' SARDAR SAID MUHAMMAD KHAN, C.J.---This appeal has been directed against the judgment of the High Court dated 22-4-1998, whereby accepting three separate writ petitions filed by the respondents, herein, the establishment of the Azad Jammu and Kashmir Shariat Court (hereinafter shall be called Shariat Court) and the provision of certain statutes which empowered it to exercise various kinds of jurisdictions, were held violative of the Azad Jammu and Kashmir Interim Constitution Act, 1974, (hereinafter shall be called the Constitution Act); certain directions were also given to the appellants, herein.
2. In writ petition entitled Ghulam Mustafa Mughal v. Azad Government and others (Writ Petition No,387 of 1997 instituted on 8-9-1997), it was contended that under the Constitution Act, the Supreme Court and the High Court were established under sections 42 and 43 respectively. The other Courts can also be established under section 46 of the Constitution Act and similar administrative Courts and tribunals can be constituted under section 47 of the said Act. All other Courts which have been envisaged under section 46 of the Constitution Act can be established only under the supervision and control of the High Court and there is no concept of the constitution of any other Court which is not under the supervision and the control of the High Court. Thus, it was averred that the establishment of the Shariat Court independent of the High Court under the Act known as The Azad Jammu and Kashmir Shariat Court Act, 1993, (hereinafter shall be called the Shariat Court Act) and certain provisions of the Azad Jammu and Kashmir Islami (Tazeerati)
Qawaneen Nifaz Act, 1974 (hereinafter shall be called the Islamic Penal Laws Act) and that of the Hudood Acts and Ordinances which invested the Shariat Court with the powers to hear appeals and revisions etc. Against the orders of District Criminal Courts and the Tehsil Criminal Courts, offend against the provisions of the Constitution Act, because the said Courts were not under the supervision and control of the High Court and creation of the said Courts is tantamount to establish a parallel judicial system in the State, which is not permissible under the Constitution Act.
It was further alleged that the amendments in Penal Code and the Criminal Procedure Code, whereby the jurisdiction to hear appeals etc. Falling within the ambit of Islamic Penal Laws Act and other Hudood Acts was given to the Shariat Court, were also in conflict with the provision contained in section 46 of the Constitution Act, which did not stipulate the constitution of the Courts which are not subordinate to the High Court. It was further alleged that the appointments of the Judges of the Shariat Court without consultation of the Chief Justices of the Supreme Court and the High Court were also derogatory to the provisions of the Constitution Act. It was also averred that the appointments of the Chairman Service Tribunal, Banking Tribunals etc. And Custodian having not been made with the Consultation of Chief Justices of the Supreme Court and the High Court, were also violative of the Constitution. Act and, thus, a prayer was made that in future the aforesaid appointments should be made after the consultation with the Chief Justices of the Supreme Court and the High Court.
3. The appellants, herein, controverted the averments made in the writ petition and pleaded that the writ petition was not maintainable because the petitioner-respondent had no locus standi to file the writ petition, that it was suffering from laches, was actuated by malice; and was also,hit by the principle of estoppel. It was pleaded that the provisions of the statutes challenged in the writ petition had been on the statues book of Azad Jammu and Kashmir since a number of years but the petitioner-respondent did not challenge the same, rather he had also been appearing in the cases which were heard and disposed of by the said Courts. It was further contended that initially, the Judges of the High Court were appointed as Judges of the Shariat Court under the relevant law and they had been performing functions as Judges of the Shariat Court and not as the Judges of the High Court for a period of about more than fifteen years. But no objection was ever raised; that they were debarred to hear and dispose of the cases as Judges of the Shariat Court; similar was the position with regard to various other Courts including the Family Courts, the District Criminal Courts and Tebsil Criminal Courts. It was also contended that under section 6 of the Shariat Court Act, 1993, special functions have also been assigned to the Shariat Court with regard to the Islamisation of the laws as envisaged under sections 31 and 32 of the Constitution Act. Thus, the jurisdiction which vests in the Shariat Court and the other Courts constituted under section 46 of the Constitution Act is not violative of the Constitution Act. It was contended that the Shariat Court and the other Courts challenged in the writ petition were validly constituted and no embargo can be placed on the powers of the Legislature that the said Courts can be constituted only if the same are made subordinate to the High Court, because the Constitution Act does not envisage so. The other averments made in the writ petiton were also emphatically denied in the written statement filed by the appellant, herein.
4. In the writ petition entitled Genuine Rights Commission and others v. Iftikhar Hussain Butt, Secretary Law, and others (Writ Petition No,448 of 1997, instituted on 20-10-1997), it was alleged that under section 44 of the Constitution Act, the High Court was competent to declare a law violative of Injunctions of Islam under subsection(5) of section 31 of the Constitution Act and, as such, there was no legal justification for the establishment of the Shariat Court. It was further averred that in fact section 6(3)(b) of the Shariat Court Act, 1993 was against the Constitution Act because it furnishes protection to the laws which are against the Injunctions of Islam to remain on the statutes book of the State. It was further alleged that as before making the appointments of Chief Justice and the Judges of the Shariat Court no consultation with the Chief Justices of the Supreme Court and the High Court was made, they are not legally entitled to exercise the powers which are exeicisble by a Judge of the High Court. Similarly, section 10 of the Shariat Court Act, 1993 was also challenged as being violative of law as the power to declare a law against Shariat already vested in the High Court. It was prayed that the appointments of respondents Nos.1 and 2 in the writ petition (appellants before this Court) as Judges of the Shariat Court by virtue of amendment brought in the Shariat Court Act, 1993 may be declared against the Injunctions of Qur'an and Sunnah and be set aside.
5. The averments made in the writ petition were controverted more or less on the same grounds as were raised in reply to the writ petition filed by Ghulam Mustafa Mughal, referred to above. It was pleaded that the appointments of the Judges of the Shariat Court through amending Ordinance were perfectly legal and that the provisions of the Shariat Court Act were not in conflict with the provisions of the Constitution Act.
6. In the writ petition entitled Shahid Bahar v. Azad Government and others (Writ Petition.No,453 of 1997 instituted on 21-10-1997) it was alleged that no Courts can be established under section 46 of the Constitution Act which are not placed under the supervision and control of the High Court because under subsection (2) of section 46 of the Constitution Act only a Court subordinate to the High Court can be established and there is no concept of establishing parallel Courts in the Interim Constitution Act. It was further alleged that the High Court had the power to declare a law against the Holy Qur'an and Sunnah under subsection (5) of section 31 of the Constitution Act and, as such, there is no legal justification for establishing the Shariat Court which otherwise was also against the Constitution Act. It was further averred that vide Ordinance No,185-98 dated 20-5-1997, a bona fide attempt was made by the Government whereby the Chief Justice of the High Court, the Judges and Additional Judges of the High Court were designated as Chief Justice and Judges of the Shariat Court so as to avoid perallel judicial system. However, subsequently, Ordinance No,593-98 dated 16-10-1997 was promulgated whereby an amendment was made in the Shariat Court Act, 1993 so as to appoint some persons as Judges of the Shariat Court who were not holding the office of the Judge of the High Court. This was done with mala fide designs so as to appoint the ' favourites' of the Government as Judges of the Shariat Court. It was averred that the Ordinance dated 16-10-1997 was violative of the Constitution Act and it was also challenged on the ground that same was promulgated with mala fide intentions, instead of getting approval of the Ordinance dated 20-5-1997, the Ordinance dated 16-10-1997 was promulgated with the connivance of the Government and the President so as to achieve the ulterior motive of illegal appointments. It was further contended that the appointments of respondents Nos.1 and 2 in the writ petition (appellants before this Court) as Judges of the Shariat Court without the consultation of the Chief Justices of the Supreme Court and the High Court were violative of the Constitution Act.
Thus, a declaration and writ of mandamus were sought that the Ordinance dated 16-10-1997 was violative of sections 41, 42 and 46 of the Constitution Act and that the concerned respondents in the writ petition be prohibited to perform functions as the Judges of the Shariat Court.
7. The appellants herein, controverted the averments made in the writ petition and also pleaded that the writ petition was not sustainable as the petitioner-respondent was not an aggrieved person; the writ was hit by the lathes and it was actuated by malice. It was pleaded that the promulgation of the Ordinance dated 16-5-1997 was perfectly according to law and did not militate against the Constitution Act and that the establishment of the Shariat Court and the appointments of its Judges did not suffer from any legal infirmity and were not open to challenge in view of the relevant law.
8. The High Court disposed of the aforesaid three writ petitions by a single judgment. The petitioners-respondents were granted following reliefs by the impugned judgment:-- ' "In view of the majority consensus on acceptance of petitions and rule 19 of High Court Procedure Rules 1984, accepting the petitions, it is declared that:--
(1) (a) Subsections (2), (3) (5), (6), (8 to 11) and words 'as the Chief Justice may appoint' of subsection (7) of section 3 of the Shariat Court Ordinance No,XL of 1997, dated 16-10-1997 and similar provisions in any other Act or Ordinance, if any;
(b) Subsections (1), (2) and (4) of section 7;
(c) The words 'Shariat Court' in section 8; and
(d) Sections 9,10, 11(2), 13(c) and 14 of the Shariat Court Act, 1993;
(2) (a) Subsections (2) (7), (9) and the words 'Shariat Court' in subsection (8) of section 23; and
(b) Sections 25 and 31 of Islamic Penal Laws Act i,e, The Azad Jammu and Kashmir Islami (Tazirati)
Qwanin Nifaz Act, 1974 (Act XI of 1974);
(3) The Adaptation/Application and Enforcement of above referred provisions of Islamic Penal Laws Act, conferring jurisdiction of Shariat Court alongwith similar provisions under the following laws:--
(i) Offences Against Property (Enforcement of Hadood) Act, 1985;
(ii) Offence of Zina (Enforcement of Hudood) Act, 1985;
(iii) The Offence of Qazaf (Enforcement of Hadd) Act 1985;
(iv) The Prohibition (Enforcement of Hadd) Act, 1985;
(v) Section 338-D of the Azad Penal Code (Amendment) Act, 1995;
(4) Section 14(1) of the Azad Jammu and Kashmir Family Court Act, 1993;
(5) Thg words 'Shariat Court' in sections 2 (c) and 10 of Ehtesab Act, 1997; and ' all other provisions under any law whereby the Shariat Court is substituted for the High Court, are declared ultra vires of the Constitution, hence without lawful authority and of no legal effect;
(II) Appointment of respondents Nos.1 and 2 through Notification No,LD/4/4/97-AD, dated 27-10- 1997 as Judges of the Shariat Court in the Petitioner filed by 'Genuine Rights Commission and others v. Iftikhar Hussain Butt and others' being against the Constitution and law, is declared without lawful authority and of no legal effect;
(III) The points of law raised, pleaded and argued in the above petitions and rejoinders but not decided, are left open to be decided as and when specifically raised in any other case.
' In consequence of the above declarations, it is directed that
(i) All the cases filed and pending in the Shariat Court shall stand transferred to the High Court alongwith the record, staff and budget thereof. The cases shall be deemed to have been filed in the High Court on and from the date these were filed in the Shariat Court. In directing so, we follow the principle of law laid down in the case of ' Imran v. Presiding Officer, Punjab Special Court' (PLD 1996 Lah. 542) and 'Delhi High Court Bar Association v. Union of India and others' (AIR 195 Delhi 323).
(ii) That Government is directed to initiate legislation placing all the Courts, created under law, under the supervision of the High Court, under section 46 of the Constitution, within six months."
9. Before dealing with the points involved in this appeal, it would be expedient to trace out the brief history of the establishment of the Shariat Court in the State of Azad Jammu and Kashmir which is subject-matter of controversy in the appeal. The Shariat Court was first established through Ordinance No,CLXXII of 1980 known as Azad Jammu and Kashmir Shariat Court Ordinance. The said Ordinance had been repeated with minor amendments and ultimately became an Act with the approval of the Azad Jammu and Kashmir Legislative Assembly and is known as The Azad Jammu and Kashmir Shariat Court Act, 1993 (Act No,IX of 1993). The provisions of the preceding Ordinances regarding the appointments of the Judges of the Shariat Court were identical to the one contained in section 3 of the Act which envisages that the Court shall consist of two Muslim Judges including the Chief Justice to be appointed by the President and they would be persons, who are, or have been or are qualified to be appointed as Judges of the High Court. For convenience section 3 of the Shariat Court Act is reproduced below:-- "3. The Azad Jammu and Kashmir Shariat Court.---(1) There shall be constituted for the purposes of this Act a Court to be called the Azad Jammu and Kashmir Shariat Court.
(2) The Court shall consist of two Muslim Judges including the Chief Justice to be appointed by the President.
(3) The Chief Justice shall be a person who is, or has been or is qualified to be a Judge of the Supreme Court and a Judge shall be a person who is, or is qualified to be a Judge of the High Court.
(4) The Chief Justice and a Judge shall hold office for a period not exceeding three years.
' Provided that a retired Judge appointed as Chief Justice or Judge shall not hold office later than three years from the date of his retirement; ' Provided further that the President may reappoint the Chief Justice or the Judge, as the case may be for a period of two years; ' Provided further that the Chief Justice appointed beyond the aforesaid period shall be deemed to have been validly appointed.
(5) The Chief Justice if he is not a Judge of the Supreme Court and a Judge who is not Judge of the High Court, may, by writing under his hand addressed to the President resign his office.
(6) The Principal seat of the Court shall be at Muzaffarabad.
(7) Before entering upon office, the Chief Justice and a Judge shall make before the President or a person nominated by him oath in the form set out in the Schedule.
(8) At any time when the Chief Justice or a Judge is absent or is unable to perform the functions of his office, the President shall appoint another person qualified for the purpose to act as Chief Justice or, as the case may be, the Judge.
(9) At any time when the Court is not complete or it is not possible for want of quorum of Judges of the Court to hold or continue any sitting of the Court or for any other reason it is necessary to increase temporarily the number of Judges of the Court, the Chief Justice may in writing, with the approval of the President, request a person who is duly qualified for appointment as Judge of the Court to attend the sitting of the Court as an ad hoc Judge for such period or such cases as may be necessary and while so attending an ad hoc Judge shall have the same powers and jurisdiction as are vested in the Judge of the Court.
(10) (i) A Chief Justice who is not a Judge of the Supreme Court shall be entitled to the same salary, allowances and privileges as are admissible to a Judge of the Supreme Court and Judge who is not a Judge of a High Court shall be entitled to the same salary, allowances and privileges as are admissible to a Judge of a High Court;
(ii) A sitting Judge if appointed as Chief Justice or Judge of the Shariat Court shall be entitled to the same salary, allowances and privileges as are admissible to such Judge before appointment as Chief Justice or as the case may be, the Judge in the Shariat Court."
' Subsequently, an Ordinance was promulgated on 18-9-1996, (Ordinance No,XXXV of 1996), whereby section 3 of the Shariat Court Act was amended; Ordinance was kept on being re- enacted after every four months and was holding field as The Azad Jammu and Kashmir Shariat Court (Amendment) Ordinance, 1997 (Ordinance No,XX of 1997) when it was not re-enacted and died its natural death, section 3 of the Shariat Court Act was substituted by the aforesaid Ordinances which is as under:-- "3.(1) There shall be constituted for the purposes of this Act, a Court be called the Azad Jammu and Kashmir Shariat Court.
(2) The Chief Justice or Acting Chief Justice of the High Court, as the case may be, shall be the Chief Justice and Acting Chief Justice of the Shariat Court and all other Muslim Judges and Additional Judges of the High Court shall be Judges and Additional Judges of the Shariat Court; Provided that if the Chief Justice or Acting Chief Justice of the High Court is non-Muslim, he shall not act as Chief Justice or Acting Chiei Justice of the Shariat Court and in that case, the senior most Muslim Judge of the High Court shall be appointed by the President of Azad Jammu and Kashmir to be the Chief Justice of Shariat Court till such time that a Muslim is appointed as Chief justice of the High Court.
