Shariat petition

Penal Code (XLV of 1860), Ss. 496-B & 496-C [as inserted by S. 7 of Protection of Women (Criminal Laws Amendment) Act (VI of 2006)]

Shariat petition

Fornication and false accusation

Repugnancy to Injunctions of Islam

Petitioner assailed provisions of Ss. 496-B & 496-C, P.P.C., as un-Islamic

Validity

All those sections which were introduced in Penal Code, 1860, by virtue of Protection of Women (Criminal Laws Amendment) Act, 2006, were primarily considered as Islamic for either akin, auxiliary, analogous or supplementary to or germane with Hudood Offences, hence were declared to be included within the scope of term "Hudood"

As a consequence of such declaration, it was decided that appeal against a decision/judgment of any case by Trial Court involving section in question shall lie to Federal Shariat Court under Art. 203DD of the Constitution

Federal Shariat Court in its earlier judgment clearly defined term "Hudood" which included those offences which were introduced by Protection of Women (Criminal Laws Amendment) Act, 2006, in Penal Code, 1860

Federal Shariat Court declined to interfere in the matter which had already been decided earlier and was subject matter of appeal pending before Shariat Appellate Bench of Supreme Court

Shariat petition was dismissed, in circumstances.

Principles of Muhammadan Law had no force of law as the book was authored by Dinshah Fardunji Mullah and was only a reference book

Book in question did not have force of law and did not come under the ambit of law as provided under Art. 203B(c) of the Constitution

Federal Shariat Court declined to interfere in the matter as the matter had already been thrashed out in an earlier judgment titled Najaat Welfare Foundation v. Federation of Pakistan and others, reported as PLD 2021 FSC 1

Shariat petition was dismissed, in circumstances.

Petitioner was aggrieved of depriving women from their property rights under the custom of Chaddar/Parchi, prevalent in District Bannu of Khyber Pakhtunkhwa

Held, that such criminal practice, whereby women are deprived of their right of inheritance, is quite common

In such regard generally a core illegal practice is commonly known as?? ?????? (Haq Bakhshwai) or ?? ??????? (Haq Bakhshwana), which literally means "giving up of rights"

Such practice is in vogue throughout the country in different forms, whereby the perpetrators or usurpers try to give a kind of legal cover to their illegal and criminal actions, whereby either forcibly or by emotional blackmailing female members of the family are asked to relinquish their right of inheritance in favour of male members

Petitioner also mentioned somewhat similar practices in her petition that she was forced by the Jirga to relinquish her right from her ancestral property

She named such practice as "Chaddar" or "Parchi"

During the proceedings several names of such custom and usage were brought in the knowledge of Federal Shariat Court on the pretext of which women were being deprived of their right of inheritance

Federal Shariat Court instead of analyzing such usages or customs by name which were being used for committing such heinous crime, declared all or any custom by virtue of which any female member of a family was being or had been denied or deprived of her right of inheritance, which was granted by the Holy Quran and Sunnah as un-Islamic, having no legal force whatsoever

Federal Shariat Court declined to extend any relief to petitioner in the form of relief in-personam, as the same was out of the scope of jurisdiction of Federal Shariat Court

Shariat petition was disposed of accordingly.

Petitioner/accused contended that provision of S. 21-F of Anti-Terrorism Act, 1997 declining remissions to convict persons was violative of injunctions of Islam

Validity

Establishment of equity and justice in society is the corner stone of Islamic teachings and is part of belief of Muslims

Petitioner failed to produce verses of the Holy Quran which were relevant to the question that non-existence of remission under S. 21-F of Anti-Terrorism Act, 1997, to person convicted of terrorism was repugnant to the injunctions of Islam as laid down in the Holy Quran and Sunnah of the Holy Prophet (PBUH)

Different treatment of criminals, who are convicted for commission of acts of terrorism from the rest of criminals by not extending remissions to them, is not discriminatory under Islamic injunctions

In Islam punishments for different crimes are different depending on seriousness and heinousness of any crime

Terrorism is one of the most heinous natured crime in Islamic criminal justice system, therefore, its punishment is also very harsh and serious

Rigorous punishment prescribed in the Holy Quran for committing terrorism for ???? ?? ?????" ," is regarded as war against Allah and His Messenger (PBUH)

Parliament inserted S. 21-F in Anti-Terrorism Act, 1997 through Anti-Terrorism (Second Amendment) Act, 2013, and powers of the President of Pakistan were limited to grant remission to accused of offence of terrorism

By way of S. 21-F of Anti-Terrorism Act, 1997, Criminals who were punished for commission of any act of terrorism were separated from the rest of the criminals due to the gravity of crime of terrorism, which according to injunctions of Islam is the most heinous crime in society and has been considered as act of war against Allah and His Prophet (PBUH)

Federal Shariat Court declined to interfere in the matter as provision of S. 21-F of Anti-Terrorism Act, 1997 was not against injunctions of Islam

Shariat petition was dismissed in circumstances.

Provision of Art. 203B(c) of the Constitution envisages that law to be examined and decided, inter alia, includes any custom or usage having the force of law but does not include the Constitution, Muslim Personal law and any other law relating to procedure of any Court or tribunal

Such bar in the Constitution itself under Art. 203B(c) of the Constitution does not empower Federal Shariat Court to examine any Article of the Constitution

Shariat petition was dismissed as being not maintainable.

Federal Shariat Court under R. 15 of Federal Shariat Court (Procedure) Rules, 1981, has to decide such petition.

Petitioner was aggrieved of distribution of monetary benefits only to widow of issueless deceased officer and not to all relatives entitled to inherit under Islamic Law

Validity

Declaration of policy of pension, gratuity and other privileges claimed by petitioner was relief in personam

Such relief was beyond the jurisdiction conferred upon Federal Shariat Court under Art. 203-D of the Constitution and could not be granted

Questions raised by petitioner had already been decided by Federal Shariat Court in its earlier judgments

Shariat petition was dismissed, in circumstances.

Petitioner failed to identify any law or rule to be against the Injunctions of Islam as laid down in the Holy Quran and the Sunnah

This was the constitutional requirement to invoke jurisdiction of Federal Shariat Court under Art. 203-D of the Constitution

Shariat Petition, without mentioning of any law or rule which was considered as against the Holy Quran and the Sunnah by petitioner, was not maintainable before Federal Shariat Court

Petitioner sought relief in personam which was altogether out of jurisdiction of Federal Shariat Court

Shariat petition was dismissed, in circumstances.

Petitioner failed to identify any law or rule to be against the Injunctions of Islam as laid down in the Holy Quran and the Sunnah

This was the constitutional requirement to invoke jurisdiction of Federal Shariat Court under Art. 203-D of the Constitution

Shariat Petition, without mentioning of any law or rule which was considered as against the Holy Quran and the Sunnah by petitioner, was not maintainable before Federal Shariat Court

Petitioner sought relief in personam which was altogether out of jurisdiction of Federal Shariat Court

Shariat petition was dismissed, in circumstances.

