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200820082008ANNUAL REPORTANNUAL REPORTANNUAL REPORT

FEDERAL SHARIAT COURTFEDERAL SHARIAT COURT

G-5/2, Constitution Avenue, Islamabad, Pakistan

Federal Shariat Court 2008

FEDERAL SHARIAT COURT

ANNUAL REPORT FOR THE YEAR - 2008

Tele: (051)-9203091, 9222525 Fax: 051-9203448

And, if ye Judge between mankind, that ye Judge Justly. (4:57)

Website:-(shariatcourt.gov.pk)Email:- ([email protected])

Federal Shariat Court 2008LAST SERMON OF THE HOLY PROPHET OF ISLAM (P.B.U.H.)

(THE FIRST CHARTER OF HUMAN RIGHTS)

All praise is due to Allah, so we praise Him, and seek His pardon and we turn to Him. We seek refuge with Allah from the evils of ourselves and from the evil consequences of our deeds. Whom

Allah guides aright there is none to lead him astray; and there is none to guide him aright whom Allah leads astray. I bear witness that there is no god but Allah, the One, having no partner with Him. His is the sovereignty and to Him is due all praise. He grants life and causes death and is Powerful over everything. There is no god but Allah, the One; He fulfi lled His promise and granted victory to His bondsman, and He alone routed the confederates (of the enemies of Islam). O People, listen to my words, for I do not know whether we shall ever meet again and per-form Hajj after this year. O Ye people, Allah says: O people we created you from one male and one female and made you into tribes and nations, so as to be known to one another. Verily in the sight of Allah, the most honoured amongst you is the one who is most God-fearing. There is no superiority for an Arab over a non-Arab and for a non-Arab over an Arab, nor for the white over the black nor for the black over the white except in God-consciousness. All mankind is the progeny of Adam and Adam was fashioned out of clay. Behold! Every claim of privilege whether that of blood or property, is under my heels except that of the custody of the Ka’ba and supplying of water to the pilgrims. O people of Quraish, don’t appear (on the Day of Judgment) with the burden of this world around your necks, whereas other people may appear (before the Lord) with the rewards of the Hereafter. In that case I shall avail you naught against Allah. Behold! All practice of the days of ignorance are now under my feet. The blood revenges of the days of ignorance are remitted. The fi rst claim on blood I abolish is that of Ibn Rabi’ah b. Harith who was nursed in the tribe of Sa’ad and whom the Hudhayls killed. All interest and usu-rious dues accruing from the times of ignorance stand wiped out. And the fi rst amount of interest that I remit is that which ‘Abbas b. ‘Abd-al Muttalib had to receive. Verily it is remitted entirely. O people, verily your blood, your property and your honour are sacred and inviolable until you appear before your Lord, as the sacred inviolability of this day of yours, this month of yours and this very town (of Yours). Verily you will soon meet your Lord and you will be held answerable for your actions. O people, verily you have got certain rights over your women and your women have certain rights over you. It is your right upon them to honour their conjugal rights, and not to commit acts of impropriety, which if they do, you are authorized by Allah to separate them from your beds and chastise them, but not severely, and if they refrain, then cloth and feed them properly. Behold! It is not permissible for a woman to give anything from the wealth of her husband to anyone but with his consent. Treat the women kindly, since they are your helpers and are not in a position to manage their affairs themselves. Fear Allah concerning women, for verily you have taken them on the secu-rity of Allah and have made their persons lawful unto you by words of Allah. O people, Allah, the Mighty and Exalted, has ordained to every one his due share (of in-


heritance). Hence there is no need (of special) testament for a heir (departing from the rules laid down by the Shari’ah). The child belongs to the marriage-bed and the violator of wedlock shall be stoned. And reckoning of their (deeds) rests with Allah. He who attributes his ancestry to other than his father or claims his clientship to other than his master, the curse of Allah is upon him. All debts must be repaid, all borrowed property must be returned, gifts should reciprocated and a surety must make good the loss to the assured. Beware; no one committing a crime is responsible for it but himself. Neither the child is responsible for the crime of his father, nor the father is responsible for the crime of his child. Nothing of his brother is lawful for a Muslim except what he himself gives willingly. So do not wrong yourselves. O people, every Muslim is the brother of other Muslim, and all the Muslims form one brotherhood. And your slaves! See that you feed them with such food as you eat yourselves, and clothe them with the clothes that you yourselves wear. Take heed not to go astray after me, and strike one another’s necks. He who (amongst you) has any trust with him, he must return it to its owner. O people, Listen and obey, though a mangled Abyssinian salve is appointed your Amir, provided he executes (the Ordinance of) the Book of Allah among you. O People, No prophet would be raised after me and no new Ummah (would be formed after) you. Verily I have left amongst you that which will never lead you astray, the Book of Allah, and the Sunnah of His Messenger which if you hold fast you shall never go astray. And beware of transgressing the limits set in the matter of religion, for it is transgression of (the proper bounds of) religion, that brought destruction to (many people) before you. Verily, the satan is disappointed at ever being worshipped in this land of yours, but if obe-dience in anything (short of worship is expected that is): he will be pleased in matters you may be disposed to think insignifi cant, so beware of him in your matters of religion. Behold, Worship your Lord; offer prayers fi ve times a day; observe fast in the month of Ra-madan; pay readily the Zakat (poor-due) on your property; and perform pilgrimage to the House of God and obey your rulers and you will be admitted to the Paradise of your Lord. Let him that is present, convey it unto him who is absent. For many people to whom the message is conveyed may be more mindful of it than the audience. And if you were asked about me, what would you say? They answered: We bear witness that you have conveyed the trust (of religion) and dis-charged your ministry of apostlehood and looked to our welfare. Thereupon Allah’s Messenger (may peace be upon him) lifted his fore- fi nger towards the sky and then pointing towards people said: O Lord: Bear Thou witness unto it. O Lord: Bear Thou witness unto it.


MR. JUSTICE HAZIQUL KHAIRI,Chief Justice

Federal Shariat Court of Pakistan


APPOINTMENT OF NEW JUDGESIN THE FEDERAL SHARIAT COURT

In exercise of the powers conferred by clause (2) of Article 203C of the Constitution of the Islamic Republic of Pakistan, the President is pleased to appoint the following as Judges of the Federal Shariat Court for a period of three years and one year respectivelly with effect from the date they take upon themselves the execution of their offi ces as such: -

1. Mr. Justice Syed Afzal Haider. 2. Mr. Justice Muhammad Afzal Soomro.

Hon: Mr. Justice Haziqul Khairi, Chief Justice administered the oath of offi ce to Hon. Mr. Justice, Syed Afzal Haider on 26th March, 2008 & His Excellency Dr. Ishratul Ibad Gover-nor Sindh, administered the oath of offi ce to Hon. Mr. Justice Muhammad Afzal Soomro on 15th May, 2008. The profi les of the newly appointed Judges may be seen in the next pages. The oath of offi ce to be taken by the Chief Justice and Judges of the Federal Shariat Court is different from oath of offi ce of Judges of other Superior Courts. For the sake of informa-tion of various segments of the society the form of Oath set out in the third schedule of the Constitution is reproduced below:

OATH OF OFFICE OF THE CHIEF JUSTICEOR JUDGE OF THE FEDERAL SHARIAT COURT

(Article 203C(7)

(In the name of Allah, the most Benefi cient and most Merciful)

I, _________________________________ do solemnly swear that as the (Chief Justice) (or a Judge) of the Federal Shariat Court, I will discharge my duties and perform my func-tions, honestly, to the best of my ability and faithfully, in accordance with Law;And that I will not allow my personal interest to infl uence my offi cial conduct or my of-fi cial decisions. May Allah Almighty help and guide me (A’meen).


Mr. Justice Haziqul Khairi, Chief Justice (L) administering oath of offi ce to Mr. Justice Syed Afzal Haider (R) on his appointment as Judge of the Federal Shariat Court on 26th March, 2008

OATH TAKING CEREMONIES

Governor Dr. Ishratul Ibad (L) administering oath of offi ce to Mr. Justice Muhammad Afzal Soomro (R) on his appointment as Judge of the Federal Shariat Court on 15th May, 2008


Born on August 19th, 1931-Received early education in Pakpattan-Joined Forman Christian College Lahore in 1946-Graduation from Government College Lahore in 1953-Graduation in law from Punjab University Law College Lahore in 1955-Started legal practice in Janu-ary 1956 and also started teaching law in 1962-Professor Law in Punjab University Law College Lahore, Quaid-e-Azam Law College Lahore, Punjab Law College Lahore, Pakistan Navy War College Lahore, Paki-stan College for Law Lahore, National Institute of Public Administration Lahore, Civil Services Academy Lahore & Federal Judicial Academy Islamabad.

Elected as President Lahore High Court Bar Association 1983-84-Co-Chairperson All Lawyer’s Action Committee 1983-86-Member Pakistan Bar Council 1984-95-Vice Chairman Pakistan Bar council 1988-90-Chairman Pakistan Bar Council Executive Committee 1990-91.

Member: Law & Justice Commission of Pakistan(2001-04); National Mudarba Board 1995-98; Evacuee Trust Property Board, Government of Pakistan 2004-07, Council of Islamic Ideology 1989-2003 and 2007-Minister Law and Parliamentary Affairs Government of Punjab 1996-97-Federal Minister for Law, Justice and Parliamentary Affairs Government of Pakistan 2007-08, ap-pointed as Judge Federal Shariat Court of Pakistan on 26th March, 2008, with 52 years of Law Practice in the Superior Courts of Pakistan and 46 years of law teaching experience.

Author of Books: Prem Piala; Zikr-e-Hussain; Willayat-e-Faqih (English and Urdu); Syed Moin-ud-Chishty; Hussain Ibn Ali; Baba Nanak; Zikr-e-Farid; Wajood Zaat aur Sifaat; Zikr-e Sakhian; Farid-Nanak-Bullah-Waris; Zindagi Nama Baba Farid; Zikr-e-Fatima; Baba Farid International Conference; Bhutto Trial in two volumes (English); Shariat Bill; Islami Nazriati Council; Reh-matalil Alemeen; F.I.R; Zikr-e-Darvish; Sukhmani Sahib; Supreme Judicial Council; Final Report under Article 230 of Constitution and The Constitution of the Islamic Republic of Pakistan.

