Notes for Part VII, Chapter 3A

CHAPTER 3-A.-SHARIAT BENCH OF SUPERIOR COURTS

203A

Provisions of Chapter to override other provisions of the Constitution.
The provisions of this Chapter shall have effect notwithstanding any contained in the Constitution.

203B

Conferment of jurisdiction on High Court.

(1)

A High Court may, on the petition of a citizen of the Pakistan or the Federal Government or a Provincial Government, 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, hereafter in this Chapter referred to as the Injunctions of Islam.

Explanation.— In this Chapter, “law” includes any custom or usage having the force of law but does not include the Constitution, Muslim Personal law, any law relating to the procedure of any Court or tribunal or, until the expiration of three years from the commencement of this Chapter, any fiscal law, or any law relating to the collection of taxes and fees or banking insurance practice and procedure.

(2)

If the High Court decides that any law or provision of law is repugnant to the Injunctions of Islam, it shall set out in its decision :-

(a)

the reasons for its holding that opinion ; and

(b)

the extent to which such law or provision is so repugnant; and specify the day on which the decision shall take effect.

(3)

Every decision of the High Court shall be published in the official Gazette.

(4)

If any law or provision of law is held by the High Court to be repugnant to the Injunction of Islam,--

(a)

the President in case of a law with respect to a matter in the Federal Legislative list or the Concurrent Legislative List, or the Governor in the case of a law with respect to a matter not enumerated in either of those lists, shall take steps to amend the law so as to bring such law or provision into conformity with the injunctions of Islam ; and

(b)

such law or provision shall to the extent to which it is held to be so repugnant, cease to have effect on the day on which the decision of the High Court takes effect.

(5)

A party to any proceedings before the High Court under clause (1) may be represented by a legal practitioner who is a Muslim who has been enrolled as an advocate of a High Court for a period of not less than five years or as an advocate of the Supreme Court or by a jurisconsult selected by the party from out of a panel of jurisconsults maintained by the High Court for the purpose.

(6)

For being eligible to have his name borne on the panel of jurisconsults referred to in clause (5), a person shall be an aalim who, in the opinion of the high Court , is well versed in Shariat.

(7)

A legal practitioner or jurisconsult representing a party before the High Court shall not plead for the party but shall state, expound and interpret the injunctions of Islam relevant to the proceedings so far as may be known to him and submit to the Court a written statement of his interpretation of such Injunctions of Islam.

(8)

The High Court may invite any person in Pakistan or abroad whom the High Court considers to be well-versed in Islamic law to appear before it and render such assistance as may be required of him.

(9)

No court-fee shall be payable in respect of any petition or application made to a High Court under this Article.

(10)

For the purpose of the exercise of the jurisdiction conferred by Article, there shall be constituted in each High Court a Bench consisting of three Muslim Judges of the High Court, to be called the Shariat Bench; and reference in the preceding clause to the High Court shall be construed as a reference to the Shariat Bench.

203C

Appeal to Supreme Court.

(1)

Any party in any proceedings before a High Court under Article 2O3-B aggrieved by the final decision of the High Court in such proceedings may, within sixty days of such decision, prefer an appeal to the Supreme Court.

(2)

The provision of clause (2) to (9) of Article 203B shall apply to and in relation to the Supreme Court as if reference in those provision to High Court were a reference to the Supreme Court.

(3)

For the purpose of the exercise of the jurisdiction conferred by this Article, there shall be constituted in the Supreme Court a Bench consisting of three Muslim Judges of the Supreme Court, to be called the Shariat Appellate Bench ; and reference in the preceding clauses to the Supreme Court shall be construed as a reference to the Shariat Appellate Bench.

203D

Pending proceedings to continue.
Nothing in Article 203B or Article 203C shall be deemed to require any proceedings pending in any court or tribunal immediately before the commencement of this Chapter, or initiated after such commencement, to be adjourned or stayed by reason of a petition having been made to a High Court or the Supreme Court for a decision as to whether or not a law or provision of law relevant to the decision of the point in issue to such proceedings is repugnant to the Injunctions of Islam ; and such proceedings shall continue, and the point in issue therein shall be decided, in accordance with the law for the time being in force.

