Updated: Monday August 05, 2019/AlEthnien
Thoul Hijjah 04, 1440/Somavara
Sravana 14, 1941, at 12:45:33 PM
QAZIS IN THE
COUNTRY
The President of Pakistan was, vide
his letter No.57/2/CMLA, dated the 17th September, 1981, pleased to desire the
Pakistan Law Commission to examine the draft of “The Establishment of Courts of
Qazis Ordinance, 1981”, as prepared by the Federal Government for remodelling
it on the right lines or to propose alternatives in accordance with the Sharia.
It was also desired that recommendations of the Commission should be submitted
to the President as early as possible but preferably by the 20th of October,
1981.
2. The Commission held its special
session for this purpose in Rawalpindi on the 4th, 5th, 6th and the 7th
October, 1981, and then on the 17th and 18th October, 1981, during which period
the entire matter was considered in detail and the draft Ordinance examined
section by section and clause by clause. The Commission’s report in this
respect is as follows:-
I- INTRODUCTION
Since the creation of
While going through the draft
Ordinance under consideration it is not difficult to find that the powers and
functions made available to the Ilaqa Qazis and the Zila Qazis are, more or
less, the same as at present exercised by the civil and criminal Courts in the
Districts under the two Codes, viz the Code of the Civil Procedure and
the Criminal Procedure Code.
The Commission while examining the
draft Ordinance and formulating its recommendations has kept in view the object
of this Ordinance, i.e., its provisions should lead to quicker, more effective
and inexpensive administration of justice. The Commission has, therefore,
curtailed, wherever possible and without affecting adversely the interests of
the parties, the statutory period of limitation allowed in respect of various
steps to be taken in connection with the proceedings in the Courts of Qazis. As
for instance:-
(1) It has been recommended that the suits
should be disposed of by the Ilaqa Qazis within a period of three months and
similarly the appellate Courts of Zila Qazi should dispose of the appeal within
the same period whose order shall be final. Again the period for filing
applications for restoration of suits in case of an ex parte decree or dismissal in default, and
their disposal by the Courts, each, has been cut down to 30 days.
(2) In the matter of appeals against
acquittal, the period of limitation for filing such appeals has been reduced
from the statutory period of six months to two months.
(3) All suits relating to family disputes
and involving money claims upto Rs. 25,000/- or with regard to immovable
property of a value not exceeding Rs. 25,000/-, disputes under Canal and
Drainage Act etc., are recommended to be tried and disposed of in a summary
manner in accordance with the self contained procedure laid down in Chapter VI,
Part A, of this Ordinance and the provisions with regard to Revisions and
Review applications have not been made applicable to those suits. Provisions
with regard to second appeals have been eliminated altogether except in a
criminal case in which a Zila Qazi, on appeal, sets aside an order of acquittal
passed by an Ilaqa Qazi.
(4) The various periods of limitation in
respect of a number of steps laid down in the Code of Civil Procedure as well
as in the proposed Ordinance have been reduced to a minimum.
(5) The period of fifteen days proposed
for reconciliation proceedings in the draft Ordinance has been reduced to seven
days.
(6) Provisions with regard to settlement
of disputes on the basis of reconciliation, mediation and assertion or denial
by the parties of their claims or defence on oath have also been included in
order to expedite their disposal.
(7) The Commission has recommended that
the trial Court shall exercise the powers of an executing Court and shall take
steps for execution of the decree even on an oral request of the decree holder
or his successor-in-interest.
The Commission considers it necessary
to state that long delays in the disposal of judicial cases and accumulation of
arrears in the law Courts of the Country at all levels has been, by and large,
due to shortage of judicial manpower, having regard to manifold increase in
litigation due to a number of factors. Since according to the provisions of
this Ordinance, the present load of pending cases will be transferred to the
new Courts of Qazis, the Commission recommends that for getting effective
results it would be advisable to recruit sufficient number of Ilaqa Qazis and
Zila Qazis in order to dispose of the back log of cases and to deal with those
matters which may be filed on or after the promulgation of this Ordinance.
II. OBSERVATIONS OF THE COMMISSION IN
RESPECT
OF INDIVIDUAL PROVISIONS OF THE
ORDINANCE
1. PREAMBLE
In the first paragraph of the preamble
it has been stated that “it is expedient in the public interest, to provide for
speedy and inexpensive dispensation of justice in accordance with the
principles of Islam....” In the opinion of the Commission the words `principles
of Islam’ are not very clear in conveying the object of promulgation of the
Ordinance under consideration. Moreover, the word `principles’ does not, in its
ordinary parlance, include any element of compulsory obedience thereto. The
Commission is, therefore, of the view that the words, `principles of Islam’
should be substituted by the words “injunctions of Islam, as laid down in the
Holy Quran and Sunnah”. It is also imperative that the relevant Constitutional
provisions viz, Article
227 of the Constitution read with the Provisional Constitution Order, 1981,
should also be referred to in this connection. The first paragraph of the
preamble should, consequently, read as follows:-
”Whereas it is expedient in the public
interest to provide for speedy and inexpensive dispensation of justice, in
accordance with the Injunctions of Islam as laid down in the Holy Quran and
Sunnah and in accordance
with the provisions of Article 227 of the Constitution read with the
Provisional Constitution Order, 1981, and for matters connected therewith or
ancillary thereto;”
2. SECTION 2 - DEFINITION
According to Section 2(1)(b), the term
“Ilaqa” means the area of a Police Station. The proposed meaning of this term
may some times create complications as usually the areas of Police Stations are
neither equal nor uniform. Some times a Police Station covers a very vast area
while, in a small but thickly populated area there may be more than one Police
Stations. In certain areas of
”Or such other areas as may be
prescribed by the Provincial Government”
may be added
to clause (b) in the end. The said clause shall accordingly read as follows:-
”Ilaqa means the area of a Police
Station or such other areas as may be prescribed by the Provincial Government;”
3. In view of the recommendations of the
Commission regarding deletion of administrative rules as contained in sections
6 to 13 of this Ordinance, clauses (e) and (g) of Section 2(1) relating to
recognised religious institutions and Selection Board, respectively, become
superfluous and should be deleted. Plain definitions of terms Alim, Plaintiff
and Defendant have also been added to this Section as clauses.
