AJK Shariat Court Act, 1993

  1. Section 3 — appointment of Judges of Shariat Court — the qualification, remuneration and privileges of the judges of the Shariat Court are same as of the High Court except mode of appointment — appointments of Judges of High Court are made after consultation with Chief Justices which is quite in accordance with the constitutional spirit of the independence of judiciary whereas the appointments in the Shariat Court are made in a discretionary manner without any consultation. Bashir Ahmed Mughal v. Azad Govt. & 6 others 2014 SCR 1258 (EE)
  2. Section 3 — composition of Shariat Court — Constitution of Islamic Republic of Pakistan — Article — 203-C — Shariat Court basically has been established to examine the status of law whether or not it s according to the injunctions of Holy Qur’an and Sunnah — but not a single person as Judge has been included to achieve this purpose — whereas Article 203-C of Constitution of Pakistan contains the provision with regard to special qualification of Judges — If at all there is any necessity of establishment of Shariat Court for achieving the purpose then there must be some distinction in its composition as compared to the High Court to justify the establishment of separate Court — otherwise if the qualification and terms and conditions of the Judges of Shariat Court are same then why the jurisdiction conferred upon Shariat Court cannot be exercised by the Judges of High Court having same qualification and privileges. Bashir Ahmed Mughal v. Azad Govt. & 6 others 2014 SCR 1258 (FF)
  3. Section 3 — its viries — AJK Interim Constitution Act, 1974 — section 4 — appointment of Judges of Shariat Court — validity of — Provisions of Section 3 are partly ultra vires to the Constitution Act, to the extent of :- empowering the appointing authority to appoint the judges of the Shariat Court without consultation of the Chief Justices; lacking the necessary provision of induction of Aalim Judge  for achieving the specific object of Islamization of law; lacking the provision and procedure for removal of Judge of Shariat Court. The law is made in contravention of subsection 2 of section 4 of the Constitution being violative of constitutional spirit, independence of judiciary, amounts to take away and abridge the constitutionally guaranteed fundamental right of access to justice and equal protection of law — Resultantly, the appointments of all the judges right from 1993 under this provision of law (except the proviso of subsection 2 of section 3 of Act, 1993), are void and also the impugned appointment notification dated 15.11.2012 of respondents No.5 and 6 is declared without lawful authority. Bashir Ahmed Mughal v. Azad Govt. & 6 others 2014 SCR 1258 (PP)
  4. Sections 3 & 6 — Interim Constitution Act, 1974 — Section 4 — constitution of Shariat Court — jurisdiction — fundamental rights — access of justice — mode of appointment of judges — independence of judiciary — appointment of Judges — In Act, 1993, there is no provision for consultation with the Chief Justices for appointment on the post of judge Shariat Court which means that these appointments are purely depending upon the arbitrary discretion of the appointing authority i.e the President — such mode of appointment is violative of the independence of judiciary — thus the subservient judiciary cannot safeguard or protect the constitutionally guaranteed fundamental rights which amounts to abridge the fundamental right of access to justice and the consequences of which are taking away and abridging the constitutionally guaranteed fundamental rights — thus any, law the application of which results into taking away or abridging the constitutionally guaranteed fundamental right under the provisions of subsection 1 & 2 of Section 4 of Constitution Act, is null and void. Held: the provisions of section 3 in its present shape empowers the executive authority to appoint the judge shariat Court without consultation with the Chief Justices which is in negation of the constitutional spirit of independence of judiciary — It amounts to abridge and take away the fundamental rights — thus the provision is null and void and imperative — any order of appointment made in exercise of these provisions in its present shape is of no legal effect. Bashir Ahmed Mughal v. Azad Govt. & 6 others 2014 SCR 1258 (AA)