Received Awards as Professor of the year in 1998, 1999, 2001 at Quaid-e-Azam law College, La-hore and also as King Scout in the Jambooree held in Sahiwal (1946), Bhai Vir Singh Award New Delhi (1992), Ambassador of Peace Award in 2001 by the International Federation for World Peace, New York, USA.

Attended (i) World Media Conference in the New Millennium 15-17 January 2001 Tokyo, Japan.(ii) International Conference on Interfaith Harmony, New York, U.S.A, June, 2001.(iii) Loi Jirga, Kabul, Afghanistan as Member of the Presidium. (iv) War and Peace Conference, Tehran, Iran- Au-gust 1988. (v) Sikh Cultural Heritage, Singapore. Delivered 23 lectures on Inter Faith Harmony in USA, Canada and India (2008).

MR.JUSTICE SYED AFZAL HAIDER, JUDGEBORN ON AUGUST 19, 1931


ACADEMIC QUALIFICATION

• Matriculation in 1967 from Government Pilot Higher Secondary

School Larkana.

• Graduated in Science from Degree College Larkana in 1971.

• Msc (Mathematics) in 1973 from University of Sindh, Jamshoro.

Being student of Mathematics was elected as president of the Department of Mathematics.

• M.A (Political Science) in 1975 from University of Sindh, Jamshoro.

• LL.B. from Govt. Sindh Law College, Hyderabad.

EXPERIENCE

• Joined Sindh Bar Council & Enrolled as an Advocate of the Lower Court on 10- 04-1976.

• Advocate of the High Court of Sindh on 09-04-1979.

• Enrolled as an Advocate of the Supreme Court of Pakistan on 30-01-1999 and was

enlisted as life member.

• Remained Joint Secretary High Court Bar Association Sukkur for the year 1981-82 and

1982-83.

• Elected as Honorary Secretary General High Court Bar Association Larkana for the

year 1995-96 and 1996-97.

• Elected President High Court Bar Association Larkana for the year 1998-99.

• Elevated to the Bench as Judge of the High Court of Sindh on 10th October, 1999.

• Appointed as Chief Justice of the High Court of Sindh and took Oath of the Offi ce on

3rd November, 2007.

• Appointed as Judge of the Federal Shariat Court on 15th May, 2008.

MR.JUSTICE MUHAMMAD AFZAL SOOMRO, JUDGEBORN ON JANUARY 8, 1951


Table of Contents


In the name of Allah, the Most Benefi cent and Most Merciful.

FOREWORDI have the pleasure to present the Annual Report of Federal Shariat Court for the year 2008. This Court shall be entering into 30th year of its existence, however, certain aspects of Federal Shariat Court vis-à-vis independence of judiciary have gone un-noticed or un-attended by all including our law makers, learned jurists and members of the Bar to which brief reference may be made as under:-

Under Article 203-C of the Constitution of Islamamic Republic of Pakistan 1973, the Federal Shariat Court shall consist of not more than eight judges, including the Chief Justice, to be appointed by the President, who under Article 48 thereof shall act in accor-dance with the advice of Cabinet or the Prime Minister. Article 203-D of the Constitution confers jurisdiction to the Federal Shariat Court to examine and decide on a question whether or not any law or provision of law is repugnant to the Injunctions of Islam as laid down in the Holy Quran and Sunnah of the Holy Prophet (P.B.U.H). The Federal Shariat Court has also appellate and revisional jurisdiction in Hudood matters.

What is pertinent to note is that the President under Clause (4B) of Article 203-C of the Constitution may, at any time, by order in writing (a) modify the term of appointment of a Judge (b) assign to a Judge any other offi ce and (c) require a Judge to perform such other functions as the President may deem fi t and pass such other order as he may consider appropriate. These arbitrary powers negate the very concept of Rule of Law and indepen-dence of judiciary. A court, which interprets Quran and Sunnah and deals with Shariat petitions and Hudood appeals deserves if not more, as much independence and regard as other Superior Courts of the country.

What may further be added here, is that the Constitution does not provide any qualifi cation for an ‘Aalim Judge’ and it is left open to the Executive to appoint whosoever in its sole discretion is as an Aalim. The Chief Justice of Federal Shariat Court unlike those occupying similar positions in the Supreme Court and High Courts remains a silent specta-tor to a game of musical chairs in the appointment of Judges in his Court. Under Article 200 of the Constitution, the President may only transfer a Judge of a High Court to another High Court with his consent and after consultation with the Chief Justice of Pakistan and the Chief Justices of both the High Courts but the Chief Justice of Federal Shariat Court has no say in the matter and he is obliged to accept whosoever (including a High Court judge) is appointed under Article 203 (C) to Federal Shariat Court whether the transferee judge is fi t for the Court or not.

With these observations, I pray for a free and modern, tolerant and democratic Pakistan as enunciated by Islam and envisioned by the Father of the Nation.

Pakistan Zindabad.

Justice Haziqul KhairiChief Justice


Introduction


The Constitution of Islamic Republic of Pakistan, in its preamble explicitly affi rms that sovereignity over entire universe belongs to Allah Almighty and the authority to be exercised by the people of Pakistan within the limits prescribed by Him is a

sacred trust. Article 2-A of the Constitution lays down that the principles and provisions set out in the Objectives Resolution are substantive part of the Constitution, while Article 227 makes it incumbent that all existing laws shall be brought in conformity with the Injunc-tions of Islam. This led to misconception on the part of many that the Federal Shariat Court is invested with such role. Under Article 203-D of the Constitution, the Federal Shariat Court is entrusted to 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 Sunnah of the Holy Prophet (P.B.U.H.). To declare any law on the touchstone of the Holy Qur’an and Sunnah is one thing and to bring all laws in conformity with the Injunctions of Islam is another. The later is function of our legislature and not of the Federal Shariat Court.

Under the Constitution, the Federal Shariat Court shall consist of not more than eight Muslim Judges including the Chief Justice. In the years 1982 and 1983, the Court had full number of Judges. However, in the year 2006 from June to December, the Federal Shariat Court had only two Judges including the Chief Justice, which made the Court defunctional to hear Shariat Petitions for which there is mandatory requirement of a Full Bench with atleast three Judges one of whom shall be Alim Judge. During the years 2007 and 2008, the Federal Shariat Court invoked its original jurisdiction under Article 203-D of the Con-stitution of Islamic Republic of Pakistan and had given a number of landmark decisions. The Court had the pleasure to hear a number of eminent Jurisconsults, renowned Ulema, Lawyers and members of the civil society on matters of utmost public importance. The court examined the provisions of Companies Ordinance 1984 on its own motion and con-sidered the concepts of fi ctitious person, its legal personality and limited liability in Islam. It declared section 223 relating to “short selling” and “blank sale” of shares as repugnant to the Injunctions of Islam with direction to the Federal Government through the President of Pakistan to make suitable amendment therein within six months which may not be re-pugnant to Quran and Sunnah of the Holy Prophet (P.B.U.H.) providing penal provisions in respect of Short Sale and Blank Sale ensuring adequate safeguards to ordinary shareholder of a company and public at large. Another landmark judgment delivered by the Federal Shariat Court during the year 2008 is on sections 133-A and 133-B of the Army Act 1952 and parallel provisions of the Pakistan Air Force Act, 1957, directing the Federal Govern-ment to take necessary steps to amend their rules so as to provide the aggrieved party the copy of judgment etc. enabling it to urge grounds of appeal before the appellate authority and also the right to appear before it.

The Federal Shariat Court is a unique judicial institution having no parallel in the Muslim world. It seeks to obtain opinion of jurists and subjects specialists within and outside the coun-try in the lights of Qur’anic Injunctions and principles laid down by the Holy Prophet of Islam (P.B.U.H.). This will surely open the doors of Ijtehad which have remained closed for centuries hampering the progress of Muslim world in almost every sphere of human activity.

INTRODUCTION


COURT AUTOMATIONInformation Technology has brought great revolution in every fi eld of life and entire world is now called a “Global Village” because of Information Technol-ogy. Keeping in view the needs of modern world Federal Shariat Court has also started automation of all activities being carried out manually under Access to Justice Program. The project “ Automation of Federal Shariat Court” was ap-proved by DDWP in November, 2006. But the physical activity could be possi-ble to start in August, 2007 after release of funds. Procurement of Hardware and network establishment was completed as a milestone towards the destination. While stating aims & objectives of the project in the PC-1, it was mentioned that:“Under the proposed project, the businesses processes, including (a) case fl ow management, (b) Offi ce management, monitoring and evaluation, (c) library information management, (d) public information and out-reach, at the Federal Shariat Court will be automated to improve work effi ciency, enhance productiv-ity of human resources, and speed-up offi ce operations for the ultimate objective of ensuring citizen’s access to justice through reducing delay in the disposal of cases, eliminating pendency and clearing the backlog. In view of above mentioned objectives, some glimpses of achievements in the year 2008 are as under:(a) Case Flow Management System

Case Flow Management software has been developed successfully by team of the Programmers and installed in Judicial branch for data entry that is under progress. Record of cases from the year 2007 to 2009 have been entered. Following are the main features of this system

o Computerized Case Institutiono Searching case record o Bench Allocationo Date Fixationo Checking Case Statuso Case proceedingso Finding Judgmentso Propose Cause Listo Report generation regarding pendency, disposal, institution, and offence

wise statistics.(b) Offi ce management, monitoring and evaluation.

