4

THE AZAD JAMMU AND KASHMIR ENFORCEMENT THE AZAD JAMMU AND KASHMIR ENFORCEMENT OF SHARIAH ACT, 1989. (ACT VIII OF 1989) [Dated May 17, 1989] AN ACT for the enforcement of Shari'ah WHEREAS sovereignty over the entire universe belongs to Almighty Allah, alone, and the Authority to be exercised by the people of Azad Gamma and Kashmir within the limits prescribed by Him is a sacred trust:. AND WHEREAS sub‑section (5) to section 31 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, provides that no law shall be repugnant to the teachings and requirements of Islam as set out in the Holy Qur'an and Sunnah; AND WHEREAS it is necessary to carry out the purposes of the Interim Constitution and to provide that all existing laws shall be brought in conformity with the Holy Qur'an and Sunnah; It is hereby enacted 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 Shari'ah the Court shall, if it is satisfied that the question needs consideration, make a reference to the Shari'at Court in respect of matters which fall within the jurisdiction of the Shari'at Court under the Shariat Court Ordinance and that Court may call for and examine the record of the 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 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 Shari'at Court or Supreme Court and found not to be repugnant to Shari'ah. (2) The second proviso to sub‑section (1) shall not affect the jurisdiction of the Shari'at Court and 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 citizen of Azad Jammu and Kashmir or Government or on a reference made to it under the first proviso to sub‑section (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 law or provision of law under sub‑section (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 the Government a notice specifying the particular provisions that appear to it to be so repugnant, and afford to 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 the opinion; and (b) the extent to which such law or provision is so repugnant; and specify the day on which the decision shall take effect: Provided that no such decision shall take effect before expiration of the period within which an appeal there from 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 sixty day days from the date of the decision: Provided further that the High Court may, on the petition of Government showing sufficient cause for not implementing the decision, extend the time for a period not exceeding thirty days. (6) The High Court shall have power to review any decision given or order made by it under this Section. (7) The jurisdiction conferred on the High Court by the Section shall be exercised by a Full bench (8) Where a question referred to in sub‑section (1) or sub section (3) arises before a Single or Division Bench of the High Court, it shall be referred to the Full Bench. (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 State may be preferred at any time after the decision but not later than sixty days of the day on which the decision shall take effect and such extended period as may be allowed by the High Court under sub‑section (5). (10) Nothing contained in this Act nor decision made thereunder shall affect any sentences passed or orders made, judgements 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 Act Explanation.‑ For the purposes of this sub‑section, 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 Act and the word "Authority" shall mean any authority established under any law for the time being inforce.