(3) The Judge of the Shariat Court holding office immediately before the commencement of this Ordinance shall continue to hold the office and perform functions as a Judge on the terms and conditions as were applicable to him, immediately before commencement of this Ordinance and shall be entitled to the same salary, allowances, privileges and pension as admissible to a Judge of the High Court.
(4) The Principal Seat of the Court shall be at Muzaffarabad and it, may hold sittings at other District Headquarters from time to time as the Chief Justice may appoint."
' Thereafter, another ordinance was promulgated on 16-10-1997 which was subject of challenge in the present writ petitions filed by the respondents it the High Court and is known as the Azad Jammu and Kashmir Shariat Court (Amendment) Ordinance, 1997 (Ordinance No,XL of 1997), whereby section of the Shariat Court Act was substituted as under:-- "3. The Azad Jammu and Kashmir Shariat Court.--(1)There shall be constituted for the purpose of this Ordinance a Court to be called the Azad Jammu and Kashmir Shariat Court.
(2) The Court shall consist of a Chief Justice and one or more Muslin Judges to be appointed by the President; ' Provided that a Judge of High Court may be appointed as a Judge Shariat Court for a period not exceeding three years.
(3) The Chief Justice of the High Court shall be the Chief Justice of the Shariat Court.
(4) A person shall not be appointed as Judge of Shariat Court, unless:--
(a) he has for a period or for periods aggregating not less than ten years, been an Advocate or pleader of the High Court of Azad Jammu and Kashmir or High Court in Pakistan;
(b) he has for a period of not less than ten years held a judicial office out of which not less than three years shall have been as District and Sessions Judge.
(5) A Judge of Shariat Court who is not a Judge of High Court hold office until he attains the age of sixty two years, unless he sooner resigns or is removed from office in accordance with law.
(6) The Judge of Shariat Court, other than the Judge of High Court, holding office at the time of commencement of this Ordinance shall be deemed to have been appointed under subsection (2) and in terms of subsection (5).
(7) The principal seat of the Court shall be at Muzaffarabad and it may hold sittings at other District Headquarters from time to time as the Chief Justice may appoint.
(8) Before entering upon office, the Chief Justice and a Judge shall make before the President or a person nominated by him oath in the form set out in the Schedule.
(9) At any time when the Chief Justice or a Judge is absent or is unable to perform the functions of his office, the President shall appoint another person qualified for the purpose to act as Chief Justice or, as the case may be, the Judge.
(10) The President may, at any time, in consultation with the Chief Justice, by order in writing modify the period of office of a Judge, who is appointed from Judges of the High Court.
(11) A Judge of Shariat Court who is not a Judge of the High Court shall be entitled to the same salary, allowances, pension and privileges as are admissible to a Judge of High Court in Pakistan."
10. A comparison between the provisions contained in section 3 of the Shariat Court Act and the subsequent aforesaid two amending Ordinances would reveal that the provisions contained in the impugned Ordinance dated 16-10-1997 are more or less identical to the provisions which initially contained in section 3 of the Shariat Court Act. Had the ordinance dated 16-10-1997 (Ordinance XL of 1997) been not promulgated, the provisions with regard to the appointments of the Chief Justice and Judges of 6th Shariat Court which existed before the amending Ordinance No,XX of 1997 promulgated on 20-5-1997 would have revived. Similarly, the District Criminal Courts and Tehsil Criminal Courts for the trial of some of the penal offences were established vide an Act known as Islami Tazeerati Qawaneen Nifaz (Act No,XI of 1974) which was subsequently amended and the Shariat Court was empowered to hear appeals, revisions and references etc, against the judgments and the orders of the District Criminal Courts and Tehsil Criminal Courts. Likewise, the Shariat Court was empowered to hear the appeals, revisions and references against the orders of the District Criminal Courts and Tehsil Criminal Courts which arose out of various Hudood Ordinances, i.e, Azad Jammu and Kashmir (Enforcement of Hadood) Ordinance, 1979, the Offences of Qazaf (Enforcement of Hadd) Ordinance, 1979, the Prohibition (Enforcement of Hadd) Ordinance, 1979 etc., which subsequently were approved by the Azad Jammu and Kashmir Legislative Assembly and became Acts of the Assembly. Similarly, the Shariat Court was empowered to exercise appellate jurisdiction against the judgments and orders passed under the Family Courts Act, 1994, Ehtisab Act, 1997, etc. It may be pertinent to point out that although the Shariat Court consisted of the Judges of the High Court yet the said appeals etc. Were heard by the Benches as the Benches of the Shariat Court and not as the Benches of the High Court under the provisions of the relevant law. It needs not be repeated that even prior to the enforcement of the Shariat Court Act, 1993, under the relevant Ordinances promulgated from time to time, a person other than a Judge of the High Court could be appointed as a Judge of the Shariat Court provided he was qualified to be appointed as Judge of the High. Court. The aforesaid history of the establishment of the Shariat Court would reveal that the same was established as early as in the year 1980 through Ordinance and has been exercising its powers under the relevant laws for hearing appeals and revisions etc., but no challenge was ever made from any quarter with regard to its Constitutionality.
11. With the above background of history of the establishment of the Shariat Court and the Courts subordinate to it, we propose to deal with the points agitated before us at the Bar with regard to the legality of the impugned judgment passed by the High Court.
12. The first question which has been subject-matter of controversy at Bar was as to whether the impugned judgment of the High Court is a judgment passed by the majority of the Bench or it is a judgment as envisaged by rule 19 of the Azad Jammu and Kashmir High Court Procedure Rules, 1984. There was difference with regard to the aforesaid question not only between the learned counsel for the appellants and the respondents but also between the counsel for the appellants; Raja Muhammad Hanif, the learned counsel for the appellant, has argued that the impugned judgment is not a majority judgment; it was covered under rule 19 of the said Rules, whereas Ch. Muhammad Ibrahim Zia, Advocate, one of the counsel for the appellants, was of the opinion that this would be deemed to be a judgment based on the majority view. It may be observed that in any of the eventualities, the impugned Court order would remain unchanged. Obviously, the Court order remaining the same, the question is merely one of academic nature and not of any legal consequence. Therefore, it is not necessary to dilate upon it any further and resolve it.
13. It was next argued that the petitioners-respondents were not aggrieved persons within the meaning of section 44 of the Constitution Act and, thus, the writ petitions were not maintainable. It has been urged on behalf of the appellants that the public litigation is not envisaged under section 44 of the Constitution Act as is the case under Article 184(3) of the Constitution of Pakistan, 1973 under which a writ in public interest involving fundamental rights can be preferred to the Supreme Court of Pakistan. The learned counsel for the appellants have referred to various authorities in support of their contention that only an aggrieved person is legally entitled to invoke the writ jurisdiction of the High Court under section 44 of the Constitution Act. It has been further contended that none of the writ petitions filed in the High Court was couched as a writ of quo warranto. The learned counsel have submitted that the Shariat .Benches of the High Court have been hearing the appeals, revision etc. From orders of District Criminal Courts and Tehsil Criminal Courts since the year 1980 but no objection was raised by the respondents with regard to the Constitutionality or the establishment of the Shariat Court and, it is too late in the day to invoke the discretionary jurisdiction of the High Court for the reliefs which, if allowed, would paralyse the whole judicial system in the State.
14. In reply, it is has been contended on behalf of the petitioners-respondents Nos.2 and 3 that the scope and connotation of the expression ' aggrieved person' have been liberally construed by this Court. It was contended that it is not necessary for maintaining a writ petition seeking quo warranto or any other one, to show that there existed a juristic right which was invaded; all that is necessary is that there is some tangible interest of the petitioner in the matter. It has been argued on behalf of the said respondents that they are practising lawyers and, thus, they are not only an important segment of publicat-large but are directly interested in the preservation of the Constitution and independence of the judiciary. Therefore, they were competent to file the writ petitions and the same cannot be thrown out on the ground that they were 'not ' aggrieved persons' within the meaning of section 44 of the Constitution Act. The respondents have 'cited following authorities in support of their contentions:-- ' In case reported as Miss Benazir Bhutto v. Federation of Pakistan (PLO 1988 SC 416), it has been observed that as the combined reading of subsections (1) and (6) of section 3-B of the Political Parties Act, 1962 would reveal that in case of non-registration of a political party, penalty would automatically follow, such a party can challenge the vires of the Act by filing a writ petition under Article 199 of the Constitution of Pakistan because it would be deemed an aggrieved party within the meaning of the said Article ' In case reported as S.P. Gupta v. M. Tarkunde, J.L. Karla (AIR 1982 SC 149), dealing with the locus standi of the members of the Bar for assailing the circular of Central Government with regard to the transfer of the Judges of the superior Courts, it was observed that practising lawyers having vital interest in the independence of judiciary were within their rights to assail an objectionable order by invoking the writ jurisdiction of the High Court.
' In case reported as Al-Jehad Trust v. Federation of Pakistan (PLD 1996 SC 324), the question of the appointment of Judges of the superior Courts and the significance of the consultation with the Chief Justice of Pakistan and the Chief Justices of the respective High Courts were subject of consideration. While dealing with the question of locus standi to maintain a writ petition under Article 199 and Article 184(3) of the Constitution of Pakistan, it was observed that the question of locus standi is relevant only in case of High Court under Article 199 of the Constitution and not in the Supreme Court when the jurisdiction is invoked under Article 184(3) of the Constitution.
15. We have given due consideration to the matter. It is correct that none of the writ petitions, which culminated in the impugned judgment, has been couched as a writ of quo warranto but all the same it cannot be said that the petitioners-respondents were not aggrieved persons, especially so when apart from being the leading members of the society, they are practising lawyers and are directly interested in the constitutionality of the Courts in view of their day to day professional duties. The view of this Court on the question of locus standi in maintaining a writ petition under section 44 of the Interim Constitution Act has been liberal one; if a person shows an injury to his right which may not be injury to a juristic right, he is entitled to invoke the writ jurisdiction of the High Court under the aforesaid provision of law. Therefore, we are of the view that the writ petitions filed by the petitioners-respondents could not be thrown out without going into the merits of the same on the ground that the petitioners-respondents were not aggrieved persons within the meaning of relevant Constitutional provisions.
16. The next point stressed on behalf of the appellants was that all the writ petitions suffered from laches and in support of the contention, the history of the establishment of the Shariat Benches in the High Court and thereafter, the establishment of the Shariat Court from the year 1980 was recounted. It was submitted that at no stage, the petitioners-respondents who were practising lawyers chose to challenge the establishment of the Tehsil Criminal Courts, the District Criminal Courts, the Family Courts or the Shariat Court. It has been contended that the Shariat Court has been hearing appeals, revisions etc. Against the judgments of the Tehsil Criminal Courts, the District Criminal Courts and the Family Courts since quite some years but the petitioners- respondents did not raise any objection with regard to the jurisdiction of the said Court and, thus, they were debarred to raise any such objection at this belated stage. It was further contended on behalf of the appellants that the petitioners-respondents have acquiesced in the establishment of the said Courts and the enforcement of various laws and were estopped from challenging either the establishment of the Shariat Court or vires of the relevant statutes which empower the Shariat Court to hear appeals, revisions etc. Against the judgments and orders of the Tehsil Criminal Courts, the District Criminal Courts and the Family Courts etc. The following authorities were relied upon by the learned counsel for the appellants in support of their contentions:-- ' In case reported as Sheikh Ashiq Hussain v. Central Government of Pakistan (PLD 1991 SC 807), it has been observed that the question of laches in exercise of writ jurisdiction in the context of jurisprudence is applicable more as a bar of estoppel rather than as a bar of limitation.
' In case reported as Nusrat Fatima v. Azad Government of the State of Jammu and Kashmir (PLD 1985 SC (AJ&K) 93), while dealing with the question of laches in writ petition, it was observed that normally the High Court would refuse to exercise the writ jurisdiction if it comes to the conclusion that a party, by its conduct, has acquiesced in an act and, thus, waived to raise an objection to the same.
17. In reply, the respondents have controverted the arguments raised on behalf of the appellants and have argued that the violation of the Constitution is a continuous wrong and in such a case no question of laches or estoppel can be pressed into service for depriving a person of invoking the writ jurisdiction of the High Court. It has been argued that it is well-settled principle of law that in a writ of quo warranto, the question of laches or estoppel does not apply and the same principle would be applicable to the present writ petitions because in the instant case, the wrong complained of is of continuing nature and everyday, the petitioners-respondents or for that matter any member of the public, have a fresh cause of action. The respondents have relied upon case reported as Malik Asad Ali v. Federation of Pakistan (PLD 1998 SC 161) wherein it has been observed at pages 299 and 300 as under:-- "Delay simpliciter is not enough to decline relief in a case where the entitlement of a person to hold a public office is challenged, because continuance of the person in the public office which he is not entitled to hold under the law, is a continuing wrong which furnishes recurring cause of action till he holds the office unlawfully. The questions relating to locus standi of the petitioners, the alleged mala fide on their part and the laches in filing these cases, are not of much relevance now in these cases as during the course of hearing of these petitions, the Federal Government which is a respondent in these petitions filed its written statement in which it unequivocally took the stand that the appointment of respondents No,2 as Chief Justice of Pakistan, is invalid and against the provisions of the Constitution and asked for a declaration in the terms prayed for by the petitioners.
We, therefore, hold that neither the bar contained in Article 199(5) of the Constitution is attracted in these cases, nor the existence of the provisions of Article 209 of the Constitution come in the way of grant of the reliefs claimed in these cases."
18. We have given due consideration to the matter. Irrespective of the facts that in the instant case, the writ petitions filed by the petitioners-respondents have not been couched as writs of quo warranto, and the question whether ultimately, any violation of the Constitution is established or not, it cannot be said that the injury cmplained of was not a continuing wrong, if at all there was any injury, or that the petitioners-respondents were estopped from invoking the writ jurisdiction of the High Court for the redressal of their alleged grievance. Therefore, we are of the view that the mere delay in filing the writ petitions did not justify to stay hands from going into the merits of the petitions and decide the same on merits. Thus, we are unable to subscribe to the contention of the learned counsel for the appellants that the writ petitions entailed dismissal on the sole ground of being hit by laches. It is correct that laches may be considered as an evidence for the allegation in support of mala fide alongwith other, circumstances in the present writ petitions but the same cannot be made basis for the dismissal of the writ petitions.
19. It has been contended on behalf of the appellants that as the necessary parties were not impleaded in the writ petitions, the same were liable to be dismissed on this sole ground. It has been argued that as the Ordinance dated 16-10-1997 was challenged, it was necessary to implead the President as party in the relevant petition, similarly, the appointments of the Chairman Service Tribunal, the Chairman of Banking Tribunal, the Custodian and the Presiding Officers of the Family Courts, the District Criminal Courts and the Tehsil Criminal Courts should have also been impleaded as parties in the writ petitions.
20. The respondents have controverted the arguments and have maintained that as under section 52 of the Constitution Act, the President cannot be impleaded as a party, the argument of the learned counsel for the appellants that he was a necessary party in the relevant writ petition is without any substance. They have further submitted that so far as the Presiding Officers of the other tribunals and special Courts are concerned, they were not necessary parties because, in the estimation of the respondents, if a law is challenged as being violative of the Constitution, it is not necessary to implead all the persons as parties, on the ground that are likely to be adversely affected if the law is struck down by the Court. The respondents have argued that there is no set formula as to who is a necessary party in a particular writ petition; it depends upon the controversial points involved in a case in view of the respective contentions of the parties. The respondents have cited following authorities in support of their contentions:-- ' In case reported as Syed Ahmad Saeed Kirmani v. Punjab Province (1982 CLC 590), the question involved was as to whether the parties which sought to be impleaded in the writ proceedings were necessary parties within the meaning of Order I, rule 10, C.P.C. It has been observed that the question as to whether one is 'aggrieved party' to maintain a writ petition is altogether different from the question as to whether one is 'necessary party' within the meaning of Order I, rule 10, C.P.C., and should be impleaded as such.