Human Resource Management System has been developed by the team of Programmers and successfully installed in the Administration Branch for data entry that is under progress. Following are main features of this software.

o Computerized record of all offi cers and staff comprising of their personal


information.o Leave record.o Service history including promotion & demotion for evaluation.(c) Library information management

Access to justice program had committed to provide free library software developed by United Nations for automation of the library and its ser-vices that could not be delivered up till now. In the revised document fur-nished by this Court in March, 2009; purchase of ILS (Integrated Library Software) has, therefore, been proposed. However, we have managed to get locally developed single user library software free of cost to initiate library automation. Though the software doesn’t fulfi ll requirements of ILS, yet the data entry is in progress that would be converted and utilized later on. Records of more than six thousand books have been entered in the database.

(d) Public information and out-reach In order to achieve this objective, web site “http://shariatcourt.gov.pk”

has been developed and successfully launched by IT staff of the court. Now, general public and advocates can access and get required informa-tion from the website round the clock sitting any where in the world. Up to date roster of Court sittings and cause lists are available. Following information can be downloaded.

• Brief history of establishment of Federal Shariat Court. • Chapter 3-A of the constitution of Pakistan (This chapter consist articles

of the constitution pertaining to the establishment of the Federal Shariat Court, appointment and qualifi cation of judges, jurisdiction etc.

• Procedure rules of the court.• Profi le of former and present judges.• Profi le of present and former Chief Justices.• Leading Judgments of the court (Shariat Petitions and suo moto cases)• A summary of reported criminal cases from 1980 up to date.• Tenders• Notifi cationsCONSTRUCTION OF FEDERAL SHARIAT COURTBENCH REGISTRY’S BUILDING AT PESHAWAR.

The Federal Government allocated 1.00 million for the year 2008-9 for the construction of boundry wall of the building. The foundation laying ceremony was laid on 25-10-2008.


FEDERAL SHARIAT COURTCOMPOSITION 2008

The Chief Justice and Judges of the Federal Shariat Court

Left to Right: Mr. Justice Muhammad Afzal Soomro, Mr. Justice Muhammad Zafar Yasin, Mr. Justice Allama Dr. Fida Muhammad Khan, Mr. Justice Haziqul Khairi (Chief Justice), Mr. Justice Salahuddin Mirza, Mr. Justice Syed Afzal Haider

Organ

isational Ch

art of the Cou

rt

Hon

: Chief Ju

stice A

nd

Hon

: Jud

ges

REG

ISTR

AR

Deputy R

egistrar (Adm

n. /Budget)

Additional

Registrar

(Lahore)

Project

Officer/D

DO

Assistant R

egistrar (Lahore)

Deputy R

egistrar (Judicial &

Shariat)

Deputy

Registrar(G

)

Superintendent (G

eneral &

Stores)

Superintendent (J)

(Lahore)

Supdtt.

(Hiring)

Senior Research Advisor R

esearch A

dvisor

Netw

ork. A

dministrator

Hardw

are. Technician

Superintendent (G

) (Lahore)

Supdtt.

(Admn.)

Asstt. P

rot.Officer

Regulation & Publication Officer.

Librarian/Project Officer (Automation)

Assistant P

rogramm

er

Scanning E

xpert

Assistant R

egistrar (R

ecord &S

hariat)

Superintendent

(Record

&Shariat)

Assistant R

egistrar B

ench Registry

(Karachi)

Assistant R

egistrar B

ench Registry

(Quetta)

Officer

Incharge B

ench Registry

(Peshaw

ar)

Assistant R

egistrar (Judicial)

Com

puter P

rogramm

er


Statistical Tables, Court Budget

and Ceremonies

Judicial Activity And Statistics Court Performance During The Year 2008

Category Wise Consolidated Position During the Year 2008

Consolidated Position At Principal Seat and Bench Registries

During The Year 2008 CRIMINAL MATTERS

1. Principal Seat Islamabad

555 393 948 626 322

2. Bench Registry Lahore

1477 465 1942 666 1276

3. Bench Registry Karachi

162 134 296 140 156

4. Bench Registry Peshawar

187 36 223 106 117

5. Bench Registry Quetta

283 114 397 148 249

Total 2664 1142 3806 1686 2120 SHARIAT MATTERS


231 16 247 140 107


08 06 14 06 08


18 03 21 18 03


01 -- 01 -- 01


-- -- -- - --

6. Remanded Shariat Matters

118 -- 118 - 118

Total: 376 25 401 164 237

S.No. Category of Cases Pendency On

1-1-2008

Institution from 1-1-2008 to 31-12-2008

Total Disposal from 1-1-2008 to 31-12-2008

Balance on 1-1-2009

1. Cr.Appeals (Against Conviction)

1084 393 1477 644 833

2. Cr.Appeals (Against Acquittal)

575 91 666 134 532

3. Cr.Revisions (Against Conviction)

11 07 18 09 09

4. Cr.Revisions for Enhancement

130 21 151 45 106

5. Cr.Revisions (other matters)

115 60 175 83 92

6. Cr.P.S.L.A. 74 25 99 23 76 7. Cr.Murder

Reference 80 33 113 53 60

8. Hadd Reference -- -- -- -- -- 9. Cr.Suo Moto 10 01 11 05 06 10. Cr. Review -- -- -- -- -- 11. Cr.Misc: 585 511 1096 690 406 12. Shariat Matters 258 25 283 164 119 13. Remanded Shariat

Matters 118 -- 118 -- 118

Total: 3040 1167 4207 1850 2357

Consolidated Position for Criminal Matters at the Principal Seat

and Bench Registries During the Year 2008


555 393 948 626 322


1477 465 1942 666 1276


162 134 296 140 156


187 36 223 106 117


283 114 397 148 249

Total 2664 1142 3806 1686 2120

283

187

162

1477

555

114

36

134

465

393

148

106

140

666

626

0 200 400 600 800 1000 1200 1400 1600

Bench Registry Quetta

Bench Registry Peshawar

Bench Registry Karachi

Bench Registry Lahore

Principal Seat Islamabad

Disposal

Institution

Pendency


1-1-2008

Institution from

1-1-2008 to 31-12-2008

Total Disposal from

1-1-2008 to 31-12-2008

Balance on 1-1-2009

Category-wise Consolidated Position for Criminal Matters During the Year 2008

585

0

10

0

80

74

115

130

11

575

1084

511

0

1

0

33

25

60

21

7

91

393

690

0

5

0

53

23

83

45

9

134

644

0 200 400 600 800 1000 1200

Criminal Miscellaneous

Criminal Review

Criminal Suo Moto

Hadd Reference

Criminal Murder Ref.

Criminal P.S.L.A.

Criminal Revisions (Other Maters)

Criminal Revisions (For Enhancement)

Criminal Revisions (Against Convictions)

Criminal Appeals (Against Acquittal)

Criminal Appeals (Against Conviction)

Disposal

Institution

Pendency


1-1-2008

Institution from

1-1-2008 to 31-12-2008

Total Disposal from

1-1-2008 to 31-12-2008

Balance on 1-1-2009

1. Cr.Appeals (Against Conviction)

1084 393 1477 644 833

2. Cr.Appeals (Against Acquittal)

575 91 666 134 532

3. Cr.Revisions (Against Conviction)

11 07 18 09 09

4. Cr.Revisions for Enhancement

130 21 151 45 106

5. Cr.Revisions (other matters)

115 60 175 83 92

6. Cr.P.S.L.A. 74 25 99 23 76 7. Cr.Murder

Reference 80 33 113 53 60

8. Hadd Reference -- -- -- -- -- 9. Cr.Suo Moto 10 01 11 05 06 10. Cr. Review -- -- -- -- -- 11. Cr.Misc: 585 511 1096 690 406

Total: 2664 1142 3806 1686 2120

Consolidated Position for Shariat Matters at the Principal Seat

And Bench Registries During The Year 2008.


231 16 247 140 107


08 06 14 06 08


18 03 21 18 03


01 -- 01 -- 01


-- -- -- -- --

6. Remanded Shariat Matters

118 -- 118 -- 118

Total: 376 25 401 164 237

118

0

1

18

8

231

0

0

0

3

6

16

0

0

0

18

6

140

0 50 100 150 200 250

Remanded Shariat Matters

Bench Registry Quetta

Bench Registry Peshawar

Bench Registry Karachi

Bench Registry Lahore

Principal Seat Islamabad

Disposal

Institution

Pendency


1-1-2008

Institution from

1-1-2008 to 31-12-2008

Total Disposal from

1-1-2008 to 31-12-2008

Balance on 1-1-2009


DETAIL OF BUDGET ALLOCATION AND ACTUAL EXPENDITURE INCURRED DURING THE FINANCIAL YEAR 2007-2008

HEAD OF ACCOUNT BUDGET ALLOCATION EXPENDITUREA01-Employee Related Exp 56,047,500 56,431,177 A011-1-Pay of Officer 15,605,000 16,232,578 A011-2-Pay of other Staff 10,809,000 10,730,143 A012-1 Regular Allowance 26,312,000 26,148,487 A012-2 Other Allowances 3,321,500 3,319,969 A01271-Over time Allowance 150,000 149,953 A1273-Honoraria 1,735,000 1,734,771 A01274-Medical Charges 1,030,000 1,029,095 A01277-Contigent Paid Staff 406,500 406,150 A012778-Leave Salary --- --- A03-Operating Expenses 13,045,500 13,021,223 A032-Communication 1,717,000 1,713,702 A03201-Postage & Stamp 250,000 250,000 A03202-Telephone & Trunk Calls 1,450,000 1,449,053 A03205-Courier and Poilet Service 17,000 14,649 A033-Utilies 2,000 1,454 A03301-Gas Charges --- --- A03302-Water Charges 2,000 1,454 A03303-Electricity Charges --- --- A03304-Hot & Cold Water Charges --- --- A034-Occupency Costs 4,513,000 4,512,065 A03402-Rent for Office Building ---- ---- A03403-Rent of Residence Building 4,450,000 4,449,558 A03407-Rate of Taxes 63,000 62,507 A038-Travel & Transportation 4,591,500 4,585,407 A03805-Traviling Allowance 2,600,000 2,599,611 A03806-Tranpotation of Goods 117,000 114,745 A03807-P.O.L Charges 1,674,500 1,671,140 A03808-Conveyance Charges 200,000 199,911 A039-General 2,222,000 2,208,595 A03901-Office Stationery 300,000 299,041 A03902-Printing and Publication 150,000 142,059 A03905-News Papers Periodicals & Books 250,000 249,771 A-03906-Uniform/Liveries & Protective 100,000 99,800 A03907-Advertising & Publicity 93,000 92,752 A03912- Delegation Abroad 209,000 207,374 A03919-Payment to others for services 300,000 299,702 A03970-Others 820,000 818,096 A05-Fin. Assist to the family the Govt 400,000 400,000 A05216- assistance Package 400,000 400,000 A06-Transfers 100,000 99,983 A06301-Entertainment & Gifts 100,000 99,983 A09-Physical Assets 3,575,000 3,568,980 A09501-Purchase of Transport 1,962,000 1,961,360 A09601-Purchase of Plant & Machineries 728,000 727,459 A09701-Purchase of Furniture & Fixture 885,000 880,161 A13-Repair & Maintenance 1,392,000 1,383,706 A13001-Repair of Transport 300,000 298,418 A13101- Repair of Machinery 250,000 246,165 A13201- Repair of Furniture & Fixture 100,000 97,544 A13301-Repair of Office Building 742,000 741,579 TOTAL 74,560,000 74,905,069