Present Shariat petition was not maintainable as it was in direct conflict with Art. 17(2) of the Constitution, which makes it a fundamental right of every citizen of Pakistan to form a political party or to be a member of any political party

Formation and presence of a political party within the country is one of the fundamental rights given by the Constitution, which is guaranteed and also protected by the Constitution

Shariat petition was dismissed as being not maintainable.

Practices of raising objections on the working of a government in a society in a civil and democratic way is a part of a consultative process, which cannot be done in the absence of persons of different political thoughts and groups or political parties and same is the purpose of the impugned law i.e. the Political Parties Order, 2002

To have a constructive, healthy consultative process i.e. Shurah can only be promoted through the political parties of a polity, and that is the main purpose of the impugned law according to its Preamble

Articles 3, 4 & 5 of the Political Parties Order, 2002 were not against the inunctions of Islam.

Duty of establishing rights and duties, to enjoin good and forbid evil in a society according to the dictation of Allah and His Prophet (SAW) is clearly and categorically placed by the Almighty Allah upon Muslim men and women equally, which is the prime responsibility of the Judiciary in any society

Contention that the words "she" and "her" are alien to the chapter of Judicature of the Constitution, is misconceived as use of the masculine gender in any statute and law includes female unless there is anything repugnant in the subject or context

Said principle of law is contained in S. 13 of the General Clauses Act, 1897, and also in Art. 263 of the Constitution

Islam is the only religion which is based upon a revealed book of Allah in which a substantial portion of beliefs and practices are based on those traditions or Hadiths which are narrated by female companions of the Holy Prophet (PBUH) in general and by the wives of the Holy Prophet (SAW) in particular

Great portion of Islamic religion, faith, beliefs and practices are transmitted to the Ummah through these highly exalted and revered ladies i.e. the Mothers of the Faithful, which tells one of the actual elevated status, whereupon Islam places women

Some Umahat al-Moomineen would give Juristic opinions commonly called the 'Fatwas'

Books of Ahadith including Sahih Bukhari and Sahih Muslim contain Fatwas of Hazrat Ayesha (RA) i.e. the legal opinions of Hazrat Ayesha (RA) so much so that there are reported instances where very senior Ashaab al-Rasool (RA) sought legal opinion from Hazat Ayesha (RA)

In the light of such strong tradition and history of Islam which acknowledges the legal and jurisprudential scholarship of women, the appointment of female judges subject to the provisions of any law and the Constitution is not against the injunctions of Islam as laid down in the Holy Quran and Sunnah

Shariat petition was dismissed.

Present matter had already been decided by the Federal Shariat Court in the case reported as "Saleem Ahmad and others v. Government of Pakistan and others", reported as PLD 2014 FSC 43, wherein it was held that the Quran does not specifically create a bar for court of competent jurisdiction to decree a case of "Khula" when reconciliation fails; that courts can decide all types of matters including, dissolution of marriage on certain grounds, and that they are authorized to decide the case of Khula, if a husband does not at all agree to the divorce of his wife and all the reconciliatory efforts fail

Shariat petition was dismissed.

Plea of petitioner that S. 28 of the House Building Finance Corporation Act, 1952 ("Act of 1952") gives unfettered power to the House Building Finance Corporation ("Corporation") to sell out the house of a borrower in case of default in repayment of the loan amount, which renders the Corporation into a money lender engaged in usury, which is forbidden by the express command of the Holy Quran; that similarly, S. 29 of the Act of 1952 is un-Islamic as it gives absolute right to the Corporation to direct the borrower to repay the whole loan amount, in case the borrower fails to pay even one installment; that likewise, S. 30 of the Act of 1952 is also repugnant to the injunctions of Islam as it restricts the borrower's rights towards his mortgaged property

Validity

House Building Finance Corporation Act, 1952 ("Act of 1952") had already been repealed vide the House Building Finance Corporation (Repeal) Act, 2018 ("Act of 2018"), dated 24-05-2018

However, perusal of the repealing law revealed that the nomenclature of the law, which was to be repealed, was wrongly mentioned as "The House Building Finance Corporation (Repeal) Act, 1952 (XVIII of 1952)" instead of "The House Building Finance Corporation Act, 1952 (XVIII of 1952)"

Law Officer informed that Federal Shariat Court that the mistake had been rectified, and the expression "(Repeal)" in S. 2 of the House Building Finance Corporation (Repeal) Act, 2018 was omitted by way of a Corrigenda issued by the Senate Secretariat dated 01-11-2022

Since the impugned law had already been repealed, therefore, the present Shariat petition became infructuous and was accordingly dismissed.

Setting the age of 18, as mentioned in S. 2(a) of the Sindh Child Marriages Restraint Act, 2013, as the minimum legal age for males and females for the purposes of marriage

Repugnancy to Injunctions of Islam

Relation of marriage does not depend only on the fact that whether the parties to a marriage have attained the age of puberty or not, but it requires certain mental maturity also

Time period to attain sexual puberty and mental maturity may and may not be the same

One who does not have the means to have a healthy marital life must wait for having better economic and other conditions necessary to lead a healthy marital life

Act of setting a minimum age limit for marriage and setting age for an adult eligible to solemnize marriage vide impugned S. 2(a) of the Sindh Child Marriages Restraint Act, 2013 is not against the injunctions of Islam as laid down in the Holy Quran and Sunnah.

Punishment of 'Rajm' provided under S. 5 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 ('the 1979 Ordinance')

Repugnancy to Injunctions of Islam

Plea of petitioner that under Shariat punishment for offence of zina is 100 stripes, therefore, the sentence of 'Rajm' provided under S. 5 of 1979 Ordinance is contrary to the Injunctions of Islam

Held, that the question raised by the petitioner was a past and closed chapter as, it had, already been decided by the Federal Shariat Court in its judgment reported as Federation of Pakistan v. Hazoor Bakhsh and 2 others (PLD 1983 FSC 255), that the punishment of 'Rajm' under S. 5 of the Ordinance was in accordance with Shariah.