' In case reported as Sardar Muhammad Ibrahim Khan v. Azad Jammu and Kashmir Government (PLD 1990 SC (AJ&K) 23), it has been held that no rigid formula can be laid down as to which of the authorities should be impleaded as necessary party in a writ petition. It has been observed that the mere fact that the proclamation was made by the Azad Jammu and Kashmir Council did not make it necessary party in the writ proceedings because the necessary party is a party in whose absence no effective adjudication can be made on the controversial issues. It has been further observed that when a challenge is thrown on the legality of the assumption of office of President by virtue of proclamation of Chief Executive of the Government, the Government alone was required to be made respondent in view of the provisions contained in section 52 of the Interim Constitution Act, 1973 and not the President.
21. We have given due consideration to the matter. So far as the impleadment of the President is concerned, that is prohibited under subsection (3) of section 52 of the Constitution Act. Therefore, even if it is assumed for the sake of argument that the President was a necessary party, he could not be impleaded in view of the aforesaid bar to his impleadment in the writ proceedings. So far as the non-impleadment of the Chairman, Service Tribunal, the Chairman of Banking Tribunal and the Custodian etc. Is concerned, no relief has been given with regard to the aforesaid office-holders though the same was prayed for in the Writ Petition No,387 of 1997; similarly, the appointments of the Chairman and the Judges of the Family Courts, the District Criminal Courts and the Tehsil Criminal Courts has not been challenged, rather the relevant provisions contained in the respective statutes, whereby the appeals and revisions etc. Lay to the Shariat Court, have been assailed as being violative of the Constitution Act. Thus, as the Government is already a party in the proceedings, it was not necessary to implead the Judges of the said Courts, especially so when their appointments as such were not assailed. Therefore, we are of the opinion that the objection with regard to the nonimpleadment of the necessary parties is without any force and is hereby repelled.
22. The next question which is moot point in the present appeal is as to whether the establishment of the Shariat Court is violative of section 46 of the Constitution Act because the provisions of the Shariat Court Act and the amending Ordinance (Ordinance XL, dated 16-10-1997) militate against the concept of independence of judiciary. For appreciating the matter in its true perspective, it would be expedient to reproduce below section 46 of the Constitution Act:-- "46 (1) The High Court shall superintend and control all other Courts that are subordinate to it.
(2) There shall, in addition to the Supreme Court of Azad Jammu and Kashmir and the High Court, be such other Courts as are established by law.
(3) A Court so established shall have such jurisdiction as conferred on it by law.
(4) No Court shall have any jurisdiction which is not conferred on it by this Act or by or under any other law."
' It has been argued on behalf of the appellants that the High Court has committed an error in interpreting the provisions contained in section 46 of the Constitution Act because the plain reading of section 46 would reveal that it is not necessary that the Courts established under subsection (2) of the section 46 should necessarily be subordinate to the High Court. It has been contended that a perusal of the provisions contained in section 46 of the Constitution Act would reveal that the High Court shall have power of supervision and control on the Courts which are subordinate to it. If the interpretation placed by the High Court on section 46 is accepted, the expression all other Courts that are subordinate-to it' in subsection (1) of section 46 would become redundant or would have to be ignored; similarly, it has been contended that in subsection (2) it has been clearly laid down that in addition to the Supreme Court and the High Court, other Courts can be established by law and under subsection (3), the jurisdiction on such Courts would also be conferred by law. It has been contended that there is no stipulation in section 46 that such other Courts should be necessarily subordinate to the High Court or for that matter, the appeals and revisions etc. From the judgments and the orders of such Courts Would be competent only to the High Court and not to any other forum. The learned counsel have argued that it is well-settled principle of law that while interpreting a statute, no word or expression should be added to or subtracted from the text of a provision, the learned counsel have maintained that a law should be interpreted as it is and not as it should be. They have maintained that some of the authorities referred to by the High Court in the impugned judgment on the point are distinguishable because the corresponding provisions contained in the Constitution of Pakistan, 1973, are quite different from the one which are contained in section 46 of the Constitution Act while some others are altogether missing. The learned counsel have referred to the following authorities in support of their contentions:-- ' In case reported as Al-Jehad Trust v. Federation of Pakistan (PLD 1996 SC 324), it was observed that all the provisions in the Constitution should be harmonised and while interpreting various provisions of the Constitution the intention of the framer of the Constitution should be ascertained so as to make the Constitution a workable instrument.
' In case reported as Muhammad Ayub v. Abdul Khaliq (1990 MLD 1293), after considering the connotation of sections 25 and 32 of the Azad Jammu and Kashmir Islamic Penal Laws Act, 1974, it was observed that appeal by the complainant against the judgment of the District Criminal Court in case of acquittal was competent to the Shariat Court. It was observed that if a word is not used in a statutory provision that should not be read into it. Various provisions of a statute should be kept in view while ascertaining the legislative intent; the Courts are not concerned with the policy of an Act and they should give to it the plain meanings so as to express the will of law-giver.
' In case reported as Mr. Fazl-ul-Quader Chowdhry v. Mr. Muhammad Abdul Haque (PLD 1963 Supreme Court 486) it was observed that it is fundamental principal of Constitutional construction to give effect to every part of it. The Court should avoid the construction which would render a Constitutional provision nugatory.
' In case reported as Ghulam Hassain Punjabi v. Azad Jammu and Kashmir Legislative Assembly (PLD 1975 Azad J&K 69), it has been observed that a word used in a statute may have same meanings throughout but it may also be used in different sense in different sections. It was further observed that as a general rule, a word used in a statute is to be understood to have the same meanings throughout; that Courts always presume in favour of the Constitutionality and validity of a legislation, while construing a statute, the Courts should desist from going into the philosophy of the legislation; and that the Legislature is presumed to mean what it says, therefore, where the language of an Act is unambiguous, the same must be given its natural meanings.
' In case reported as Dr. Muhammad Akram v. Allotment Committee, Mirpur Development Authority (PLD 1985 SC (AJ&K) 113), it has been observed that a law should be interpreted as it is and not as it ought to be; the Court is not expected to make law or interpret it in a way which may reasonably be considered as to make a law. It was further observed that the Courts are bound to assign ordinary and plain meanings to a word used in a statute without importing meanings which the law-maker did not intend. While dealing with the question, the principles governing the interpretation of statues, a reference was made to a book entitled 'Interpretation of Statutes' by Maxwell, 7th Edition, wherein it has been observed as under:- ' " If the words of the statute are in themselves precise and unambiguous no more is necessary than to expound those words in their R natural and ordinary sense, the words themselves in such case best declaring the intention of the Legislature.'
' Again relying on R.V. City of London Court and Mersy Docks and Harbour Board v. Turner, Maxwell says at page 4:-- ' The rule of construction is to intend the Legislature to have meant what they have actually expressed. 'It matters not, in such a case, what the consequences may be. Where, by the use clear and unequivocal language capable of only one meaning, anything is enacted by the Legislature, it must be enforced, even though it be absurd or mischievous. The underlying principle is that the meaning and intention of a statute must be collected from the plain and unambiguous expression used therein rather than from any notions which may be entertained by the Courts as to what is just or expedient'.
' Elaborating the point at page 5 it is stated again that:-- ' However unjust, arbitrary or inconvenient the meaning conveyed may be it must receive its full effect. When once the meaning is plain, it is not the province of a Court to scan its wisdom or its policy'.
' Craies on Statute Law Seventh Edition Chapter 5th at page 65 says:-- ' Where the language of an Act is clear and explicit, we must give effect to it, whatever may be the consequences, for in that case the words of the statute speak the intention of the Legislature'.
' It is further stated at page 66:-- ' Some fifty years before in Salomon v. A Salomon & Co. Ltd. Lord Waston had said 'Intention of the Legislature, is a common but very slippery phrase, which popularly understood, may signify anything from intention embodied in positive enactment to speculative opinion as to what the Legislature probably would have meant, although there has been an omission to enact it. In a Court of law or equity what the Legislature intended to be done or not to be done can only be ascertained from what it has chosen to enact, either in express words or by reasonable and necessary implication.' After expounding the enactment it only remains to enforce it, notwithstanding that it may be very generally received opinion that it 'does not produce the effect which the legislature intended', or 'might with advantage be modified' ."
' In case reported as Gul Sher Khan v. Muhammad Ilyas (1994 SCR 281), it has been observed that it is not for the Court to find out the wisdom behind a particular enactment to adjudicate upon its reasonableness. The Court cannot through logical deduction drawn conclusion which do not flow from the letter of the law.
' In case reported as Azad Jammu and Kashmir Government v. Muhammad Yonuas Tahir (1994 CLC 2339), it has been observed that this is an established rule of law that in case of inconsistency between the two provisions of law, attempt should be made to harmonise them as there is presumption against the inconsistency. It was further observed by one of the members of the Bench that if a question arises before any Court, whether a law or a provision of law is repugnant to the Shariah, a reference may be made to the Shariat Court or the High Court, as the case may be, in view of the Shariat Court Act, 1993 and the Azad Jammu and Kashmir Enforcement of Shariat Act, 1989 to decide as to whether such law is repugnant to the Holy Qur'an and Sunnah. It was observed that the High Court was not competent to declare a law repugnant to Shariah as void in exercise of its writ jurisdiction.
' In case reported as Federation of Pakistan v. Malik Muhammad Miskeen (PLD 1995 SC (AJ&K) 1), it has been observed that while interpreting the words employed in a statutory provision, the same should be given their natural meanings and nothing should be added to or subtracted from the provision. The law should be interpreted as it is and not as it should be.
22. The arguments advanced by the learned counsel for the appellants were controverted by the respondents. It has been strenuously maintained that under section 46 of the Constitution Act, no Court, which is not under the supervision and control of the High Court, can be established. It has been argued that the interpretation placed on section 46 of the Constitution Act by the learned counsel for the appellants ran counter to the concept of independence of the judiciary which is hallmark of the Constitution Act. It has been contended that under section 47 of the Constitution Act, administrative Courts and Tribunals can be constituted which are not subordinate to the High Court; the appeal against an order of such administrative Court or Tribunal is competent to the Supreme Court but no such eventuality has been envisaged in section 46 which implies that the expression 'such other Courts are established by law' in subsection (2) of section 46, would mean Courts under the supervision and control of the High Court and not independent of it, whether administrative or otherwise. The respondents have referred to Articles 175 and 203 of the Constitution of Pakistan and have maintained that corresponding to the aforesaid Articles of the Constitution of Pakistan is section 46 of the Constitution Act. They have argued that the superior Courts of Pakistan, while interpreting the scope of the aforesaid Articles, have held that the Courts, which are not under the supervision and control of the High Court, cannot be established under the aforesaid Articles. The learned counsel have referred to the following authorities in support of their contentions:-- ' In an unreported case of the Supreme Court of Pakistan entitled Mehram Ali and others v.
Federation of Pakistan, 1998 SCMR 1156, whereby various writ petitions were disposed of through a consolidated judgment. While interpreting certain provisions contained in Anti-Terrorist Act, 1997 (Act No,XXVII of 1997), it was observed that as the special Court constituted under the aforesaid Act were not under the supervision and control of the respective High Courts, the relevant provisions of the Act were ultra vires of the Constitution. It was observed that in view of the provisions contained in Articles 175 and 203 of the Constitution of Pakistan, 1973, the criminal Courts in a province, like the one constituted under the aforesaid Act, should have been placed under the supervision and control of the High Court of the respective provinces so as to safeguard the concept of independent of judiciary envisaged under Article 2A and clause (3) of Article 175 of the Constitution of Pakistan.
' In case reported as Imran v. Presiding Officer, Punjab Court No,VI, Multan (PLD 1996 Lah 542), the vires of sections 3 and 4 of the Suppression of the Terrorist Activities (Special Courts) Act, 1975, which provided for the establishment of Special Courts were challenged; the composition and Constitution of Special Courts under the provisions of Banking Special Courts Ordinance, 1984 were also assailed. The High Court disposed of a number of writ petitions by a single judgment observing that in view of Articles 203 and 175 of the Constitution of Pakistan, 1973, such Special Courts and Tribunals must be placed under the supervision and control of the respective High Court as is the intention of the framers of the Constitution.
' In case reported as Sharaf Faridi v. The Federation of Islamic Republic of Pakistan (PLD 1989 Kar.
404), it was observed that the supervisory jurisdiction of the High Court envisaged under Article 203 of the Constitution of Pakistan, 1973, is of two types, i,e,, judicial, which confers on the High Court by virtue of Article 199 of the Constitution, the provisions in the C.P.C., Cr.P.C., and other relevant enactments either as an appellate Court or revisional Court and second type of supervisory jurisdiction is administrative. It was observed that Article 203 relates merely to the administrative aspects of the jurisdiction than the judicial aspects. It was further held that if any provision in an Act or any rule or notification which offends against the provisions contained in Articles 203, 175 and 2A of the Constitution of Pakistan, proper direction can be given to the Government to amend the law etc. So as to achieve the object of independence of judiciary by separating the same from the executive.
' In case reported as Messrs AEG-Telefunken Pakistan Ltd. v. Muhammad Sharif (1984 PLC 569). It was observed by the Labour Appellate Tribunal, Sindh, that Articles 202 and 203 of the Constitution of Pakistan, 1973, were not relevant to decide the question involved for the Simple reason that Article 202 opens with the words 'subject to the Constitution and Law', whereas Article 203 follows Article 202. It was further held that as section 3 of the C.P.C. Enumerates the Courts which are subordinate to the High Court, the same cannot be considered to decide as to whether the Labour Courts and Labour Appellate Tribunals were subordinate to the High Court for the purpose of Article 201 of the Constitution of Pakistan. Thus, it was observed that the Courts situated within the territorial jurisdiction of the High Court were subordinate to the High Court only for the purpose of Article 201 of the Constitution of Pakistan, i,e,, to the extent that a question of law decided by the High Court would be binding upon such Courts. The decision of the Labour Appellate Tribunal, Punjab, was dissented from and it was held that a law point decided by the High Court was binding on the Labour Appellate Tribunals of the Province.
' In case reported as Iftikhar Ahmad v. The Muslim Commercial Bank Limited (PLD 1984 Lah. 69), the order passed by the Special Judge Banking Tribunal was subject of controversy before the High Court. It was argued that as under rule 9 of the Banking Courts (Recovery of Loans) Rules, 1980, the special Court was subordinate to the Administrative control and the supervision of the High Court within whose jurisdiction its permanent seat is located, the impugned order could be modified by the High Court. The aforesaid rule was also supported by the Assistant Advocate-General who argued that although in view of the aforesaid rule, the Special Judge Banking Court was subordinate to the High Court, yet on merits the applicant was not entitled to any relief. While dealing with the matter, the High Court dilated in detail on the question of difference between 'tribunal' and 'Court' established under the Constitution of Pakistan, 1973. Obviously, the point whether a tribunal or a Court in a Province could be constituted without the supervision and control of the High Court, was not directly involved in that case because under the aforesaid rule, the special Court was already subordinate to the High Court.
