1998 PLP 1331 (CLC)

8. Ch. Muhammad Ibrahim Zia, Advocate, appearing on behalf of the Shariat Court, has contended that the statement of facts and law filed on behalf of the Secretary Legislative Assembly shows that the Secretary has executed power of attorney in favour of Raja Muhammad Khurshid Khan, Advocate, in his personal capacity and not as the representative of the Legislative Assembly. Therefore, the stand taken by the learned counsel for the Secretary Legislative Assembly would be deemed to be a stand of the Secretary Legislative Assembly in his personal capacity and not that of the Legislative Assembly as an institution. The learned counsel has also drawn our attention to the written statement of facts and law filed on behalf of the Secretary Legislative Assembly and has contended that paragraph 2 of the said statement, shows that the same was filed on behalf of the Secretary Legislative Assembly in his personal capacity and not as a representative of the Assembly. Thus, he has maintained that the stand taken in the written statement of facts in terms that the Shariat Court Act is violative of Constitution cannot be deemed to be the view of the Legislative Assembly, it would be deemed the view of the Secretary Legislative Assembly in his personal capacity. The learned counsel has referred to a case of this Court reported as Kh. Ghulam Qadir v. Divisional Forest Officer Demarcation (1996 SCR 161) in support of his contention that where all the members of the Committee were not impleaded as party, the stand taken by the Chairman of the Committee was held to be reflective of the views of the Chairman and not the members of the Committee. The learned counsel further submitted that it is crystal clear from the provisions contained in section 31(5), section 32 and section 4(1) of the Constitution Act, that the High Court had no power to declare a law as void because the same is in conflict with the injunctions of Islam; such law would remain a valid law till the same is amended. The learned counsel has maintained that in case a law which is found inconsistent with a fitndamental right, it be void but the same is not true if a‑law is found violative of section 31(5) of the Constitution Act because the said Act does not say so; such a law is to be brought in conformity with the injunctions of Islam after the verdict of the Shariat Court or on the recommendations of the Council of Islamic Ideology, as envisaged under section 32 of the Constitution Act. The learned counsel has also submitted that the provisions of the Islami Tazeerati Act and the Azad Jammu and Kashmir Family Courts Act, have been admitted by the learned counsel for the Legislative Assembly as valid in the statement of facts filed by him; these statutes also confer the appellate jurisdiction on the Shariat Court. Therefore, it is contradictory to suggest that the said statutes are not in conflict with the Constitutional provisions but the Shariat Court Act is violative of the same. Thus, the learned counsel argued that the Shariat Court Act is neither violative of the Constitution Act nor it takes away the jurisdiction of the High Court. The learned counsel has submitted that it is not correct to suggest on the analogy of the provisions contained in section 42(11)(a) and (b) of the Constitution Act that the Shariat Court Act abridges the appellate jurisdiction of the High Court. The aforesaid provision does not stipulate that if the punishment for an offence is death or transportation for life, the appeal must necessarily lie to the High Court. The learned counsel has submitted that the aforesaid provision merely postulate that if the High Court has otherwise jurisdiction in the matter and decides the same, the appeal against the judgment of the High Court would lie to the Supreme Court. But where the matter does not fall in the jurisdiction of the High Court, there is no question of appeal against the judgment of the High Court to the Supreme Court. Thus, where the High Court has no powers to withdraw a case from the Trial Court or otherwise have no jurisdiction in the matter subsection (11)(a) and (b) of section 42 of the Constitution Act has no application. As previously the jurisdiction of the High Court to hear appeals against the judgments of the Sessions' Judge was not conferred by the constitutional provision but by the subordinate legislation, the same was validly taken away and conferred upon the Shariat Court by law. Thus, it is not correct to suggest that the Constitutional jurisdiction of the High Court was abridged or taken away by the promulgation of Shariat Court Act. The learned counsel has also referred to a Full Bench case of this Court reported as Muhammad Hafeez Khan v. Mst. Shahida Khanum (PhD 1996 SC (AJ&K) 1), wherein it has been held that appeal against the judgment and decree of the Family Court, after its establishment, would lie to the Shariat Court and not to the High Court. It was further observed that the appeals pending in the High Court at the time of promulgation of the Family Courts Act were rightly transferred from the High Court to the Shariat Court. The learned counsel has also referred to a case reported as Sheikh Khalid Mahmood v. Mallick Muhammad Irfan (PhD 1993 SC (AJ&K) 204), in support of his contention that when the powers are conferred on a Judge of the High Court under special statute, such powers would be deemed to be exercised in pursuance of the powers conferred by the special enactment and not in his capacity as a Judge of the High Court. The learned counsel contended that before the promulgation of the Shariat Court Act the High Court was conferred appellate powers under the provisions of Islami Tazeerati Act, thus, it cannot be said that the High Court exercised the appellate powers as High Court under the Code of Criminal Procedure or the Constitution Act.