4. SECTION 3
Section 3, as at present worded,
refers to the overriding nature of this Ordinance only and not to the rules
made thereunder. Similarly the words “anything contained in any other law” do
not very clearly convey the real intention behind this Section. The Commission,
therefore, proposes to amend this Section accordingly which should read as
follows:-
”(3) The provisions of this Ordinance,
and any rules made thereunder, shall have effect notwithstanding anything
inconsistent therewith contained in any other law for the time being in force”.
5. SECTION 5
In Section 5(2) the word “Courts”
occurring in the end seems to be a misprint. In its place we should use the
word “Zilas” because the jurisdiction exercisable by Izafi Zila Qazis shall be
in relation to the prescribed area or areas and not to the Courts.
6. SECTIONS 6 TO 13
These Sections contain detailed
provisions with regard to qualifications, selection, appointments, promotions
etc., of the Ilaqa and Zila Qazis. Since the Qazis would, like the existing
District and Sessions Judges, Civil Judges and Magistrates, be Civil Servants,
all the relevant service laws should be made applicable to them and it would
neither be proper nor expedient to include a few provisions in this respect in
the Ordinance itself which should, being judicial in nature, remain confined
exclusively to the procedure of the Courts of Qazis both in respect of civil as
well as criminal matters. Consequently, the Commission recommends that the
existing Section 6 should be substituted by the following new Section 6,
namely:-
”6. The Zila Qazis and Ilaqa Qazis shall,
like the existing District and Sessions Judges, Civil Judges and Magistrates,
be Civil Servants and each Provincial Government may, by notification in the
Official Gazette, make rules with regard to qualifications, selection,
appointment and other terms of service of the Zila and Ilaqa Qazis”.
The Commission would like to suggest
here that the appointment of Ilaqa Qazis and Zila Qazis should be made on the basis of
recommendations of the Public Service Commission of each Province. The
Provincial Governments may, however, make ad hoc appointments until the final
selections are made by the Public Service Commissions concerned. However, while
making ad hocappointments the Provincial
Governments should constitute Selection Committees in which a Member of the
Council of Islamic Ideology or a Member of the
7. SECTION 7
In Section 7(2), the word `Courts’
occurring in the end should be substituted by the word “Ilaqa”, as Izafi Ilaqa
Qazis will be required to exercise jurisdiction and hold their Courts in
particular Ilaqas and not in particular Courts. This is further elucidated by
the provisions of the succeeding sub-Section (3) of Section 7.
8. Sections 8 to 13
Sections 8 to 13 shall, consequently
be deleted from the Ordinance.
9. SECTION 15
According to Section 15(2), an Ilaqa
Qazi of the First Class may pass a sentence of imprisonment for a term not
exceeding three years; a fine not exceeding Rs.25,000/- and whipping not
exceeding 40 stripes; whereas the Second Class Ilaqa Qazi may impose a sentence
of imprisonment for a term upto one year, fine upto Rs.5,000/- and whipping
upto 30 stripes. The Commission is of the view that the powers of the two Qazis
are not, inter se, uniformly proportionate,
e.g., the power of awarding sentence of imprisonment exercisable by a Second
Class Ilaqa Qazi is 1/3rd of that available to the Ilaqa Qazi of the First
Class; in the matter of fine it is 1/5th but as regards whipping it is 3/4th.
The Commission, therefore, recommends that an Ilaqa Qazi of the Second Class
should be empowered to award a sentence of whipping not exceeding 15 stripes.
10. SECTION 16
Section 16 prescribes the Civil
Jurisdiction exercisable by the Courts of Ilaqa Qazis according to which an
Ilaqa Qazi of the First Class can try civil suits without any pecuniary limit,
whereas Ilaqa Qazi of the Second Class can try suits upto the value of
Rs.50,000/-. Since this Sub-Section is silent about the existing civil
jurisdiction of the High Courts, in order to avoid any misunderstanding in the
mind of litigant public as well as the lower Courts that the Original Civil
Jurisdiction of the High Courts has, after the promulgation of this Ordinance,
ceased to exist, it is proposed to add the following proviso to Sub-Section
(1),namely:-
”Provided that the Original Civil
Jurisdiction of the High Courts shall remain unaffected.”
11. Sub-Section(3) of Section 16 states
that Civil Powers, functions and duties of a Civil Judge or a Civil Court shall
be exercised, performed and discharged by an Ilaqa Qazi and any reference to a
Civil Judge or a Civil Court in law, rule, regulation, notification or order
shall be deemed to be a reference to an Ilaqa Qazi. In this Sub-Section
functions, powers and duties have not been properly explained with reference to
the subject matter to which they relate. Again the words “or a
Sub-Section (3) shall, consequently,
read as follows:-
“(3) The civil powers, functions and
duties, in relation to suits and proceedings mentioned in Sub-Section (2)
above, conferred or imposed on a Civil Judge under any law for the time being in
force, shall be exercised, performed or discharged by an Ilaqa Qazi and any
reference to a Civil Judge in any law, rule, regulation, notification or order,
shall be deemed to be a reference to an Ilaqa Qazi”.
