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SHARIAT PETITIONS DECIDED BY FEDERAL SHARIAT COURT FROM ITS VERY INCEPTION W.E.F. 10-2-1979 UPTO DATE.

Note: Initially a shariat bench comprising three judges was constituted in every High Court to hear shariat petitions. However, on 5-6-1980, Federal Shariat Court was established in Islamabad to examine laws either on its own motion or on shariat petitions and also to decide appeals against Hudood cases. In Shariat Petitions the Court examined whether or not any law is repugnant to the Injunctions of Islam as laid down in the Holy Quran & Sunnah of the Holy Prophet (PBUH). (Article 203 D of the Constitution of Islamic Republic of Pakistan).

S/NO

S.P.No & Parties

Matter Involved

Findings

Appeal Filed or not

1.

I/L of 1979, 18/K of 1979 Ghulam Nabi Vs. Pakistan

 Definition of Iztirar in section 6 of the  Prohibition (Enforcement of Hadd)  Order, 1979, has been challenged,  while in S.P.No.18/K of 1979, section  17  of the said Order has been  challenged  being inconsistent with  the Islamic  Injunctions. These  provisions provide  for issuance of  license to import intoxicants for  sale,  manufacture or  other purposes.

 The Court held that; The use of liquor  during Iztirar was declared not  repugnant nor any exception can be  taken to the definition of Iztirar.  License can be issued for medicinal  purposes or similar other bonafide  purposes.
 Petitions were dismissed.
 (PLD 1983, FSC-55)

 Appeal not  filed.

2.

41/L of 1979, B.Z.Kaikous Vs. The State

 The vires of the Political Parties Act  1962, the Representation of People  Act  and the House of Parliament and  Provincial Assemblies (Election Order,  1977) have been challenged for being  not in line with the Islamic Injunctions.  Primarily this petition was filed before  the Shariat Bench of Lahore High  Court,  later on when the Federal  Shariat Court  was established, the  pending cases  were shifted to the  Federal Shariat  Court.

 The Court pleased to order that:-In  these laws; parliament has failed to  make the necessary provisions about  qualification and disqualification as  required by the constitution and the  Injunctions of Islam. With these  observations; petition was dismissed  due to jurisdictional bar. As this Court  cannot decide any question concerning  the constitution. However Justice Agha  Ali Haider wrote a dissenting note on  this judgment. The bench consisted  four Hon. Judges of this Court including  the then Chairman.
 (PLD,1981, FSC-1)

 Appeal  filed  in  Supreme  Court PLD  1982  SC- 409.

3.

59/L of 1979, 62/L of 1962. Hazoor Bakhsh Vs. The State

 Whether the punishment of Rajm as  prescribed for Muslims under section  5(2) (a) and 6 of the Offence of Zina  (Enforcement of Hudood) Ord.VII of  1979 was Hadd and obligatory under  the Injunctions of Islam or a Tazir?

 There are two judgments on this issue.  By majority judgment petitions were  allowed and it was declared that  sentence or Rajm as Hadd in sections 5  and 6 is repugnant to the Injunctions of  Islam. Punishment of Rajm is not Hadd  but Tazir. Later on, in review, this Court  declared that sections 5 and 6 of the  said Ordinance are not repugnant to  the Injunctions of Islam and Rajm was  declared as a Hadd punishment. While  hearing review petition, Ulema Judges  were also inducted in the bench.(PLD  1981 FSC-145) & (PLD 1983 FSC-255)

 Appeal   filed(PLD  1981 FSC -  145)and  (PLD 1983  FSC-255)

4.

02 to 75/L of 1979, 13 to 22/ L of 1980, 2/P of 1979, 1/P of 1980, 5/P of 1980 & 36/K of  1979  Ameen and others Vs. The State

 The vires of MLR 115, Land Reforms  Act  1972, 1977 Acquisition of Land  Act,  NWFP, and Punjab Pre-emption  Act  have been challenged in these  petitions. The following issues have  been raised.
 ii. Payment of adequate           Compensation for Acquiring surplus     land.
 iii. Tenant’s right of Pre-emption.
 iv. Acquisition of Waqf Property.
 v.Limitation period fixed for     Pre- emption.

 i. Law of limitation and acquisition of     surplus land on compensation for     distribution among tenants is not           repugnant to the Islamic Injunctions.     The State can do this for public     interest.
 ii. Waqf properties can be acquired by      the State for more beneficial      purposes.
 iii. The Caliph or Sultan has to       determine period of Pre-emption       keeping in view the nature of the       case.
 iv.  The tenant is not more merely a        partner in the produce. In a way he        becomes a partner in the interest of        the land.
       (PLD 1981 FSC-23)

 Appeal filed  in Supreme  Court  against this  judgment  PLD1990,  page-99  Qazalbash  Waqf Vs.  The State

5.