9. Mr. Iftikhar Hussain Butt, Secretary Law, who has been appointed as Judge of the Shariat Court, has argued the case in his personal capacity. He has more or less supported the arguments advanced by Kh. Shahad Ahmad and Ch. Muhammad Ibrahim Zia, Advocates, apart from dilating upon the connotation between the provisions contained in subsections (2) and (3) of section 46 of the Constitution Act. He has made a comparison of the provisions contained in subsections (2) and (3) of section 46 of the Constitution Act and the corresponding provisions contained in the Constitutions of Pakistan and India and has maintained that the scope of the establishment of the Courts other than High Court and Supreme Court is much more wide than envisaged in the relevant provisions contained in the aforesaid Constitutions. He has maintained that the expressions 'in addition to' and 'be such other Courts' employed in subsection (2) of section 46 of the Constitution Act connote that such Courts may have status equal to the High Court or the Supreme Court and may be conferred jurisdiction identical to one conferred on the said Courts. He has dilated upon the dictionary meanings of the expression ' in addition to' occurring in the aforesaid section to substantiate his contentions that scope of establishing Courts under Constitution Act is much wide than the one envisaged under the corresponding provisions contained in the Constitutions of Pakistan and India. He has also referred to a book entitled 'Constitutional Development in Azad Jammu and Kashmir' by Syed Manzoor Hussain Gilani to support his contention that under section 46 of the Constitution Act, other Courts having jurisdiction identical to that of the High Court and Supreme Court can be established. Mr. Iftikhar Butt has also referred to the comments by the learned author which appear at page 262 of the aforesaid book to substantiate his contention that under subsection (2) of section 46, special Courts including the Shariat Court etc. can be validly established. He has also relied upon a case reported as Commissioner of Income‑tax v. Messrs United Builders Corporation (1985 CLC 1102), wherein it has been held that the appellate jurisdiction has been conferred on the Supreme Court not only by the Constitution Act but it can also be conferred by ordinary legislation as envisaged under section 42(2) of the Constitution Act. It was further observed 'that an appeal under section 37 of the Income‑tax Ordinance was competent to the Supreme Court, irrespective of the. provisions contained in section 42 of the Constitution Act. Thus, the learned counsel maintained that the appellate jurisdiction can be conferred on the Supreme Court to hear appeals etc. against the judgment of the Shariat Court.