STATEMENT SHOWING THE BUDGET ALLOCATION FOR THE FINANCIAL YEAR 2008-2009

HEAD OF ACCOUNT BUDGET ALLOCATION

Supplementary Grant

TotalBudget

A01-Employee Related Exp 57,678,000 400,000 58,078,000

A011-1-Pay of Officer 19,000,000 19,000,000

A011-2-Pay of other Staff 10,658,000 10,658,000

A012-1 Regular Allowance 25,800,000 25,800,000

A012-2 Other Allowances 2,220,000 400,000 2,620,000

A01271-Over time Allowance 150,000 150,000

A1273-Honoraria 850,000 850,000

A01274-Medical Charges 900,000 300,000 1,200,000

A01277-Contigent Paid Staff 300,000 100,000 400,000

A012778-Leave Salary 20,000 20,000

A03-Operating Expenses 15,580,000 2,345,000 17,925,000

A032-Communication 2,400,000 50,000 2,450,000

A03201-Postage & Stamp 250,000 50,000 300,000

A03202-Telephone & Trunk Calls 2,100,000 2,100,000

A03205-Courier and Poilet Service 50,000 50,000

A033-Utilies 80,000 80,000

A03301-Gas Charges 30,000 30,000

A03302-Water Charges 10,000 10,000

A03303-Electricity Charges 30,000 30,000

A03304-Hot & Cold Water Charges 10,000 10,000

A034-Occupency Costs 6,000,000 500,000 6,500,000

A03402-Rent for Office Building 50,000 50,000

A03403-Rent of Residence Building 5,900,000 500,000 6,400,000

A03407-Rate of Taxes 50,000 50,000

A038-Travel & Transportation 4,800,000 1,450,000 6,250,000

A03805-Traviling Allowance 2,500,000 1,000,00 3,500,000

A03806-Tranpotation of Goods 100,000 100,000

A03807-P.O.L Charges 2,000,000 450,000 2,450,000

A03808-Conveyance Charges 200,000 200,000

A039-General 2,300,000 345,000 2,645,000

A03901-Office Stationery 250,000 150,000 400,000

A03902-Printing and Publication 200,000 50,000 250,000

A03905-News Papers Periodicals & Books 250,000 250,000

A-03906-Uniform/Liveries & Protective 100,000 100,000

A03907-Advertising & Publicity 220,000 55,000 275,000

A03912- Delegation Abroad 400,000 400,000

A03919-Payment to others for services 250,000 250,000

A03970-Others 630,000 90,000 720,000

A06-Transfers 100,000 100,000

A06301-Entertainment & Gifts 100,000 100,000

A09-Physical Assets 1,550,000 1,550,000

A09501-Purchase of Transport 150,000 150,000

A09601-Purchase of Plant & Machineries 700,000 700,000

A09701-Purchase of Furniture & Fixture 700,000 700,000

A13-Repair & Maintenance 1,400,000 255,000 1,655,000

A13001-Repair of Transport 400,000 400,000

A13101- Repair of Machinery 300,000 300,000

A13201- Repair of Furniture & Fixture 100,000 100,000

A13301-Repair of Office Building 600,000 255,000 855,000

TOTAL 76,308,000 3,000,000 79,308,000


Chief Justice presenting souvenir to Mr. Ayatullah Ahmed Jannati,Head of the Guardian Council of Islamic Republic of Iran


Hon.Chief Justice inaugurating Federal Shariat Court’s Bench Registry Building at Peshawar.Hon. Judges of Federal Shariat Court & Hon. Chief Justice, Peshawar High Court are also present.

Hon. Judges of the Federal Shariat Court, Hon. Chief Justice/Judges of the Peshawar High Court &members of the Bar with the Hon. Chief Justice Federal Shariat Court on the eve of inauguration of

Bench Registry Building, Peshawar.


Foundation stone of Federal Shariat Court’s Bench Registry buildingat Peshawar laid on 23 Shawal, 1429 Hijri, the 25th October, 2008 AD

by the Hon’ble Mr.Justice Haziqul Khairi, Chief Justice.


Hon. Chief Justice presenting the Books of the Court to a student of Faculty ofShariah & Law of the International Islamic University.

The students of Faculty of Shariah & Law of IIUI, with Hon. Chief Justiceand Judges of the Court during the study tour of the Court.


The students of Rawalpindi Law College with Hon. Mr. Justice Allama Dr. Fida Muhammad Khan,senior puisne Judge of the Court during the study tour of the Court.


SELECTED CASESDECIDED BY

THE FEDERAL SHARIAT COURTIN THE YEAR 2008


SELECTED CASES DECIDED BY

FEDERAL SHARIAT COURTDURING THE YEAR, 2008

1. Shariat Suo Moto No.73/1987 Suo Moto Examination of Companies Ordinance, 1984.Present: Mr. Justice Haziqul Khairi, C.J., Mr. Justice Allama Dr. Fida Muhammad Khan, Mr. Justice Salahuddin Mirza, Mr. Justice Muhammad Zafar Yasin & Mr. Justice Syed Afzal Haider, JJ.

Mr. Justice Haziqul Khairi, C.J.The Federal Shariat Court way back in 1987, in exercise of its powers under Article

203-D of the Constitution of Islamic Republic of Pakistan took suo moto action to examine whether certain Sections of Companies Ordinance, 1984 were repugnant to the Injunctions of Islam as laid down in the Holy Quran and Sunnah of the Holy Prophet (P.B.U.H). It was observed:-

“A share certifi cate is also a piece of paper but somewhat different from paper money. It is issued to anyone who subscribes towards the capital of a company. There is no command or decree of the Government as in the case of a currency note that it may be treated as legal tender. It confers title to the owner or bearer and its value may fl uctuate in terms of money from time to time in stock market. It is convertible into money by af-fecting its sale at the stock market. As long as it is capable to convert itself into money it maintains its value and in every sense it falls within the defi nition of ‘Maal’ and carries all the attributes of ‘Maal”.

As regards the concept of company, its legal entity and limited liability, it was held:-

“There is nothing in Companies Ordinance, 1984 according to which a company, ‘its legal entity’ and the ‘limited liability’ of its shareholders are found repugnant to the Injunc-tions of Islam as laid down in the Holy Quran and Sunnah of the Holy Prophet(P.B.U.H) as envisaged under Article 203-D of the Constitution of Islamic Republic of Pakistan, 1973. In fact, the concept of ‘no liability’ of Mudarib was prevalent in the days of Holy Prophet.”

As regards unrestricted blank/short sale of shares, it was held:-“It is, therefore, essential that the interest of ordinary shareholders and collective

interest of all of them may be protected from the clutches of vested interests of monopoly stock holders and gang mafi a operating in stock markets so as to inspire confi dence and good corporate governance in the business world. This object is attainable only when the Federal Government would take necessary steps to eliminate this menace and fraudulent malpractices so frequently taking place in Stock Market. We are, therefore, of the view that unrestricted ‘Short Selling’ under Section 223 of the Companies Ordinance, 1984, or uncontrolled Blank Sale as in practice are repugnant to the Injunctions of Islam.”


Accordingly the Larger Bench of Federal Shariat Court in exercise of its powers under Article 203-D of the Constitution of Islamic Republic of Pakistan, required the Fed-eral Government through the President of Pakistan to make suitable amendment therein within six months hereof which may not be repugnant to Quran and Sunnah of the Holy Prophet (P.B.U.H.) providing penal provisions in respect of Short Sale and Blank Sale en-suring adequate safeguards to ordinary shareholder of a company and public at large.

2. Shariat Petition No.44/I/1993 and Shariat Petition No.4/I/1993 Col. (Retd) Muhammad Akram --- Petitioner Versus1. Federation of Pakistan --- Respondents through Secretary, Ministry of Defence Rawalpindi2. Secretary, Senate Secretariat Islamabad

Present: Mr. Justice Haziqul Khairi, C.J., Mr. Justice Dr. Fida Muhammad Khan, Mr. Justice Salahuddin Mirza, Mr. Justice Muhammad Zafar Yasin & Mr. Justice Syed Afzal Haider, JJ.

Mr. Justice Haziqul Khairi, C.J.The case of the petitioner is that an appeal to the same tier of Military hierarchy would

not fulfi ll the requisites of the dictates of Quran and Sunnah. It was held that this question has al-ready been elaborately discussed in the case of Pakistan through Secretary, Ministry of Defence Vs. The General Public PLD 1989 Supreme Court Shariat Appellate Bench page 6 in which the contention was repelled. This Court cannot go behind this decision.

