The Constitution of Pakistan, 1973 Developed by Zain Sheikh

Per Mian Muhammad Ajmal, J-

(a)        Constitution of Pakistan(1973) Art. 203-

 As noted earlier, there are number of judgments of the Federation Shariat Courtspecifically holding that an adult sui juris Muslim girl can contract a valid ‘Nikah” on her own and consent of Wali/guardian/relations is not needed.  The repeated pronouncements ofFederal Shariat Courtare required to be followed by the High Court, and by all Courts subordinate to a High Court by virtue of Article 203GG added in the Constitution, in the year 1982.

 The argument is fallacious.  The Federal Shariat Courtis itself the creation of chapter 3-A. Article 203D confers, what may be described as original jurisdiction on the Federal Shariat Court.  Under this jurisdiction, the Federal Shariat Court, on its own motion or on the petition of any citizen of Pakistan or Federal Government or a Provincial Government, can examine and decide the question whether or not any law or provision of law is repugnant to the Injunctions of Islam as laid down in the Holy Qur’an and the Sunnah of the Holy Prophet (p.b.u.h)., Article 203DD empowers the Court to call for and examine the record of any case decided by any criminal Court under any law relating to the enforcement of Hudood for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed by any such criminal Court.  Sub-Article (3) of Article 203DD lays down that “the Court shall have such other jurisdiction as may be conferred on it by or under any law”.  It may be noted here, that right f appeal was provided to the Federal Shariat Court by adding second proviso to section 20(1) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter to be referred to as “the Ordinance”).  In the hear 1980.

Article 203GG says that any decision of theFederal Shariat Courtn the exercise of its jurisdiction under this Chapter will be binding on the High Court. We have seen that this Chapter 3-A not only establishesFederal Shariat Courtbut also specifies various jurisdictions of the Court.  It is difficult to accept the contention that merely because the appeal against the judgment of the Federal Shariat Court has been provided by second proviso to section 20(1) of the Ordinance, the criminal appellate jurisdiction cannot be said to be the creation of Chapter 3-A of the Constitution.  Constitution is the fundamental law and all laws derive their validity from the same.  While exercising the appellate jurisdiction, conferred by the Ordinance under the enabling provision of Article 203DD(3), the Federal Shariat Court in fact is exercising jurisdiction conferred by sub-Article (3) of Article 203DD, a part of Chapter 3-A.

It is well-settled that the Court will lean in favour of harmonious interpretation of the statutes/various provisions and would certainly avid an interpretation which has the potential of conflicting judgments or pitchingone Constitutional Courtagainst another.

This argument has again to be rejected.  Various expressions like judgments, decision, order or sentence have not been defined in Chapter 3-A nor in the Constitution,.  These expressions have, therefore, been used in their dictionary meaning.  Particularly the expression “decision” in Article 203GG seems to have been used in a generic sense which would include and which may include the judgment i.e. reasons an order say of confiscation of property, and/or an order of payment of compensation or sentence like that of imprisonment or fine.  This view has again the merit of avoiding the potential mischief whereby the High Court can start scrutiny of the judgments, or orders or sentences imposed by the Federal Sharit Court. At the cost of repetition it may be stated that such an ugly situation has to be avoided.

It is clear from the above that the two words “decision” and “judgment” are almost similar in meaning in the context of the present controversy.  The expression “decision” in Article 203GG will include the judgment, order or the sentence if any passed by theFederal Shariat Courtand all these will remain binding on the High Court and Courts subordinate to the High Court.

The difficulty in accepting this argument of Mr. Gillani is that the judgments were delivered by theFederal Shariat Courtbetween 1981 and 1985.  Clearly these have attained finality.  TheFederal Shariat Courtis aConstitutional Courtand it is at least undesirable and inappropriate, if not illegal that another Constitutional Court(like High Court) should hold the judgments as without jurisdiction.  Even in normal course the point of jurisdiction has to be urged before the same Court and an adjudication obtained.  The Constitution provides appeal to the Shariat Appellate Bench of this Court and the question of jurisdiction could have been urged and adjudication sought initially from the Federal Shariat Courtand thereafter in appeal from the Shariat Appellate Bench.  As noted, this course was never followed with the result that the judgments in question have attained finality.  During the course of hearing, it was suggested to Mr. Gillani that if parties were so keen the Federal Shariat Courtmay be asked to review their judgments.  Mr. Gillani replied that theFederal Shariat Courthas not been conferred the power of review.  This response is factually incorrect.  Under Article 203E (9) added through Presidential Order No. 5 of 1981, the Federal Shariat Courthas the power of review.