203E

Power to make rules.

(1)

The Supreme Court, in consultation with the High Courts, may, by notification in the official Gazette, make rules for carrying out the purposes of this Chapter.

(2)

In particular, and without prejudice to the generality of the foregoing power, such rules may make provision in respect of all or any of the following matters,--

(a)

regulation of the practice and procedure of a High Court and the Supreme Court in the exercise of Jurisdiction under this Chapter;

(b)

the maintenance by a High Court and the Supreme Court of a panel of jurisconsults and of ulema who may be invited by the High Court or, as the case may be, Supreme Court to appear before it and render assistance to it in the performance of its functions under this Chapter and the qualification of such ulema ; and

(c)

the scale of payment of the honorarium, travelling allowance and daily allowance to be paid to ulema, jurisconsults, experts and witnesses summoned by the High Court or the Supreme Court in the performance of its functions under this Chapter.

 

"(a)

"Chairman" means chairman of the Court;"

(4B) The President may, at any time, by order in writing,

(a) modify the term of appointment of a Judge;

(b) assign to a Judge any other office; and

(c) require a Judge to perform such other functions as the President may deem fit; and pass such other order as he may consider appropriate.

Explanation: In this clause and clause (4C), "Judge" includes Chief Justice.

(4C) While he is performing the functions which he is required under clause (4B) to perform or holding any other office assigned to him under that clause, a Judge shall be entitled to the same salary, allowances and privileges as are admissible to the Chief Justice or, as the case may be, Judge of the Court.

(5) A Judge of a High Court who does not accept appointment as a ^[207] [Judge] shall be deemed to have retired from his office and, on such retirement, shall be entitled to receive a pension calculated on the basis of the length of his service as Judge and total service, if any, in the service of Pakistan.

(9) A ^[208] [Chief Justice] who is not a Judge of the Supreme Court shall be entitled to the same ^[208A] [remuneration], allowances and privileges as are admissible to a Judge of the Supreme Court and a ^[207] [Judge] who is not a Judge of a High Court shall be entitled to the same ^[208A] [remuneration], allowances and privileges as are admissible to a Judge of a High Court ^[208B] [:]

^[208C] Provided that where a Judge is already drawing a pension for any other post in the service of Pakistan, the amount of such pension shall be deducted from the pension admissible under this clause.]

"203-CC

Panel of Ulema and Ulema members.-

(1)

The President may, in consultation with the Chairman, draw up a panel of Ulema who are well-versed in Islamic law for being associated with the Court in cases before it.

(2)

The Chairman shall, in all cases before the Court, request the Ulema not exceeding three, borne on aforesaid panel to attend the sittings of the Court as Ulema members and, while so sitting, they shall have the same power and jurisdiction, and be entitled to the same privileges, as a member and such allowances as may be determined by the President."

"(4)

A decision of the Court shall be expressed in terms of the opinion of the majority of its members and shall be published in the official Gazette."

"203-DD

Further jurisdiction of the Court
The Court shall have such other jurisdiction as may be conferred on it by or under any law."

which was inserted by the Constitution (Second Amendment) Order, 1980 (P.O.No.4 of 1980) section 4 (with effect from June 21, 1980).

"(3)

For the purpose of the exercise of the jurisdiction conferred by this Article, there shall be constituted in the Supreme Court a Bench consisting of three Muslim Judges of the Supreme Court, to be called the Shariat Appellate Bench, and reference in the preceding clauses to "Supreme Court" shall be construed as a reference to the Shariat Appellate Bench."

"203-I

Administrative arrangements, etc
The Federal Government shall make all such administrative arrangements, and make available to the Court the services of such officers and experts, as it may consider necessary for the convenient performance of the functions of the Court."

has been omitted by the Constitution (Second Amendment) Order, 1982 (P.O.No. 5 of 1982) section 8 (with effect from March 22, 1982).