12. SECTION 18
Sub-Section(1) of Section 18 contains
powers to transfer and withdraw cases to and from the Courts of Izafi Zila
Qazis and Ilaqa Qazis in a District by the Zila Qazi; but it is silent about
the powers of the High Court in that regard. This Section might, therefore, give
an impression that after the promulgation of this Ordinance the High Court
shall cease exercising those powers in respect of the proceedings under this
Ordinance. These powers have necessarily to be exercised by the High Court,
particularly, when a case is to be transferred from one District to another or
for some unexceptionable reasons from the Court of the Zila Qazi to the High
Court. In order to clarify this position the Commission suggests that the word
“Zila Qazi” occurring in the main part of this Sub-Section should be
substituted by the words, “High Court or the Zila Qazi, as the case may be”.
The words “or of his own motion” may be substituted by the words “suo moto”. The main part of this
Sub-Section shall, therefore, read as
follows:-
”18(1). On the application of any of
the parties and after notice to the parties and after hearing such of them as
desire to be heard, or suo moto without such notice, the High Court or
the Zila Qazi, as the case may be, may at any stage:-......”
CHAPTER IV
OF COURTS OF
QAZIS
13. SECTION 21
According to this Section every
Provincial Government shall, in consultation with the High Court, appoint one
or more Inspecting Qazis, who shall inspect the Court of Qazis and submit their
reports to the High Court and the Provincial Government for such action as may
be deemed necessary. This position is not correct. The Inspection teams for
lower Courts are appointed by the High Courts and the members of the teams submit
their reports to the High Courts only. Again section 20 of this Ordinance
relating to superintendence and control of Courts of Qazis provides that all
Ilaqa Qazis and Zila Qazis in a Province shall be subordinate to the High Court
of that Province which provision is very clear and unambiguous. The Commission,
therefore, suggests that in order to keep the functions of the judiciary and
the executive apart, in Sub-section(1) of Section 21,the words “Provincial
Government shall in consultation with the High Court” be substituted with the
words “High Court shall”. Similarly in Sub-Section(2) the words “and the
Provincial Government” may be deleted. Section 21, after this amendment, shall
read as follows:-
”21(1). Every High Court shall appoint
one or more Inspecting Qazis.”
14. ”(2). The Inspecting Qazis shall
inspect the Courts of Zila Qazis and Ilaqa Qazis and submit their reports to
the High Court for such action as may be deemed necessary”.
CHAPTER V
MOAVENEEN-I-QAZI
15. SECTIONS 22 AND 23
The provisions contained in these two
sections are nothing but a revival of the institution of `Assessors’ who, in
the past, used to assist the Sessions Judges in the trial of murder cases.
Since the presence of assessors was rightly considered to be responsible for
delay in the disposal of murder cases, besides making their trial more
cumbersome, this institution was abolished. Now if the same procedure is
reintroduced naming the `assessors’ as `Moaveneen’ to be associated not only
with the Zila Qazis but with the Ilaqa Qazis also in certain specified cases,
the disposal of judicial work is bound to be delayed, besides the trial of
cases becoming more involved and open to extra judicial considerations. The
Commission, therefore, recommends that these two sections relating to
Moaveneen-i-Qazi may be deleted altogether from the Ordinance.
CHAPTER VI
PROCEDURE IN
CRIMINAL CASES
16. SECTION 24
According to Section 24 an Ilaqa Qazi
shall take cognizance of an offence on receipt of a report in writing from a
Police Officer or a complaint in writing by a person. It does not contain any
provision with regard to taking cognizance of an offence by the Qazi upon
information received from any person other than a Police Officer or of his own
knowledge. Again a Zila Qazi, not being the Court of the first instance, should
not be burdened with cognizance of offences which are exclusively triable by
the Ilaqa Qazis. A Zila Qazi should take cognizance of an offence only when a
case has been referred to him by an Ilaqa Qazi. The Commission, therefore,
suggests:-
(a) that the existing Section 24 may be
treated as Section 24(1);
(b) the words, “A Zila Qazi or” in the
first line of Section 24(1) be deleted, and
(c) the following new sub-clause (c) may
be added to this Sub-Section preceded by the word `or’:-
”(c) an information from any person other than a police officer
or of his own knowledge, that such an offence has been committed.”
III. REVISED
DRAFT ORDINANCE
AN
to provide
for speedy and inexpensive
dispensation
of justice
WHEREAS it is expedient, in the public
interest, to provide for speedy and inexpensive dispensation of justice in
conformity with the Injunctions of Islam, as laid down in the Holy Quran and
Sunnah, and in accordance with the provisions of Article 227 of the
Constitution read with the Provisional Constitution Order, 1981, (C.M.L.A.
Order No.1 of 1981), and for matters connected therewith or ancillary thereto;
AND WHEREAS the President is satisfied
that circumstances exist which render it necessary to take immediate action;
NOW, THEREFORE, in exercise of the
powers conferred by Article 89 of the Constitution, read with Article 2 of the
Provisional Constitution Order, 1981 (C.M.LA. Order No. 1 of 1981), the
President is pleased to make and promulgate the following Ordinance:-
CHAPTER I.