  5. Interim Constitution Act, 1974 — section 4 — independence of judiciary — Genuine Rights Commission’s case 1999 SCR 1) distinguished — In the previous  pronouncement in the Genuine Rights Commission’s case ( 1999 SCR 1), the principle of law regarding the viries of Act, 1993 has not been enunciated on the touchstone of the provision of the section 4 of the Constitution Act and the constitution a concept of independence of judiciary, thus, the said judgment is not the hurdle for deciding the writ petition — no Judge made law can be applied or interpreted in such a manner which results into making any provision of the Constitution as inoperative or redundant — If such like interpretation is allowed it amounts to subversion of the Constitution Act — the principle of law laid down in Genuine Rights Commission’s case (1999 SCR 1) cannot be applied in the manner to make the provisions of Sections 3 & 4 of Constitution Act, inoperative and redundant. Bashir Ahmed Mughal v. Azad Govt. & 6 others 2014 SCR 1258 (LL)
  6. Section 6 — declaring any provision of law repugnant to injunctions of Holy Quran and Sunnah — Court has to mention date of effect of such judgment — According to the statutory provision of section 6 of the Azad Jammu and Kashmir Shariat Court Act, 1993, while declaring any provision of law repugnant to injunction of the Holy Quran and Sunnah, the Shariat Court has to mention the date from which the decision shall take effect. Manzoor H. v. Feroz Khan 2016 SCR 1534 (A)
  7. Section 6 (2)b, (3)b — effect of Court’s declaration regarding repugnance — the phraseology of the statutory provision clearly speaks that after coming into effect the judgment of the Shariat Corut, the law declared to be repugnant to the injunctions the Holy Qur’an and Sunnah shall cease to have effect. Resultantly, all the actions of exempting the property taken by the Government while delivering powers from such provision will become in-operative. The statutory provisions of the Shariat Court Act, 1993, are pari materia to the provision of Article 203-D of the Constitution of Islamic Republic of Pakistan, 1973. Manzoor Hussain v. Feroz Khan & another 2016 SCR 1534 (B) NLR 1988 SC 528, 2002 CLC 1533, 1992 CLC  2362 & PLD 1990 SC 1172 ref.
  8. Ss. 6,9 & 10 — A perusal of these sections shows that the Shariat Court and the High Court have not been given power to declare that law has been legislated in violation of sub-section(5) of Section 31 and shall therefore be treated as void. Azad Govt. v. M.Youns Tahir 1994 SCR 341 (JJ)
  9. S. 7(1) — Transfer of cases — Special statute — Powers under S. 7 are enabling provisions to give powers while exercising jurisdiction — Case in which appeal lies to the Shariat Court under special statute cannot be transferred by Shariat Court. Zabida Begum v. Rehmatullah 1998 SCR 53 (A)
  10. S.7 (1) — Powers of the Shariat Court for the purpose of the performance of its functions — The Shariat Court for the purpose of the performance of its functions has the powers as are vested in the High Court, while exercising revision, appellate and original civil and criminal jurisdiction. Mir Muhammad Fareed v. Rukhsana Bibi & 2 others 2014 SCR 1646 (A)
  11. S.7 (10) — Scope of review before the Shariat Court — under this section the Shariat Court shall have power to review any decision given or made by it. Held: it is very much clear that the Shariat Court can review any decision or order passed by it, while exercising the power under S. 7 (10). Mir Muhammad Fareed v. Rukhsana Bibi & 2 others 2014 SCR 1646 (B)
  12. A general provision u/s 8 was incorporated — Substituting Courts provided by the Code of Criminal Procedure by Courts mentioned in Islamic Penal Laws  Act — The amendment overrides the provisions of the Code of Criminal Procedure — Wherever the word High Court, Sessions Court and Magistrate First Class is used, it is to be read as Shariat Court, District Criminal Court and Tehsil Criminal Court — Held: Trial Court can release a person on bail but cannot accept pre-arrest bail — High Court and Sessions Court have been authorized to grant bail — The power granted to these Courts can be exercised co-extensively — No such scheme is incorporated in Islami Tazeerati Quaneen Nifaz Act — S.32 lays down that where a specific provision is not made in respect of any matter in that Act then in respect of the matter Code of Criminal Procedure would apply — but Code does not make any mention of Shariat Court or District Criminal Court — It is for this purpose that section 8 of the Shariat Court Act, has been enacted — This section adequately meets the requirement of providing necessary linkage — It is clear that the scheme of the Code of  Criminal procedure in respect of bail matters is fully applicable to the cases of Islami Tazeerati Quaneen Nifaz Act. State through Adv. Gen. v. Hakam Deen & 15 others 2005 SCR 374 (O)