10. Raja Muhammad Khurshid Khan, Advocate, appearing on behalf of the Legislative Assembly has argued that only the jurisdiction conferred by subordinate legislation can be taken away or abridged by subordinate legislation but not the jurisdiction conferred by the Constitution; Constitutional jurisdiction can be taken away only by the amendment in the Constitution. The learned counsel has argued that under section 42(11)(a) and (b) of the Constitution Act, if the High Court, on appeal, reverses an order of acquittal of an accused person and sentences him to death or imprisonment for life, or if the High Court withdraws for a trial before it any case from any subordinate Court and convicts the accused, the appeal would be competent to the Supreme Court. The learned counsel maintained that after the establishment of the Shariat Court, in the aforesaid eventualities, an appeal would no more lie to the High Court but to the Shariat Court. Thus, the Constitutional jurisdiction which was available to the High Court under the aforesaid provisions has been taken away by the Shariat Court Act. The learned counsel has further argued that in view of the provisions contained in section 31(5) of the Constitution Act, the High Court had the power to declare a law against the injunctions of Islam as void but under section 10 of the Shariat Court Act, this power has been taken away from the High Court because under section 10 of the Shariat Court Act, no other Court including the High Court and the Supreme Court can exercise any such power and only the Shariat Court has the jurisdiction to declare a law against the injunctions of Islam. Thus, the learned counsel has maintained that section 10 of the Shariat Court Act is violative of the provisions contained in section 31(5) and is tantamount to take away the jurisdiction of the High Court and the Supreme Court. The learned counsel has further submitted that previous to the promulgation of the Shariat Court Act, a law repugnant to the injunctions of Islam could be amended after the recommendations of the Council of Islamic Ideology as envisaged under section 32 of the Constitution Act but now the question as to whether law is against the injunctions of Islam can be looked into only by the Shariat Court and not even by the Legislative Assembly; previously under section 32 of the Constitution Act if 1/3rd members of the Legislative Assembly or the Azad Jammu and Kashmir Council could seek an advice by a reference to the Council of Islamic Ideology as to whether a law is repugnant to injunctions of Islam or not but no such advice can be sought from the Council of the Islamic Ideology in view of section 10 of the Shariat Court Act. The learned counsel has also submitted that under subsection (7) of section 7 of the Shariat Court Act, a legal practitioner who is engaged by a party cannot plead for such party but would only expound and interpret the injunctions of Islam. This, according to the learned counsel, is violative of the Fundamental Right No.8 guaranteed by the Constitution Act because it places undue restrictions on the legal practice. He has further maintained that under subsection (2) of section 3 of the Shariat Court Act, the Judges of the Shariat Court are to be Muslim whereas such discrimination in the service matters is prohibited by Fundamental Right No.17 guaranteed by the Constitution Act; besides, this, provision also violates the equality of all State subjects before law. The learned counsel has also submitted that under subsection (9) of section 3 of the Shariat Court Act, an appeal against the judgment of the Shariat Court would be heard by the Bench consisting of two Muslim Judges of the Supreme Court to be called the Shariat Appellate Bench whereas it is not envisaged as to who would constitute the Bench. The learned counsel has submitted that non‑mentioning of the authority who would constitute the Bench renders the aforesaid subsection as violative of the Constitution Act. The learned counsel has further submitted that he has taken instructions from the Speaker of the Legislative Assembly and has been engaged by the Secretary of the Legislative Assembly as representative of the Assembly and, thus, the stand taken by him is reflective of the view of all the members of the Legislative Assembly, at least, the majority of the members of the Legislative Assembly and not the view of the Secretary of the Assembly only.

11. Sardar Rafique Mahmood Khan, Advocate; `appearing on behalf of the Legislative Assembly has referred to paragraph 4 of the reference and has submitted that it is mentioned in the aforesaid paragraph that the Government is of firm view that establishment of the Shariat Court is 'not violative of Constitution. Thus, the learned counsel has submitted that if the Government had no doubt in the matter, no reference should have been made. The learned counsel has supported the arguments advanced by Raja Muhammad Khurshid appearing on behalf of the Secretary Legislative Assembly.

12. Mr. Abdur Rashid Abbasi, Advocate appearing on behalf of the Legislative Assembly, also generally supported the arguments advanced by Raja Muhammad Khurshid Khan and has further elucidated the provisions contained in section 31(5) of the Constitution Act. The learned counsel has submitted that under section 31(5) a law which is repugnant to the injunctions of Islam could be declared as void by the High Court previous to the promulgation of the Shariat Court Act but the said powers have been taken away under section 10 of the Shariat Court Act. The learned counsel has particularly referred to sections 6, 10 and 2(g) of the Shariat Court Act in support of his contention. He has stressed that section 2(g) of the Shariat Court Act excludes the laws made by the Azad Jammu and Kashmir Council from the definition of the expression 'law' which fact further supports the view that the powers of the High Court to declare a law made by the Azad Jammu and Kashmir Legislative Assembly against the injunctions of Islam have been taken away. The learned counsel has further submitted that the aforesaid definition creates an anomalous situation because on one hand the laws made by the Legislative Assembly are open to scrutiny by the Shariat Court but on the other hand the laws made by the Azad Jammu and Kashmir Council have been exempted from any such scrutiny. The learned counsel has further submitted that the Shariat Court Act being subordinate legislation cannot take away the jurisdiction of the High Court to declare a law void as being against the injunctions of Islam. The learned counsel has submitted following authorities in support of his contentions:‑‑‑