PRELIMINARY
1. Short title, extent and commencement.- (1) This Ordinance may be
called the Establishment of Courts of Qazis Ordinance, 1981.
(2) It extends to the whole of
(3) It shall come into force on such date
as the Federal Government may, by notification in the official Gazette, appoint
in this behalf.
2. Definitions. (1) In this Ordinance, unless there is any
thing repugnant in the subject or context,-
(a) ”Aalim” means a person registered as
such by a Body set up by
the Federal or a Provincial Government for this purpose;
(b) ”Courts of Qazis” means Courts of Zila
Qazis and Ilaqa Qazis;
(c) ”Ilaqa” means the area of a
police-station or such other areas as may be prescribed by the Provincial
Government;
(d) ”Ilaqa Qazi” includes Izafi Ilaqa
Qazi;
(e) The terms “Plaintiff” and “Defendant”
in Chapter VI, Part A, include a juristic person such as a firm, a body
corporate and the Federal and Provincial Governments;
(f) ”prescribed” means prescribed by
rules;
(g) ”rules” means rules made under this
Ordinance;
(h) ”Zila” means a revenue district; and
(i) ”Zila Qazi” includes Izafi Zila Qazi.
(2) In the application of this Ordinance
to the
(a) any reference to Province or Zila
shall be read as a reference to the said Territory; and
(b) any reference to Governor shall be
read as a reference to the President.
3. Ordinance and Rules override other
Laws.-
The provisions of this Ordinance, and
any rules made thereunder, shall have effect, notwithstanding anything
inconsistent therewith contained in any other law for the time being in force.
CHAPTER II
COURTS OF
QAZIS
4. Classes
of Courts. -- Besides the
Courts and Tribunals constituted by or under any other law for the time being
inforce, there shall be the following classes of Courts of Qazis, namely:-
(a) Zila Qazis; and
(b) Ilaqa Qazis
5. Zila Qazis.--
(1) The Provincial Government shall establish a Court of Zila Qazi for each
Zila and appoint as many Zila Qazis as it thinks fit:
Provided that the same person may be
posted as Zila Qazi for more than one Zilas.
(2) The Provincial Government may also
appoint Izafi Zila Qazis to exercise jurisdiction in one or more such Zilas.
6. The Zila Qazis and Ilaqa Qazis shall,
like the existing District and Sessions Judges, Civil Judges and Magistrates,
be civil servants and each Provincial Government may, by notification in the
Official Gazette make rules with regard to Qualifications, selection,
appointments and other terms of service of the Zila and Ilaqa Qazis.
7. Ilaqa Qazis.-- The Provincial
Government shall establish a Court of Ilaqa Qazi for each Ilaqa.
(2) The Provincial Government may appoint
Izafi Ilaqa Qazis to exercise jurisdiction in one or more such Ilaqas, and
(3) The Provincial Government may post one
or more Ilaqa Qazis in an Ilaqa and where more than one Ilaqa Qazis are
appointed in an Ilaqa, the Provincial Government shall determine the area
within which, or the class of cases in which, each Ilaqa Qazi shall exercise
jurisdiction.
CHAPTER III.
JURISDICTION
OF COURTS OF QAZIS
(14) 8. Classification of Ilaqa Qazis.-- There shall be the following classes
of Ilaqa Qazis, namely:-
(a) Ilaqa Qazis of the first class; and
(b) Ilaqa qazis of the second class.
(15) 9. Sentence which the Courts of Qazis may
pass.-- (1)
A Zila Qazi may pass any sentence authorised by law; but any sentence of death
passed by a Zila Qazi shall be subject to confirmation by the High Court.
(2) The Courts of Ilaqa Qazis may pass
the following sentences, namely:-
(a) Ilaqa Qazi of the Imprisonment for a term not exceeding
three years,
first class. including such solitary confinement as
is authorised by
law:
Fine not exceeding twenty-five
thousand rupees; and
Whipping not exceeding forty stripes.
(b)
Ilaqa Qazi of the Imprisonment for a term not
second class. exceeding one year, including such
solitary confinement
as
is authorised by Law: Fine not exceeding five thousand rupees; and Whipping not
exceeding fifteen stripes.
(3) The Provincial Government may invest
any Ilaqa Qazi of the first class with powers to try all offences not
punishable with death; and any Ilaqa Qazi so empowered may pass any sentence
authorised by law, except a sentence of death or imprisonment for a term
exceeding seven years.
(16) 10. Civil and criminal jurisdiction of
Ilaqa Qazis.- (1) The Ilaqa Qazis shall, in the exercise of their civil
jurisdiction, try suits of the following pecuniary value, namely:-
(a) Ilaqa Qazi of the first
class... Without limit
(b) Ilaqa Qazi
of the Second
class... Up to the value of fifty thousand
rupees.
Provided that the original civil
jurisdiction of the High Court shall remain unaffected.
(2) Subject to the pecuniary limits laid
down in sub-section (1), all suits and proceedings of a civil nature including
succession, dissolution of marriage, dower, divorce, maintenance, restitution
of conjugal rights, jactitation of marriage, minority, custody of children,
guardianship, wills, gifts, waqf, possession of immovable property, mortgage,
foreclosure, redemption, determination of any other right to, or interest in,
immovable property, damages, compensation for wrong to immovable property,
recovery of movable property actually under distraint or attachment or suits
under the Canal and Drainage Act, 1873 (VIII of 1873), and any other class of
cases which the Provincial Government may, by notification in the official
Gazette, specify, shall be instituted in and tried by the Court of Ilaqa Qazi
having territorial jurisdiction:
Provided that every suit shall be
instituted in the Court of Ilaqa Qazi of the lowest class competent to try it.