However, the Federal Shariat Court during the course of hearing took Suo Moto notice that although an accused person is informed of the result of his trial he is neither sup-plied copies of judgment or deposition or other documents from the record. It was held:-

“We have no hesitation in our minds to state that non-supply of copy of judgment, deposition and other record of the case to a convict person/appellant would tantamount to denial of justice to him as he will not be in a position to furnish grounds to assail his con-viction in appeal. Similarly it is his basic right to be heard either in person or through his counsel by the appellate authority as was held in Pakistan Vs. The General Public (supra). We may add here that since right of appeal is a substantive right, the denial of copy of judgment and of hearing in appeal would amount to denial of the substantive right result-ing into injustice on the touchstone of Quran and Sunnah of Holy Prophet (Peace be upon Him). Accordingly we direct the Federal Government to take necessary steps within six months for amendment of Rules of the Pakistan Army Act 1954 and Pakistan Air Force Act Rules 1957 ensuring supply of judgment, depositions and other record of the case to all the persons to whom sentence has been awarded whether under Hadd or not, except petty punishment cases which may be made subject to revision only.”


3. Shariat Petition No.29/I, 43/I, 64/I, 67/I of 1992. Mst.Sakina Bibi, etc. Vs. Government of Pakistan and others (PLD2008 FSC 17, 2008 SD 1020)

Present: Mr.Justice Haziqul Khairi, C. J., Mr.Justice Dr.Fida Muhammad Khan & Mr.Justice Salahuddin Mirza, JJ.

Ss.4 & 13 Land Acquisition Act (I of 1894) Art.203-D Constitution of Pakistan, 1973.

Mr. Justice Haziqul Khairi, C.J.Four Shariat Petitions were disposed of by this Judgment. Petitioners had challenged

Martial Law Order Nos. 425 and 107 with laws and rules made thereunder on the ground that acquisition of lands of the petitioners under the said laws, by the NWFP Government was repugnant to Holy Quran and Sunnah of the Holy Prophet(PBUH). The Court held that State was not empowered to acquire private property without the consent of the owner; in case it was acquired in dire need or in exceptional circumstances, the government was bound to pay its compensation to its owner according to the market value or to provide the owners alternate property. Government was directed to pay compensation to the petitioners/owners, or their legal heirs within specifi ed period and also to those aggrieved persons who had not approached the Federal Shariat Court and whose property had been acquired under MLO No. 425 and 107.

4. Cr.Appeal No.93/L of 2006 linked with Cr.Reference No.4/L of 2006. Ghulam Nabi and 2 others Vs.The State (2008 P.Cr.L.J. 759) PLJ 2008 FSC 27. 2008 SD 417 Present: Mr.Justice Haziqul Khairi, C. J., Mr.Justice Dr.Fida Muhammad Khan, Mr.Justice Salahuddin Mirza & Mr.Justice Muhammad Zafar Yasin, JJ. Ss.7 & 17(3) Offences Against Property (Enforcement of Hudood) Ordinance ( VI of 1979) S.394 P. P. C. (XLV of 1860).

Mr. Justice Haziqul Khairi, C.J.Accused persons had impugned the judgment of the Trial Court, whereby the right

hand of each accused from the wrist and left foot of each accused from the ankle were ordered to be amputated under S.17(3) of Offences Against Property (Enforcement of Hu-dood) Ordinance, 1979. In view of evidence adduced by the prosecution, it was an open and shut case of conviction of accused persons. No cavity existed in the deposition of pros-ecution witnesses and the case was fully established against accused persons beyond any


shadow of doubt. Prosecution had fully established its case of robbery against appellants. During the course of bank robbery, they caused injuries to a number of persons. Minor discrepancies in the case, would fade away into oblivion in view of over-whelming and confi dence inspiring evidence adduced by the prosecution.

Federal Shariat Court observed, “Trial Court was extremely callous and unmind-ful in awarding the grave punishment to accused persons, completely closing eyes to the requirements of ‘Tazkiya-al-Shahood’. Trial Court did not care to appoint ‘Muzakkies’ to inquire about the truthfulness of witnesses and their abstinence from major sins. The man-ner in which the Trial Court had conducted inquiry, was nothing, but a mockery of high order based on ignorance, personal whims and pervert outlook. Superfl uous and summary inquiry and the casual manner in which it was held, was in clear violation of the require-ments of ‘Tazkiya-al-Shahood’ under S.7 of Offences Against Property (Enforcement of Hudood) Ordinance, 1979. Mindful of our constitutional duties, we may state that Qur’an and Sunnah shall always serve as our guide in determining what are major sins and would state further that in order to ascertain whether a witness successfully stands to the test of Tazkiya-al-Shuhood, the appointed Muzaki or any one in his place, should have social, cul-tural and religious interaction with him. Any casual inquiry or formal relationship with him shall not fulfi ll the requirements of Tazkiya-al-Shuhood and would defeat the very purpose of credibility of a witness as embedded in the concept of Tazkiya-al-Shuhood. In view of the foregoing discussion, the prosecution has been fully able to establish its case of robbery against the appellants against whom there is irrebuttable evidence falling under Tazir laws whereby the Bank was robbed to a tune of Rs.3,87,905. Resultantly the appellants’ con-viction and sentence under section 17(3) of the offence Against Property (Enforcement of Hudood) Ordinance, 1979 are set aside, however, they shall stand convicted under section 394, P.P.C. (Ta’zir) and sentenced to ten years’ R.I. each along with fi ne of Rs.10,000/- pay-able by each of the appellants, in default whereof they shall undergo 3 months’ R.I. each. The appellants shall be entitled to benefi t under section 382-B, Cr.P.C.

5. Cr.Appeal No.114/I/2006. Along with Murder Reference No.11/I/2007. Tajmal Abbas Vs. The State.

Present Mr. Justice Haziqul Khairi, C.J., Mr.Justice Dr.Fida Muhammad Khan & Mr.Justice Salahuddin Mirza, JJ.

Ss.10(3), 11 Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979) Ss.302(b), 377 Pakistan Penal Code.

Mr.Justice Dr.Fida Muhammad Khan, J. Both the criminal appeal and the murder reference for confi rmation of death sentence were

disposed of by this judgment. Appellant was convicted and sentenced U/Ss.10(3) 11 Offence of Zina (Enforcement of Hudood) Ordinance 1979 and Ss.302(b), 377 Pakistan Penal Code.

On perusal of the case, it transpired that the case of prosecution was initiated on a promptly lodged FIR. The evidence pertains to the tragic death of three minor


girls aged about 5, 7 and 9 years respectively—all daughters of the complainant. They were brutally murdered after having been subjected to rape and forcible sod-omy. In his extra judicial confession before lambardar, the appellant confessed that he had made a plan to take revenge of his insult made earlier by the complainant and his wife. He further confessed that he gave a sickle blow in the abdomen of Mst. Shabana and thereafter strangulated her by neck and also committed sexual intercourse with her and she died thereafter. He also confessed that the other minor girls who were frightened were threatened by him and thereafter he took them in another cotton field at a distance of one acre therefrom and committed Zina and sodomy with them and also committed their murder by way of strangulation. The appellant was produced before police and accordingly the dead bodies of the three poor girls were recovered on his pointation.

Reports of the Chemical Examiner on Shalwar revealed that it was stained with semen. Similarly report of the Chemical Examiner regarding sickle showed that the same was stained with blood. Medical examination report confi rmed commission of rape. Appellant was medically examined and found potent to perform sexual inter-course. The lady doctor opined that the death of the three girls was asphyxia due to strangulation.

FSC held that besides the last seen evidence and extra-judicial confession, the dead bodies were recovered from different places in the fi elds on pointation of the accused, which were in his exclusive knowledge. The fact that stab wound was subse-quently observed during post mortem examination and the cause of death ascertained as strangulation resulting in asphyxia which was earlier unknown to all PWs confi rmed and corroborated the contents of extra-judicial confession made by him before them prior to the recovery of said dead bodies. The appellant led the police to the place of occurrence and he also took the belongings of the deceased i.e. the school bags, etc from the spot. The appellant also disclosed that he could recover the incriminating sickle from his residential room and accordingly he led the police party over there and got recovered the said sickle (blood stained) weapon of offence.

On critical appreciation of evidence, this Court found that the evidence of all the PWs was highly reliable and confi dence inspiring. None of them had any grudge whatsoever against him for false implication. The recoveries effected by him further confi rmed commission of the crime. The testimony of all the PWs who had been sub-jected to lengthy cross examination, remained fi rm. The chain of evidence brought on record was complete and lead only to the guilt of the appellant. In this view of the matter, FSC held that case of prosecution against the appellant was established beyond any reasonable doubt and no mitigating circumstance was found to take a lenient view regarding quantum of sentences awarded to the appellant. It was observed that in view of the extreme gravity of offences committed by the appellant, he had been rightly convicted and appropriately sentenced. Consequently conviction and sentences of the appellant were maintained and the Murder Reference No.11/I of 2007 was answered in affi rmative and confi rmed accordingly.


6. Cr.Appeal No.6/L/2006. Huzoor Bakhsh Vs. Riaz Hussain, The State.Present Mr.Justice Dr.Fida Muhammad Khan & Mr. Justice Syed Afzal Haider JJ.

Ss.10(3), 18 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979. Mr.Justice Dr.Fida Muhammad Khan, J.

Judgment passed by learned Additional Sessions Judge was challenged by the ap-pellant whereby the accused was acquitted of the charge under S.18 read with S.10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979. The appeal against ac-quittal was barred by about seven months and no plausible explanation for this inordinate delay had been given by the appellant/complainant. The learned counsel representing the complainant had submitted criminal miscellaneous application bearing No.3/L of 2006, but that too lacked convincing reasons for the long delay. It was to be appreciated that in legal proceeding, each and every day had to be accounted for and properly explained. However, since the appeal had already been admitted, the Court decided to consider the same on merits in the interest of justice.