On an appeal by Federation of Pakistan, this Court held that the expression “Muslim Personal Law” has been used in the sense of statutory law applicable to the Muslims only as compared to other religious communities inhabiting Pakistan.

In other words, according to this Court Muslim Personal Law cannot be examined by the Federal Shariat Courtand Muslim Personal Law in Article 203B (c) means (i) statutory law of Muslim and (ii) it is personal law of a particular sect. If these two conditions are not present, the matter can be examined by the Federal Shariat Court.

In the case before us, it is not the case of the appellant that any codified or statutory law provides that the consent of ‘Wali’ is necessary or not necessary in the case of marriage of sui juris Muslim girl.  The Ist of the conditions of ouster is not present.  Therefore, such a declaration is clearly within the exclusive power and jurisdiction of the Federal Shariat Court. [p. 230, 231, 232, 233 & 234]  B, C, D,F,G,H,I,J & K

(b)        Constitution of Pakistan(1973) Art. 199–
r/w West Pakistan Family Courts Act. XXXV of 1964)
S. 5 & Sched.

The learned Judges of the High Court, with due deference, could have and ought to have avoided the needless controversy as regards the validity of the marriage which subject in any case falls within the exclusive domain of Family Court established under the West Pakistan Family Courts (Act XXXV), 1964[p. 235] M

(c)        Constitution of Pakistan(1973) Art. 185–

Mr. Gillani towards fag-end of his submissions also impeached the validity of the statement of law recorded by theFederal Shariat Courtin Muhammad Imtiaz’s case (supra).  He wanted to show that the Court has placed reliance on references which are non-existent.  Since I am holding that the subject falls to be determined by theFederal Shariat Court, the argument need not be examined in detail.  The argument in any case ignores that there are at least three other judgments of the same Court, presided by different Honourable Judges of eminence including Alim Judges reputed for their command over the Islamic principles.  Mr. Gillani offered no comment on these judgments.  Additionally, it is an extremely undesirable exercise to collaterally impeach the judgments of aConstitutional Courtwhich have in any case attained finality. [p.236] P & Q

 Syed Riazul Hassan Gillani, Advocate Supreme Court,

Muhammad Akram Sheikh, Senior Advocate Supreme

Court and Tanvir Ahmad, Advocate-on-Record (absent)

 (in Criminal Appeal No. 98 of 1997).

 Syed Iqbal Haider, Senior Advocate Supreme Court withCh.

Akhtar Ali, Advocate-on-Record for Respondent no. 1

(in Criminal Appeal no. 98 of 1997),

 Syed Hamid Ali Shah, Advocate Supreme Court with Mehr

Khan Malik, Advocate-on-Record for Respondent no. 2 (in

Criminal Appeal no. 98 of 1997).

 Makhdoom Ali Khan, Attorney-General forPakistanassisted

By Khurram Hashmi (on Court’s Notice) (in Criminal Appeal

No. 98 of 1997).

 Ms. Asma Jehangir, Advocate Supreme Court and Naeemul

Hassan Shirazi, Advocate Supreme Court with Ch. Akhter

Ali, Advocate-on-Record for Appellant (in Civil Appeal

No. 563 of 1997).

 Respondent no. 2 in person for Respondent no. 4 (in Civil

Appeal no. 563 of 1997)

 Mst. Shahbina Zafar (in person) (in Civil Appeal no. 563 of

1997)

 M. Shabbar Raza Rizvi, A.G. for the state (in Civil Appeal

No. 563 of 1997)

 Mkahdoom Ali Khan, Attorney-General forPakistan

Assisted by Khuram Hashmi (on Court’s Notice) (in

Civil Appeal no. 563 of 197).

 Date of hearing :1st December, 2003