(3) The civil powers, functions and
duties, in relation to suits and proceedings mentioned in sub-section (2)
above, conferred or imposed on a Civil Judge, under any law for the time being
in force shall be exercised, performed or discharged by an Ilaqa Qazi; and any
reference to a Civil Judge in any law, rule, regulation, notification or order
shall be deemed to be a reference to an Ilaqa Qazi.
(4) The criminal powers, functions and
duties conferred or imposed on a Magistrate under the Code of Criminal
Procedure, 1898, (Act V of 1898), or any other law for the time being in force
shall be exercised, performed or discharged by an Ilaqa Qazi; and any reference
to a Magistrate in any law, rule, regulation, notification or order shall be
deemed to be a reference to an Ilaqa Qazi.
(17) 11. Civil and criminal jurisdiction of
Zila Qazis.--(1) The civil powers, functions and duties conferred or
imposed on a District Judge or an Additional District Judge under any law for
the time being in force shall be exercised, performed or discharged by a Zila
Qazi or an Izafi Zila Qazi, respectively; and any reference to a District Judge
or an Additional District Judge in any law, rule, regulation, notification or
order shall be deemed to be a reference to a Zila Qazi or an Izafi Zila Qazi,
respectively.
(2) A suit of a civil nature triable under
any law for the time being in force by a District Court shall be tried by the
Court of a Zila Qazi; and any reference to a District Court in any law, rule,
regulation, notification or order shall be deemed to be a reference to the
Court of Zila Qazi.
(3) The criminal powers, functions and
duties conferred or imposed on a Sessions Judge or an Additional Sessions Judge
under the Code of Criminal Procedure, 1898, (Act V of 1898), or any other law
for the time being in force, shall be exercised, performed or discharged by a
Zila Qazi or an Izafi Zila Qazi, respectively; and any reference to a Sessions
Judge or an Additional Sessions Judge in any law, rule, regulation,
notification or order shall be deemed to be a reference to a Zila Qazi or an
Izafi Zila Qazi, respectively.
(4) An offence triable under any law for
the time being in force by a Court of Sessions shall be tried by the Court of a
Zila Qazi; and reference to a Court of Sessions in any law, rule, regulation,
notification or order shall be deemed to be a reference to the Court of Zila Qazi.
(18) 12. Power to transfer and withdraw cases.-- (1) On the application of any of the parties
and after notice to the parties, and after hearing such of them as desire to be
heard, or suo motowithout
such notice, the High Court or the Zila Qazi, as the case may be, may, at any
stage,--
(a) transfer any suit, case, appeal, or
other proceeding pending before him for trial or disposal to any Izafi Zila
Qazi or Ilaqa Qazi competent to try or dispose of the same; or
(b) withdraw any suit, case, appeal, or
other proceeding pending before any Izafi Zila Qazi or Ilaqa Qazi, and --
(i) try or dispose of the same; or
(ii) transfer the same for trial or
disposal to any Court competent to try or dispose of the same; or
(iii) retransfer the same for trial or disposal to the Court from which it was
withdrawn.
(2) Where any suit, case, appeal or
proceeding has been transferred or withdrawn under sub-section (1), the Court
which thereafter tries such suit, case or proceeding or hears such appeal shall
proceed from the stage at which it was transferred or withdrawn and shall deal
with any evidence already recorded or proceeding already taken as if such
evidence or proceeding had been recorded or taken by the said Court.
(19) 13. Places of sitting of Courts of
Qazis.--The Provincial Government may fix the place or places at which a
Zila Qazi and an Ilaqa Qazi shall sit and hold their Courts;
Provided that, unless otherwise
directed by the Provincial Government, by general or special order, the place
of sitting of a Zila Qazi and an Ilaqa Qazi shall be within the local limits of
their jurisdiction.
CHAPTER
IV.
SUPERINTENDENCE
AND INSPECTION
OF COURTS OF
QAZIS
(20) 14. Superintendence and control of Courts
of Qazis.- All Zila
Qazis and Ilaqa Qazis in a Province shall be subordinate to the High Court of
that Province, and, subject to the general superintendence and control of the
High Court, the Zila Qazi shall have control over, and the power to inspect the
Courts of, all Ilaqa Qazis within the local limits of a Zila.
(21) 15. Inspection of Courts of Qazis.- (1) Every High Court shall appoint one or more Inspecting Qazis.
(2) The Inspecting Qazis shall inspect the
Courts of Zila Qazis and Ilaqa Qazis and submit their reports to the High Court
for such action as may be deemed necessary.
CHAPTER V.
PROCEDURE IN
CRIMINAL CASES
(24) 16. Cognizance of offences.- (1) An Ilaqa Qazi shall take cognizance of
an offence on receiving--
(a) a report in writing made by the police
officer, or
(b) a complaint in writing by any person,
of the facts which constitute such offence, or
(c) an information from any person other
than a Police Officer, or on his own knowledge, that such an offence has been
committed.
(2) A Zila Qazi shall not take
cognizance of any offence, as a Court of original jurisdiction, unless a case
has been referred to him by an Ilaqa Qazi after taking cognizance thereof under
sub-section (1) above.