Plea that the Quran and Ahadith of the Prophet (pbuh) stressed upon the importance of making compromise (sulah) between any conflicting parties in general; that Islam also gave much importance to family system, therefore, in light of Ayat 35 of Surah Al-Nisa of the Holy Quran, the process of reconciliation referred to in S.10(3) of the Family Courts Act, 1964 must be made mandatory upon the Family Courts

Held, that the Quran and Sunnah stressed upon reconciliation and compromise to be made between the spouses in case any unpleasant rift occurred between them to avoid divorce

Quran put a moral and religious duty upon the elders and family members of the parties to put efforts for making a compromise between the spouses in case any unpleasant rift occurred between them

Ayat 35 of Sura Al-Nisa of the Holy Quran explained the manner in which such reconciliation efforts may be made between the parties within the family

Ayat 35 of Sura Al-Nisa was directed for the family members and elders of the conflicting spouses for making compromise or doing efforts for reconciliation between them

Even otherwise the jurisprudence of Federal Shariat Court was clear on the issue that the authority given to Family Court for reconciliation or compromise at pre-trial proceedings under S. 10 of the Family Courts Act, 1964 or after conclusion of trial under S.12 of the said Act, was adopted on the basis of Ayat 35 of Sura Al-Nisa of Holy Quran

Shariat petition challenging S.10(3) of the Family Courts Act, 1964 was dismissed accordingly.

Plea that the Quran and Ahadith of the Prophet (pbuh) stressed upon the importance of making compromise (sulah) between any conflicting parties in general; that Islam also gave much importance to family system, therefore, in light of Ayat 35 of Surah Al-Nisa of the Holy Quran, the process of reconciliation referred to in S.10(3) of the Family Courts Act, 1964 must be made mandatory upon the Family Courts

Held, that the Quran and Sunnah stressed upon reconciliation and compromise to be made between the spouses in case any unpleasant rift occurred between them to avoid divorce

Quran put a moral and religious duty upon the elders and family members of the parties to put efforts for making a compromise between the spouses in case any unpleasant rift occurred between them

Ayat 35 of Sura Al-Nisa of the Holy Quran explained the manner in which such reconciliation efforts may be made between the parties within the family

Ayat 35 of Sura Al-Nisa was directed for the family members and elders of the conflicting spouses for making compromise or doing efforts for reconciliation between them

Even otherwise the jurisprudence of Federal Shariat Court was clear on the issue that the authority given to Family Court for reconciliation or compromise at pre-trial proceedings under S.10 of the Family Courts Act, 1964 or after conclusion of trial under S.12 of the said Act, was adopted on the basis of Ayat 35 of Sura Al-Nisa of Holy Quran

Shariat petition challenging S.10(3) of the Family Courts Act, 1964 was dismissed accordingly.

Plea that Ss. 4, 5 & 6 of the Child Marriage Restraint Act, 1929 ('the impugned provisions') were in contradiction with Islamic law and rules

Held, that the minimum age of girl for marriage was set at 16 years by the State through the Child Marriage Restraint Act, 1929

Majority of Muslim jurists are of the view that the Nikah of a minor girl is permissible, however there are some jurists having an opposing opinion too

Settled principle of Shariah was that if any 'Mobah' act appeared to be harmful to the society collectively or to a particular segment of a society, the State had power to make that act prohibited so that the society could be protected from a larger damage

Limitations could be set on a 'Mobah' act in a precautious way that it did not affect any other 'hukum' set out by Shariah

Setting a minimum age limit of 16 for girls to marry was one such example

Furthermore in Islamic law, there was a well-developed concept of 'Sad-uz-Zaraey' based on Quran and Sunnah, according to which it was also a duty of the State to control, curtail or curb any act in a society, which may lead to harmful consequences to society at large or to any of its segments, no matter how minor it was

According to this principle of 'Sad-uz-Zaraey' the "impugned provisions" were not against the Quran and Sunnah

When a rule was abused or misused then it could be defined clearly to protect it from being abused

Impugned provisions did the same thing

Law or principle of Shariah was defined in a more clear way, that minimized the chance of its abuse or misuse, i.e., a marriage should not be consummated before the attainment of the age of medical maturity by the girl

Setting an age of 16 years reduced the possibility of breach of this principle of Shariah to the maximum

Setting a threshold of minimum age at 16 years for a girl by law would also generally help the girls to get at least basic education

Need for education was equally important for everybody irrespective of gender, which is why Islam had made the acquisition of education mandatory for every Muslim

At a personal level, for a girl or for anybody irrespective of gender, the factor of getting education came under the concept of Hifz-ul-Aql i.e. protection and promotion of intellect, which was also one of the basic goals of Shariah

For a healthy marriage, not only physical health and economic stability etc. were necessary factors but mental health and intellectual development was equally important, which were achievable through education

According to the teaching of Islam providing the best education to a child girl or a daughter was one of the best deeds a person could do which guaranteed 'Jannah'

Shariat petition challenging Ss. 4, 5 & 6 of the Child Marriage Restraint Act, 1929, being misconceived was dismissed in limine.

Petitioner contended that provisions of Ss.7 & 25 of Guardians and Wards Act, 1890, were anti-people, inhuman and un-Islamic as the same were to deprive natural guardian

Validity

Held, neither any law was enacted under S.25 of Guardians and Wards Act, 1890, nor it had prescribed any rule, rather it regulated situation where a ward was to leave or was removed from custody of a guardian of his person and natural/certified guardian moved Court for return of the ward

Title of guardianship did not entitle the guardian for return of custody of minor, unless he/she would establish that return of ward was in the interest of minor

Principle that father was natural guardian and lap of mother was cradle of God, was subservient and subordinate to welfare of minor as contemplated by S.25 of Guardians and Wards Act, 1890, which was also in accordance with Islamic Jurisprudence

Shariat petition was dismissed in circumstances.

Contention of petitioners was that S.26 of Azad Jammu and Kashmir Islamic Penal Laws Enforcement Act 1974, provided a special procedure with regard to recording of evidence in accordance with Islamic Injunctions, whereas, S.46(10) of the Azad Jammu and Kashmir Anti-Terrorism Act, 2014 provided that the trial of offences falling under the said Act shall be completed in seven days; that procedure for a fair trial always needed some time, and stages of trial under Islamic Law, i.e., prosecution evidence, defense evidence etc, could not be completed in such short span of time

Validity

Plain reading of Ss.46(19) & 61 of the Azad Jammu and Kashmir Anti-Terrorism Act, 2014 revealed that two procedures had been provided for trial of cases before the Anti-Terrorism Court; one was regular proce-dure as provided under Chapter XXII-A, of the Code of Criminal Procedure, 1898, and the other was provided under S.61 of Azad Jammu and Kashmir Anti-Terrorism Act, 2014

Under S.46(19) of the said Act the Anti-Terrorism Court had been empowered as a Court of Session for the purpose of trial of cases and the procedure which was adopted by the Court of Session for trial of cases was to be adopted by the Anti-Terrorism Court for the trial of all offences, except the offences explained under S.61