23. We have given due consideration to the arguments raised at the Bar. It may be stated at the very outset that the abovementioned authorities cited by the respondents from Pakistan jurisdiction are distinguishable because the perusal of those authorities would reveal that the ratio decidendi in those cases was based on the concept of independence of judiciary as enshrined in the Constitution of Pakistan, i,e,, in the preamble of the Constitution, under Article 2A read with Objectives Resolution and under clause (3) of Article 175 of the Constitution of Pakistan. In the Preamble of the Constitution of Pakistan, the expression 'Wherein the independence of the judiciary shall be fully secured' is embodied. Article 175 of the Constitution of Pakistan, reads as under:-- "(1) There shall be a Supreme Court of Pakistan, a High Court for each Province and such other Courts as may be established by law.
(2) No Court shall have any jurisdiction save as is or may be conferred on it by the Constitution or by or under any law.
(3) The judiciary shall be separated progressively from the Executive within fourteen years from the commencing day."
' It was on the basis of the concept of independence of judiciary from executive enshrined in the Constitution of Pakistan that the Supreme Court of Pakistan has interpreted clauses (1) and (2) of Article 175, which are even otherwise limited in scope as compared, with the provisions contained in section 46 of the Constitution Act. Obviously, while interpreting the aforesaid provisions with regard to the establishment of the special Courts in the provinces, the concept of independence of judiciary from the Executive was a paramount consideration and, thus, it was rightly held that the special Courts which are not under the supervision and control of the High Courts militate against the concept of independence of the judiciary envisaged under the aforesaid provisions of the Constitution of Pakistan. However, no such corresponding provisions with regard to the independence of the judiciary from Executive find place in the Constitution Act, Therefore, the concept of independence of judiciary, however sacred, cherishable and commendable it may be, cannot be read into Constitution Act when there is no such provision in it. The Courts of law are bound to interpret a law as it is and not as it should be. A perusal of the Judgment in Mehram Ali and others' case, referred to above, would reveal that the view taken by their Lordships in those cases was preliminary based on the concept of the independence of judiciary enshrined in the Constitution of Pakistan. A reference may be made to the observations made in paragraph 5 of the judgment which are as under:-- "5. The same was not only provided in the Preamble of the Constitution (Which has now become part of the Constitution through Article 2A) by providing that 'the independence of the judiciary shall be fully secured' but this was also manifested by the Constitution makers by providing - the judicial framework in the Constitution to ensure the same. In this regard, it may be observed that clause '(1) of Article 175 of the Constitution provides that 'There shall be a Supreme Court of Pakistan, a High Court for each Province and such other Courts as may be established by law.'
Whereas clause (2) lays down that ' No Court shall have any jurisdiction save as is or may be conferred on it by the Constitution or by or under any law.' It may further be noticed that clause (3) of above Article envisages that 'The Judiciary shall be separated progressively from the Executive within fourteen years from the commencing day.' It may be highlighted that originally the period specified was 3 years, which was substituted by 5 years through The Constitution (Fifth Amendment) Act, 1976 (Act LXII of 1976), and then to 14 years by President Order No,XIV of.
1985.
' It may be observed that the latter clause, namely, clause (3) of Article 15 of the Constitution is of great significance as it envisages separation of Judiciary from the Executive, which concept runs counter to the ordinary meanings of the term 'Judiciary'."
24. It may be stated here that in India, despite the fact that all Courts in Indian Provinces are constituted under the supervision and control of the respective High Courts but in a reference made by the President of India reported as in re The Special Courts Bill, 1978 Reference No,1 of 1978 (AIR 1979 SC 478), the Supreme Court of India, while dealing with the matter, held that the special Courts which are not subordinate to the High Courts can be constituted and an appeal can be provided against an order of such Courts to the Supreme Court. While dealing with the matter, it was observed as under:- "57. We are unable to accept this argument. What is important in the first place is to inquir whether the Parliament has legislative competence to create Special Courts. If it has, the next question is whether there is anything in the Constitution which limits that power to the setting up of yet another Court of the same kind and designation provided for in the Constitution's hierarchical system of Courts. We see nothing in the Constitution which will justify the imposition of such a limitation on the Parliament's power to create Special Courts. Indeed, the argument partakes of the same character as the one that no greater or different powers can be conferred on the Supreme Court than are to be found or provided for in Chapter IV, Part V of the Constitution. The implications of the Constitution ought not to be stretched so far and wide as to negate the exercise of powers which have been expressly and advisedly conferred on the Parliament. The words of Entry 11-A of the Concurrent List which relates to 'administration of justice; constitution and organisation of all Courts, except the Supreme Court and the High Courts' are sufficiently wide in their amplitude to enable the Parliament not merely to set up Courts of the same kind and designation as are referred to in the provisions noticed above but to constitute and organize, that it to say, create new or Special Courts subject to the limitation mentioned in the entry as regards the Supreme Court and the High Courts.
58. It is true that the Special Courts created by the Bill will not have the Constitutional status which High Courts have because such Courts are not High Courts as envisaged by the Constitution.
Indeed, there can but be one High Court only for each State, though two or more States or two or more States and a union territory can have a common High Court. It is also true to say that the Special Courts are not District Court within the meaning of Article 235, with the result that the control over them will not be vested in any High Court. But we do not accept that by reason of these considerations, the creation of Special Courts is calculated to damage or destroy the Constitutional safeguards of iudicial independence." (Underlining is ours).
It follows from what has been stated above that we are unable to subscribe to the contentions of the respondents that the Shariat Court could be established only under the supervision and control of the High Court, otherwise its establishment would militate against the concept of independence of judiciary from Executive; because, as said earlier, the Constitution Act does not contain any provision in that regard.
25. The next point which was subject of controversy was as to whether the High Court has the power to strike down a law which is against the Injunctions of Holy Qur'an and Sunnah as stipulated under subsection (5) of section 31 of the Constitution Act. It has been contended on behalf of the appellants that the High Court has no such power in exercise of writ jurisdiction. The learned counsel for the appellants have argued that under section 4 of the Constitution Act, a law which is inconsistent with the fundamental rights has been declared as void by the Constitution itself but in case of a law which is against the Holy Qur'an and Sunnah, no such stipulation has been made.
Rather the perusal of sections 31 and 32 of the Constitution Act would reveal that all existing laws are to be brought in conformity with Holy Qur'an and Sunnah. The learned counsel have argued that apart from the Council of Islamic Ideology of Pakistan, of stipulated under section 32 of the Constitution Act, the Azad Kashmir Government has also established a Council of Islamic Ideology in Azad Kashmir under the Act of the Assembly for the purpose of facilitating the Islamisation of law by making recommendations in that regard. The learned counsel have argued that there is ample authority in support of the proposition from Pakistan jurisdiction as well as from Azad Jammu and Kashmir that the laws against Qur'an and Sunnah cannot be held void in exercise of writ jurisdiction., The learned counsel have cited following authorities in support of their contentions:-- ' In case reported as Mst. Kaneez Fatima v. Wali Muhammad (PLD 1993 -- SC 901), one of the questions which fell before the Supreme Court of Pakistan was as to whether in view of the provisions contained in Article 227 of the Constitution of Pakistan, 1973, the Supreme Court was competent to strike down a law on the ground that the same was violative of Injunctions of Islam. It has been observed that under Article 8 of the Constitution, a law against the fundamental rights is void and can be declared as such by the Courts but a law which is against the Injunctions of Islam cannot be declared so in exercise of the writ jurisdiction because the scheme of the Constitution and the wording employed in Article 2A do not invest the Courts with any such power. It has been further observed that the laws which are against the Injunctions of Islam are to be brought in conformity with the Holy Qur'an and Sunnah by the Legislative as envisaged under Article 227 of the Constitution. The relevant observations made by the Court are as under:-- "9. Article 2A is one of the provisions of the Constitution which strives at bringing the existing laws in conformity with the Injunctions of Islam and also see to it that no law in conflict with such Injunctions is legislated. The method for testing such legislation and enactments has been provided under the Constitution. One is provided in Article 227 in Part IX of the Constitution and the other and more effective method is provided by 'Chapter 3-A of Part VII of the Constitution, that is the Federal Shariat Court. Article 203-D vests powers and jurisdiction in the Federal Shariat Court to examine and decide the question whether or not any law or provision of law is repugnant to the Injunctions of Islam. On coming to an affirmative answer it shall give its decision with reasoning for holding such an opinion and shall specify the day on which the decision shall take effect. However, if any party files an appeal before the Supreme Court, effect shall not be given till such time the appeal is disposed of. Consequences of declaring any law or provision of law to be repugnant to the Injunctions of Islam are contained in Article 203-D(3). The President and the Governor in cases of law within their respective jurisdiction shall take steps to amend the law so as to bring such law or provision of law in conformity with the Injunctions of Islam and such law or provision of law shall cease to have effect on the day on which the decision of the Court takes effect. Therefore, a proper scrutiny of the provisions of law by the Federal Shariat Court and the Shariat Appellate Bench of the Supreme Court with an interregnum period has been provided to enable the President and the Governor, as the case may be, to move the Legislature to bring the law in conformity with the Injunctions of Islam. The intervening period has been provided to enable the Legislature to legislate proper laws and there may not be vacuum of lawlessness which may create complications and confusion. The process of Islamisation of the laws is an important and difficult subject. The lead given by Pakistan in this regard is being watched with interest by all the Muslim countries who are anxious to bring their laws in conformity with the Injunctions of Islam and by the non-Muslim countries as well. Any hasty action without the process of 'Ijma' at Ummah level may lead to difficulties and confusion which may prove irreversible. Furthermore, due to sudden change, complex problems in economic, commercial and financi A fields may arise creating difficulties.
However, it does not mean that in the fear of such new controversies and problems the process of Islamisation may be retarded or stopped. It is an ongoing process. It has to take effect with utmost despatch, vision and regularity. The authorised agencies under the Constitution are not to wait for any.Case or reference to come to the Court or to the Council, but they can suo motu take up the laws or the provisions of laws and examine them on the test of Islamic Injunctions.
' The situation which crystallizes is that for existing laws and proposed laws Constitutional dispensation has been provided to bring them in conformity with the Injunctions of Islam which is required to be followed. At this stage it is pertinent to point out that the Courts are not vested with the jurisdiction to declare a law void on the touchstone of Article 2A as distinguished from Article 8.
There seems to be marked difference in the phraseology of Article 2A and the fundamental rights conferred by Part II of the Constitution. Article 8 makes any law which is inconsistent with the fundamental rights to the extent of such inconsistency void. Article 2A is not couched in similar language with similar effect. Article 8(2) imposes a restriction on the State which includes Federal Government, Mailis-i-Shoora (Parliament), a Provincial Government or Provincial Assembly or such local or other authorities in Pakistan as required by law empowered to impose any tax or cess, not to make any law which in any manner takes away or abridges the fundamental rights. Again, similar provisions are not provided in Article 2A. It may be argued that Article 227 gives the same effect, but that would not be correct. The phraseology of both the provisions i,e, Article 8 and Article 227 is completely different and furthermore while imposing a restriction on the Legislature and commanding to bring all laws in conformity with the Injunctions of Islam it has simultaneously been provided in clause (2) that clause (1) shall be given effect to only in the manner provided in Part IX. Therefore, the manner in which clause (1) of Article 227 which may be read in conjunction with Article 2A has been provided and limited. Further, it may be observed that Article 199(2) provides that subject to the Constitution the right to move a High Court for the enforcement of any of the fundamental rights conferred by Chapter 1 of Part II shall not be abridged. Therefore, the right to enforce fundamental rights through the High Court cannot be curtailed and this provision is subject to the Constitution alone. In a more wider manner under Article 184 Supreme Court has power to enforce fundamental rights. Again, such provisions have not been made to enforce Article 2A in the same manner as the fundamental rights can be enforced or the laws can be tested on the touchstone of fundamental rights." (Underlining is ours).
' It may be observed that a number of conflicting views of the High Courts of Pakistan were examined in detail by the Full Bench of the Supreme Court in the aforesaid case and the conflict amongst various judicial authorities was removed.
' In case reported a Faqir Ali v. Standard Bank Ltd., Muazaffarabad (PLD 1979 SC (AJ&K) 62) it has been observed that provisions under section 31(5) of the Azad Jammu and Kashmir Interim Constitution Act, 1974 does not render the laws on the statutes book of the State as void because there is a stipulation in the Constitution itself that all existing laws shall be brought in conformity with the Holy Qur'an and Sunnah. Thus, it was observed that a law cannot be declared as void by the Court, because the same is to be brought in conformity with the injunctions of Islam by the Legislature as envisaged by the Constitution Act. It was observed by the Court as under:- "This section, it appears, is not happily worded is its comparable Article 227 of the Constitution of Islamic Republic of Pakistan (1973). However, even as it is worded, it does not strike down all existing laws even if they are repugnant to the injunctions embodied in the Holy Qur'an and Sunnah. All that its relevant subsection (5) states is that legislation is not to be repugnant to the teachings and requirements of Islam as set out in the Holy Qur'an and Sunnah. For this it contains a mandate that all existing laws are to be brought in conformity with the Holy Qur'an and Sunnah. This very mandate about the existing laws which are not in conformity with the requirements of Holy Qur'an and Sunnah makes it amply clear that the law maker did not intend to strike down automatically all such existing laws. Therefore, in our view, all such existing laws will continue to be operative till the mandate of bringing them in conformity with the Holy Qur'an and Sunnah is carried out through proper legislation. Section 48 of the Courts and Laws Code, 1949 and subsection (5) of section 31 of the Constitution Act do not per se render laws which are on the statute book as inoperative even if they are not according to tenets of Islam."
' In case reported as Azad Jammu and Kashmir Government v. Muhammad Younas Tahir (1994 CLC 2339), there was a difference of opinion between the members of the Bench on the point as to whether the vires of a law can be gone into in view of the provisions contained in section 31(5) of the Azad Jammu and Kashmir Interim Constitution Act, 1974; Mr. Justice Basharat Ahmad Sheikh expressed the view that the Court can declare a law void as being against the Injunctions of Islam, while the other member of the Bench (Chief Justice) dissented in the view expressed by Mr. Justice Basharat Ahmad Sheikh, and opined that no power vests in the superior Courts to go into the vires of a legislation on the ground that the same was violative of section 31(5) of the Azad Jammu and Kashmir Interim Constitution Act, 1974. While dealing with the point, the following observations were made:- ' "So far the question as to whether the High Court has the jurisdiction to declare a law as void and struck down the same under section 31(5) of the Interim Constitution Act is concerned, I am of the view that after the promulgation of Azad Jammu and Kashmir Enforcement of Shariat Act, 1989 (hereinafter shall be called the Shariat Act,) the High Court has no jurisdiction to declare a law as repugnant to Qur'an and Sunnah, if at all it had such jurisdiction before promulgation of the Shariat Court Act and Shariat Act. It is well-settled principle of law that general jurisdiction vested in a Court is taken away when special jurisdiction is created. For elucidating the matter, the view taken by this Court in case reported as Raja Muhammad Niaz Khan v. Azad Government of the State of Jammu and Kashmir (PLD 1988 SC (AJ&K) 53) is reproduced below:-
55. It is settled law that the powers under the Constitution Act are to be exercised ' subject to the Constitution' and since according to the provisions of the Constitution itself the Shariat Court can be brought into existence by virtue of law, the Shariat Court Ordinance Can, therefore, validly taken away the jurisdiction of the Supreme Court and the High Court on those matters which are not specifically covered by the Constitution.'
' The point finds further support from the provisions contained in section 32 of the Interim Constitution Act. For the sake of convenience section 2 of the Interim Constitution Act is reproduced as under:- Reference to Council of Islamic Ideology.---(l) If one-third of the total number of members of the Assembly or, as the case may be, the Council so requires, the Assembly or, as the case may be, the Council shall refer to the Council of Islamic Ideology constituted under the Constitution of the Islamic Republic of Pakistan (hereinafter) referred to as the Islamic Council) for advice and question as to whether a proposed law is or is not repugnant to the Injunctions of Islam.