(25) 17. Investigation and report in cognizable
cases.- (1) As soon as may be, after a police officer has recorded the
information relating to the commission of cognizable offence under section 154
of the Code of Criminal procedure, 1898, (Act V of 1898), he shall transmit
immediately a copy of such information to the Ilaqa Qazi within whose
jurisdiction such offence has been committed.
(2) A police officer seized of the
investigation shall complete it and submit his report to the Ilaqa Qazi within
a period of fifteen days or within such time as the Ilaqa Qazi may, for reasons
to be recorded in writing, allow; and
(3)(a) An officer incharge of a Police
Station shall produce or cause to be produced before the Court all the
witnesses mentioned in the report under Section 173 of the Code of Criminal
Procedure on the first date of hearing, who shall then be bound down by the
Court for appearance during the trial. It shall also be duty of the Officer
Incharge of a Police Station to produce, during the trial, any further evidence
required to be produced under Section 45 of the Evidence Act, 1872, and Section
510 of the Criminal Procedure Code, 1898.
(b) Any default on the part of the Station
House Officer in this regard shall be treated as willful disobedience of the
order of the Court and dealt with under the law accordingly.
(26) 18. Cognizance of complaint cases.- (1) An Ilaqa Qazi taking cognizance of
an offence on a complaint shall immediately examine the complainant upon oath
and record such other relevant evidence as is produced by the complainant:
Provided that if the complainant is a
non-muslim he shall, at the time of examination by the Court, be administered
oath according to his own religion or belief:
Provided further that, when a
complaint is made in writing by a public servant in the discharge of his
official duties, it shall not be necessary for the Zila Qazi or any Ilaqa Qazi
to examine the complainant or record his statement.
(2) After considering the statement of the
complainant and other relevant evidence as is produced by him, an Ilaqa Qazi,
may, if in his opinion there is not sufficient ground for proceeding further,
dismiss the complaint.
(3) Where an Ilaqa Qazi, after recording
the statement and examining the other relevant evidence as is produced before
him, is of the opinion that there is sufficient ground for proceeding further,
he shall summon the opposite party for a date fixed for the trial of the case.
(27) 19. Investigation by police in
non-cognizable cases.- In a
non-cognizable case, the Ilaqa Qazi may proceed with the trial without
referring the case to the police for investigation, if in his opinion a prima facie case has been made out.
(28) 20. Trial.- (1) On the date fixed for
the trial of a case, the Ilaqa Qazi taking cognizance shall--
(a) direct the production of the accused, if
he is in custody; or
(b) issue a process for the
appearance of the accused,
if he is on bail or has not been arrested, in the Court on the date fixed by
the Zila Qazi or Ilaqa Qazi, as the case may be.
(2) When the accused appears or is brought
before the Zila Qazi or the Ilaqa Qazi, as the case may be, the substance of
the accusation relating to the offence with which he is charged, shall be read
over to him and he shall be asked whether he admits having committed the
offence with which he is charged.
(3) Where an accused pleads guilty, the
Court shall pronounce the judgment forthwith.
(4) Where the accused does not plead
guilty, the Zila Qazi or the Ilaqa Qazi, as the case may be, shall record, from
day to day, the evidence as may be produced by the prosecution.
(5) After the conclusion of the
evidence produced by the prosecution, the Court shall examine the accused for
the purpose of enabling him to explain any circumstance appearing in the
evidence against him and record evidence in defence, as he may desire to
produce.
The accused shall also be required to
deny the charges against him on oath, but will not be subjected to any cross
examination. If, however, he refuses to take oath a presumption may be drawn
against him:
Provided that a non muslim accused
shall take oath according to his own religion.
(6) A trial shall commence within 15
days of the submission of the Challan, which shall continue from day to day
unless the Court otherwise directs for reasons to be recorded, as provided by
Section 344 of Criminal Procedure Code.
(7) After conclusion of the trial, the
Court shall pronounce its judgment forthwith, or as soon as possible, in
accordance with the provisions of Section 366 of the Code of Criminal
Procedure, but in no case later than the expiry of three weeks from the
conclusion of the trial.
APPEALS IN
CRIMINAL MATTERS
(39) 21. (1) Appeals in criminal
matters.- Any person
aggrieved by the judgment passed by an Ilaqa Qazi in a criminal case may,
within thirty days from the date of such order, prefer an appeal to the Zila
Qazi; and the order of the Zila Qazi in appeal shall be final.
(2) A person aggrieved by a final order
passed by a Zila Qazi in a criminal case tried by him may, within thirty days
from the date of such order, prefer an appeal to the High Court; and the order
of the High Court in appeal shall be final:
Provided that nothing in this section
shall apply to a case decided by a Zila Qazi under –
(a) the Offences Against Property
(Enforcement of Hadood) Ordinance, 1979, (VI of 1979);
(b) the Offence of Zina (Enforcement of
Hadood) Ordinance, 1979, (VII of 1979);
(c) the Offence of Qazf (Enforcement of
Hadd) Ordinance, 1979, (VIII of 1979); and
(d) the Prohibition (Enforcement of Hadd)
Order, 1979, (P.O.No.4 of 1979).
(40) 22. Confirmation of death sentence.--
A sentence of death passed by a Zila Qazi shall be subject to confirmation by
the High Court:
Provided that nothing in this section
shall apply to a case decided by a Zila Qazi under -
(a) the Offences Against Property
(Enforcement of Hadood) Ordinance, 1979, (VI of 1979); and
(b) the Offences of Zina (Enforcement of
Hadood) Ordinance, 1979, (VII of 1979).