Since the procedure prescribed for the trial of cases before the Court of Session, which was the District Criminal Court in AJ&K, was mentioned in Chapter XXII-A of Cr.P.C, hence, the provisions of Chapter XXII-A, Cr.P.C were applicable before Anti-Terrorism Court, but if any provision of the said Chapter was in conflict with the Azad Jammu and Kashmir Anti-Terrorism Act, 2014, then that provision was to be excluded

Apart from such regular procedure to be adopted by the Anti-Terrorism Court, another procedure, in shape of summary trial had been provided under S.61 of Azad Jammu and Kashmir Anti-Terrorism Act, 2014 for the trial of offences which were punishable for not more than six months with or without fine

As a separate procedure had been provided for the trial of offences punishable upto six months, therefore, the procedure of Chapter XXII-A, Cr.P.C, was not applicable to the cases referred to in S.61, and all offences which were punishable upto six months with or without fine, were to be tried through summary procedure

Whenever any difficulty during trial of a case through summary procedure arose, then the same may be resolved by application of Chap. XXII of Cr.P.C, because by virtue of Ss.46(19) & 76 of Azad Jammu and Kashmir Anti-Terrorism Act, 2014 , the provisions of Cr.P.C were applicable

Anti Terrorism Court being the Court of Session could also invoke the provisions of Chap. XXII of Cr.P.C. for the trial of class of cases mentioned in S.61 of Azad Jammu and Kashmir Anti-Terrorism Act, 2014

When offences relating to punishments of more than six months, were to be tried through regular procedure provided under S.46 of the said Act or under the provisions of Chap. XXII-A of Cr.P.C., S.46(10) could not be said to be repugnant to Injunctions of Islam

Shariat petition was dismissed accordingly.

Grievance of petitioners was that punishments of 'Qisas', 'Diyat', 'Arsh', 'Tazir' and 'Hadd', had not been included in Azad Jammu and Kashmir Anti-Terrorism Act, 2014, hence, offences under Islamic Law would not be able to be dealt in accordance with Islamic Injunctions

Validity

Section 44 of the Azad Jammu and Kashmir Anti-Terrorism Act, 2014 related to the powers of Anti-Terrorism Court in respect of other offences

Said section stated that "When trying any Scheduled Offence, a Court may also try any offence other than the Scheduled Offence with which the accused may, under the Code, be charged at the same trial"

Anti Terrorism Court was empowered to try an offence under the Code of Criminal Procedure, 1898

Section 63(2) of Azad Jammu and Kashmir Anti-Terrorism Act, 2014 empowered the Anti-Terrorism Court to pass any sentence under other law

Where an accused person committed any offence under any other law for the time being in force, the Anti-Terrorism Court may convict him for such offence and pass any sentence under such other law

Whenever a situation arose before the Anti-Terrorism Court (ATC) wherein the offences involved did not come within the scheduled offences or had been committed under any other law, then the Anti-Terrorism Court had been authorized to award punishment to an accused, by following the relevant law in respect of those offences

Section 6 of the Azad Jammu and Kashmir Anti-Terrorism Act, 2014 was not repugnant to Injunctions of Islam

Shariat petition was dismissed accordingly. [Para. 8 of the judgment] (b) Azad Jammu and Kashmir Anti-Terrorism Act (XL of 2014)

Ss. 39(3) & 81

Azad Jammu and Kashmir Islamic Penal Laws Enforcement Act (IX of 1974), S. 23

Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), Ss. 4 & 31(5)

Shariat petition

Section 39 of the Azad Jammu and Kashmir Anti-Terrorism Act, 2014, repugnancy to Injunctions of Islam

Contention of petitioners that S.23 of the Azad Jammu and Kashmir Islamic Penal Laws Enforcement Act, 1974 provided that all the offences mentioned in the said Act were triable by Courts established under the said Act, despite the fact that the same were triable under any other law, whereas, as per impugned S.39(3) of the Azad Jammu and Kashmir Anti-Terrorism Act, 2014 the cases involving offences covered by it, even if committed prior to the enactment of the said Act, pending before any other Courts, shall be transferred to the Court established under the Azad Jammu and Kashmir Anti-Terrorism Act, 2014; that in such state of affairs, the cases involving procedure and punishments recognized by Islamic Injunctions, if transferred to the Courts established under the Azad Jammu and Kashmir Anti-Terrorism Act, 2014 would amount to violation of 'Sharia' -Validity

Section 81 of the Azad Jammu and Kashmir Anti-Terrorism Act, 2014 provided that where a person had committed an offence before the commencement of the said Act and his case was transferred to the Anti-Terrorism Court formed under the said Act, he shall be liable to punishment as authorized by law at the time when offence was committed

Anti-Terrorism Court was bound to award punishment under the law at the time when offence was committed

Azad Jammu and Kashmir Interim Constitution Act, 1974 provided protection against retrospective punishment

Under S.81 of the Azad Jammu and Kashmir Anti-Terrorism Act, 2014 retrospective effect was given only to the extent of acts of terrorism committed prior to promulgation of said Act and trial of such cases was transferred to the Anti-Terrorism Court, which meant that retrospective effect pertaining to procedure had been postulated therein

Section 81 however did not provide for retrospective effect to the extent of punishment for the offences committed prior to enforcement of the said Act

Change of forum for trial of cases under the Azad Jammu and Kashmir Anti-Terrorism Act, 2014 from ordinary Criminal Court to Anti-Terrorism Court was a matter of procedure only, hence provisions of S.39(5) of the Azad Jammu and Kashmir Anti-Terrorism Act, 2014 were not repugnant to the Injunctions of Islam

Shariat petition was dismissed accordingly.

Plea of petitioners that both husband and wife being employees of the POF had independent equal roles and deprivation of either of them amounted to injustice; that both of them drew their own salaries, pension and enjoyed all other service benefits, therefore each one should be allotted a separate plot as well; held, that an Islamic State and its relevant organizations had to consider providing shelter to its citizens and make proper arrangements for the same within reasonable limits but by no means at the cost of someone else

Housing Foundation and other similar (Government) organizations were duty-bound to make reasonable arrangements for providing basic facilities to their employees as far as possible, however, the citizens/employees were also required to exercise due restraint, self-control and forego greed and avarice to let other brothers/sisters have their own proportionate share

Employee may or may not get a plot during his/her whole service as it all depended on the availability of plots as well as the number of applicant employees in any set up

Number of employees in the Pakistan Ordnance Factory was approximately 30,000/- and they all had genuine concern to be considered on priority basis for allotment of plots

Pakistan Ordnance Factory or other organizations were not obliged to allot two plots to each and every married couple who happened to be its employees because it may amount to deprivation of certain other employees who had got no plot whatsoever

Thousands of employees of the State organizations who were still waiting for allotment of plots, should have top priority for allotment of plots as compared to the spouses one of whom had already got a plot

Rationale of policy formulated by Pakistan Ordnance Factory for allotment of one plot to either spouse was aimed to accommodate as many employees as possible and it seemed quite reasonably justified on account of the limited availability of residential plots

Allotment of double plots to one family and depriving hundreds of other families from the same facility would amount to a great injustice which could not be defended according to Islamic principles designed for dispensation of justice

Impugned policy/rules were not against the Injunctions of Islam

Shariat petition was dismissed in circumstances.