In case reported as Abdul Hafeez v. The State (PLD 1981 SC 352), the question as to whether the High Court was competent to hear a revision against the order of Drug Court under the provisions of Code of Criminal Procedure came into consideration. It was observed that the Drug Court has been subject to appellate jurisdiction of the High Court and, thus, it would be deemed an inferior Court to the High Court. Therefore, the High Court can exercise its revisional jurisdiction against its orders under sections 435 and 439, Cr.P.C. It was further observed that it was not necessary to make a separate provision that a revision against an order of Drug Court shall also be competent to the High Court. In case reported as The State v. Zia‑ur‑Rehman (PLD 1973 SC 49), it was observed that Constitution is an instrument by which the Government is controlled and, thus, it being supreme law stands on higher position as compared with other laws of the country. It was observed that when a non‑Constitutional provision is incorporated in the Constitution, that stands on the same footing as the other Constitutional provisions. In case reported as Muhammad Ismail Qureshy v. The Federal Government of Pakistan (PLD 1992 FSC 445), it has been observed that a law which comes into conflict with the provisions of the Constitution, cannot co exist. Thus, it was observed that section 3(2) and section 19 of the Enforcement of Shari'ah Act, 1991 are liable to be challenged on the ground of being in conflict with the provisions of the Constitution and injunctions of Islam. It was further observed that the jurisdiction of the Shariat Curt given by the Constitution cannot be taken by virtue of the Shari'ah Act, 1991 because that would be violative of the Constitutional provisions. In case reported as Miss Benazir Bhutto v. Federation of Pakistan (PLD 1988 SC 416), it was held that if the impugned legislation if found ex facie violative of fundamental rights of individual or political parties or the associations or unions, the proceedings would lie for the enforcement of such right, irrespective of the fact whether any prejudicial order has been passed by the executive under the law or not, because the Constitution treats the fundamental rights as superior to the ordinary legislation.

13. As is evident from the arguments advanced by the learned counsel for the parties, the establishment of the Shariat Court has been challenged as being offending to the provisions of the Constitution Act on two grounds, namely, (i) it is violative of section 31(5) of the Constitution Act because previously the High Court or the Supreme Court, in appeal, could declare a law as void being repugnant to Holy Qur'an and Sunnah but in view of section 10 of the Shariat Court Act, the said Courts are no more competent to do so and only the Shariat Court is empowered to go into the said question, and (ii) the establishment of the Shariat Court abridges or takes away the powers of the High Court in view of the provisions contained in section 42(11)(a) and (b) of the Constitution Act; because before the establishment of the Shariat Court, an appeal against the judgment, order or sentence of the High Court lay to the Supreme Court in case of acquittal, sentence of death or imprisonment for life, etc. but after the establishment of the Shariat Court, there remains no occasion for the High Court to exercise such jurisdiction, because appeal against the judgment of the District Criminal Court would lay to the Shariat Court and not to the High Court.

14. First we deal with the question as to whether the establishment of the Shariat Court takes away the power of the High Court which vested in it under the provisions of section 31(5) of the Constitution Act. It may be stated that the question as to whether the High Court is empowered to declare a law as void because the same is against the injunctions of Islam came up for consideration in a case reported as Faqir Ali v. Standard Bank Ltd. Muzaffarabad (PLD 1979 SC (AJ&K) 62) wherein it was held that the phraseology employed in the aforesaid provision does not empower the High Court to declare a law as void even if it is against the injunctions of Islam and it would remain on the statute book of Azad Jammu and Kashmir as a valid law till it is amended by the Legislature according to the provisions of the Constitution. It may be observed that under subsection (1) of section 4 of the Constitution Act, any law or custom of usage having the force of law which is inconsistent with the fundamental right guaranteed by the Constitution Act, shall be void but no such phraseology has been used in section 31(5) of the Constitution Act or any other provisions whereby any such law is void and can be so declared. The relevant extract from the aforesaid authority of this Court is reproduced as below:‑‑‑ "This section, it appears, is not happily worded as 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 Quran 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 Court and Laws Code, 1949 or 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 tenants of Islam."