(2) When a question is referred by the Assembly or, as the case may be, the Council to the Islamic Council, the Islamic Council shall, within fifteen days thereof, inform the Assembly or, as the case may be, the Council of the period within which the Council expects to be able to furnish that advice.
(3) Where the Assembly or, as the case may be, the Council considers that in the public interest, the making of the proposed law in relation to which the question arose should not be postponed until the advice of the Islamic Council is furnished, the law may be made before the advice is furnished: ' Provided that where a law is referred for advice to the Islamic Council and the Council advises that the law is repugnant to the Injunctions of Islam, the Assembly or, as the case may be, the Council shall reconsider the law so made.'
' The plain reading of the above Constitutional provisions reveals that the Assembly or the Council, as the case may be, can refer a law proposed to be made to the Council of Islamic Ideology but all the same it can make such a law before receiving any advice and on receiving advice of the Council of Islamic Ideology in terms that the proposed law is repugnant to the Injunctions of Islam, the Assembly or the council, as the case may be, shall reconsider the laws so made. It has not been laid down in section 32 of the Interim Constitution Act that the advice of the Council of Islamic Ideology would be binding upon the Assembly or the Council; the only reconsideration of the disputed law is mandatory and not to act upon the advice of the Council of Islamic Ideology. Thus, it is spelled out from the combined reading of sections 31(5) and 32 of the Interim Constitution Act that a law framed after the promulgation of Interim Constitution Act which is repugnant to Qur'an and Sunnah would not be void; it is to be brought in conformity with Qur'an and Sunnah as has been laid down in the Shariat Court Act and the Shariat Act which contain detailed procedure.
Besides, in view of the provisions contained in section 10 of the Shariat Court Act and section 4 of the Shariat Act, the High Court or any other Court, except the Shariat Court, has no jurisdiction to declare a law as repugnant to Qur'an and Sunnah, with the exception of the limited powers which are available also to the High Court under the Shariat Act.
' There is yet another aspect of the matter. Can it be said that section 4 of the Shariat Act and section 10 of the Shariat Court Act are violative of the Constitutional provisions incorporated in section 31(5)? Even if it is assumed that such a jurisdiction vests in the High Court or in this Court, such a verdict cannot be given in the instant case because no challenge has been made to section 10 of the Shariat Court Act or section 4 of the Shariat Act in the writ petition; no such stand was taken by the respondents in the High Court at any stage; rather their case in the High Court was that the Regularisation Act was ultra vires to the Constitution as being violative of the Injunctions of Islam, the Fundamental Rights Nos.15 and 17 for the reasons which have been enumerated by Mr. Justice Basharat Ahmad Shaikh in the proposed judgment. It has never been the case of any of the parties in the High Court and even in this Court before the arguments that any of the provisions of the aforesaid statutes was void as being violative of section 31(5) of the Interim Constitution Act. Needless to say that vires of a statute cannot be challenged by side-wind; the same can be made subject of challenge only through appropriate proceeding in the competent forum. Until and unless that done, it cannot be said that section 10 of the Shariat Court Act or section 4 of the Shariat Act is not valid law as being violative of section 31(5) or any other provisions of the Interim Constitution Act. The above mentioned two statutes were promulgated with primary object of achieving the object of section 31(5) of the Interim Constitution Act as has been laid down in their permeable. Thus, I am unable to agree that the High Court has jurisdiction to declare a law as void being repugnant to Qur'an and Sunnah even after the promulgation of the aforesaid statutes. It may also be stated that while dealing with the question of violation of fundamental rights it has been specifically laid down in subsections (1) and (2) of section 4 of the Interim Constitution Act that law which takes away or abridges any of fundamental rights guaranteed by the Interim ' Constitution Act would be void but no such provisions has been made in case of violation of section 31(5) of the Interim Constitution Act. For appreciating the point, subsections (1) and (2) of section 4 of the Interim Constitution Act are reproduced as under:- Fundamental Rights.---(1) Any law or any custom or usage having the force of law, in so far as it is inconsistent with the rights conferred by this section, shall, to the extent of such inconsistency, be void.
(2) No law shall be made which takes away or abridges the rights so conferred and any law made in contravention of this subsection shall, to the extent of such contravention, be void.
(3) ..................................................................
(Underlining is mine)
' Thus, a law made in contravention of section 4(1) and (2) of the Interim Constitution Act can be declared as void by the High Court because the Constitution itself says that it would be void but no power is vested in the High Court to declare a law-repugnant to Qur'an and Sunnah, especially after the establishment of Shariat Court. It may be stated that both the Shariat Court Act and the Shariat Act empower the Shariat Court and in certain cases even the High Court to declare a law repugnant to Qur'an and Stinnah. Therefore, the High Court has no jurisdiction to declare a law as repugnant to Qur'an and Sunnah any more under section 31(5) of the Interim Constitution Act. It is correct that subsection (5) of section 31 of the Interim Constitution Act postulates that no law repugnant to Qur'an and Sunnah shall be made but at the same time if a law against Qur'an and Sunnah is made despite the said prohibition, it cannot be said that it is void; it would be valid law on statute book till it is amended according to the procedure laid down in the aforesaid two statutes.
' Under subsection (2) of section 44 before assuming the writ jurisdiction, the High Court has to satisfy itself that no other adequate remedy is available in the law for the redressal of the grievance of an aggrieved person. It cannot be said in view of the aforesaid two statutes which have been promulgated for fulfilling the purposes envisaged in section 31(5) of the Interim Constitution Act that other adequate remedy is not available for redressal of the grievance. Thus, the High Court has no jurisdiction for holding a law repugnant to Shariah in exercise of writ jurisdiction even on that score."
' In case reported as Raja Muhammad Niaz Khan v. Azad Government of the State of Jammu and Kashmir (PLD 1988 SC (AJK) 53), it was held that the High Court has no jurisdiction to declare a law as void in exercise of writ jurisdiction. It was further observed that the Supreme Court was not bound its previous decisions and can review its earlier judgments if the same are found to be incorrect. It was further observed that in view of the provisions contained in the Azad Jammu and Kashmir Shariat Court Ordinance, 1982, the provisions of the Civil Servants Act, 1976 cannot be struck down in exercise of writ jurisdiction because the matter fell within the ambit of jurisdiction of the Shariat Court and not of the High Court.
26. The respondents have controverted the arguments advanced by the learned counsel for the appellants and have argued that the High Court has the jurisdiction to strike down a law repugnant to the Injunctions of Islam, despite the fact that there is no such stipulation in the Constitution Act. It has been also argued on behalf of the respondents that the law which is against the Holy Qur'an and Sunnah can be ignored as a valid law on the statutes book. Following authorities have been relied upon by the respondents:- ' In case reported as Muhammad Ismail Qureshy v. Federal Government of Pakistan (PLD 1992 FSC 445), it has been observed that sections 3(2) and 19 of the Enforcement of Shari'ah, 1991 were invalid because the same curtailed the jurisdiction of the Federal Shariat Court when tested on the anvil of the Constitution made in Chapter 3-A of the Constitution of Pakistan. The said provisions can be challenged both on the ground of in conflict with the provisions of the Constitution and the Shari'ah. The above observations were made by the Federal Shariat Court while dealing with the Shariat petition filed before it under the relevant provisions of the Constitution. Obviously, the authority is not relevant to the case in hand.
' In case reported as Messrs Chenab Cement Product (Pvt.) Ltd. v. Banking Tribunal, Lahore (PLD 1996 Lah. 672), it has been observed that the mere fact that right of appeal under the Banking Tribunals Ordinance, 1984 was available to an aggrieved person does not debar the High Court to pass an appropriate order in exercise of writ jurisdiction under Article 199 of the Constitution of Pakistan if it is found that the proceedings before the Tribunal suffer from defect of jurisdiction or coram non judice or mala fide.
' In case reported as Nisar Ahmad v. The State (1982 PCr.LJ. 1287), while hearing an appeal against the judgment of the High Court, it has been observed that as standard of proof provided in Khumar Act, 1973 did not conform to the standard of proof recognized by Islam, the provisions of the Act being in conflict with section 34 of the Government Act, were liable to be ignored as being in conflict with Holy Qur'an and Sunnah. The reliance was placed upon a case reported as The Azad Jammu and Kashmir Government v. Kashmir Timber Corporation (PLD 1979 SC (AJ&K) 139) which was subsequently overruled in case reported as Raja Muhammad Niaz Khan v. Azad Government of the State of Jammu and Kashmir (PLD 1988 SC (AJK) 53).
' In case reported as Mian Aziz A. Sheikh v. The Commissioner of Income-Tax Investigation, Lahore (PLD 1989 SC 613), it has been held that under Article 227(1) of the Constitution of Pakistan all existing laws are to be brought in conformity with the Injunctionsof Islam and there is also command that no law shall be enacted which is repugnant to such injunctions. Thus, it was observed that prohibition contained in Article 227(2) does not apply to the legislative field yet in properly constituted proceedings a judgment or order of a Court or any functionary can be set at naught under Article 227(1) of the Constitution of Pakistan as well as under Article 2A of the Constitution read with Objectives Resolution. The relevant observations of the Court are as under:- "27. It is true that with regard to the statutory enactments Article 22 in its clause (2) commands that: effect shall be given to the aforediscussed negative command in clause (1), 'only in the manner provided in this part (Part IX)'. And, thus, it may be argued, it also applies to Statutory rules.
But, this prohibition in clause (2) of Article 227 does not apply to decisions by functionaries of State where in the judicial, quasi-judicial or other spheres involving exercise of judgment, as distinguished from exercise of law-making or statutory rule-making authority, they take decisions.
In other words whatever a decision is contained in any such judgment or any such functionary which lays down a rule of law or declares so as a rule of law the superior Courts, shall' be within their competence in a properly instituted proceedings to strike it down both under the general mandate contained in clause (1) of Article 227 as well as under Article 2A read with the Objectives Resolution."
' This authority of the Division Bench was considered by the Full Bench of the Supreme Court in case reported as Mst. Kaneez Fatima v. Wali Muhammad (PLD 1993 SC 901) and was not followed.
' In case reported as Pir Sabir Shah v. Shad Muhammad Khan, Member Provincial Assembly, N.- W.F.P. (PLD 1995 SC 66), it was observed that the provisions of section 8-B(2)(3) of Political Parties Act, 1962 being in conflict with Article 63 of the Constitution of Pakistan to the extent of forum which was Chief Election Commissioner in the Constitutional provisions, is ultra vires to the Constitution; the competent forum was Chief Election Commissioner to hear the references and dispose them of on merits.
' In case reported as Azad Government of the State of Jammu and Kashmir v. Kashmir Timber Corporation (PLD 1979 SC (AJ&K) 139), it has been held that a law which is found inconsistent to the teachings of Qur'an and Sunnah can be struck down by the Court in view of the provisions contained in section 31(5) of the Azad Jammu and Kashmir Interim Constitution Act, 1974.
27. We have given due consideration to the arguments advanced by the learned counsel for the parties. Some of the authorities relied upon on behalf of the respondents are not relevant to the proposition in hand for the simple reasons that according to said authorities, if a subordinate legislation is inconsistent with the Constitution, the same can be struck down. The said authorities do not specifically deal with the question as to whether a law which is repugnant to Shariah can be declared as void despite the fact that it has not been so visualised in the Constitution Act or Constitution of Pakistan, 1973. It may be stated here that Kashmir Timber Corporation's case relied upon by the respondents was subsequently overruled by this Court in Niaz's case, referred to above. The matter was again considered by this Court in Reference No,1 of 1998 and the view taken in Niaz's case was again reaffirmed. The relevant observations made in the reference are reproduced as under:- ' It follows from what has been stated above that this Court has been of the view that even before the establishment of the Shariat Court, the High Court had no jurisdiction to declare a law as void on the ground of being repugnant to Islam, as is evident from cases of Faqir Ali and Raja Niaz, referred to above. It may be observed here that a perusal of section 31(5) and section 32 of the Constitution Act would reveal that the laws, whether they were enacted before the promulgation of the Constitution Act or after, would remain as valid has until and unless the same are amended, altered or abrogated by the Legislature. The perusal of the Shariat Court Act also reveals that a law which is repugnant to the injunctions of Islam would remain a valid law and all the pending cases to be decided according to law as to stood on the statute book. It has been laid down in clauses
(a) and (b) of subsection (3) of section 6 of the Shariat Court Act that aft ;r the declaration by the Shariat Court that a law is repugnant to Islam, the President shall take steps to amend the law so as to bring the same in conformity with the injunctions of Islam; and that the previous law would cease to have effect on the date on which the decision of the Court takes effect and not prior to that. There are identical provisions in the Shari'ah Act, 1989 wherein it is stipulated in proviso to subsection (5) of section 4 that decision of the High Court declaring certain laws repugnant to Injunctions of Islam shall be effective after sixty days of the decision and this period may be extended. Similarly, section 32 of the Constitution Act stipulates that 1/3rd of the members of the Legislative Assembly or the Azad Jammu and Kashmir Council, as the case may be, may refer the question for advice to the Council of Islamic Ideology of Pakistan, as to whether the proposed laws is repugnant to the injunction of Islam; but under subsection (3) of section 32, the Legislative Assembly or the Council would not wait for the advice of the Council of Islamic Ideology but pass the relevant law and Promulgated the same. However, when any advice is received from the Council of Islamic Ideology, it may be considered by the Assembly or the Council. Here again there is no stipulation that the Azad Jammu and Kashmir Assembly or the Council is bound by the advice of the Council of Islamic Ideology or the law found to have been against the injunctions of Islam by the Council of Islamic Ideology, would be deemed void. It may also be observed that a separate Council of Islamic Ideology has been functioning in Azad Jammu and Kashmir under the Act of the Assembly since long; the said Council has been making recommendations with regard to the laws passed by the Azad Jammu and Kashmir Legislative Assembly and the Azad Jammu and Kashmir Council to bring various statutes in conformity with the injunctions of Islam; many of such recommendations regarding existing laws, whether they were made before the promulgation of Constitution Act or afterwards, have been amended and brought in conformity with the Injunctions of Islam. It is evident from what has been stated above that there is no provision in the Constitution Act which declares a law against the Injunctions of Islam as being void, as has been envisaged in case of inconsistency of a law with any of the fundamental rights. It follows from this that in view of the dictum of this Court referred to above, the High Court, even prior to the establishment of the Shariat Court, was not empowered to declare a law void on the ground of being violative of the Injunctions of Holy Qur'an and Sunnah. Therefore, it cannot be said that section 10 of the Shariat Court Act abridges or takes away the powers of the High Court or for that matter the Supreme Court to declare a law as being void because no such jurisdiction existed even prior to the promulgation of the Shariat Court Act. If any such power did not vest in the High Court even before the promulgation of the Shariat Court Act, there is no question of ' abridging' or 'taking away' any such power by the said Act."
' Similarly, as stated earlier, a Full Bench of the Supreme Court of Pakistan has taken an identical view in case reported as Mst. Kaneeza Fatima v. Wali Muhammad (PLD 1993 SC 901).
' It follows from what has been stated above that the High Court was not correct in holding that it had the powers to declare a law as void being repugnant to Injunctions of Islam which were taken away by enacting section 10 of the Shariat Court Act, 1993 because no such powers vested in the High Court before the enforcement of the Shariat Court Act.