Where the husband was not in a position to produce a child or there was some problem in the sperm of the husband and the sperm was obtained from a third person, in that case the child would belong to the person, from whom the sperm had been obtained

Child would not belong to the husband who had arranged the sperm from a third person

Even if the egg belonged to the wife of the person who had arranged the sperm from a third person, for all practical purposes the child would belong to the person from whom the sperm had been obtained

Such an arrangement would be illegal and against the injunction of Holy Qur'an and Sunnah

Shariat petition was disposed of accordingly.

Child produced through In Vitro Fertilization (IVF) procedure by using sperm of the husband, eggs of the wife, and placing the embryo in the womb of the wife

Where the sperm had been obtained from husband and the egg from the wife and the same had been fertilized in the test tube through medical process and the embryo was then placed in the womb of the wife, in that case the child would belong to the actual husband and wife

Such process could not be considered as illegal or against the injunctions of Holy Qur'an and Sunnah

Child in such a case by all means would be legal and legitimate

Shariat petition was disposed of accordingly.

Producing a child through a surrogate mother [Per Riaz Ahmad Khan, C.J.]: Where a woman was arranged as a surrogate mother against a monetary consideration or some other reasons, the whole procedure as well as the resulting birth of the child would be illegal and against the Injunctions of Holy Qur'an and Sunnah

Children born through surrogacy were not produced by a couple through the bond of Nikah

Object of producing children through surrogacy was to satisfy the desire of a woman who may not wish to marry a man or go through the pains of delivery or was infertile

Homosexual couples could also have such desires

Paternity and maternity of child would become irrelevant in case of surrogacy

Only if a baby was born through mechanical/medical process where the sperm belonged to the husband and the egg to the wife and the child was born through the wife, in that case the procedure would be legal and lawful

In all other cases surrogacy procedure would be unlawful and against the Injunctions of Holy Qur'an and Sunnah

His Lordship observed that surrogacy procedure was not only based on exploitation rather the whole concept was illogical, cruel and absurd; that if a woman was asked to carry a child for an unknown couple and then go through the pains of delivery and deliver a child for another couple, it would be beyond human understanding that the woman, who carried the child for nine months, would not develop emotional feelings for the child to whom she gave birth; that in such a case the woman became only a machine not having any feelings, emotions or love, and that surrogacy also disturbed the settled principles of inheritance given by the Holy Qur'an

[Per Allama Dr. Fida Muhammad Khan, J]

Use of a third party in the process of pregnancy was prohibited, whether the subject was liquid sperm or egg or embryo or a third party, and whether it was involved by way of lease or donation

Shariat petition was disposed of accordingly.

Federal Shariat Court held that whole procedure of surrogacy as well as the resulting birth of the child was illegal and against the Injunctions of Holy Qur'an, and directed that suitable amendment should be made in S.2 of the Contract Act, 1872 and it may be specifically provided that any agreement regarding surrogacy would not be enforceable by law as the same would contain unlawful proposals and unlawful considerations; that the Penal Code, 1860 should also be amended and suitable section of law be added regarding definition of surrogacy; that surrogacy should be declared as an offence punishable with imprisonment as well as fine, that further amendment be made in the Penal Code, 1860 that the couple who arranged a surrogate mother would be liable to punishment along with surrogate and the doctor who carried on the surrogacy procedure; that the Penal Code, 1860 should provide punishable for the doctor who maintain a sperm bank or egg bank for future use, which should include imprisonment and fine, and that it must also be provided that any doctor involved in the procedure of surrogacy should lose his license

Shariat petition was disposed of accordingly.

By virtue of Art. 203-D of the Constitution, the Federal Shariat Court was bound to base its judgments not only on the Holy Quran but also on the Sunnah of the Holy Prophet (p.b.u.h.) as well.

Provision of S.8(b) of the Ordinance that evidence of the act of penetration necessary to the offence of zina liable to hadd was to be given by at least four Muslim adult male eye-witnesses, about whom the Court was satisfied, having regard to the requirements of tazkiyah al-shuhood, that they were truthful persons and abstained from major sins

Repungnancy to Injunctins of Islam

Plea of petitioner was that shahid ( ) did not mean an eye-witness at all but any prudent person, whose testimony about the unseen facts removed a doubt regarding two conflicting claims or statements, was called shahid ( )

Root of the word 'shahid' ( ) was 'shahida' ( ) and its different derivatives had been mentioned 180 times in the Holy Quran, each signifying various meanings according to the context used in the verse

Word 'shahid' in its original root, sometimes referred to mere presence while on some other occasions it meant bear testimony to a fact, bear witness, produce evidence, bring proof, offer demonstration, attest, cite example/ instance/illustration etc.

Meaning of the word 'shahid' ( ) could not be confined to only one interpretation

No one could be accepted as a witness of zina unless he actually saw with his own eyes commission of zina

Witnesses must also be competent

Conditions for a competent witness, inter alia, included possession of sound reasoning faculty, puberty, probity, absence of enmity/bias/interest, eyesight in case of facts which required to have been seen, capacity to speak or communicate with rectitude, and to be male and not convicted of perjury or giving false evidence as well as being a Muslim in cases of Hudood

For the sake of abundant extraordinary caution in the administration of justice, the Court, before awarding punishment, in a case of Hadd, was required to make further inquiry (Tazkiyah al-shuhood) about the witnesses as prescribed in S.8(b) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979

Shariat petition was dismissed accordingly.

Regulation 30 of Frontier Crimes Regulations, 1901 ("the Regulation") provided that a married woman who, knowingly and by her own consent, had sexual intercourse with any man who was not her husband, was guilty of the offence of adultery, and shall be punishable with imprisonment for a term which may extend to five years, or with fine, or with both

Repugnancy to Injunctions of Islam

Punishment provided for adultery under Regln. 30 was repugnant to Injunctions of Islam as contained in the Holy Quran and Ahadith of the Holy Prophet (pbuh)

Federal Shariat Court directed that the Federal Government, Provincial Government as well as Federally Administered Tribal Areas and all other concerned authorities should take necessary steps to amend the Regln. 30 so as to bring the same in conformity with the Injunctions of Islam; that such necessary steps shall be taken by 31st May 2017, where-after Regln. 30 would become void and shall be of no effect

Shariat petition was allowed accordingly.