15. The question again came up for consideration in case reported as Azad Government of the State of Jammu and Kashmir v. Kashmir Timber Corporation (PLD 1979 SC (AJ&K) 139) in which it has been held that a law which is found to he violative of the injunctions of Islam is void and can be declared as such by the High Court. However, while deciding this case, the view taken in Faqir Ali's case, referred to above, was not brought into the notice of the Court and it finds no reference in the judgment. However, subsequently, the matter came up for consideration again in case reported as Raja Muhammad Niaz Khan v. Azad Government of the State of Jammu and Kashmir (PLD 1988 SC (AJ&K) 53), in which both the aforesaid cases were considered and the view taken in Faqir Ali's case was approved while one taken in Kashmir Timber Corporation's case was dissented from. The aforesaid question was again considered in case reported as Azad Jammu and Kashmir Government v. Muhammad Younas Tahir and others (1994 CLC 2339) and a difference of opinion arose between the members of the Division Bench of this Court, one of the members of the Bench was of the opinion that the view taken in Faqir Ali's case and Raja Niaz's case reported as Faqir Ali v. Standard Bank Ltd., Muzaffarabad (PLD 1979 SC (AJ&K) 62) and Raja Muhammad Niaz Khan v. Azad Government of the State of Jammu and Kashmir (PLD 1988 SC (AJ&K) 53) was correct while the other member of the Bench preferred the view taken in the case reported as Azad Government of the State of Jammu and Kashmir v. Kashmir Timber Corporation (PLD 1979. SC (AJ&K) 139). As the matter was disposed of on other grounds, the difference of opinion remained as such. It may be stated that the view taken in Raja Niaz's case must prevail because the same was taken after considering the previous conflicting views taken in Azad Government of the State of Jammu and Kashmir v. Kashmir Timber Corporation (PLD 1979 SC (AJ&K) 139) and Faqir Ali v. Standard Bank Ltd. Muzaffarabad (PLD 1979 SC (J&K) 62). 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 laws 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 it 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 after 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 Jamrnu and Kashmir Council, as the same may be, may refer a question for advice to the Council of Islamic Ideology of Pakistan, as to whether the proposed law is repugnant to the Injunctions 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 promulgate 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 Injunction of Islam by the Council of Islamic Ideology, would he 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 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 Injunction 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.

16. The next ground which was made basis of arguments that the establishment of the Shariat Court curtails or abridges the jurisdiction of the High Court because sub‑clauses (a) and (b) of subsection (11) of section 42 of the Constitution Act stipulate that in certain cases an appeal against the judgment of the High Court would be competent to the Supreme Court but no such appeal would lie to the Supreme Court after the establishment of the Shariat Court or for that matter the promulgation of the Shariat Court Act. For appreciating the matter in its true perspective, it would be expedient here to reproduce the said provision of appeal as under:‑‑‑ "42(1)

(2)

(3)

(4)

(5)

(6)

(7)

(8)

(9)

(10)

(11) An appeal shall lie to the Supreme Court of Azad Jammu and Kashmir from any judgment, decree, final order or sentence of the High Court of Azad Jammu and Kashmir‑‑‑ (a) If the High Court has on appeal reversed an order of acquittal of accused person and sentenced him to death or to imprisonment for life; or on revision, has enhanced a sentence to a sentence as aforesaid; or (b) if the High Court has withdrawn for trial before itself any case from any Court subordinate to it and has in such trial convicted the accused person and sentenced him as aforesaid; (c)

(d)

(e)

(f)