On perusal of record it transpired that in addition to the complainant, the occurrence was allegedly seen by father of the victim and other male residents of the village. However except the complainant none of the said witnesses had been produced by the prosecution. Though Mst.Azeem Mai wife of the complainant appeared as PW.5 but in the initial report she was not mentioned as eyewitness alongwith the aforementioned alleged eye witnesses of the village who were attracted to the place of occurrence. This Court observed that star witness of the prosecution case was Mst.Sajida Mai but she was not cited as witness in the calendar of witnesses. According to available record her father Fateh Muhammad was also given up as being unnecessary. The other eye-witness Abdul Rehman was given up as being won-over by the accused. Non-production of the witnesses renders the statement of complainant not only doubtful but also uncorroborated by any other evidence. It was further observed that in case of acquittal of an accused double presumption of innocence is attached in favour of the accused and very strong unshakeable evidence is necessary in such an appeal to convert the acquittal into conviction and in the instant case no such evi-dence was available on record. The appeal fi led by the complainant against acquittal of the respondent/accused was therefore dismissed.

7. Cr.Appeal No.139/I/2007. Shahbaz Khan Vs.The State.Present: Mr.Justice Dr.Fida Muhammad Khan & Mr.Justice Salahuddin Mirza, JJ.

S.17(3) Offences Against Property (Enforcement of Hudood) Ordinance, 1979. S.365-A PPC


Mr.Justice Dr.Fida Muhammad Khan, J. Appellant fi led this appeal against the judgment passed by learned Additional Ses-

sions Judge-VI, Quetta, whereby he was convicted under S.365-A PPC and sentenced to life imprisonment and forfeiture of his property. This Court observed that the story of ab-duction as mentioned in detail by the complainant in FIR was supported by no cogent piece of evidence. Except the statement of complainant there was no legal evidence worth the name to prove that he was actually abducted to Afghanistan. The exact date when he was recovered was also doubtful. In this connection deposition of the appellant in disproof of the allegations made against him was worth serious consideration. His statement had not been shattered in cross-examination. His statement found full support from defence witnesses. Statements of defence witnesses, duly supported by documents were self explanatory and suffi cient to establish the actual bone of contention in the whole matter. Their depositions inspired confi dence and rang true. They had been subjected to lengthy cross-examination but they remained fi rm and there was no reason to disbelieve their statements. FSC held that the case of prosecution against the appellant/accused who had allegedly abducted the complainant for a huge amount of ransom of Rs.26,00,000/- and taken him to Afghanistan but sent back on the next day without any rhyme or reason was not established beyond rea-sonable doubt and the appellant/accused was entitled to get benefi t thereof. Consequently conviction and sentences of appellant were set-aside, his appeal was allowed.

8. Cr.Revision No.13/K/2003 The State Vs. Muzammil .Present: Mr.Justice Haziqul Khairi, C. J., Mr.Justice Dr.Fida Muhammad Khan & Mr.Justice Salahuddin Mirza, JJ.

S.12 Offence of Zina (Enforcement of Hudood) Ordinance,1979. S.377 PPC. Article. 203DD of the Constitution of Pakistan.

Mr. Justice Dr. Fida Muhammad Khan, J.Revision petition was fi led against the judgment passed by the learned IIIrd Additional

Sessions Judge Karachi-West whereby the respondent was acquitted of charge under S.12 Of-fence of Zina (Enforcement of Hudood) Ordinance,1979 as well as the charge under S.377 PPC. Criminal revision was initiated on the direction of Hon’ble Sind High Court.

This Court observed “we have thoroughly considered the arguments put forward by both the learned counsel and also gone through the contents of Article 203DD of the Constitution of Pakistan. We also anxiously appreciated the evidence brought on record by the learned trial court. However, lest either side be prejudiced we don’t want to go into the details whether this revision under the aforementioned Article of the Constitution of Pakistan is competent in its present form or whether the acquittal recorded by the learned trial court was justifi ed, we are of the view that in the interest of justice the case should be remanded. It was further observed that the learned trial court despite making the observa-tion that the star witness of the prosecution was the mother of the victim and was the fi rst informant who disclosed details of the occurrence to her husband, has not examined her whereas her examination in circumstances of the case was highly signifi cant for just deci-


sion of the case. Though she was deaf and dumb, her evidence through some specialist/expert interpreter of the special Children school could have been recorded as a PW or even a CW. The impugned judgment was found also defi cient in some other aspects pertaining to discussion about the Medical Report/Chemical Examiner’s Report.

Federal Shariat Court held, “ In the interest of Justice we deem it necessary to set aside the impugned judgment and remand the case to the learned trial court who should summon wife of the complainant Shaukat Ali and record her statement duly giving op-portunity to the respondent/accused to cross-examine her. His statement under section 342 Cr.P.C shall then be recorded in the light of the fresh evidence and, if he opts, under section 340(2) Cr.P.C also. Thereafter the case may be decided afresh as required under the law. The needful shall be done within two months after receipt of this order.

9. Cr.Revision No.8/L/2004. Mst.Dur-e-Shahwar Begum Vs.Haji Bakhtiar Said and another.

Ss.6, 7 and 14 Offence of Qazf (Enforcement of Hadd) Ordinance, 1979

Mr.Justice Salahuddin Mirza, J.Haji Bakhtiar Said and Durr-e-Shahwar were once husband and wife but the mar-

riage came to an end through divorce-deed dated 25.4.1983.Subsequent thereto litigation ensued between them before the Family Court in which Haji Bakhtiar Said fi led three writ-ten statements one after the other in which he charged his former wife with adultery and denied the paternity of their children born during the subsistence of the marriage. He made the same allegation before his elder brother and, allegedly, before a ‘Punchayat’ held in his own house. The former wife then fi led complaint in the Court of learned Additional Ses-sions Judge under section 7 of Qazaf Ordinance and the Court, after holding preliminary inquiry under section 200 Cr.P.C framed charge under section 14 of the Qazf Ordinance. Feeling aggrieved ,the former wife preferred revision petition before the Federal Shariat Court which held that since the execution of the divorce deed by the husband on 25.4.1983 the parties ceased to be husband and wife and were just ‘a man and woman’ and therefore the offence, if any, would not fall under section 14 of the Qazaf Ordinance because sec-tion 14 is attracted only when a husband makes allegation of adultery against his wife as is evident from the phraseology of section 14 itself which begins with the words ‘When a husband accuses before a Court his wife…..’ Whereas the parties were no more husband and wife when the allegation of adultery was made by the former husband and therefore Section 7 was attracted to the facts of the case. Federal Shariat Court, therefore, accepted the revision petition and directed the trial Court to quash the charge it earlier framed under section 14 and frame it under section 7 and proceed with the trial.

10. Cr.Appeal No.13/L/2007. Nazir Ahmad alias Kaki Vs.The State. (2008 P.Cr.L.J. 775)

S.10 Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979).

Mr.Justice Salahuddin Mirza, J. Conviction of appellant Nazir Ahmad under section 10 of the Offence of Zina (En-


forcement of Hudood) Ordinance VII of 1979 was set aside by the Federal Shariat Court because, even though the medical evidence had established commission of rape on the prosecutrix, all the prosecution witnesses, including the complainant herself, had denied the truth of the prosecution case and all of them had been declared hostile after they had vouchsafed for the innocence of accused/appellant Nazir Ahmad and the complainant had stated that she had nominated Nazir Ahmad in the FIR as accused merely on suspicion although she maintained that the victim girl had been raped but not by Nazir Ahmad but by someone else and conviction could not be sustained in the absence of any evidence connecting appellant Nazir Ahmad with the commission of the crime and merely because commission of rape on the prosecutrix had been established by medical evidence.

11. Cr.Appeal Nos.68/80/84/88/K/2006. Sanaullah and others Vs.The State. (2008 P.Cr.L.J. 797) Present: Mr.Justice Haziqul Khairi, C. J. & Mr. Justice Salahuddin Mirza, J.

Ss.13,14 and 18 Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.265-H (2) Criminal Procedure Code (V of 1898), Mr.Justice Salahuddin Mirza, Judge.

The appellants were convicted under sections 13, 14 and 18 of the Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979. This Court observed that not only the prosecution had failed to prove its case beyond any shadow of doubt but the evidence brought on record by it showed that the appellants had been maliciously and falsely im-plicated in a fabricated case which had no legs to stand upon. It was impossible to believe the complainant when he alleged that the prostitution activity was going on in the house while its door was not only not locked but was lying open when the police party reached there. The FIR did not disclose that any illegal activity was going on in the house or that the accused persons were preparing to commit Zina-bil-Raza. It was held by this Court that on the basis of the evidence on record charging the appellants under section 18 read with sections 13 and 14 of the Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979 was not only not justifi ed but such action was outright outrageous because neither the FIR nor the 161 Cr.P.C. statements of the witnesses contained any averment which could even remotely suggest that any of the accused persons had sold or was trying to sell anyone for the purpose of prostitution or had bought or hired anyone or had otherwise obtained pos-session of anyone with the intention that such person would be employed or used for the purpose of prostitution or illegal sexual intercourse. Besides, the FIR had not disclosed as to who was the victim in respect of which as many as six persons had been charged and put on trial. The learned Additional Sessions Judge did not apply his mind to the evidence before him and did not analyse it critically and allowed himself to be governed by whims and surmises and ended up by committing gross travesty and miscarriage of justice by con-victing the accused/appellants on inadequate evidence which did not implicate them in the commission of the offences with which they had been charged. The impugned judgment was held to be perverse and the appellants/accused were acquitted.