Under the Frontier Crimes Regulations, 1901 ("the Regulation") where a crime was committed by any member of the tribe, the entire tribe/community or the members thereof in general were made collectively liable, with the result that they may face blockage, fine and forfeiture of properties if they failed to do the needful as required

General rule or principle of Islamic justice system was that nobody could be made liable for the wrong committed by others, however, in exceptional circumstances the concept of joint liability had been introduced in Islamic criminal justice system as a special provision in cases of blind murder where the entire community was held collective liable to pay Diyat

Government, keeping in view the gravity of offences, their frequency and other attending circumstances, was fully authorized to make legislation as 'Taazir', as warranted by the situation

Shariat petition was dismissed accordingly.

Most provisions of the Frontier Crimes Regulations, 1901 ("the Regulation") had deep relevancy with the customs, usages, conventions and traditions prevailing in that area

Prior to Islam, custom and usage was one of the major sources of law in many countries and especially in Roman law and it is still considered as one of the secondary source of Islamic law

Seeking guidance, assistance and judgment of Council of Elders in resolving certain criminal and civil issues was a frequently used custom

Jirga and Punchait played a vital role in deciding matters and maintaining peace in the society and resolving hostilities between members of the society, as expeditiously as possible

Procedure adopted in the Federally Administered Tribal Areas (FATA) ensured speedy trial to forestall blood-shed in the area

Main purpose of the Regulation was to crush insurgency, connivance and conspiracy well in time, in order to maintain law and order

Procedure adopted by the Council of Elders provided in the Regulation was a particularly urgent requirement of the area and was not repugnant to the Injunctions of Islam but in consonance with the requirement of administration of justice which had to be dispensed with care, caution and speed

Formation of Council of Elders for consultation to decide certain issues/matters in the area was very much in line with the Quranic Injunctions

Shariat petition was dismissed accordingly.

Plea of petitioner that the act of "Rammi" had no religious link with Hajj and was not mentioned in the Holy Quran or in any previous Book of Allah; that such act had not been performed by any Prophet of Allah particularly Prophet Ibrahim who was the architect of Ka'ba; that such act had been causing lot of casualities and, in view of Art.5 and Art.9 of the Constitution, it was responsibility of the State to ensure security of its citizens anywhere in the world

Validity

Casting pebbles at the pillar/monument (Jamrah), symbolically considered as Shaitan, was unanimously held as a mandatory part of Hajj by Muslim jurists of all schools of thought

Any person who failed to do so, personally or in case of women or disabled persons, by representation, had to offer an additional sacrifice as compensation according to all the prominent Muslim jurists

Act of "Rammi" and other important details of Hajj, which were not mentioned in the Holy Qur'an, were mentioned in the Sunnah of the Holy Prophet

Sunnah [i.e. sayings, actions and tacit approval of the Prophet Muhammad (p.b.u.h.)], in fact, represented the Holy Quran in practice-Ritual of "Rammi" was practiced by the Holy Prophet (p.b.u.h.), his companions and millions from succeeding generations, ever since the 9th Hijra when Hajj was made mandatory for all who could afford

Continuous, constant and incessant practice of "Rammi" during the past 1429 years, provided an irrefutable proof that it was an integral part of Hajj

Casualties during the act of "Rammi" were caused by the negligence, haste or violation of rules by the pilgrims and had nothing to do with the pebbles being cast at pillar/monument (Jamrah)

Rituals necessary for performing Hajj could not be left out for such reason

Shariat petition was dismissed accordingly.

Petitioner had challenged policy of the State Bank of Pakistan which being a procedural matter relating to the practical operation/transaction in the Domestic and Foreign Banks operating in Pakistan, was beyond the jurisdiction conferred upon the Federal Shariat Court by the Constitution

Shariat petition was dismissed accordingly.

Under Art. 203-D of the Constitution, the Federal Shariat Court may, [either of its own motion or] on the petition of a citizen or the Federal Government or a Provincial Government, examine and decide the question whether or not any law or provision of law was repugnant to the Injunctions of Islam, as laid down in the Holy Quran and the Sunnah of the Holy Prophet (pbuh)

Where the petitioner neither challenged any law or provision of law as required under R. 7(d) & (e) of the Federal Shariat Court (Procedure) Rules, 1981, nor gave any particular Nass of the Holy Quran or Sunnah of the Holy Prophet (pbuh) relating to the relevant law or its provisions, supporting the petition, the same would be liable to be dismissed.

Impugned circular, whereby guidelines on write-off of irrecoverable loans and advances were issued by the State Bank of Pakistan had already expired with effect from 31.01.2005, and as such was no more in the field

Shariat petition was dismissed accordingly.

Cases in which it was not practicable or desirable to convene a Court Martial for the trial of an officer against whom misconduct or inefficiency etc. was imputed

Power of Chief of Army Staff to submit a report giving all the circumstances of the case and evidence, and send the case along with his recommendations for the decision of the Government

Repugnancy to Injunctions of Islam

Plea that R.269-A(c) was against the principles of 'Adl' and thus repugnant to the Injunctions of Islam

Validity

Rule 269-A of Pakistan Army Regulations provided, firstly for a court of inquiry to investigate and submit its findings [subsection (a)] or, secondly, call upon an officer to show cause and explain his position regarding the reasons necessitating his dismissal, removal and premature retirement from service [subsection (b)] or, lastly, in case it was not expedient either to hold a court of inquiry or call for the officer's explanation, the Chief of Army Staff may submit a report giving all the circumstances of the case and evidence, if any available, and send the case along with his recommendations for the decision of the Government [subsection (c)]

Maintenance of high order and discipline in the Armed Forces had utmost importance

In certain cases in the military recourse to the normal legal system may create irreparable loss to their unity, morale, discipline and performance, especially in war or emergency

Senior officers, in the chain of command, irrespective of the rank they held, urgently needed to be vested with the requisite authority to curb violation and disobedience of command

In certain cases such objective could be achieved by summary punishment of simple nature, which had to be administered without any unreasonable delay

Chief of Army Staff and other Chiefs of the Armed Forces had to decide various cases then and there on the spur of the moment, as they were the best judges to take cognizance, decide and take any appropriate action based on the attending circumstances and available evidence

Petitioner could not specifically point out any Verse of the Hoy Qur'an or Hadith of the Holy Prophet (p.b.u.h.) to support his contention that R.269-A(c) of Pakistan Army Regulations was repugnant to Injunctions of Islam

Shariat petition was dismissed accordingly.