The bare reading of the aforesaid provision reveals that the above reproduced provision does not in any way take away or curtail the jurisdiction of the High Court. The provision deals with the question of appeal to the Supreme Court in case of certain eventualities. The Shariat Court Act does not say that the jurisdiction of the High Court to award punishment of death or to withdraw a criminal case would cease to exist. If the High Court has jurisdiction to try' an offence itself or hear an appeal against the decision of a subordinate Court, it shall continue to deal with the cases as stipulated in the aforesaid Constitutional provisions. But where a power vested in the High Court under the subordinate law and same is taken away by subsequent legislation, there is no question of abridging or taking away the constitutional jurisdiction of the High Court. There is no provision in the Constitution Act that if the punishment awarded is 'death' the appeal shall lie only to the High Court and not any other Court constituted under section 46 of the Constitution Act. If the jurisdiction of the High Court is taken away by a subordinate Legislation, as is permissible under section 46(2) and (3) of the Constitution Act, it cannot be said that the provisions of the Constitution Act contained in section 42(11)(a) and (b) have been violated because in some cases, say that of murders, the offence is now triable by the Shariat Court and the appeal would lie to the Supreme Court and not to the High Court. Neither section 42 of the Constitution Act nor any other provision of the same envisages that the offences which carry the penalty of death or transportation for life would essentially be triable by the High Court and not by any other Court which may be established under the provisions of section 46(2) and (3) of the Constitution Act. When the Shariat Court or for that matter any other Court is established through a subordinate legislation in pursuance of the Constitutional provisions contained in subsections (2) and (3) of section 46 and the relevant law, i.e., Code of Criminal Procedure is amended, it cannot be said that the Constitutional provisions have been violated because forum of appeal etc. in certain cases has changed. It follows from this that there is no substance in the contention that as the appeal against the judgment or order of the Shariat Court in the cases envisaged under subsection (11) (a) and (b) of section 42 of the Constitution Act would lie to the Supreme Court, the Constitution Act, has been violated.

17. It has also been contended that under section 3 of the Shariat Court Act, a Judge of the Shariat Court shall be a person who is Muslim but according to Fundamental Right No.17 of the Constitution Act, a State Subject cannot be discriminated against in respect of any appointment in service on the ground of religion etc. Similarly, under subsection (7) of section 7 of the Shariat Court Act, a legal practitioner representing a party before the Shariat Court cannot plead for the party but only expound and interpret the injunctions of Islam is an unreasonable restriction on the legal practice and, thus, violative of Fundamental Right No.8 of the Constitution Act. It may be stated here that the facts narrated in the reference and statements of facts and law submitted by the parties, show that no question ever arose as to whether the condition for a Judge of the Shariat Court being Muslim or the condition that a legal practitioner would not to plead for any party but to expound the legal profession are violative of the aforesaid fundamental rights. The perusal of questions (a) and (b), referred for answer, would reveal that the same were not framed in the aforesaid context. The said questions have been formulated in the context of the establishment of the Shariat Court, i.e., whether its establishment and jurisdiction offends against the Constitution Act. Thus, the aforesaid objections are beyond the scope of the questions (a) and (b) and do not fall within the ambit of the reference. The scope of the questions (a) and (b), reproduced above, would be ascertained in view of the controversy which resulted in the reference and in view of the stands taken by the contending parties in the statements of facts and law filed by them. It is well‑settled principle of law that this Court would not answer the questions which are hypothetical, and are general in nature. Thus, irrespective of the validity or otherwise of the arguments on the point, we do not feel necessary to express our opinion in that regard.

18. It has also been argued half‑heartedly by some of the learned counsel appearing on behalf of the Secretary of the Azad Jammu and Kashmir Legislative Assembly that the appeal against the judgment of the Shariat Court is competent to the Supreme Court and, thus, the High Court shall have no superintendence and control over the Courts subordinate to it. The argument is not relevant because section ac, of the Constitution Act stipulates that the High Court would have control and superintendence over the Courts which are 'subordinate' to it; the Shariat Court is not subordinate to the High Court. Therefore, the argument that the Shariat Court Act is violative of section 46 of the Constitution Act has no substance and is hereby repelled. It may also be observed that there is no provision in the Constitution Act that all the Courts constituted under subsections (2) and (3) of section 46 of the Interim Constitution Act should be necessarily subordinate to the High Court or such Courts would be under the superintendence and control of the High Court. Subsection (1) of section 46 only visualises that the Courts which are subordinate to the High Court would be under the superintendence and control of the High Court and not the oiher Courts.