23. Appeals against acquittal.--(1)
The Provincial Government may, in any case, direct the public prosecutor to
file within a period of two months an appeal, in accordance with the provisions
of Section 417 of the Code of Criminal Procedure to the Zila Qazi against an
order of acquittal passed by an Ilaqa Qazi or to the High Court against a
similar order passed by a Zila Qazi in exercise of his original jurisdiction;
(2) The Zila Qazi or the High Court, as
the case may be, may grant special leave to a complainant, in a complaint case,
to file an appeal against an order of acquittal:
Provided that where, on appeal, the
Zila Qazi has reversed an order of acquittal passed by an Ilaqa Qazi, an appeal
shall lie to the High Court against the order of the Zila Qazi.
CHAPTER VI
PROCEDURE IN
CIVIL MATTERS
A. THE PROCEDURE FOR TRIAL OF SMALL
CAUSES INCLUDING FAMILY DISPUTES
24. The following matters, including
all family disputes, shall be tried in a summary manner:-
(i) Dissolution of Marriage;
(ii) Dower be it of any value;
(iii) Divorce;
(iv) Maintenance; -do-
(v) Restitution of Conjugal Rights;
(vi) Custody of Children;
(vii) Guardianship;
(viii) Jactitation of Marriage and
declaratory suits relating to matrimonial matters;
(ix) Disputes involving any amount not
exceeding Rs.25,000/-;
(x) Disputes involving claims with regard
to immovable property of a value not exceeding Rs.25,000/-;
(xi) Disputes under Canal and Drainage Act,
1873.
25. (1) Suits for dissolution of
marriage, maintenance, recovery of dower, restitution of conjugal rights,
Jactitation of marriage, declaratory suits with regard to matrimonial matters
and custody of children shall be filed in the Court of the Ilaqa Qazi within
whose jurisdiction the wife resides.
(2) Other suits shall be instituted in a
Court within the local limits of whose jurisdiction-
(a) the defendant, or each of the
defendants, where there are more than one, at the time of the commencement of
the suit, actually and voluntarily resides, or carries on business, or
personally works for gain; or
(b) any of the defendants, where there are
more than one, at the time of commencement of the suit, actually and
voluntarily resides, or carries on business, or personally works for gain,
provided that in such case either the leave of the Court is given or the
defendants, who do not reside, or carry on business, or personally work for
gain, as aforesaid, acquiesce in such institution; or
(c) the cause of action, wholly or in
part, arises.
26. The provision of Order I, Rule 8 and
Order XXXII of the Code of Civil Procedure, 1898, shall apply mutatis mutandis to suits filed in a representative
capacity by or on behalf of or against minors, persons of unsound mind and
lunatics.
27. (1) In every suit under this Chapter,
the plaint shall be in writing, precise, and brief and shall be accompanied by
documents in possession of the plaintiff, or photo-stat copies thereof, and a
list of documents not in his possession, but relied upon by him, along with a
list of witnesses; and shall be presented to the Court either personally by the
plaintiff or by his authorised agent.
(2) The Court shall, on receipt of
plaint, fix a date for appearance within a period not exceeding 30 days and
issue summons to the defendant, directing him to appear for settlement of the
dispute, on the date so fixed. The summons shall be accompanied by the copies
of the plaint and the documents filed by the plaintiff.
(3) The copies of the plaint and the
accompanying documents shall, simultaneously, be sent to the defendant by
Registered Post, acknowledgement due, for the aforesaid date and an
intermediary date shall also be fixed within a period not exceeding two weeks,
in order to ascertain whether or not service of process has been effected on
the defendant.
(4) The plaintiff shall furnish twice as
many copies of the plaint and the accompanying documents as the number of
defendants.
(5) In the event of service not having
been so effected, a copy of the summons shall be pasted on the place of
residence of the defendant or where he last resided or at his place of business
or where he last carried on business or served on any adult member of the
family residing with him, if he is not available or evades service of process,
in the presence of two respectable persons of the Ilaqa. A proclamation by beat
of drum shall simultaneously be made.
(6) (i) If the defendant is serving in the
Armed Forces the summons shall be served on him through his Commanding Officer.
(ii) In case the defendant is out of the
Country, the summons shall be served on any adult member of his family in the
presence of two respectable persons of the Ilaqa, which service shall be deemed
as sufficient.
(7) In the case the whereabouts of the
defendant are not known and service, for one reason or the other, cannot be
effected in the manner as aforesaid, a proclamation shall be published in an
approved news paper of the locality calling upon the defendant to appear on the
date fixed in accordance with the provisions contained in sub-section (2)
above, and the service effected in the manner aforesaid shall be considered as
sufficient and conclusive.
(8) In case the defendant, notwithstanding
the service of process, does not appear, the plaintiff shall be asked to
produce his evidence and the Court shall, after recording his evidence,
pronounce its judgment. In case the plaintiff fails to appear on a date so
fixed his suit shall be dismissed.
(9) A defendant, if he wishes to contest
the suit, shall file his written statement within the time that may be
prescribed by the Court for this purpose, which, however, shall not exceed 30
days.
(10) In case of an admission on the part of
the defendant, the suit shall be decreed accordingly, and no appeal shall lie
against that decree.
28. (1) Before proceeding with the trial
of the suit the Court shall make an effort to effect reconciliation between the
parties in the manner it deems fit.