Plea that an officer of armed forces who was taken into custody or was suspended from duty or was attached on disciplinary grounds, remained innocent till he was proved 'guilty', however under Rr.133(q), 133(r) & 133(u) of Volume 1 of Pakistan Army Regulations, such officer on vacation of his appointment lost his temporary rank and its emoluments which was against the Injunctions of Islam; that in contrast a government servant remained entitled to service emoluments and all other benefits and facilities provided to him for the period he remained suspended from duty

Validity

Rule 133 of Volume 1 of Pakistan Army Regulations ('impugned Rule') mentioned only the conditions for vacation of appointment

Said Rule did not affect the rules in Pay and Allowances Regulations under which command charge, staff or additional pay may, in certain cases, continue to be admissible to an officer and his successor notwithstanding the fact that he had ceased to actually perform, the duties connected with that appointment

According to the impugned Rule, an officer lost only the temporary rank and not the substantive rank nor its emoluments to which he remained duly entitled

In case of acquittal, such an officer may be reappointed to the post he had vacated from the first day of vacation of his original appointment, and in case of his conviction, if he received a sentence of less than dismissal, he may be reappointed from the date he returned to duty

As far pay and allowances of such an officer were concerned, the impugned Rule specifically provided, that these would remain unaffected under the Pay and Allowances Regulations

¬Petitioner could not refer to any specific Regulations in the Pay and Allowances Regulations which debarred such an officer from receiving his pay and allowances for the substantive ranks he held

Shariat petition being misconceived, was dismissed accordingly.

Where the heirs of the victim (deceased) willingly agreed to bury the hatchet, it would not only add to the public peace and tranquility but would save their present and successive generations from bloodshed; thus it was in the larger public interest to grant legal sanctity to compoundability only in the cases of Qisas.

Plea of petitioner that honour killing was Fasad-Fil-Arz" and therefore there should be no compoundability in granting waiver to or compounding the offence of Qisas with an accused who took law in his hands and committed a heinous offence of murder without adopting recourse to the judicial process

Validity

Section 311, P.P.C. already provided for the relief sought by the petitioner

Said section started with the word "notwithstanding anything contained in S.309 or 310" pertaining to waiver of Qisas in Qatl-i-amd and compounding of Qisas in qat1-i-amd and by authorizing the court to award, inter alia, even death sentence to such a culprit despite the waiver of or compounding the right of Qisas by the adult sane 'Wali'

Shariat petition being misconceived was dismissed accordingly.

Plea of petitioner was that for awarding sentence of death as Ta'zir under S.302(b), P.P.C. the required standard of evidence was less than what was required for punishment with death as 'Qisas' under S.302(a), P.P.C; that despite the higher degree of evidence required, the offence under S.302(a), P.P.C was made compoundable, but the offence under S.302(b), P.P.C. requiring lesser standard of evidence was not compoundable; that in such circumstances in cases of Ta'zir, punishment other than death should be awarded

Validity

Where the (higher) standard required for Qatl-i-amd provided under S.304, P.P.C. was not met, but the guilt of the accused was established beyond any reasonable doubt through other reliable evidence, the offender could not be let escort free and must be punished according to the nature of the gravity of offence committed

Relief sought by petitioner in the form lesser punishment (other than death sentence) as Ta'zir for Qatl-i-amd was already provided under Ss.311, P.P.C. and 345, Cr.P.C.

Section 18(2) of Financial Institutions (Recovery of Finances) Ordinance, 2001, making attestation of such documents in terms of Art.17 of Qanun-e-Shahadat, 1984, mandatory

Section 18(3) of Financial Institutions (Recovery of Finances) Ordinance, 2001, provided protection/validity to all banking documents/finance agreements, executed prior to enforcement of said Ordinance, which were not attested in terms of Art.17 of Qanun-e-Shahadat, 1984

Repugnancy to Injunctions of Islam

Article 17(2) of Qanun-e-Shahadat, 1984 provided exception to some specific laws from the requirement of attestation of financial instruments

Financial Institutions (Recovery of Finances) Ordinance, 2001, was admittedly a special law and as such the exception provided in Art.17(2) of Qanun-e-Shahadat, 1984 was applicable to the documents exempted from attestation as required under S.18(2) of the Financial Institutions (Recovery of Finances) Ordinance, 2001

Giving retrospective effect to requirement of attestation, and thereby removing protection given to financial documents executed prior to enforcement of Financial Institutions (Recovery of Finances) Ordinance, 2001, would open a flood gate of litigation and create legal chaos

Protection given to such documents in terms of S.18(3) of Financial Institutions (Recovery of Finances) Ordinance, 2001 was in the larger public interest to protect the interest of the banking companies and financial institutions (who were the custodian of the funds belonging to general public) and to avoid the abuse of process of law by the defaulters

Past and closed matters in financial transactions made prior to coming into force of the Financial Institutions (Recovery of Finances) Ordinance, 2001, had been rightly protected by S. 18(3) of Financial Institutions (Recovery of Finances) Ordinance, 2001, which section was not repugnant to Injunctions of Islam

Shariat petition was dismissed accordingly.

Non-compliance with decree by wife-Jurisdiction of Family Court to attach wife's property or order her to make periodical payments to the husband for non-compliance with decree

Repugnancy to Injunctions of Islam

Decree passed by a competent court had great significance and sanctity in Islam

Order XXI, Rr.32 & 33, C.P.C. provided a mechanism for execution of decree/judgment delivered by Family Court, in the event that a spouse was not complying with such decree/judgment

Order XXI, Rr.32 & 33, C.P.C. were not against the Injunctions of Islam.

No specific verse of the Qur'an or Hadith put an embargo on the Family Court to restrain it from passing art order for restitution of conjugal rights

Jurisdiction of Family Court to issue decree for restitution of conjugal rights was not against the Injunctions of Islam.

Petitioner contended that under S.19(2) of Securities and Exchange Commission of Pakistan Act, 1997, a Commissioner or Member of the Commission could not be removed without an inquiry, and reasonable opportunity of being heard, but under R.3(1) of Chap.11 of Securities and Exchange Commission of Pakistan Service Rules, 2007, services of employees of the Commission could be terminated by notice without assigning any reasons; that rights of Members or the Commissioners were discriminatory to the rights of general employees, thus said Rule was not only violative of the principles of audi-alteram partem but was based on the principle 'master and servant', which was a term derogatory to the principles laid down by Islam

Validity

Principle of "master and servant" was a condition of service which could also be termed as 'employer and employee' or in others words 'Aajir and Ajeer'

State could make laws in accordance with its needs defining the interaction between 'Aajir and Ajeer'; employer and employee' and 'master and servant'; whatever terminology the law may import

Rule 3(1) of Chap.11 of the Securities and Exchange Commission of Pakistan Service Rules, 2007, had already been declared as ultra vires the Constitution and inter-alia the Securities and Exchange Commission of Pakistan Act, 1997, by the Supreme Court in the case of Muhammad Ashraf Tiwana and others v. Pakistan and others (2013 SCMR 1159 at page 1172)

Said judgment of the Supreme Court, therefore, had removed the alleged discrepancy between S.19(2) of Securities and Exchange Commission of Pakistan Act, 1997 and R.3(1) of Chap.11 of the Securities and Exchange Commission of Pakistan Service Rules, 2007

Present Shariat petition had thus become infructuous

Section 19(2) of the Securities and Exchange Commission of Pakistan Act, 1997, however, contained nothing derogatory to the Injunctions of Islam because it expressly contained the provision of enquiry by impartial person or persons, before taking action against a Member or Commissioner

Shariat petition was dismissed accordingly.