19. It has also been argued that the terms and conditions of service of a Judge of the Shariat Court are the same as that of a Judge of the High Court but the mode of appointment of a Judge of the Shariat Court is different from that of the High Court which is violative of the Constitution Act. There is no provision in the Constitution Act which makes it imperative that the Judge of a Court constituted under subsections (2) and (3) of section 46 cannot have the same terms and conditions as that of a Judge of the High Court, or if the terms and conditions of service of such a Judge are equal to a Judge of the High Court, he should be appointed in the same manner as a Judge of the High Court and not otherwise. If there is no such stipulation in the Constitution Act, how it can be said that as status of a Judge of the High Court and the Shariat Court the same, the different in mode of appointment would be deemed violative of Constitution Act. The upshot of the above discussion is that the establishment of the Shariat Court neither offends against the provisions of Constitution Act nor it abridges or takes away the Constitutional jurisdiction of the High Court as provided under section 44 of the Constitution Act. "

20. Question (c):‑‑‑Whether the Azad Jammu and Kashmir Legislative Assembly has travelled beyond its competence in enacting the Azad Jammu and Kashmir Shariat Court Act, 1993?" In view of the answer to the questions (a) and (b), given above, this question also stands answered in terms that the Azad Jammu and Kashmir Legislative Assembly has not travelled beyond its jurisdiction in enacting the Shariat Court Act so fat' as the same relates to the establishment of the Shariat Court and conferring the jurisdiction upon it. It may be stated here that a question referred is to be answered in context of the dispute, i.e., as to whether the Shartat Court Act infringes or takes away the Constitutional jurisdiction of the High Court or the 'establishment' of the Shariat Court offends against the provisions of the Constitution Act. The factum of 'establishment' of a Court is quite distinct from the factum of the 'constitution' of the Court or the qualification of the Judges of a Court. Thus, as stated earlier, the contention of the learned counsel for the Secretary of the Legislative Assembly that sections 3 and 7(7) of the Shariat Court Act infringe the fundamental rights, is beyond the scope of the reference and we need not advert to same, irrespective of the validity or otherwise of the argument advanced in that regard. The answer to the abovementioned question is that the Azad Jammu and Kashmir Legislative Assembly has not travelled beyond its competence in establishing the Shariat Court or for that matter in enacting the Shariat Court Act. "

21. Question (d):‑‑‑Whether the President of Azad Jammu and Kashmir can be divested of his powers of amending or re‑amending any existing law under section 41 of the Interim Constitution Act, 1974?" The President is empowered to promulgate an Ordinance under section 41 of the Constitution Act. Under subsection (2) of section 41, an Ordinance promulgated under the aforesaid section the same force and effect as an Act of the Assembly and is subject to the same restrictions as are on the powers of the Assembly to make law. Thus, the President may promulgate an Ordinance for amending or re‑amending the existing law under section 41 of the Constitution Act, he can be divested of the said powers only by the amendment in the Constitution Act and not otherwise.

22. It has also been contended on behalf of the Secretary of the Legislative Assembly that before promulgating the Ordinance, the President must be satisfied that the circumstances exist which render the promulgation of the Ordinance necessary. It may be observed that the question mentioned above does' not spell out the point as to what should be the criteria for the satisfaction of the President for promulgating an Ordinance. The abovementioned query merely speaks of 'divesting the President of the powers of amending and re‑amending the existing law' through Ordinance; it does not require answer with regard to the nature of the circumstances necessary for promulgating an Ordinance. Thus, the contention that there must be some material for 'satisfaction' of the President for promulgating an Ordinance is beyond the scope of the above mentioned question and cannot be gone into. "

