances Act, 1997 mentioned at serial No, vi as well as Anti- Terrorism Act, 1997 shall take effect as from 22nd June, 2011 by which date necessary steps be taken by the Federal Government to amend the impugned laws in conformity with this declaration whereafter the impugned provision shall cease to be effective and this judgment of the Federal Shariat Court will be operative as on 22-6-2011. The other items of the Declaration become operative forthwith.
118. The office is hereby directed to send copies of this judgment to the Federal Government as well as four Provincial High Courts and the Islamabad High Court for information, necessary action and compliance.
SUPPLICATION 1:;41 `1,9 14) uu211 9fi t:14.4 CJ) trIPY4 A, U.1 11.11.30c1 Jt til 01CAS"
45k 1.1:21.1 06:4 Z...4.11 114.1.Y.9 U3 :)Y11:9 {{Arabic Text}} "(Believers! Pray thus to your Lord): "Our Lord! Take us not to task if we forget or commit mistakes.
Our Lord! Lay not on us a burden such as You laid on those gone before us. Our Lord! Lay not on us burdens which we do not have the power to bear. And overlook our faults, and forgive us, and have mercy upon us. You are our Guardian; so grant us victory against the unbelieving folk."(2:286)
(Sd.)
SYED AFZAL HAIDER, J (Sd.)