28. The next question which was subject of controversy between the learned counsel for the parties at the Bar was as to whether in view of the provisions contained in section 42 of the Constitution Act, a Court other than the High Court can be empowered to hear appeals, revisions etc. Against the judgments, orders, decrees and sentences etc. Passed by a subordinate Court. It has been contended on behalf of the appellants that the High Court has committed an error in holding that the establishment of the Shariat Court is violative of the Constitution in view of the provisions contained in section 42 of the Constitution Act because the aforesaid provision visualises an appeal and revision etc. To the Supreme Court, only against a judgment, order and a decree of the High Court and not any other Court. In other words, according to the High Court, the establishment of any other Court, or for that matter the Shariat Court, is violative of the Constitution because there is no concept that orders and decrees etc. Passed by any such Court would be appealable to the Supreme Court. Has there been any concept of establishment of any other Court of the status equal to that of the High Court, there would have been provisions in the Constitution Act for filing appeals and revisions etc. Against the orders etc. Of such Court to the Supreme Court. The learned counsel for the appellants have vehemently controverted the findings of the High Court that section 42 of the Constitution Act creates an embargo on the powers of the Legislature to constitute a Court equal in status to that of the High Court making appeals etc. Competent to the Supreme Court instead of the High Court. It has been argued that while expressing the view that the establishment of the Shariat Court was also violative of section 42 of the Constitution Act, the High Court has ignored the fact that under subsection (2) of section 42, the jurisdiction of hearing appeals and revisions etc. Can also be conferred only on the Supreme Court by the subordinate legislation. The learned counsel have contended that the establishment of the Shariat Court does not take away or abridge the powers of the High Court to hear appeals and revisions etc. Against the judgments and orders etc. Passed by the Courts which were subordinate to it under law. It has been argued on behalf of the appellants that the orders and judgments etc. Passed by the Court of the Magistrates and Sessions Judges on the criminal side and similar orders etc. Passed by the Sub-Judges and District Judges on civil side are still appealable and revisable by the High Court where the said Courts have the jurisdiction to hear the matters under the subordinate legislation.
Under section 46 of the Constitution Act, the Courts, whether subordinate to the High Court or not, can be constituted and jurisdiction on such Courts can also be conferred by subordinate legislation; similarly, under section 44(1) of the Constitution Act, jurisdiction can also be conferred on the High Court by subordinate legislation. Needless to say that the jurisdiction which the High Court enjoys by virtue of subordinate legislation can also be validly taken by such legislation.
Therefore, it is not correct to say that jurisdiction to hear appeals etc. In all cases must vest in the High Court, because there is no concept of appeal to the Supreme Court under section 42 of the Constitution Act against the orders or judgments etc. Of any other forum. The learned counsel have further argued that if the powers to hear appeals and revisions etc. Against the orders of previously existing subordinate forums is taken away and given to the Shariat Court or for that matter to any other Court, that could be regarded as violation of section 42 of the Constitution Act. Similarly, when the said subordinate forums have been deprived of hearing the suits etc. Or holding the trials by subordinate legislation, i,e,, by amending A.P.C., Cr.P.C. And other statutes that would not militate against the Constitution Act. The learned counsel have contended that if the interpretation placed on the provisions of section 42 of the Constitution Act by the High Court is accepted, that would be violative of subsection (1) of section 44 of the Constitution Act which says that the High Court has the jurisdiction conferred by the Constitution Act or by any other law. Similarly, that would also render subsection (2) of section 42 of the Constitution Act redundant, because the jurisdiction on the Supreme Court can also be conferred by any other law, Obviously, the combined reading of the aforesaid provisions of Constitution Act would reveal that the jurisdiction to hear appeals and revisions etc. By the High Court and the Supreme Court can be conferred and taken away by the subordinate legislation, as has been done after the establishment of the Shariat Court. If the High Court has the jurisdiction to try an offence itself or hear the appeals and revisions etc. Against the orders of subordinate Courts under the provision of the Constitution Act, it shall continue to exercise such jurisdiction but not in the cases where the jurisdiction was conferred by the subordinate legislation and it was taken away by law. If the jurisdiction of the High Court has been taken away by the subordinate law by the Legislature, there is no question of abridging or taking away. The Constitutional jurisdiction of the High Court or for that matter the violation of the provisions of the bonstitution Act contained in section 44 of the Constitution Act. The learned counsel have further argued that there is no provision in the Constitution Act that in case of punishment of death, the appeal shall lie only to the High Court and not to any other Court. Thus, the learned counsel have argued that the view taken by the High Court that the provisions contained in section 46(2) and (3) of the Constitution Act put an embargo on the power of the Legislature to constitute special Court or for that matter the Shariat Court under section 46 of the Interim Constitution Act has no substance. The learned counsel for the appellants have argued that the interpretation of the High Court runs counter to the phraseology employed in sections 42(2) and 44(1) of the Constitution Act. The learned counsel have relied upon the abovementioned authorities which deals with the interpretation of the statutes and have been already discussed.
29. In reply, the arguments advanced on behalf of the appellants have been controverted. It has been contended that as there is no concept of an appeal under section 42 of the Constitution Act to the Supreme Court, except against an order and a judgment of the High Court, the establishment of the Shariat Court and investing it with the power of hearing appeals etc. Against the orders of the Tehsil Criminal Courts, District Criminal Courts and the Family Courts is violative of the Constitution Act; because an appeal against an order and judgment etc. Of the Shariat Court would lie to the Supreme Court which has not been envisaged by the Constitution Act. The respondents have submitted that subsection (2) of section 42 and subsection (1) of section 44 of the Constitution Act merely imply that the powers of hearing appeals and revisions etc. Can be conferred only within the parameters of the Constitution Act and not otherwise.
' According to the respondents, the aforesaid provisions do not envisage the establishment of a Court against whose order etc., an appeal would be competent to the Court other than the High Court, including the Supreme Court. The respondents have further submitted that under section 42 of the Constitution Act, an appeal with leave is competent only against the orders and judgments of the High Courts and not against any other Court or for that matter the Shariat Court. The respondents have referred to the following authorities in support of their contentions:- ' In case reported as Commissioner of Income-Tax, Lahore v. Lamar Saigol (PLD 1975 Lah 1558), it has been observed that under section 66-A(2) of the Income-tax Act, 1922, an appeal from a reference under the Income-Tax law is not covered by any of the conditions mentioned in Article 185(2) of the Constitution of Pakistan, 1973. Thus, an appeal to the Supreme Court from a judgment, decree, order or sentence of the High Court, in a case to which clause (2) does not apply, shall lie only if the Supreme Court grants leave to appeal. It was further observed that since an appeal of the kind referred to in section 66-A(2) of the Income Tax Act can only be preferred under Article 185(3) of the Constitution, it can be entertained only if the Supreme Court grants leave to appeal.
' In case reported as Commissioner of Income-Tax, Muzaffarabad v. Messrs United Builders Corporation (1985 CLC 1102), it has been observed that under section 137 of the Income Tax Ordinance, 1979, an appeal to the Supreme Court shall be valid only if special leave to appeal is granted under subsection (12) of section 42 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, if such a jurisdiction has not been conferred under any other law as visualised under subsection (12) of section 42.
30. We have given due consideration to the point raised at the Bar and we' have come to the conclusion that if the contention of the respondents in support of the findings of the High Court that the establishment of the Shariat Court. Is violative of section 42 of the Constitution Act because there is no concept of filing an appeal or petition for leave to appeal to the Supreme Court against an order and judgment except that of the High Court is accepted, then the provisions contained in subsection (2) of section 42 and subsection (1) of section 44 of the Constitution Act would be rendered nugatory. The aforesaid provisions clearly envisage that apart from the jurisdiction which the High Court and the Supreme Court enjoy under the Constitution Act, the jurisdiction can be conferred upon the said Courts by any other law'. In other words, the jurisdiction of the aforesaid two Courts can be validly conferred by any other law', if it does not offend against the Constitution Act. Thus, if a special Court or for that matter the Shariat Court can be legally constituted under section 46 of the Constitution Act, there is no reason why the jurisdiction to hear appeals and revisions etc. Cannot be conferred on such Court by subordinate legislation when the aforesaid Constitutional provision authorises so. Similarly, if the jurisdiction on Shariat Court or for that matter any other Court can be duly conferred by subordinate legislation, there is no reason to hold that appeals and revisions etc. Against the orders of such Court could be competent only to the High Court and not to the Supreme Court. It is nowhere laid down in the Constitution Act that a special Court can only be established if an appeal or revision etc. Against its order and judgment is made competent only to the High Court and not to any other forum including the Supreme Court. Such an embargo on the powers of the Legislature would amount to subversion of the Constitutional provisions which empower the Legislature to confer jurisdiction including appellate and revisional jurisdiction on the High Court as well on the Supreme Court by subordinate legislation. Thus, we are unable to subscribe to the view taken by the High Court that the establishment of the Shariat Court is violative of the Constitutional provisions contained in section 42 of the Constitution Act because the aforesaid provision does not envisage and appeal against the judgment or order etc., except that of High Court.
31. Next we advert to the question as to whether the impugned Ordinance promulgated on 16-10- 1997, whereby section 3 of the Shariat Court Act was amended, was void as having been issued in violation of sections 41, 42(12) and 46 of the Constitution Act and that the same was promulgated with ulterior motives and, thus, having been actuated by mala fides, was a void piece of legislation.
The learned counsel for the appellants have argued that the High Court has tried to create a link between the Ordinance issued on 20-5-1997 and the impugned Ordinance dated 16-10-1997. It has been contended that the President is competent to promulgate an Ordinance under section 41 of the Constitution Act, withdraw it, amend it or re-enact it; he is competent to promulgate a fresh Ordinance during the existence of the previous one or after its lapse. It has been emphatically stressed that no embargo can be placed on the powers of the President in terms that as the relevant authorities had failed to table the Ordinance dated 20-5-1997 for the approval of the Assembly, the impugned Ordinance dated 16-10-1997 could not be promulgated by the President.
The learned counsel have further argued that it is not incumbent upon the authorities to table an Ordinance as a Bill on the floor of the Assembly for its approval within four months; the same can be re-enacted and promulgated in more than one eventualities. They have argued that there is ample authorities in support of the proposition that the word 'shall' appearing in section 41 of the Constitution Act is to be read as 'may' and it was not necessary for the Government to table the Ordinance dated 20-5-1997 for the approval of the Assembly without fail. The learned counsel have argued that the point that the impugned Ordinance dated 16-10-1997 was not presented to the Cabinet for approval and, thus, the same being violative of rules 32 and 34 of the Rules of Business, was not taken in any of the writ petitions. Thus, the point could not be legally considered while dealing with the question of the constitutionality of the said Ordinance. The learned counsel have argued that a point not raised in the pleadings or for that matter in the writ petition, cannot be relied upon in writ proceedings or for that matter in any civil proceedings. It has been further contended that even if it is assumed for the sake of argument that such a point could be raised or that there was any violation of rules, an Ordinance cannot be held violative of the Constitution; no Act or Ordinance can be held as violative of the Constitution or illegal merely because the rules of procedure in promulgating an Ordinance or for tabling an Ordinance for approval before the Assembly were not complied with. It has been argued that rules 32 and 34 of the Rules of Business are directory in nature and their violation is of no legal consequence. The learned counsel have further submitted that even if it is assumed for the sake of argument that there is any material in support of the allegation that the impugned Ordinance was mala fide because the same was promulgated with the connivance of the Law Department, the Prime Minister and the President, that does not furnish a valid ground for holding that promulgation of the impugned Ordinance was violative of the Constitution Act because an Ordinance or an Act cannot be challenged by attributing mala fides to the Legislature or. The President. The learned counsel have cited following authorities in support of their contentions:-- ' In case reported as Raja Muhammad Niaz Khan v. Azad Government of the State of Jammu and Kashmir (PLD 1988 SC (AJ&K) 53), while dealing with the question of power of President to promulgate an Ordinance and the question of mala fide etc. It has been observed as under:- "29. The close reading of the section would show that an Ordinance promulgated under this section shall have the same force and effect as an Act of the Assembly and such an Ordinance shall be subject to like restrictions as the power of the Assembly to make laws; and secondly, an Ordinance promulgated is required to be laid before the Assembly within four months if so is not done it shall automatically stand repealed at the expiration of four months from the promulgation or before expiration of that period a resolution disapproving it is passed by the Assembly, upon the passing of that resolution. An Ordinance, however, can be withdrawn at any time by the President. It is, thus, manifest that under section 41 of the Constitution Act, there is no embargo on the powers of the President to make and promulgate an Ordinance and re-enact the same after four months on the same subject. However, since the Ordinance ceases to be the law of the land after four months, giving continuity to such an Ordinance, which, by fiction, may be construed to be a dead law, by a fresh Ordinance may not be permissible under section 41 of the Constitution Act; but we are sure that for the re-enactment of the Ordinance no impediment is created. No word appears in section 41 of the Constitution Act creating any such restriction on the President to re-enact an Ordinance on the subject if we hold otherwise, it would amount to import phraseology in section 41 of the Constitution Act which would be nugatory to the intention of law-giver. Such a method is not permissible. Therefore, since under section 41 of the Constitution Act, in the event the Assembly is not in session, the President can validly re-enact an Ordinance, it would not be permissible for any Court to import words in the Constitution to create any artificial embargo on the powers of the President except the one stipulated under section 41 of the Constitution Act. If we do so, it may be interpreted as an amendment in the Constitution Act which is beyond the province of this Court.
In Tirathmal v. The State (PLD 1959 Karachi 594), their Lordships have indicated that there is no bar to the re-enactment of the provisions of an Ordinance. It has been observed in that case:- ' 'My reply to the question framed is that there is no bar to the reenactment of the provisions of an Ordinance though, there is a technical bar to an Ordinance making provisions for continuing the life of an expiring Ordinance'
30. It appears that the word 'shall' employed under section 41 is not mandatory in nature. It is directory in the context it is used. It is used in the context of placing the Ordinance before the Assembly for its approval or making it an Act of the Assembly. If it is not placed before the Assembly the Ordinance will cease to have legal effect after four months. The word. 'shall' is used in this context only. Thus, the word 'shall' in the context it is used is not mandatory; it is directory in nature. It is the will of the Government to place the Ordinance before the Assembly within four months or allow it to be repealed by operation of law.
35. In view of the wording of section 41 of the Constitution Act, we are even of the view that even where the session of the Legislative Assembly is prorogued deliberately with a view to enabling the President to promulgate the Ordinance, it is a valid act of the President and this exercise of the powers of the President cannot be called fraudulent or mala fide because under the Constitution Act it is within the powers of the President to prorogue the Legislature at any time he pleases. There is, therefore, nothing wrong in the President's proroguing the Assembly with a view to enable him to issue an Ordinance under section 41 of the Constitution Act. The reason seems to be this. The Legislature, which is democratically constituted is, at times, slow to move in the matter of legislation, having regard to the rules of procedure laid down in that behalf, and if urgent action is necessary at any rate, the President, after having the advice of the Prime Minister, if he has reasons to believe that immediate action is necessary, may resort to the power of issuing an Ordinance under section 41 of the Constitution Act, rather than approach the Legislature for the necessary legislation. A case reported as Re: K. Veerabhadrayya (AIR 1950 Mad. 432), is an authority on the point."
' In case reported as Pir Sabir Shah v. Shad Muhammad Khan, Member Provincial Assembly. N.- W.F.P. (PLD 1995 SC 66), while dealing with the question as to whether an Ordinance can be assailed as being mala fide, it has been held that while promulgating an Ordinance, the President acts as Legislature and, thus, the Ordinance issued by him cannot be challenged on the basis that the same was mala fide. The following observations were made by the Supreme Court of Pakistan:- ' "In the Constitution of 1956 a similar provision authorising the President to promulgate Ordinances while the National Assembly was not in session or stood dissolved, was described in the marginal note as the 'Legislative Power of the President' The fact that in the marginal note of Article 89 of the Constitution of 1973 the power of the President to Promulgate Ordinances is not stated to be a degislative power or that the President promulgates an Ordinance on the advice of the Prime Minister under the scheme of the Constitution of 1973, cannot lead to the conclusion that the power exercised by the President to promulgate Ordinances under Article 89 of the Constitution of 1973 is not.a legislative power but an executive action. It cannot be disputed than an Ordinance promulgated by the President under Article 89 of the Constitution of 1973 cannot be struck down under Article 199 of the Constitution of 1973 on the ground that the President while promulgating the Ordinance acted malafidely or there was lack of bona fides in exercise of this power. The Ordinance promulgated by the President can be attacked only on the ground of being repugnant, either to the fundamental rights or any of the provisions of the Constitution of 1973. I am, therefore, of the view that the power of the President to promulgate an Ordinance conferred under Article 89 of the Constitution of 1973 is a legislative power and not an executive fiat."
