P L D 1988 Federal Shariat Court 113 (PLP)

KAMAL MUSTAFA BOKHARY, J.‑‑Petitioners were sentenced, to death by the Additional Sessions 'Judge, Faisalabad, on 14‑3‑1979, for murder reported at Police Station, Garh in District Faisalabad, on 9‑1‑1976. The High Court confirmed their death sentences and dismissed their appeal. The Supreme Court of Pakistan dismissed their petition and mercy petitions filed on their behalf were also rejected. On 23‑6‑1988, the Additional Sessions Judge, Faisalabad, issued death warrant to execute petitioners, on 4‑7‑1988. Petitioners moved application under section 4 of the Enforcement of Shari'ah Ordinance, 1988 for a reference to this Court. The ground urged in the application was that the warrant was issued without making offer for payment of diyat to heirs of the deceased which was contrary to the Islamic Injunctions. It was submitted therein that petitioners had requested heirs of the deceased to receive diyat and negotiation for the same was nearing completion. It was prayed that pending decision operation of death warrant be suspended. The Additional Sessions Judge has sent the reference which is before this Court for disposal.

2. Learned counsel appearing for petitioners has expressed his inability to refer to any provision of the Holy Quran or Sunnah in support of his application. He is also unable to point out any law or particular provision of law which is repugnant to Injunctions of Holy Quran and Sunnah. The learned Advocate‑General submits that the application is motivated to postpone execution of petitioners who have already suffered agony since 1976.

3. This Court was created under Chapter 3‑A of the Constitution of Islamic Republic of Pakistan, 1973. Under Article 203‑D, Federal Shariat Court was given power and jurisdiction' to examine and decide the question whether or not any law or provision of law is repugnant to the Injunctions of Islam, as laid down in the Holy Quran and Sunnah of, the Holy Prophet. This could be done either suo motu or on the petition of a citizen of Pakistan or the Federal Government or a Provincial Government. According to Article 203‑B(c) word "Law includes any custom or usage having the force of law but does not include the Constitution, Muslim personal law, any law relating to the procedure of any Court or Tribunal or, until the expiration of ten years of the commencement of this Chapter, any fiscal law or any law relating to the levy and collection of taxes and fees or banking or insurance practice and procedure.

4. Enforcement of Shari'ah Ordinance, 1988 was promulgated which came into force with effect from 15‑6‑1988. Section 4 of the said Ordinance reads as follows:‑ "

4. Court to decide cases according to Shari'ah.‑‑ (1) If a question arises before a Court that a law or provision of law is repugnant to Shariah, the Court shall, if it is satisfied that the question needs consideration, make a reference to the Federal Shariat Court in respect of matters which fall within the jurisdiction of the Federal Shariat Court under the Constitution and that Court may call for and examine the record of as case and decide the question within sixty days: Provided that, if the question relates to Muslim personal law, any fiscal law or any law relating to the levy and collection of taxes and fees or banking or insurance practice and procedure, the Court shall refer the question to the High Court which shall decide the question within sixty days: Provided further that no question as to the repugnancy or otherwise to Shari'ah shall be entertained by the Court in respect of a law or provision of law already examined by the Federal Shariat Court or the Shariat Appellate Bench of the Supreme Court and found not to be repugnant to Shari'ah. (2) The second proviso to subsection (1) shall not affect the jurisdiction of the Federal Shariat Court and the Shariat Appellate Bench of the Supreme Court to review any decision given or order made by it. (3) The High Court may, either of its own motion or on the petition of a citizen of Pakistan or the Federal Government or a Provincial Government or on a reference made to it under the first proviso to subsection (1), examine and decide the question whether or not any law relating to Muslim personal law, any fiscal law or any law relating to the levy and collection of taxes and fees or banking or insurance practice and procedure or any provision of such law is repugnant to Shari'ah: Provided that while examining and deciding the question, the High Court shall call for and hear the views of experts having specialized knowledge in the field to which the question relates and of such other persons as the High Court may deem fit. (4) Where the High Court takes up the examination of a lair or provision of law under subsection (3), and such law or provision of law appears to it to be repugnant to Shari'ah, the High Court shall cause to be given to he Federal Government in the case of a law with respect to a matter in the Federal Legislative list or the Concurrent Legislative List in the Constitution or to the Provincial Government in the case of a law with respect to a matter not enumerated in either of those Lists, a notic'6 specifying the particular provisions that appear to it to be so repugnant, and afford to such Government adequate opportunity to have its point of view placed before the High Court. (5) If the High Court decides that any such law or provision of law is repugnant to Shari'ah, it shall set out in its decision‑‑ (a) the reasons for its holding that opinion; and (b) the extent to which such law or provision is so repugnant; specify the day on which the decision shall take effect: Provided that no such decision shall take effect before the expiration of the period within which an appeal therefrom may be preferred to the Supreme Court or, where an appeal, has been so preferred, before the disposal of such appeal: Provided further that the decision of the High Court shall not take effect until the expiration of a period of at least six months from the date of the decision: Provided further that the High Court may, on the petition of Federal Government or a Provincial Government showing sufficient cause for not implementing the decision, extend the time for a period not exceeding three months. (6) The High Court shall have power to review any decision given or order made by it under the section. (7) The jurisdiction conferred on the High Court by this section shall be exercised by a Bench of not less than three Judges. (8) Where a question referred to in subsection (1) or subsection (3) arises before a Single or Division Bench of the High Court, it shall be referred to a Bench of not less than three Judges. (9) Any party aggrieved by the final decision of the High Court in any proceedings under this section may, within sixty days of such decision, prefer an appeal to the Supreme Court: Provided that an appeal on behalf of .the Federation or of a Province may be preferred at any time after the decision but not later than six months of the day on which the decision shall take effect and such extended period as may be allowed by the High Court under subsection (5). (10) Nothing contained in the Ordinance nor decision made thereunder shall affect any proceedings pending before any Court or Tribunal or any sentences passed or orders made, judgments pronounced, decrees passed, liabilities incurred, rights accrued, assessments made, amounts recovered or declared payable under any law 'by any Court or Tribunal or authority before the commencement of this Ordinance. Explanation. For the purposes of this subsection, the word "Court" or "Tribunal" shall mean any Court or Tribunal established by or under any law or the Constitution at any time before the commencement of this Ordinance and word "authority" shall mean any authority established under any law for the time being in force. (11) No Court or Tribunal including the High Court shall adjourn or stay any proceedings whether pending or initiated afters the commencement of the Ordinance by reason only that the question whether a law or provision of law is repugnant to the Shari'ah has been referred to the High Court or the Federal Shariat Court or that the High Court has otherwise undertaken examination of this question under section 4 and all such proceedings shall continue and the point in issue therein shall be decided in accordance with the law for the time being in force." As defined in section 2(b) of the Ordinance word "Court" means a Court subordinate to a High Court.