  13. S. 10 read with Section 31 of AJK Constitution Act, 1974 — Whether High Court AJK has power to strike down a law which is against injunction of Holy Quran and Sunnah as stipulated under sub-section 5 of Section 31 of Constitution Act, 1974 — Question of — High Court was not correct in holding that it had powers to declare a law as void as being repugnant to injunctions of Islam which were taken away by enacting Section 10 of Shariat Court Act, 1993 because no such powers vested in High Court before enforcement of Shariat Court Act, 1993. Azad Govt. and 3 others v. Genuine Rights Commission AJK and 7 others 1999 SCR 1 (H)
  14. Section 11-Pending proceedings — Ouster of jurisdiction — The law which has been challenged shall continue to apply to all cases which are pending disposal at the relevant time and will, in fact, be decided in accordance with that law — In other words a law which is void under S.31(5) of the Interim Constitution Act shall continue to be valid and would be acted upon — It cannot be recognised that this can be constitutionally allowed, if the law has been changed — At best this exercise can be treated as an effort to bring the laws in conformity with the injunctions of Islam. This is a constitutional requirement — Shariat Court Act does not purport to take away the powers of the Supreme Court or any other Court which is vested by the Constitution — Since there is no conflict hence there is no question of ouster of jurisdiction. Azad Government v. Muhammad Youns Tahir & other 1994 SCR 341 (KK)
  15. —Section 12—Transfer of the employees of the Shariat Court to the law department— Schedule-VIII of the Rules of Business, 1985—Held:  that the employees of the Shariat Court can be transferred to the Law Department. Amjad Ali Khan Minhas v. Zahid Mehmood Khan & 3 others 2017 SCR 514 (C)
  16. A new dimension is given to Criminal Procedure Code in AJK by Criminal Procedure Amendment Adaptation Act, 2002 — Besides Chap XX of Cr.P.C. visualized by Sec. 28 of Islamic Penal Laws Act, Chap XXII-A is added providing procedure to be adhered by High Court and the Court of Sessions in trial of cases before it — the word High Court and Court of Sessions occurring in Chap.XXII-A shall be construed to mean the Shariat Court and the District Criminal Court — The chapter operates for trial of cases by  Shariat Court and District Criminal Court — Section 28 of I.P.L. Act, shall be operative to the extent of Chap. XX for trial before Tehsil Criminal Court only. State through Advocate General v. Hakam Deen & 15 others 2005 SCR 374 (P)
  17. As almost all the procedure of Evidence Act and the Penal sections relating to Hadood, Qisas, Tazeer and Diyat enacted through special law in Islamic Penal Laws Act, also stand incorporated and adapted in AJK through Qanoon-e-Shahadat Order, the Code of Criminal Procedure and Penal Code, as well, hence all these laws have to be construed and interpreted conjointly so as to avoid contradictions. Inconsistencies and repugnancy. State through Advocate General v. Hakam Deen & 15 others 2005 SCR 374 (Q)
  18. Independence of Judiciary — appointments of Judges of Shariat Court — consultation of Chief Justices — all the Judges are unanimous on the point — findings have not been challenged which have attained finality — according to both majority and minority views of the learned Judges of the High Court appointments of the Judges of the Shariat Court without consultation of Chief Justices are against the concept of independence of judiciary and illegal. Bashir Ahmed Mughal v. Azad Govt. & 6 others 2014 SCR 1258 (A)
  19. Scope and jurisdiction of Shariat Court — Fundamental rights — Keeping in view the scope and jurisdiction of Shariat Court under Act, 1993, the very first right “ Security of Person” is directly concerned and thereafter all the rights are directly concerned to Sharit Court — in all the criminal cases falling under Hudood and Qisas laws, appeal/ revision lies in the Shariat Court  including confirmation of death sentence — The Shariat Court is also vested with appellate jurisdiction against judgments and decrees of the Family Court — On original side, the Shariat Court has to 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 Qur’an and Sunnah of the Prophet (P.B.U.H) which means that all laws are concerned to the Shariat Court’s jurisdiction — Shariat Court according to its jurisdiction is deeply concerned with all the fundamental rights. Bashir Ahmed Mughal v. Azad Govt. & 6 others 2014 SCR 1258 (J)
  20. Shariat Court according to — its independence of — according to the scope and jurisdiction conferred upon it, is directly and indirectly concerned with the constitutionally guaranteed fundamental rights — thus, its independence is constitutionally required. Bashir Ahmed Mughal v. Azad Govt. & 6 others 2014 SCR 1258 (S) PLD 2013 SC 1 ref.
