P L D 1990 Supreme Court 1172 (PLP)

‑‑‑‑Ss. 401, 402, 402‑A, 402‑B, 345, 381 & 337 to 339‑A‑‑‑Penal Code (XLV of 1860), Ss. 299 to 338, 54 & 109‑‑‑Criminal Law (Second Amendment) Ordinance (VII of 1990), Preamble‑‑‑Constitution of Pakistan (1973), Arts. 203‑F & 188‑‑ Supreme Court Rules, 1980, OXXVI, R.1‑‑‑Review‑‑‑Supreme Court had declared certain provisions of Penal Code, 1860 and Criminal Procedure Code, 1898 as repugnant to injunctions of Islam which declaration was to take effect on 23rd March, 1990‑‑‑Attorney‑General on behalf of Government of Pakistan in a review petition made a statement before Supreme Court that Ordinance relating to enforcement of the provisions of Oisas and Diyat had been drafted and was at present in the process of final scrutiny which should he completed within a couple of days and the necessary Ordinance promulgated by the 5th September, 1990; that to familiarise the enforcement agencies with the new provisions and to ensure their proper implementation the provisions of the proposed Ordinance would be enforced by 12th Rabi‑ul‑Awwal 1411 A.H. and that review petition might be disposed of in the light of his statement, as it had become infructuous‑‑ Supreme Court accepted the submission and ordered that new Ordinance incorporating the provisions relating to Qisas and Diyat should be promulgated by 5th September, 1990 and all the provisions thereof should be enforced at the latest by the 12th Rabi‑ul‑Awwal 1411 A.H. on which day the said provisions to the extent they have been declared repugnant to the injunctions of Islam shall cease to have effect; that even if the required law was not enacted and/or enforced by the 12th of Rabi‑ul‑Awwal 1411 A.H. or if it lapsed the said provisions would nevertheless cease to have effect on 12th Rabi‑ul‑Awwal and in such state of vacuum vis‑a‑vis the statute law on the subject, the common Islamic Law/the Injunctions of Islam as contained in the Qur'an and Sunnah relating to offence of Qatl and Jurh (hurt) shall be deemed to be the law on the subject and Courts while hearing and deciding the cases of Oat) and Jurh (hurt) in accordance with common Islamic Law/injunctions of Islam as contained in Qur'an and Sunnah may also seek guidance from the provisions of the Ordinance if it, in the meantime, having once been enforced, had lapsed or otherwise had become unenforceable. Shariat Appellate Bench of Supreme Court of Pakistan by its judgment in Federation of Pakistan v. Gul Hassan Khan reported as PLD 1989 SC 633 had declared certain provisions of Criminal Procedure Code, 1898 and Pakistan Penal Code, 1860 as repugnant to Injunctions of Islam which was to take effect on 23rd March, 1990. Attorney‑General for Pakistan on behalf of Government of Pakistan in review petition made a statement before Supreme Court that the Ordinance relating to enforcement of the provisions of Qisas and Diyat had been drafted and was at present in the process of final scrutiny which should be completed within a couple of days and the necessary Ordinance promulgated by 5th September, 1990. He further stated that to familiarise the enforcement agencies with the new provisions and to ensure their proper implementation the provisions of the proposed Ordinance shall be enforced by 12th Rabi‑ul‑Awwal 1411 A.H. and prayed that the Review Petition might be disposed of in the light of his above statement, as it had become infructuous. In view of the importance of the subject and to prevent any chaos and disruption in the administration of criminal justice some time should be allowed to educate and familiarise the enforcement agencies with the new provisions. Supreme Court, therefore, accepted the submission of the Attorney‑General. The new Ordinance incorporating the provisions relating to Qisas and Diyat shall be promulgated by 5th September 1990 and all the provisions thereof shall be enforced at the latest by 12th Rabi‑ul‑Awwal 1411 A.H. Accordingly, it was ordered that the decision of Supreme Court dated 5th July, 1989, whereby the provisions declared and held therein as repugnant to the Injunctions of Islam, and which was to take effect on 23rd March, 1990, would now, on the disposal of present Review Petition, shall take effect on 12th day of Rabi‑ul‑Awwal 1411 A.H. on which day the said provisions to the extent they have been declared and held to be repugnant to the Injunctions of Islam, shall cease to have effect. Even if the required law was not enacted and/or enforced by 12th of Rabi‑ul‑Awwal 1411 A.H., the said provisions would nevertheless ceased to have effect on 12th Rabi‑ul‑Awwal. In such state of vacuum, vis‑a‑vis the statute law on the subject, the common Islamic law the Injunctions of Islam as contained in the Qur'an and Sunnah relating to the offence of Qatl and Jurh (hurt) shall be deemed to be the law on the subject. The Pakistan Penal Code and the Criminal Procedure Code shall then be applied mutatis mutandis, only as aforestated. The same will be the position if an Ordinance for the law of Oisas and Diyat is enforced on or before 12th Rabi‑ul‑Awwal and the same lapses or otherwise becomes unenforceable due to any reason, creating a similar vacuum in the statute law on the subject. In the aforevisualised situations, the Courts, while hearing and deciding the cases of Qatl and Jurh (hurt) in accordance with common Islamic law/Injunctions of Islam as contained in Qur'an and Sunnah may also seek guidance from the provisions of the aforementioned Ordinance if it, in the meanwhile, having once been enforced had lapsed or otherwise had become unenforceable. Nemo for the Remaining Respondents.