In view of the jurisdiction in connection with shariat petition, conferred upon the Federal Shariat Court, the prayer for granting relief in personam could not be allowed

Illustration.

Judge/Qazi empowered to pass decree for khula at pre-trial stage without approval of husband and without recording evidence

Repugnancy to Injunctions of Islam

Plea of petitioners that a Qazi/Judge before whom prayer for dissolution of marriage on basis of khula was made was not authorized to pass such decree in favour of wife if the husband was unwilling; that S.10(4) of Family Courts Act, 1964 was against Injunctions of Islam as it bound the Family Court to pass a decree (for khula) in case reconciliation failed at pre-trial stage without recording of evidence in respect of liking and disliking on the basis of which compromise between husband and wife was refused

Validity

Where the husband did not agree to accept compensation by his wife for purposes of khula and refused to release her from his marital tie and also declined to divorce her, question was what should be the course of action for the wife; would it be justified to leave such a wife in darkness who could not live happily or perform her marital obligations; should she be pushed back to her husband to remain tongue tied, tight-lipped, depressed, dejected, having a miserable survival throughout her whole life; should she be kept, at the mercy of her in laws, vulnerable to indecent immoral life; was such a situation morally justified on any standard; would not such a situation assigned to her defeat the very object of marital peace and tranquility; who would be considered responsible if she could not bear the mental agony in such state of affairs and put an end to her life by setting herself on fire or adopted any other method for committing suicide; who would stop her or what would prevent her from administering poison to her husband if she found herself entangled in a "holy dead lock"

Islam did not intend to force a wife to live a miserable life, in a hateful unhappy union, forever

If wife was unhappy and reconciliation failed, she should be entitled to get relief as this is what justice demanded

Courts were there to resolve the disputes that arose between the parties, and they could decide all type of matters including, admittedly, dissolution of marriage on certain grounds

In such circumstances it was not understandable as to why the courts would not be authorized to decide a case of khula, if a husband did not at all agree to divorce his wife and all reconciliatory efforts failed

No specific verse or authentic ahadith existed which provided a bar to the exercise of jurisdiction by a competent Qazi/judge to decree the case of khula agitated before him by a wife, after reconciliation failed (and husband refused to release her from marital tie by accepting compensation in lieu of khula)

Shariat petition was dismissed accordingly.

Plea of petitioner was that S. 172(2) Cr.P.C, which barred the accused from calling for or seeing the police investigation diary was against the Injunctions of Islam and should be amended to bring it in conformity with the same, allowing the accused to have right of access to police diaries and ziminies , before submission of challan in court

Validity

Information obtained under S. 172, Cr.P.C could not be treated as evidence and neither was it admissible in evidence nor could it be considered at par with statement made under S. 161, Cr.P.C

Section 172(2), Cr.P.C pertained only to a diary of investigational procedure wherein investigating police officer recorded his day to day proceedings, as and when he received any relevant information from any place

Such a diary did not assume the status of evidence and could not be used against the accused which might prejudice his case in any manner

According to S. 172(2), Cr.P.C, any criminal court might call for such police diaries of a case under inquiry or trial, and might use such diaries, not as evidence in the case, but just as elucidation of certain facts to aid the court in such inquiry or trial

If such police diaries were to be used by the police officer, who had made them, then it was only for refreshing his memory

If the court used such diaries for the purpose of contradicting the police officer, who had made them, the provisions of Qanun-e-Shahadat, 1984, and Ss.145 & 161, Cr.P.C, as the case might be, shall apply

Even if such police diaries were consulted by the court for elucidation of certain facts, no judgment could be passed on the basis of information contained in such diaries

Information obtained under S. 172(2), Cr.P.C, thus, was just procedural in nature and had no material or evidentiary value to cause prejudice to the accused

Shariat petition was dismissed accordingly.

Accused persons, who were husband and wife, were alleged to have acquired immoveable/moveable properties and pecuniary resources, which were disproportionate to their known sources of income

Chairman National Accountability Bureau (NAB) made a reference against accused persons before the Accountability Court to the amount of Rs.25, 00, 000

Accused persons made an application before Accountability Court for plea bargaining under S.25 of National Accountability Ordinance, 1999 and offered the entire amount mentioned by Chairman NAB under his reference

Accountability Court rejected said application on the ground that accused persons had more property than the offered amount and convicted them under S.9(2)(v) read with S.10 of National Accountability Ordinance, 1999 and awarded them punishment of ten years imprisonment along with fine of Rs.95 million each

High Court reduced period of imprisonment to 3 years and reduced amount of fine to Rs.25 million each

Supreme Court upheld judgment of High Court

Plea of petitioners was that amount offered during plea bargaining was not less than the amount sent by the Chairman NAB in his reference; that rejection of application for plea bargaining in such circumstances was against Injunctions of Islam; that said discrepancy was not agitated up till the Supreme Court and attained finality but could be re-opened by the Federal Shariat Court on the ground of Islamic Injunctions; that sentence of imprisonment awarded to one of the accused, who was a house wife was against the Injunctions of Islam, and that Ss.10, 11 & 12 of National Accountability Ordinance, 1999 were also against Injunctions of Islam

Validity

Petitioners had not explained as to how impugned sections of National Accountability Ordinance, 1999 were repugnant to Injunctions of Holy Quran and Sunnah 'of the Holy Prophet (p.b.u.h.)

Petitioners had not even bothered to submit text of verses of the Holy Quran quoted by them in their petition

Contents of the present petition showed that petitioners had approached the Federal Shariat Court in order to get relief in personam because their father and mother (i.e. accused persons) were convicted by Accountability Court

High Court did reduce the sentence of imprisonment and amount of fine, which was upheld by the Supreme Court

Petitioners and their counsel had not been appearing before the Federal Shariat Court since filing of present shariat petition in spite of services of notices upon them

Absence of petitioners showed that that they had no interest in pursuing the present petition and had no argument

Shariat petition was dismissed in circumstances.

Rule 7(2) of Federal Shariat Court (Procedure) Rules, 1981, specifically provided that whenever a petitioner claimed more than one law or provision thereof to be repugnant to Injunctions of Islam, he should file a separate petition in respect of each law.