' In case reported as Azad Government of the State of Jammu and Kashmir v. Brig. Muhammad Aslam Khan (PLD 1981 Azad J&K 71), it was held that the subordinate civil Courts and superior Courts possess the jurisdiction to go into the vires of a statute on the ground that the same was violative of any Constitutional provision and was void but the vires of a law cannot be challenged on the ground that the legislation was enacted with mala tide intention.
' So far as the opinion of the High Court that the impugned Ordinance was violative of the Constitution is concerned, the learned counsel for the appellants have opposed it by repeating the same arguments which they have advanced with regard to the valid establishment of the Shariat Court as has been indicated in the earlier part of the judgment.
32. The respondents, more or less, repeated the same arguments which have been advanced in support of their contentions that the establishment of the Shariat Court was violative of sections 42 and 46 of the Constitution Act.
33. We have given due consideration to the matter. It may be stated that while promulgating an Ordinance, the President acts as Legislature as has been held by the Supreme Court of Pakistan and this Court in the authorities, referred to above. Thus, no Ordinance can be assailed by attributing malice to the Government or the President. Therefore, the challenge to the Ordinance dated 16-10-1997 is of no legal consequence and the matter ends there. The High Court has opined that before promulgating the Ordinance dated 16-10-1997, the procedure envisaged under rules 32 and 34 of the Rules of Business was not complied with. It may be stated that the Ordinance was not challenged on the basis of its being violative of Rules of Business. In the writ petition filed by Shahid Bahar, rule 34 has been mentioned only in reference to Ordinance dated 20-5-1997 which does not hold the field any more and is not subject of controversy. However, it may be pointed out that the impugned Ordinance was promulgated merely to effect an amendment in section 3 of the Shariat Court Act, 1993 and, thus, it was not necessary to get the approval of the Cabinet as has been envisaged in proviso to sub-rule (1) of rule 12 of the rules of Business. Even if it is assumed for the sake of argument that there was any violation of the aforesaid rules, that would not invalidate the promulgation of the Ordinance. The rules of procedure which are to be followed before the promulgation of the Ordinance or before tabling a Bill in the Assembly cannot be made basis for holding an Ordinance or Act of the Assembly as void as being violative of the rules of Business.
Such rules are directory in nature and are meant only to achieve the purpose of the Constitution Act and do not detract from the validity of the relevant law. It may also be observed here that the impugned Ordinance dated 16-10-1997 was not assailed on the ground of non-compliance of any rule and, thus, this fact could not be legally taken into consideration by the High Court while dealing with the constitutionality of the Ordinance.
34. So far as the violation of sections 41, 42(12) and 46 of the Constitution Act is concerned, it had already been held in the earlier part of this judgment that the establishment of the Shariat Court or for that matter the Shariat Court Act does not militate against the Constitution Act and, thus, there is no question that any subsequent piece of legislation which brings an amendment in any of its provisions can be regarded as unconstitutional on the grounds which were not accepted as valid in case of the main legislation. We are constrained to remark that the view taken by the High Court that the impugned Ordinance was violative of the Constitution was based on the grounds which are not valid as is evident from the authorities discussed above. It may be observed that no authority has been cited in support of the view that an Ordinance or a statute can be struck down on the ground of mala fide or that the same was promulgated or enacted without complying the rules of procedure which are directory in nature.
35. Next, it has been argued on behalf of the appellants that the High Court was not legally justified to declare the appointments of Sardar Muhammad Nawaz Khan and Mr. Iftikhar Hussain Butt, appellants herein, as Judges of the Shariat Court illegal or violative of the Constitution Act. The learned counsel for the appellants have argued that according to the impugned judgment, the appointments of the said appellants have been challenged in the writ petition entitled Genuine Rights Commission and others v. Iftikhar Hussain Butt and others (Writ Petition No,448 of 1997), whereas a perusal of the writ petition shows that the same were indirectly challenged in the writ petition filed by Shahid Bahar, Advocate. He sought a writ of prohibition against the said appellants in terms that they should not act as Judges of the Shariat Court. There is no challenge to the notification of appointments of the aforesaid two appellants. The learned counsel have argued that even if it is assumed for the sake of argument that the appointments of the aforesaid appellants as Judges of the Shariat Court were specifically challenged in any of the writ petitions, there was no ground whatsoever to declare their appointments as illegal on the ground that the Chief Justices of the Supreme Court and the High Court were not consulted or that they should have been appointed on the recommendations of the Public Service Commission or by any Selection Board. It has been contended that under section 3 of the Shariat Court Act, the Judges of the Shariat Court are to be appointed by the President, there is no stipulation of any such consultation. It has been argued that the conditions for the appointments of the Judges of the Shariat Court not envisaged in the relevant statute, i,e,, Shariat Court Act, cannot be read into it; how the appointments of the Judges of the Shariat Court should have been made on the recommendations of the Public Service Commission or any Selection Board when the relevant law does not stipulate so. The learned counsel have argued that it is well-settled law that if a special statute prescribes the mode of the appointment of certain officials, the' application of general law would stand ousted. Thus, it has been contended on behalf of the appellants that the Civil Servants Act which is a general law governing the terms and conditions etc. Of the civil servants has no nexus with the appointment of Judges of the Shariat Court. The learned counsel for the appellants have also argued that before the enforcement of the Constitution Act, 1974, the Judge of the High Court were firstly appointed under section 5(2) of the Courts and Laws Code, 1949 and thereafter, under section 25 of the Azad Jammu and Kashmir Government Act, 1970 without any consultation with the Chief Justice of the High Court or the recommendations of the Public Service Commission or a Selection Board. The condition with regard to the consultation of the Chief Justice of the Supreme Court and the High Court before the appointments of Judges of the High Court or the Supreme Court was for the first time introduced by the Constitution Act, 1974. Thus, the learned counsel have argued that the aforesaid view taken by the High Court is not supported by law. It has been further argued on behalf of the appellants that the High Court was also not justified in relying upon the case reported as Raja Bashir Ahmad Khan, Chairman Service Tribunal, AJ&K, Muzaffarabad v. President Azad Jammu and Kashmir (1997 CLC 380) wherein it was held that a Judge of the Shariat Court or for that matter any other Court cannot be given the pay and privileges which are enjoyed by a Judge of the High Court. According to the learned cqunsel, the aforesaid judgment was overruled by the Full Bench of the High Court which is evident from the separate note of one of the members of the concerned Bench who, while relying on the dictum of the Full Bench, has opined that legally the pay, pension and other privileges enjoyed by a Judge of the High Court can be given to a Judge of any other Court or for that matter any other Government functionary. The learned counsel have argued that it cannot be easily explained as to how the members of the same Bench expressed different views in presence of the judgment of the Full Bench. The learned counsel have argued that in presence of the view of the Full Bench, the view of the Division Bench has no persuasive value as is evident from the High Court Procedure Rules, 1984.
The learned counsel have further argued that the High Court sent for the relevant file of the appointment of the appellants after the arguments had already been heard and without any notice and knowledge of the appellants. It has been contended that the said record was never confronted to the appellants or their counsel and, thus, they were condemned unheard; even otherwise, there was no averment in any of the writ petitions that the appointments of the aforesaid appellants was illegal because the proper-procedure was not followed before appointing them as the Judges of the Shariat Court. The learned counsel have maintained that the High Court travelled beyond its jurisdiction to express the view that as according to the said file, the meeting held by the Prime Minister for finalising the aforesaid appointments was also attended by a member of the Legislative Assembly, the appointments appear to have been motivated by political consideration. The learned counsel have argued that the observation made by the High Court was not justified because there was no material support of the said inference against the concerned member. The learned counsel have also argued that the contents of the aforesaid file pertaining to the appointments of the Judges of the Shariat Court do not furnish a valid ground for declaring the said appointments as illegal; the views of the authorities on noting side are not a legal evidence, because once the appointment is made by the competent Authority according to law the said view do not remain relevant. The learned counsel have further submitted that the grounds on which the said appointment have been nullified are also not sustainable because the point which has not been positively raised in the writ petition, evidence on such a point cannot be considered. The learned counsel have referred to a case reported as Miss Asma Jilani v. The Government of the Punjab (PLD 1972 SC 139), wherein it has been observed that the Courts do not decide abstract hypothetical or contingent questions or give mere declaration in the air. The Courts should refrain to enter upon purely academic exercise to pronounce upon hypothetical questions. It was further observed that the Courts' judicial function is to adjudicate upon real and present controversy which is formally raised before it by a litigant. If a litigant does not choose to raise a question, however, important it might be, it is not for the Court to raise it suo motu.
36. In reply, it has been contended on behalf of the respondents that if the Ordinance dated 16-10- 1997 is found to be violative of law, then the appointments of the aforesaid appellants automatically become illegal. It has been further contended that the High Court was correct in observing that if the same pay, pension and other privileges are admissible to the Judges of the Shariat Court, their mode of appointment should be the same as has been prescribed for the Judges of the High Court. The Arguments advanced on behalf of the respondents which were given against the validity of the Ordinance promulgated on 16-10-1997 were repeated.
37. We have given the due consideration to the matter. It may be observed' that there is no question of appointments of Judges of the Shariat Court through Public Service Commission or any Selection Board. It hardly needs any argument that the power of appointment of the Judges of the Shariat Court vests in the President under section 3 of the Shariat Court Act, 1993. The aforesaid provision does not visualise any particular procedure and no law has been cited in support of the view that the consultation of the Chief Justices of the Supreme Court and the High Court was required before appointing the aforesaid appellants as Judges of the Shariat Court. It may be observed that the provisions of the special Act, i,e, the Shariat Court Act, would oust the application of the provisions contained in the Civil Servants Act or any law which deals with the appointments of the persons who perform functions in connection with the settled principle of law that when a particular situation is covered by a special enactment, the provisions contained in a general statute stand ousted. Therefore, the contentions of the learned counsel for the appellants that the High Court has committed an error in holding that the appointments of the aforesaid appellants as judges of the Shariat Court should have been made after the consultation of the Chief Justices of the Supreme Court and the High Court or on the recommendations of the Public Service Commission or any Selection Board is correct. We are of the view that the High Court has committed a grave illegality by sending for the file pertaining to the appointments of the aforesaid appellants after hearing the arguments in the writ petitions and by drawing certain inferences against them, without hearing them; the contents of the said file were not a legal evidence against the appellants, especially so when the same was sent for behind their back and they were not confronted with the grounds which weighed with the High Court for annulling their appointments.
We also agree with the learned counsel for the appellants that the mere fact that an Assembly member was present in the meeting in which the matter with regard to the appointment of the Judges of the Shariat Court was discussed, does not justify the inference that the appointment of the appellants as Judges of the Shariat Court was politically. Motivated; such a far-fetched inference cannot be legally drawn even if the presence of the member of the Assembly could be regarded as a relevant factor in the context of the appointments of the aforesaid appellants.
Therefore, we disapprove the comments made by the High Court in the impugned judgment with regard to the alleged part attributed to the concerned member of the Assembly by the High Court and annul the inference drawn. As has been indicated above, the High Court was not legally competent to travel beyond the scope of the writ petitions and decide the matters which were not directly made subject of issue in the writ petitions and, that too, on the grounds which find no mention in any of the writ petitions.
38. The next question which was assailed by the learned counsel for the appellants was that the High Court was not legally justified in opining that before making a law, the recommendations of the Council of Islamic Ideology of Pakistan, referred to in section 32 of the Constitution Act or the Council of Islamic Ideology of Azad Jammu and Kashmir which has been established under the Act known as the Council of Islamic Ideology (Constitution) Act, were necessary. It has been argued that in none of the provisions in the relevant statutes, make the previous advice of the Council of the Islamic Ideology a condition precedent for the enactment or the enforcement of a statute. The learned counsel have drawn our attention to section 32 of the Constitution Act and section 5 of the Council of Islamic Ideology (Constitution) Act in support of their contentions. The learned counsel have also argued that a wrong inference has been drawn by the High Court that any recommendation was made by the Council of Islamic Ideology of Azad Jammu and Kashmir in terms that separate existence of the Shariat Court was violative of the Shariah. The learned counsel have argued that in fact a query was by the Prime Minister from the Council, stating that the question of the appointments of some 'Ulama' in the Supreme Court and High Court as Judges was under consideration; it was inquired from the Council of Islamic Ideology whether in the aforesaid eventuality nonexistence of the Shariat Court would be against the Injunctions of Islam. In response to the aforesaid query, the Council of Islamic Ideology opined that if Ulama' of Islamic Jurisprudence are appointed in the High Court and the Supreme Court for hearing the matters pertaining to Shariah, non-existence of the Shariat Court would not be violative of the Injunctions of the Holy Qur'an and Sunnah. The learned counsel for the appellants have contended that the said answer made in pursuance of the query made by the Prime Minister cannot be interpreted to mean that any recommendation was made by the Council of Islamic Ideology that separate existence of the Shariat Court is against the Holy Qur'an and Sunnah.
39. We have given due consideration to the matter. It may be stated that the question before the High Court in the writ petitions was as to whether the establishment of the Shariat Court was violative of the Constitution and not whether the same was violative of Holy Qur'an and Sunnah.
Even otherwise, answer given by the Council of Islamic Ideology was altogether in a different context and does not warrant the inference drawn by the High Court. The High Court was also wrong in holding that the recommendations made by the Council of Islamic Ideology were binding on the Government or the Assembly. The relevant provisions contained in section 32 of the Constitution Act and section 5 of the Council of Islamic Ideology (Constitution) Act are reproduced as under:- ' Section 32 of the Constitution Act:-- ' "Reference to Council of Islamic Ideology.---(1) If one-third of the total number of members of the Assembly or, as the case may be, the Council so requires, the Assembly or as the case may be the Council shall refer to the Council of Islamic Ideology constituted under the Constitution of the Islamic Republic of Pakistan (hereinafter referred to as the Islamic Council) for advice any question as to whether a proposed law is or is not repugnant to the Injunctions of Islam.
(2) When a question is referred by the Assembly or, as the case may be, the Council to the Islamic Council, the Islamic Council shall, within fifteen days thereof, inform the Assembly or, as the case may be, the Council of the period within which the Council expects to be able to furnish that advice.
(3) Where the Assembly or, as the case may be, the Council Considers that in the public interest, the making of the proposed law in relation to which the question arose should not be postponed untill the advice of the Islamic Council is furnished, the law may be made before the advice furnished: Provided that, where a law is referred for advice to the Islamic Council and the Council advises that the law is repugnant to the Injunctions of Islam, the Assembly or, as the case may be, the Council shall reconsider the law so made."
' Section 5 Council of Islamic Ideology (Constitution) Act:-- "Functions of the Islamic Council.---(1) The functions of the Islamic Council shall be----
(a) to make recommendations to the Government, the Assembly and the Council as to the ways and means of enabling and encouraging the Muslims of Azad Jammu and Kashmir to order their lives individually and collectively in all respects in accordance with the principle and concepts of Islam as enunciated in the Holy Qur'an and Sunnah;
(b) to advise the Assembly, the Council, to President or the Government on any question referred to the Islamic Council as to whether the proposed law is or is not repugnant to the Injunctions of Islam;
(c) to make recommendations as to the measure for bringing existing laws into conformity with the Injunctions of Islam and the stages by which such measures should be brought into effect; and
(d) to compile in a suitable form, for guidance of the Assembly, the Council, the President and the Government, such Injunctions of Islam as can be given legislative effect.