5. In order to point out repugnancy an applicant has to specify the law or provision of law which is repugnant to the Injunctions of Islam and has also to give reference from the Holy Quran and Sunnah of the Holy Prophet to show repugnancy. In the alternative .the subordinate Court has to find this out from the applicant or the learned counsel appearing for him in order to arrive at a conclusion that a question does arise before it. The subordinate Court will then show satisfaction that the question needs consideration and make a reference after framing the question for decision. The reference will then be sent to the Federal Shariat Court in respect of matters which fall within its jurisdiction as mentioned in Article 203‑D of the Constitution of Islamic Republic of Pakistan. In case the question does not relate to matters within the jurisdiction of Federal Shariat Court, the subordinate Court shall send the reference to the High Court, if the question relates to any of the subjects enumerated in section 4 of the Enforcement of Shari'ah Ordinance, 1988.

6. In the instant case in the application filed before the learned Additional Sessions Judge, ‑petitioners did not specify any law or any provision of law nor did they mention reference from the Holy Quran and Sunnah of the Holy Prophet to which that law was repugnant. The Additional Sessions Judge did not show satisfaction that any such question had arisen before him nor did he frame the question arising before him for decision by this Court. The grievance made in application before the learned Additional Sessions Judge was that accused‑petitioners were not given any opportunity for Qisas/Diyat before issuing warrant for execution of their death sentences. The application and the grievance made in it was relatable to procedure of the trial Court for fixing the date and time for execution of death sentences of petitioners. The said order was an administrative order and had arisen out of trial of the petitioners under the Criminal Procedure Code held by the Court of Session. The reference by the learned Additional Sessions Judge is not competent before this Court.

7. On a Shariat petition in the case of Gul Hassan Khan v. Government of Pakistan and another P L D 1980 Pesh. 1 a Shariat Bench of the Peshawar High Court held that penalties prescribed in Chapter XVI of Penal Code, 1860 with respect to offences against human body, particularly, 302, P.P.C. were not in accordance with Injunctions of Islam because such offences could be condoned by pardon or on payment of "Diyat". In a subsequent case decided by the Federal Shariat Court also on a Shariat Petition reported as Muhammad Riaz etc. v. Federal Government etc. P L D 1980 F.S.C. 1 a Full Bench of this Court declared that inter alia section 302, P.P.C. was repugnant to the Injunctions of Islam for not providing for composition and compound ability. Amendment about payment of Diyat was also proposed. Both the aforementioned decisions are sub judice in appeal before the Supreme Court and the amendments ordered by the Federal Shariat Court for payment of Diyat have not yet come into force.

8. The application submitted on behalf of petitioners disclose that no compromise for payment of diyat had been effected but it was only being negotiated. In support of the application no affidavit or compromise bad been filed in Court. Learned counsel submits that he was instructed to file the present petition by relations of petitioners and did not obtain any affidavit from them that parties had at all negotiated for payment of diyat. There is no material on record for drawing conclusion about genuineness of settlement arrived at between the parties, adequacy of compensation and freedom from coercion. In the circum stances we find that the application and the reference in the present form are not competent.

9. For the aforementioned reasons we find no merit in this application and reference. It is dismissed in limine. A.A./422/F S C Application dismissed.