12. Jail Cr.Appeal No.154/I/2007. Ejaz Ali Vs.The State (2008 P.Cr.L.J. 1012) decided in 2007. 2008 SD 552.

S.17(3) Offences Against Property (Enforcement of Hudood), Ordinance (VI of 1979). S.392 Penal Code (XLV of 1860),

Mr. Justice Muhammad Zafar Yasin, J. Appellant had challenged his conviction recorded by learned Additional Sessions

Judge under S.17 (3) Offences Against Property (Enforcement of Hudood), Ordinance (VI of 1979). It was observed that the FIR which had been lodged promptly revealed that the complainant had not specifi ed the role of any of the persons who had participated in the robbery nor had given any identifi cation features of any of the participants. Nothing was on record to show that on what basis appellant was suspected as an accused by Investigat-ing Offi cer. Appellant remained on physical remand with the police, but no incriminating articles had been recovered from him. Any incriminating statement made by appellant in police custody, was not admissible in law. It was further observed that the Trial Court, in circumstance, was not justifi ed in law for relying on disclosure memo, made by appelant while he was in police custody. Identifi cation parade was got conducted 9 days after arrest of accused and said unexplained delay had cast serious doubt, apart from the fact that it was supervised by DSP who had no authority to supervise the same. No private person was mixed with appellant at the time of identifi cation parade, except 4/5 police constables. The identifi cation parade was conducted at the residence of the complainant. Memo of recov-ery had been witnessed by two constables of the concerned Police Station. It was also held that evidence of identifi cation parade being of very doubtful nature, same can not be relied upon. Conviction and sentence of the appellant recorded by the Trial Court on the basis of inadmissible evidence and without any independent corroboration in the shape of any recovery of incriminating articles, could not be upheld and accused was entitled to benefi t of doubt. Appellant was acquitted of the charge and was released.

13. Jail Cr.Appeal No.62/I/2007. Muhammad Ishaq alias Langhra Pir Vs.The State (2008 P.Cr.L.J. 1383) PLJ 2008 FSC 49, 2008 SD 565. Ss.10 & 11Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)Mr. Justice Muhammad Zafar Yasin, J.

Judgment of Additional Sessions Judge, Lahore was challenged by the appellant whereby he had been convicted and sentenced under S.10(3), Offence of Zina (Enforce-ment of Hudood) Ordinance, 1979. Allegation against accused was that he along with co-accused abducted alleged abductee and that he had committed Zina-bil-Jabr with her. Plea of accused was that alleged abductee being unmarried sui juris accompanied him with her free will and contracted marriage with him and had been living with him as his wife. Al-leged abductee had categorically denied the fact of having entered into marriage with the appellant. It was observed that appellant neither had produced any witness of his marriage with alleged abductee nor examined Nikah Khawan to prove that alleged marriage had


been solemnized in accordance with law. Mere production of alleged Nikah Nama without its formal proof was of no value. Logical conclusion, in circumstances, was that appellant had been committing Zina with the alleged abductee.

Appellant along with his co-accused had been acquitted of the charge under S.11 of Of-fence of Zina (Enforcement of Hudood) Ordinance, 1979 and against that acquittal no appeal had been fi led by the State or the complainant; it was, evident that alleged victim had accom-panied accused with her free consent. Alleged victim had been living with accused for a period of more than two months at different places, where she had been subjected to Zina, neither she raised any resistance nor hue and cry. Even the Medico-legal report of alleged abductee had shown that no mark of violence was found on any part of her body or on her private parts, while she was subjected to sexual intercourse. No corroborative evidence was available on record except the solitary statement of the abductee that she had been subjected to Zina-bil-Jabr. Ac-cused was handicapped person and he was also physically incapacitated to commit Zina-bil-Jabr. Alleged victim being sui juris had been living with accused for more than two months and had been enjoying the sex with him with her free consent. Conviction and sentence of appellant under S.10(3) of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 as recorded by the Trial Court was converted into one under S.10(2) of said Ordinance and he was sentenced to three years’ R.I. with benefi t of S.382-B, Cr.P.C.

14. Cr.Appeal No.213/I/2007. Muhammad Javed Vs.The State. (2008 P.Cr.L.J. 1399) PLJ 2008 FSC 54, 2008 SD 559 Ss.10 & 11 Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)

Mr. Justice Muhammad Zafar Yasin, J. The appellant had been convicted and sentenced under S.10(3) Offence of Zina (En-

forcement of Hudood) Ordinance, 1979 by learned Additional Sessions Judge, however the appellant and his co-accused was acquitted of the charge under S.11 of the said Ordinance. Acquittal of appellant and his co-accused under S.11 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 had neither been challenged by the State nor by the complainant. It was, therefore, presumed that said portion of prosecution story (abduction of victim) was incorrect. Alleged victim, had accompanied appellant with her free will, who otherwise was her maternal uncle’s son. Alleged victim girl in her statement recorded under S.164, Cr.P.C. had denied to have been abducted by anybody or subjected to Zina-bil-Jabr by anyone. Al-leged victim took ‘U’ turn in the Court and fully supported prosecution version that she was abducted and was subjected to Zina-bil-Jabr by appellant. The Court, however, noted in its order that from the face of girl it was evident that she was terrifi ed. This Court observed that statement of the prosecutrix/alleged victim made in the court was unbelievable being contrary to her statement recorded under S.164 Cr.P.C., immediately after her recovery. Medical evi-dence, however corroborated version of prosecutrix to the extent that she had been subjected to sexual intercourse during the period she was in the company of appellant. Alleged victim was medically examined and according to opinion of Lady Doctor, Zina was committed, but no marks of violence were present on her body neither on her private part, which had proved that she was consenting party. Federal Shariat Court held that being a case of Zina-bil-Raza punishable under S.10(2) of Offence of Zina (Enforcement of Hudood) Ordinance, 1979, conviction of appellant was converted from S.10(3) to S.10(2) of said Ordinance and he was sentenced to two years’ R.I. with benefi t of S.382-B, Cr.P.C.


15. Cr.Appeal No.152/I/2007. Riaz Hussain Vs.The State. (2008 P.Cr.L.J. 1681) PLJ 2008 FSC 175, 2008 SD 848.

S.10(3) Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss. 4 & 7 Juvenile Justice System Ordinance (XXII of 2000).

Mr. Justice Syed Afzal Haider, J. Appellant fi led appeal against his conviction and sentence recorded by learned Ad-

ditional Sessions Judge Muzaffargarh under S.10(3) Offence of Zina (Enforcement of Hu-dood) Ordinance. This Court found glaring discrepancies in determination of age of the ap-pellant. Observation of the Trial Court that accused was a minor at the time of occurrence, indicated that provisions of Juvenile Justice System Ordinance, 2000 were in its view. Under provisions of S.7 of Juvenile Justice System Ordinance, 2000 if a question arises as to whether a person before it was a child for the purpose of that Ordinance then the Juvenile Court would record a fi nding after such inquiry which would include a medical report for determination of age of the child. Trial Court was required to hold an inquiry the moment it came to its knowledge that accused was juvenile and there was no escape from it. Cursory glance at the face of accused was suffi cient to suggest that he had not come of age.

It was observed that Juvenile Courts had been specifi cally set up under S.4 of Ju-venile Justice System Ordinance, 2000 and Juvenile Court was to have exclusive Jurisdic-tion to try the case in which a child was accused of the commission of an offence. Juvenile Court alone was competent to decide the issue of age. Moving an application by a juvenile under trial was not a condition precedent for conferring jurisdiction upon the court to take cognizance of the element of age under that law. As and when the court was informed that accused was a child at the time of a commission of the offence, the Trial Court was bound to adopt the procedure prescribed under the Juvenile Justice System Ordinance, 2000. Said Ordinance was a special law and would take precedence over the general law.

Federal Shariat Court held that accused should be permitted to avail opportunity of claiming minority. Deprivation of the chance to claim right provided under a special law would not be advancing the cause of justice. Conviction of accused was set aside and case was remanded to the Trial Court for fresh trial under the Juvenile Law provided the Trial Court had been notifi ed as a Juvenile Court.

16. Cr. Appeal No.277/I/2005. Nosherwan Vs.The State. (2008 P.Cr.L.J. 1364) PLJ 2008 FSC 130, 2008 SD 943.Present: Mr.Justice Muhammad Zafar Yasin & Mr.Justice Syed Afzal Haider, JJ.

Ss.10,11 & 16 Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979) Ss.233 & 237 Criminal Procedure Code (V of 1898).

Mr. Justice Syed Afzal Haider, J. Judgment passed by learned Additional Sessions Judge was challenged by the appel-


lant. On perusal of the record it appeared that the appellant was charged only under S.11 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and S.10 of said Ordinance was omitted by the Trial Court but the appellant was convicted for both the offences under Ss.10 & 11 of said Ordinance. Wordings of S.233, Cr. P. C. lay down the general principle that for every distinct offence of which any person is accused there shall be a separate charge and every such charge shall be tried separately. Offence under S.10 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 is distinct from the offence mentioned in S.11 and S.16 of said Or-dinance. Exception, however, was mentioned in S.237, Cr. P. C. which empowered a court to convict an accused for an offence for which he was not charged, if it appeared in evidence that accused had committed a different offence for which he might have been charged. This section which enshrines an exception, has to be construed strictly.

It was observed that no element of force had been brought on record. Presence of fi ve co-accused along with appellant had been disbelieved by the Trial Court and the fi ve co-accused were in fact acquitted of the charge of abduction. But the evidence of Zina, however was available on record and according to S.237, Cr.P.C. accused could be con-victed under S.10(2) of Offence of Zina (Enforcement of Hudood)Ordinance, 1979.

Element of force was absent in the case and no evidence to support even the element of seduction, inducement or persuation applied upon the victim by appellant was available. Possibility that the victim herself went to appellant could not be ruled out, therefore it was considered a case of consensual relationship between alleged victim and appellant. Convic-tion under S.10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 alone was maintained.

Appellant had already suffered imprisonment for over two and a half years after the pro-nouncement of judgment and almost three months from the time he was arrested upto the day he was released on bail. Case under S.11 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 was not made out at all, conviction recorded against accused by the Trial Court under said section was set aside, but conviction under S.10 of the Ordinance, was maintained. Case was that of consent and both the parties elected to suppress true facts; case of reduction of sentence, in circumstances was made out. Sentence awarded to accused was excessive and not in tune with practice, particularly in consent cases where parties were sui juris. Sentence imposed upon accused was reduced to a period of two years and six months as already undergone. Sentence of fi ne was also reduced to Rupees fi ve thousand only.

17. Jail Cr.Appeal No.93/I/2007. Muhammad Arshad Vs.The State. (2008 P.Cr.L.J. 1019) PLJ 2008 FSC 87.Present: Mr.Justice Dr.Fida Muhammad Khan & Mr.Justice Syed Afzal Haider, JJ.