  21. The Shariat Court according to the scope of jurisdiction assigned under the provisions of Act, 1993 or by any other law has to perform important role in the system of administration of justice — according to the nature of the judicial functions, Shariat Court is an important judicial institution for the purpose of administration of justice and its complete independence according to the spirit and Scheme of constitution is inevitable. Bashir Ahmed Mughal v. Azad Govt. & 6 others 2014 SCR 1258 (T)
  22. Shariat Court — independent Status — for attaining and maintaining the independent status of judicial organs the mode of appointment is of such importance and without following the mode, which is required according to the constitution for independent judiciary, no Court can be established. Bashir Ahmad Mughal v. Azad Govt. & 6 others 2014 SCR 1258 (U) PLD 2012 (AJK)42 rel.
  23. Appointment of Judges — Consultation of — concept of independence of judiciary — there is no concept of appointment of judges in an arbitrary manner by the executive at their whim. Bashir Ahmed Mughal v. Azad Govt. & 6 others 2014 SCR 1258 (V)
  24. In Act, 1993 there is no express provision for removal of the judges of Shariat Court — the logical consequences of which can be  either the Judges of Shariat Court are above law or not accountable for any misconduct or to be removed for physical or mental incapacity but such consequences are not digestible in any constitutional State — the other logical conclusion which can be presumed that their removal depends on the sweet will of the ruler, is totally against the concept of independence of judiciary — from this aspect the law is violative of the spirit of independence of judiciary which results into abridging and taking away the constitutionally guaranteed fundamental rights. Bashir Ahmed Mughal v. Azad Govt. & 6 others 2014 SCR 1258  (BB)
  25. Since the inception of AJK State, the High Court is efficiently and effectively performing the functions of administration of justice according to assigned jurisdiction whether it is constitutional writ jurisdiction or any other jurisdiction as original, revisional or appellate conferred under any other law including the confirmation of death sentence — the “right of life” is basic fundamental right — in the present scheme of law the cases of confirmation of death sentences are referred to the Shariat Court which is neither established under the constitutional provisions nor is according to the concept of independence of judiciary — thus conferring upon such Court the powers of confirmation of death sentence amounts to empowering such Court to deal with the most important constitutionally guaranteed fundamental right of life while taking away the same from the jurisdiction of constitutionally established High Court — no doubt other Courts can be established but not as a parallel Courts for mere accommodation of some persons on the basis of favouritism or nepotism rather there should be some legal specific purpose for establishment of such Courts which cannot be achieved by the already established Courts. Bashir Ahmed Mughal v. Azad Govt. & 6 others 2014 SCR 1258 (CC)
  26. Shariat Court — mode of appointment — consultation with the Chief Justices — arbitrary mode which particularly amounts to adopt a such mechinisaim of bypassing the constitutional provisions providing consultation with the Chief Justices is one of the reasons to create doubts in the minds of the public at large regarding such Court’s establishment for accommodation of some person on the basis of favourtim and nepotism — such like doubts result into damaging the dignity of judiciary and shaking the public confidence upon such important State organ — If there is necessity of establishment of Shariat Court for achieving the specified purpose then it must be given constitutional status and protection — In its composition there must be some Judges having special qualification relevant to the specified purpose to be achieved like the  constitution of Pakistan which provides for induction of Ulema as Judge Shariat Court having at least fifteen years experience in the Islamic law research or instruction. Bashir Ahmed Mughal v. Azad Govt. & 6 others 2014 SCR 1258 (GG)
  27. For appointment of Judge of Shariat Court, the exalted office of such a superior Court vested with the jurisdiction of confirmation of death sentences and Islamization of laws, neither such arbitrary mode can be approved nor the same is according to the spirit of constitution. Bashir Ahmad Mughal v. Azad Govt. & 6 others 2014 SCR 1258 (HH)
  28. Establishment of the Shariat Court — For establishment of the Shariat Court according to the spirit of the constitution for achieving the object mentioned in Act, 1993, the legislation having following features is required:-There must be a provision for induction of atleast one Aalim Judge, possibly having the qualification as near to Mujtahid or at least the qualification provided under  Article 203-C of the Constitution of Islamic Republic of Pakistan i.e having atleast fifteen years  experience in the Islamic law, research  or instruction;
    1. the mode of appointment of judges with consultation of the Chief Justice of Azad Jammu and Kashmir and the Chief Justice of High Court who is also Chief Justice of Shariat Court; and
    1. Keeping in view the status of the Court with the relevance to the scope of jurisdiction, its establishment be provided through amendment in the Constitution Act.
  29. Bashir Ahmed Mughal v. Azad Govt. & 6 others 2014 SCR 1258 (RR)
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