23. Question (c)‑‑‑Whether the enactments known as Islami Tazeerati Act, 1974, and Azad Jammu and Kashmir Family Courts Act, 1993 and other Islamic Penal Laws and Establishment of Courts known as District Criminal Courts, Tehsil Criminal Courts and Family Courts are against public policy or spirit of Azad Jammu and Kashmir Interim Constitution Act, 1974?" The counsel for the parties agree that the Azad Jammu and Kashmir Family Courts Act and other Islamic Laws and establishment of Courts known as District Criminal Courts, Tehsil Criminal Courts and Family Courts are not against the public policy or the Constitution Act. It may be stated' that under section 3 of the Constitution Act, Islam is the religion of Azad Jammu and Kashmir State. As already stated subsection (5) of section 31 of the Constitution Act stipulates that no law shall be repugnant to the teachings of Islam as set out in Holy Qur'an and Sunnah and all existing laws shall be brought in conformity with the Holy Qur'an and Sunnah, under section 32 of the Constitution Act, 1/3rd members of the Azad Jammu and Kashmir Legislative Assembly or the Azad Jammu and Kashmir Council, as the case may be, can seek the advice of the Council of Islamic Ideology as to whether the proposed law is repugnant to Injunctions of Islam or not, the promulgation of Shariat Court Act, 1993 and Shari'ah Act, 1989 are the steps towards the fulfilment of the aspiration of the people of the State for the promulgation of Shari'ah law in the State. Thus, the steps embodied in the abovementioned question are neither against public policy nor against the spirit of the Constitution Act. Before parting with the case, it may be stated that it has been contended on behalf of the learned counsel for the Secretary to the Legislative Assembly that in view of the provisions contained in section 10 of the Shariat Court Act, the Azad Jammu and Kashmir Legislative Assembly or the Azad Jammu and Kashmir Council is debarred from referring a case for advice to the Council of Islamic Ideology under section 32 of the Constitution Act; and that as there is no provision in the aforesaid Act with regard to the constitution of the Shariat Appellate Bench in the Supreme Court, the said Act offends against the Constitution Act. The contentions have no substance because section 10 of the Shariat Court Act deals with the jurisdiction of the Court and not with the powers of the Azad Jammu and Kashmir Legislative Assembly or the Azad Jammu and Kashmir Council. Similarly, the question of constitution of the Appellate Bench in the Supreme Court is the subject of the Supreme Court Rules and not of the Constitution Act. Therefore, the said contention is irrelevant as being beyond the scope of reference. The arguments of the learned counsel for the parties with regard to the controversy as to whether the stand taken by Raja Muhammad Khurshid, Advocate, the learned counsel for the Secretary to the Legislative Assembly, would reflect the views of the Legislative Assembly or the Secretary to the Assembly, are also of no legal consequence because this Court would answer the reference in view of the legal exposition of the relevant provisions of the Constitution Act and the other relevant statutes and not on the basis of the stand taken by the counsel for the party whether he represents the views of the Secretary in his personal capacity or the Legislative Assembly as an institution. In the light of what has been stated above, the reference is answered as under:‑‑‑ "Question (a)‑‑‑Whether the establishment of Azad Jammu and Kashmir Shariat Court offends any provision of the Azad Jammu and Kashmir Interim Constitution Act, 1974?" Answer: The establishment of the Shariat Court does not offend against any of the provisions contained in the Azad Jammu and Kashmir Interim Constitution Act, 1974. "Question (b)‑‑‑Whether the enactment of the Azad Jammu and Kashmir Shariat Court Act, 1993, abridges or takes away the Constitutional jurisdiction of the High Court as provided under section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974?" Answer: The enactment of the Azad Jammu and Kashmir Shariat Court Act, 1993, does not in any way abridge or take away the Constitutional jurisdiction of the High Court as conferred on it under section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974. "Question (c):‑‑‑Whether the Azad Jammu and Kashmir Legislative Assembly has travelled beyond its competence in enacting the Azad Jammu and Kashmir Shariat Court Act, 1993?" Answer: The Azad Jammu and Kashmir Legislative Assembly has not travelled beyond its competence in enacting the Azad Jammu and Kashmir Shariat Court Act, 1993. "Question (d):‑‑‑Whether the President of Azad Jammu and Kashmir can be divested of his powers of amending or re‑amending any existing law under section 41 of the Interim Constitution Act, 1974?" Answer: The President of Azad Jammu and Kashmir can be divested of his powers of amending or re‑amending any existing law only by making an appropriate amendment in the Constitution Act and not otherwise. "Question (e)‑‑‑Whether the enactments known as Islami Tazeerati Act, 1974, and Azad Jammu and Kashmir Family Courts Act, 1993 and other Islamic Penal Laws and Establishment of Courts known as District Criminal Courts, Tehsil Criminal Courts and Family Courts are against public policy or spirit of Azad Jammu and Kashmir Interim Constitution Act, 1974?" Answer: The enactment known as Islami Tazeerati Act, 1974 and Azad Jammu and Kashmir Family Courts Act, 1993 and other Islamic Penal Laws and Establishment of Courts known as District Criminal Courts, Tehsil Criminal Courts and Family Courts are not against the public policy or the spirit of the Azad Jammu and Kashmir Interim Constitution Act, 1974. A.A./274/SC(AJ&K) Reference answered