Ss.302(b) & 377 Pakistan Penal Code (XLV of 1860), Art.20 Qanun-e-Shahadat (10 of 1984).Mr. Justice Syed Afzal Haider, J.

Appeal was fi led against conviction and sentence recorded under Ss.302(b) &


377 P. P. C. by Additional Sessions Judge. It was observed that notwithstanding the gravity of the occurrence, the Investigating and Medical Offi cers had not deemed it necessary to obtain semen sample of appellant when he was medically examined to de-termine his sexual potency. Semen matching would have clinched the issue, but prose-cution side opted to give up that aspect. Last seen evidence though is admissible under Art.20 of Qanun-e-Shahadat, 1984, but it is a weak type of circumstantial evidence for becoming the basis of conviction of accused. No probative evidence was available to the effect that victim and accused were seen together before the occurrence. Place of occurrence was located on a public road emanating from nearby village. Offence of sodomy by force at such a place at 11.00 a.m. in close proximity to Abadi Deh, could not possibly be committed. Prosecution had not been able to saddle the accused with responsibility of the offence upon the accused. Direct or circumstantial evidence did not support prosecution story. Evidence of last seen was not substantiated. Investiga-tion lacked seriousness. Medical opinion did not support ocular testimony. Even time of death was not fully proved. Burden of proof had not been discharged by prosecu-tion. Prosecution version had undergone improvements. Factum of arrest of appellant was shrouded in mystery. Supplementary statement of the complainant had rendered prosecution story extremely doubtful. Consequently, appellant was acquitted by giving him benefi t of doubt and he was set at liberty.

18. Cr.Appeal No.211/I/2007. Ejaz alias Jagan and 3 others Vs.The State. (2008 P.CR.L.J. 1694) PLJ 2008 FSC 149, 2008 SD 835. S.20 Offences Against Property (Enforcement of Hudood), Ordinance (VI of 1979). Art.22 (b) Qanun-e-Shahadat (10 of 1984), Ss.392 & 411 Pakistan Penal Code (XLV of 1860)

Mr. Justice Syed Afzal Haider, J. Conviction and sentence passed under Ss.392 & 411 Pakistan Penal Code

(XLV of 1860) in Haraba case by learned Additional Sessions Judge was chal-lenged by the appellants. On perusal of the case it was found that appellants had committed robbery in a coach and they had remained in the coach in the open view of the passengers for some time before leaving the coach at a deserted place. Complainant and the victim eye-witnesses, thus, could possibly preserve in their memory the faces of the accused and identify them later in the Court. Complainant was supported by eight eye-witnesses who had also been deprived of their cash and mobiles in the coach by the appellants, and had no enmity with them. Direct evi-dence was consistent, natural and reliable. Non-recovery of money from the daco-its did not mean that the offence against them was not proved, as recovery was only a corroborative fact. Omission of S.34, PPC did not affect the prosecution case in the absence of any prejudice having been caused to the appellants. Even otherwise, each accused had participated actively and played a distinctive and an independent role in the commission of the offence against specific individuals.

This Court held, “The facts and circumstances of the case in which a number of persons


were relieved of their valuables by armed persons in a public transport are suggestive of that category of anti-social offence which do not permit exercise of any further leniency towards the appellants”. Conviction and sentence as recorded by Trial Court was upheld and maintained

19. Jail Cr.Appeal No.210/I/2006. Ghulab Khan Vs.The State.

(2008 SD 775) PLJ 2008 FSC 87.

Ss. 302, 396 Pakistan Penal Code (XLV of 1860), S.17(4) Offences Against Property (Enforcement of Hudood) Ordinance, (VI of 1979),

Mr. Justice Syed Afzal Haider, J. The Judgment delivered by learned Additional Sessions Judge Charsadda was chal-

lenged by the appellant whereby he had been convicted and sentenced under S. 396/34 of Pakistan Penal Code. Federal Shariat Court observed that there was repeated insertion and alteration in the documents relied upon by the prosecution. The case was originally regis-tered under S. 302 P.P.C. and later on converted into one under S.17 (4) Offences Against Property (Enforcement of Hudood) Ordinance, (VI of 1979). In order to arrive at verdict of guilt of accused for Haraba under S.17(4), there has to be not only suffi cient evidence but evidence should be of a nature which convinces the judicial mind that no other inference except guilt of accused could be derived out of such evidence.

It was further observed that no person was nominated in crime report nor any identifi ca-tion parade was ever held. In absence of direct evidence, the only evidence was that of last seen which can not be made basis of conviction/sentence unless corroborated. The circumstantial evidence like last seen evidence must be accepted with great care and caution and should be subject to scrutiny in order to reach a conclusion that no other plausible inference except guilt of accused could be drawn. The circumstances should be of such a nature as to reasonably ex-clude any other hypothesis except the one sought to be proved. In other words, the chain must be complete so as not to leave any reasonable ground for conclusion consistent with innocence of accused. Circumstantial evidence which does not connect accused with commission of mur-der would not prove charge under S.302 against him as evidence relied upon in support of charge under S.302 should be of unimpeachable character. Furthermore, It is well-settled that a retracted confession can be accepted only if it is corroborated by clear, cogent and independent evidence. This is a rule of prudence in the administration of criminal justice which has been followed by jurists and judicial authorities. Consequently, Federal Shariat Court set aside con-viction and sentence of appellant as well as the convicts who had not fi led appeal to challenge their conviction/sentence.


PRESS CLIPPINGS


Islamabad, Sep 2: The Federal Shariat Court on Tuesday ordered the federal government to amend the Pakistan Army Act and the Pakistan Air Force Act Rules within six months and allow convicts to get copy of judgments and other case records to enable them to fi le appeals. A fi ve member bench comprising Chief Justice Haziqul Khairi, Justice Dr.Fida Muhammad Khan, Justice Salahuddin Mir-za, Justice Muhammad Zafar Yasin and Justice Syed Afzal Haider issued the order on two petitions fi led by Col (retd) Moham-mad Akram, challenging the Pakistan Army Act of 1952 and the Pakistan Air Force Act Rules of 1957. “I am not satisfi ed with the judgment and will move an appeal before the Shariat Appellate Bench of the Supreme Court since the FSC has given its fi nding on the matter which was a side issue,” Advance Col (retd) Akram told Dawn. The real issue, he said, was that the appeal of convicts sentenced by the fi eld general court martial should be heard, in-stead of a court of appeal, by a forum which was not under the chain of command of the armed forces and comprised learned people with complete grasp of legal issues. The pe-tition, he said, had been fi led in 1993. Col Akram achieved prominence for defending a number of people convicted for their involvement in the two abortive attempts on the life of former President Pervez Mushar-raf, fi rst on December 14, 2003, and then on

Dec 25, 2003. The convicts were sentenced by different fi eld general courts martial for their involvement in the attempts. The FSC disposed of the petitions and held that refusing to give copies of judgment, despositions or other record of the case to a convict was tantamount to de-nial of justice because he would not be in a position to furnish grounds against his con-viction in appeal. “The right of appeal is a substantive right and the denial of a copy of judgment and of the hearing in appeal would amount to de-nial of that substantive right resulting into in-justice on the touchstone of Quran and Sunnah of the Holy Prophet (Peace be upon him). “We accordingly direct the federal government to take steps within six months for amendment of Rules of the Pakistan Army Act, 1952 and the Pakistan Air Force Act Rules, 1957 ensuring supply of judg-ment, despositions and other record of the case to all persons to whom sentence has been awarded whether under Hudood laws or any other laws,” the judgment said. On November 10 last year, the fed-eral government had amended the Pakistan Army Act of 1952, giving wide-ranging powers to the armed forces to hold court martial of civilians on charges ranging from treason, sedition or attach on members of the armed forces to rioting or assaulting the president to ‘restrain the exercise of any lawful power or giving statements condu-cive to public mischief’.

FSC ask govt toamend Army Act

By Nasir Iqbal

The DawnDated 03-09-2008


ISLAMABAD, Oct 24: The Federal Shariat Court (FSC) on Friday held ‘short selling’ and ‘blank sale’, a com-mon practice in stock markets, against Islam. The court suggested to the fed-eral government to amend the Com-panies Ordinance of 1984 within six months for safeguarding the interests of ordinary shareholders of accompa-ny. Afive member bench, compris-ing Chief Justice Haziqul Khairi, Jus-tice Dr. Fida Muhammad Khan, Justice Salahuddin Mirza, Justice Muhammad Zafar Yasin, Justice Syed Afzal Haider, had taken a suo moto notice to examine different provisions of the Companies Ordinance to determine whether the law violated the injunctions of Islam. Unrestricted short selling, un-der section 223 of the ordinance, is done on a financial instrument that the seller does not own at the time of the sale, but purchases the same late at a lower price to earn profit from an ex-pected decline in the value of the in-strument. Section 223 of the ordinance, requires that; “No director, chief exec-utive, managing agent, chief accoun-tant, secretary or auditor of a listed company, and no person who is direct-ly or indirectly the beneficial owner of

not less than ten per cent of the listed equity securities of such company, shall practice directly or indirectly short-selling such securities.” Similarly, under the “Regula-tions for Short Selling underReady Market, 2002,” blank sale is a sale by a party that does not own shares or is a sale by a party that has not entered into a contractual borrow-ing arrangement to meet delivery re-quirements. It was essential, the judgment observed, to protect the interest of an individual shareholder and collective interest of monopoly stockholders and mafia operating in stock markets. Such measures will also inspire confidence and good corporate governance in the business world, the judgments said. It said that this objective could be attained only when the federal gov-ernment took steps to eliminate fraud-ulent malpractices in stock markets. In exercise of its powers under Article 203-D of the Constitution, the judgment held, the FSC required the federal government through the Presi-dent to take steps for such amendments within six months as may not be repug-nant to the Holy Quran and Sunnah of the Holy Prophet (peace be upon him), envisaging penal provisions in respect of short sale and blank sale.

Stocks short-sellingagainst Islam: FSC

By Nasir Iqbal

The DawnDated 25-10-2008

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