(2) When under section 4, a question is referred by the President, to the Islamic Council, the Islamic Council shall, within fifteen days thereof, inform the President, of the period within which the Islamic Council expects to be able to furnish the advice.
(3) Where the President or the governments, as the case may be, considers that in the public interest, the making of the proposed law in relation to which the question arose should not be postponed until the advice of the Islamic Council is furnished, the law may be made before the advice is furnished: ' Provided that, where a law is referred for advice to the Islamic Council and the Council advises that the law is repugnant to the Injunctions of Islam, the Assembly or, as the case may be, the Council shall reconsider the law so made.
(4) The Islamic Council shall submit its final report within three years of its appointment, and shall also submit an annual interim report."
' Evidently, the recommendations of the Council of Islamic Ideology of Pakistan of Azad Jammu and Kashmir are not binding on the Government or the N Assembly. However, in the instant case, no recommendation was made by the Council that separate existence of the Shariat Court was against the Injunctions of Islam. The relevant extracts of the report of the Council, referred to by the High Court are reproduced below:- {{URDU TEXT}} (underlining is ours)
' It is evident from what has been stated above that the High Court was also incorrect in holding that there was any recommendation of the Council of Islamic Ideology whereby it was recommended that separate existence of the Shariat Court was violative of the Holy Qur'an and Sunnah.
40. In has been argued on behalf of the appellants that the High Court was not correct in holding that the opinion given by this Court in Reference No,1 of 1998, made by the President, was not binding on it because under section 46-A of the Constitution Act an 'opinion' is given on a question of law on a reference made by the President while under section 42-B of the Constitution Act, a law point is 'decided'. In other words, a distinction has been drawn by the High Court between the 'opinion' and 'decision' on a law point. The learned counsel have contended that the distinction drawn between the words. Decision' and ' opinion' on a law point is artificial. It has been contended that the opinion in a reference is equally binding on all the Courts as a decision envisaged under section 42 of the Constitution Act. The learned counsel have referred to a case reported as In re: The Special Courts Bill, 1978, Special Reference No,1 of the1978 (AIR 1979 SC 478), wherein is has been held that an 'opinion' expressed by the Supreme Court in a reference is binding on all the Courts as is a ' decision' in a case. The learned counsel have stressed that the High Court has committed an illegality by not following the dictum of this Court given in Reference No,1 of 1998.
41. In reply, it has been contended on behalf of the respondents that there is a marked difference between the 'opinion' given on a law point under section 46-A and a 'decision' envisaged under section 42-B of the Constitution Act. It has been contended that a 'decision' on a law point between the parties is binding on all the Courts in the State but it is not so in case of an 'opinion' given under section 46-A of the Constitution. The respondents have referred to the following authorities in support of their contentions:-- ' In case reported as Reference No,1 of 1991 made by the President, Azad Jammu and Kashmir (PLD 1991 SC (AJ&K) 63), it has been held by a single Bench of this Court while dealing with the question of interim relief that the same cannot be granted in proceedings under section 46-A, inter alia, on the ground that the word 'opinion' used in the said provisions is in contrast to word ' decision' used in section 42-B of the Constitution Act. It may be observed that the question whether an ' opinion' was binding on the Courts like a 'decision' was not in issue in that case.
' In case reported as Supreme Court Advocates-on-Record Association v. Union of India (AIR 1994 SC 268), the question with regard to the appointment of Judges of the superior Courts with the consultation of the Chief Justices of Supreme Court and High Courts was considered. It was observed with reference to Article 141 of the Indian Constitution that the rule of stare decisis was not an inflexible rule and was not relevant to the Constitutional cases. It was further observed that in cases involving vital Constitutional issues, the Supreme Court must feel free to bring its opinions into agreement with experience and with the facts newly ascertained and that an opinion on a reference to a larger Bench on the question of law was of tentative nature and was open to conviction concerning the questions answered. This authority does not deal with the reference by the President which is dealt with under Article 143 of the Indian Constitution and, thug, has no relevancy to the case in hand.
' In case reported as Special Reference No,1 of 1991, dated 22-11-1991 in the matter of: Cauvery Water Disputes Tribunal (AIR 1992 SC 522), it was observed that an opinion expressed in a reference was entitled to due weight and respect and normally it would be followed. However, it was observed that the aforesaid view which held the field may be followed until and unless the same was re- examined at some opportune time. The relevant observations made in paragraph 31 of the judgment is as under:-- "31. Before concluding we may add that the question whether the opinion given by this Court on a Presidential Reference under Article 143 of the Constitution such as the present one is binding on all Courts. Was debated before us for a considerable length of time. We are, however, of the view that we need not record our opinion on the said question firstly, because the question does not form part of the Reference and secondly, any opinion we may express on it would again be advisory in nature. We will, therefore, leave the matter where it stands. It has been held adjudicatively that the advisory opinion is entitled to due weight and respect and normally it will be followed. We feel that the said view which holds the field today may usefully continue to do so till a more opportune time."
42. We have given due consideration to the matter. In the authorities cited by the respondents, the question as to whether an 'opinion' expressed in response to a reference made by the President is binding on all other Courts or not, was not involved, except in case from Indian jurisdiction which is reported as Special Reference No,1 of 1991, dated 22-11-1991 In the matter of: Cauvery Water Water Disputes Tribunal (AIR 1992 SC 522), wherein the point has been left undecided as is evident from the abovementioned paragraph of the judgment.
43. The perusal of the case reported as In re The Special Courts Bill, 1978, Special Reference No,1 of 1978 (AIR 1979 SC 478) shows that there has been a difference of opinion amongst the judicial authorities in India on the point as to whether the opinion on a law point given on a reference was binding or not. However, finally, the matter has been resolved in terms that an opinion given by the Supreme Court on a law point in response to a Presidential Reference under Article 143 of the Indian Constitution is binding upon all the Courts in India until and unless the same is changed by the Supreme Court in some subsequent proceedings.
' For elucidating the matter further, section 42-B of the Constitution Act and Article 143 of the Indian Constitution are reproduced below:- ' Section 46-A of the Constitution Act:- ' "Advisorsy iurisdiction.---(1) If, at any time, the Chairman of the Council or the President desires to obtain the opinion of the Supreme Court of Azad Jammu and Kashmir on any question of law which he considers of public importance, he may refer the question to the Supreme Court of Azad Jammu and Kashmir for consideration.
(2) The Supreme Court of Azad Jammu and Kashmir shall consider a question so referred and report its opinion on the question to the Chairman of the Council or, as the case may be, the President." (Underlining is ours)
' Article 143 of the Indian Constitution:--- "143 Power of President to consult Supreme Court.---(1) If at any time it appears to the President that a question of law or fact has arisen, or is likely to arise, which is of such a nature and of such public importance that it is expedient to obtain the opinion of the Supreme Court upon it, he may refer the question to that Court for consideration and the Court may, after such hearing as it thinks fit, report to the President its opinion thereon.
(2) The President may, notwithstanding anything in the proviso to Article 131, refer a dispute of the kind mentioned in the said proviso to the Supreme Court for opinion and the Supreme Court shall, after such hearing as it thinks fit, report to the President its opinion thereon." (Underlining is ours)
' A comparative study of the aforesaid Constitutional provisions would reveal that there is no difference between the corresponding provisions, one contained in the Constitution Act and in the Indian Constitution. Therefore, it would be expedient here to reproduce the relevant observations of the Indian Supreme Court on the point made in the case reported as In re The Special Courts Bill, 1978, Special Reference No,1 of 1978 (AIR 1979 SC 478). The observations are as under:-- "101 There was some discussion before us on the question as to whether the opinion rendered by this Court in the exercise of its advisory jurisdiction under Article 143(1) of the Constitution is binding as law declared by this Court within the meaning of Article 141 of the Constitution. The question may have to be considered more fully on a future occasion but we do hope that the time which has been spent in determining the questions arising in this reference shall not have been spent in vain.
In the cases of East Duty Bill, 1944 FCR 317 at pp. 320, 332, 341: (AIR 1944 FC 73 at pp. 74, 75, 79, 82); U.P. Legislative Assembly, (1965) 1 SCR 413 at pp. 446, 447: (AIR 1965 SC 745 at pp. 762, 763) and St.
Xaviers College, (1975) 1 SCR 173 at pp. 1401, 1402) the view was expressed that advisory opinions do not have the binding force of law. In Attorney-General for Ontario v. Attorney-General for Canada (1912) AC 571 at p. 589 it was even said by the Privy Council that the opinions expressed by the Court in its advisory jurisdiction ' will have no more effect than the opinions of the law officers'. On the other hand, the High Court of Calcutta in Ram Kishore Sen v. Union of India, AIR 1965 Cal 282 and the High Court of Gujarat in Chhabildas Mehta v. Legislative Assembly Gujarat State, (1970) 2 Guj LR 729 have taken the view that the opinion rendered by the Supreme Court under Article 143 is law declared by it within the meaning of Article 141. In the Province of Madras v. Baddu Paidanna & Sons, 1942 FCR 90; (AIR 1939 FC 1) in the same manner as one discusses a binding judgment. We are inclined to the view that though it is always open to this Court to re-examine the question already decided by it and to overrule, if necessary, the view earlier taken by it, in so far as all other Courts in the territory of India are concerned they ought to be bound by the view expressed by this Court even in the exercise of its advisory jurisdiction under Article 143(1) of the Constitution. We would also like to draw attention to the observations made by Ray, C.J., in St. Xaviers College (AIR 1974 SC 1389) that even if the opinion given in the exercise of advisory jurisdiction may not be binding, it is entitled to great weight. It would be strange that a decision Riven by this Court on a question of law in a dispute between two private parties should be binding on all Courts in this country but the advisory opinion should bind no one at all, even if, as in the instant case, it is Riven after issuing notice to all interested parties, after hearing everyone concerned who desired to be heard, and after a full consideration of the questions raised in the reference. Almost everything that could possibly be urged in favour of and against the Bill was urged before us and to think that our opinion is an exercise in futility is deeply frustrating." .(Underlining is ours)
44. It would be also helpful to reproduce below the dictionary meanings of the words 'decision' and 'opinion' as given in Black's Law Dictionary, 6th Edition:-- "Decide. To arrive at a determination. To 'decide' includes the power and right to deliberate, to weigh the reasons for and against, to see which preponderate, and to be governed by that preponderance."
"Opinion. A document prepared by an attorney for his client, embodying his understanding of the law as applicable to a state of facts submitted to him for that purpose; e.g. An opinion of an attorney as to the marketability of a land title as determined from a review of the abstract of title and other public record.
' The statement by a judge or Court of the decision reached in regard to a cause tried or argued before them, expounding the law as applied to the case, and detailing the reasons upon which the judgment is based.
' An expression of the reasons why a certain decision (the judgment) was reached in a case. A majority opinion is usually written by one Judge and represents the principles of law which a majority of his colleagues on the deem operative in a given decision, it has more presidential value than any of the following. A separate opinion may be written by one or more judge in which he or they concur in or dissent from the majority opinion. A concurring opinion agrees with the result reached by the majority, but disagrees with the precise masoning leading to that result. A dissenting or majority opinion disagrees with the result by the majority and, thus, disagrees with the reasoning and/or the principles of law used by the majority in deciding the case. A plurality opinion is agreed to by less than a majority as to the reasoning of the decision, but is agreed to by a majority as to the result. A percuriam opinion is an opinion 'by the Court' which expresses its decision in the case but whose author is not identified. A memorandum opinion is a holding of the whole Court is which the opinion is very concise."
45. It is evident from the abovementioned meanings assigned to the words 'decide' and 'opinion' that both the terms are interchangeable and have identical meanings. Therefore, it is not correct to suggest that 'opinion' of the Supreme Court given under section 46-A of the Constitution Act is not binding but the 'decision' under section 42-B is binding because the former is not interparty while the latter is. We are of the opinion that the distinction drawn 0 between the meanings of the words 'decide' and 'opinion' while interpreting sections 42-B and 46-A of the Constitution Act is artificial one and is not acceptable in view of.The dictionary meanings of the aforesaid words. In fact, in every decision there is an 'opinion' and in the every 'opinion' on a law point there is a 'decision'.
Therefore, we are in agreement with the view taken by the Supreme Court of India in the case mentioned above and hold that the opinion given on a point of law under section 46-A of the Constitution Act is binding upon all Courts in the State of Azad Jammu and Kashmir until and unless the same is changed by the Supreme Court itself in some subsequent proceedings. It may be observed here that no authority from Pakistan or Azad Kashmir jurisdictions, relevant to the matter in hand, was cited at the Bar. Thus, the High Court was not correct in ignoring the dictum of this Court given in Reference No,1 of 1998. However, as we have dealt with the points involved in the appeal and decided the same on merits, the failure of the High Court to follow the view taken by this Court in the said reference is not of any legal consequences, specially so when there was not previous dictum of this Court on the aforesaid point.
46. In writ petition entitled Genuine Human Rights Commission and others v. Iftikhar Hussain Butt and others (Writ Petition No,448 of 1997), Mr. Ashfaque Hussain Kayani, while advancing the arguments on behalf of the concerned respondents-petitioners, has contended that after the dictum of this Court in Reference No,1 of 1998, he did not intend to defend the judgment of the High Court on the grounds which were taken by the concerned respondents in their writ petition. He has contended that now he would assail the existence of the Shariat Court on the ground that its establishment was against the Injunctions of Islam. He has extensively recited the Verses of the Holy Qur'an in support of his contention that the Shariat Court has been given limited powers whereas it should have been invested with powers to hear the disputes concerning all the spheres of human life. The learned counsel has argued that Islam does not recognize to follow its Injunctions in one sphere of life and leave aside in the others. The learned counsel has submitted that the powers of the Shariat Court, at present, are limited and it is competent to hear appeals etc. Only in selected offences whereas Islam does not approve any such selection. The learned counsel has referred to a case reported as Raja Khushbakht-ur-Rehman v. The Province of Punjab (PLD 1986 FSC 49), wherein it has been observed that in view of Islamic Jurisprudence, the Injunctions of Islam as laid down in Holy Qur'an and Sunnah are to be followed by all the Muslims in all sphere of life whether called religious, secular, temporal or spiritual as individual as well as member of legal, political or social groups.
47. It may be observed that in the High Court, the case of the petitioners-respondents was that the establishment of the Shariat Court was violative of the Constitution because the powers with which the Shariat Court was invested were exercisable by the High Court under the Constitution Act. But now the aforesaid respondents-petitioners intend to assail the establishment of the Shariat Court on the grounds which are diametrically opposite to the case which they had set up in their writ petition in the High Court.
48. It may be observed that it is well-settled principle of law that the point which is not taken in its pleadings or for that matter in the writ petition, cannot be pressed into service either to get a relief prayed for or to defend an order passed by the High Court in favour of a party. Even otherwise, as has been held in the earlier part of this judgment, the question whether any law or for that matter the Shariat Court Act, 1993 is violative of the Injunctions of Islam or not falls within the jurisdiction of the Shariat Court and not in the jurisdiction of the High Court or this Court. Therefore, the contention of Mr. Ashfaque Hussain Kiyani that the Shariat Court should be held violative of the Shari'ah is not tenable and is hereby repelled.
' In the light of what has been stated above, we accept the appeal and set aside the impugned judgment of the High Court. Consequently, the writ petitions filed by the respondents stand dismissed. No order as to the costs.