 

15/L, 69/L of 1979, 9/L of 1980 and 1, 12, 2 and 20 of 1979, 7 and 4 of 1980(Kar) Muhammad  Riaz Vs.The State

 i. The sentence of life imprisonment      and fine in Qatle Amd should be      substituted by blood money if the      heirs of the deceased pardon the      accused.
 ii. No person other than the actual      killer despite being an abettor can      be subjected to the punishment of      retaliation.
 iii. In case of death of one person      caused by several persons, it is not      legal to execute all of them.
iv. The offence of murder should be      made compoundable.
v.  Grant of pardon to accomplice is      against the Injunctions of Islam.

 The Court held that :
 i. The punishments of imprisonment and     fine are not repugnant to the Islamic     Injunctions.   
 ii. Where several persons kill one      person, all of them shall be      executed.
 iii. Person insane at the time of      execution of sentence or killing to      his own son cannot be subjected to      Qisas.
 iv. Heirs of deceased person in Qatle       Amd entitled to grant total pardon       to the culprit.
 v.  Evidence Act relates to procedure of       the Court and beyond the       jurisdiction of this Court. Directions       given for necessary amendments.
      (PLD 1980,FSC-1)

 Appeal filed  in Supreme  Court  (PLD1989,  SC.-633)

6.

39/K of 1979 Meat Merchant Welfare Vs. Govt. of Sindh

 Ban on the slaughter of useful animal  under Animal Slaughter Control Act,  1963 (Act-III of 1964) challenged  being repugnant to the Injunctions of  Islam.

 The Court held that:-
 Not a single Injunction of Islam has  been put before us to show that any  provision of the act is against the  Injunctions of Islam. The petition was  dismissed accordingly.   (PLD 1983  FSC- 25).

 Appeal not  filed.

7.

13/R of 1980 Muhammad Ishaq Vs.Govt. of Pakistan

 The petitioner was a purchaser of  property from a full male owner who  had succeeded to that property in  custom and the custom was given  force of law by section 5 of Punjab  Law Act. In this petition, the petitioner  has challenged the vires of section 5  of Punjab Law Act whereby the custom  allowed the collaterals to challenge  the alienation of property inherited by  a full owner under custom.

 The Federal Shariat Court held that:  The custom allowing the collateral to  challenge the alienation of property  inherited under custom by the full  owner was declared repugnant to the  Injunctions of Islam. Direction given for  necessary amendment up-till  30.6.1981.
 (PLD 1981 FSC-278

 Appeal filed.  Dismissed  on  10.6.1983.

8.

1/R of 1980 Daryab Yousaf Qureshi Vs. Chairman WAPDA

 Section 17 of the WAPDA Act has been  challenged which gives power to the  concerned authorities to retire or  remove its employees without  assigning any reason, after giving 30  days notice.

 The Court held that:-. Shariah has  given much flexibility to the relationship  of employer and employees, which is a  contractual relationship.
 (PLD 1983 FSC-17).

 Appeal not  filed.

9.

6/R of 1980 Mirza Muhammad Ameen Vs. Govt.  of Pakistan

 The vires of so-called military law,  rules instruction and regulation have  been challenged. The matter relates to  the distribution of death pension and  death gratuity among the heirs of  deceased Air Force Officer, according  to Islamic Law of Inheritance.

 Family pension and death gratuity both  are not heritable. It can be given to the  nominee or the widow of the officer  according to the rules of the said law.
 Petition was dismissed (PLD 1982  FSC- 143)

 Appeal filed  in Supreme  Court.

10.

23/R of 1980 A.B.Awan Vs. Govt. of Pakistan

 Article 10 of Martial Law Regulation  115 has been challenged being  against the principles of equality in  Islam.

 The Federal Shariat Court held that:-  The matter involved in this petition  relates to the fundamental rights. This  Court has no jurisdiction to go into such  matters as was held in PLD 1983 FSC  23.
 Petition was dismissed (PLD,1983  FSC- 23)

 Appeal filed  in Supreme  Court.  Dismissed  on  10.4.1983.

 

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