(2) If the efforts for reconciliation do
not succeed within a period of one week the Court shall strike issues on a
fixed date in respect of the points on which the parties are at variance and
proceed to hold a summary inquiry and pronounce the judgment after signing and
dating it in open Court, with notice to the parties. Such judgment shall be deemed
to be a decree.
29. It shall be the responsibility of the
parties to produce their evidence oral or documentary on the date specified by
the Ilaqa Qazi for this purpose:
Provided that where the Court is
satisfied that it is beyond the power and control of a party to produce a
particular witness or a document it may, on an application made to it within
seven days of the striking of issues, summon any witness or order production of
any document in the Court:
Provided further that if the parties,
or any one of them, fail to appear or produce their evidence or fail to perform
any other act necessary to the further progress of the suit, the Court may,
notwithstanding such default, proceed to decide the suit forthwith.
30. Notwithstanding any thing contained in
this chapter, if at any stage of the proceedings, but before the pronouncement
of the judgment, either the plaintiff or the defendant makes before the Court
an offer that he will admit or accept the claim or defence of the other party
if the said other party asserts its claim or defence on oath in the name of Allah Almighty or the Holy Quran and the
said other party accepts the offer and asserts the claim or defence on such
oath the suit shall be decided by the Court according to that assertion and a
decree passed.
31. In cases where the plaintiff is unable
to prove his claim by evidence, an oath shall, on his demand, be administered
by the Court to the defendant to deny the plaintiff’s claim, who shall be bound
to take the oath and if the defendant refuses to take the oath either
expressly, or impliedly by remaining silent without a proper cause, the Court
shall deliver judgment on the basis of his refusal:
Provided that a non-muslim defendant
shall be administered oath according to his own religion or belief.
32. (1) In suits for recovery of money on
account of dower or maintenance, the Court shall require the defendant to
furnish security to the satisfaction of the Court for the amount of dower and
maintenance and to file a list of his movable and immovable property and order
him not to alienate the whole or any part thereof till the final disposal of
the proceedings.
(2)(a) In case a defendant happens to
be a salaried person his salary shall be attached for the purposes of
maintenance of the plaintiff and the children, if any, to the extent of its one
half, with effect from the date of filing of the suit; which amount may be
ordered to be paid to the plaintiff if the Court prima facie finds the plaintiff to be entitled
thereto;
(b) In other cases the court shall
direct payment of maintenance to the plaintiff and the children, if any,
according to the status of the husband subject to prima facie determination as to his liability as
aforesaid from the date of the filing of the suit:
Provided that if the claim of the
plaintiff is, ultimately, not proved for any reason, the amount paid by the
defendant during the pendency of the suit shall be recoverable from the
plaintiff as if it was due under a money decree without any further proceedings
in that regard.
33. The suits instituted under this
Chapter shall be decided by the Court of the Ilaqa Qazi within a period of
three months and, in the case of an appeal, by the Zila Qazi also within a
period of three months, whose order shall be final.
34. In case of an ex parte decree or dismissal of the suit in
default, an application for restoration of the suit shall be filed by the
defendant or the plaintiff, as the case may be, within one month of the date of
the order which shall be disposed of by the Court within a period not exceeding
30 days. The provisions of rules 9 and 13 of Order IX of the Civil Procedure
Code shall applymutatis mutandis to the aforesaid proceedings.
35. An Ilaqa Qazi or a Zila Qazi, while
trying suits or applications under this part, shall have the same powers as are
vested in a Civil Court under the Code of Civil Procedure, 1908, in respect of
the following matters, namely:-
(a) summoning and enforcing the attendance
of a person and examining him on oath;
(b) requiring the discovery and production
of a document;
(c) requisitioning any public record from
any Court or Office;
(d) issuing commissions as provided in
Order XXVI of the Code of Civil Procedure, 1898;
(e) appointing guardians or next friends
of persons who may be minors or of unsound mind;
(f) substituting legal representatives of
a deceased party;
(g) substituting, adding or striking off
the names of the parties, and
(h) consolidation of cases.
36. (1) The provisions of Law relating to
multiplicity of suits, res judicata, bar to further suit
and omissions to sue for one or more of several reliefs, as contained in
Section 10, 11 and 12 and Order II, Rule 2, respectively, of the Code of Civil
Procedure, 1908, shall apply mutatis
mutandis to the proceedings
under this Chapter.
(2) The provisions of Order VII, rules 10
and 11,shall mutatis mutandis apply to return and rejection of a
plaint by the Ilaqa Qazi for one or more reasons mentioned in those provisions.
37. The Zila Qazi or the Ilaqa Qazi, as
the case may be, may, in any proceedings pending before him, make such interim
orders as he may consider necessary in the interest of justice including an
order for the preservation of the property in dispute.
DECREE AND
ITS EXECUTION
38. (1) In the event of a suit being
decreed in favour of the plaintiff, the trial Court shall have all the powers
of an executing Court and shall take steps for execution of the decree, even on
an oral request of the decree holder or his successor in interest.
(2) A decree shall be executed by the
Court, after hearing the objections, if any, of the judgment debtor or
intervener. Such execution shall conform to the relief granted by the decree,
keeping in view, as far as possible, the relevant provisions of Section 47 and
Order XXI of the Code of Civil Procedure, 1908.
(3) In matrimonial suits, the part of the
decree relating to recovery of any amount of money on account of maintenance or
dower shall be satisfied out of the security furnished by the defendant or by
attachment and sale of his property.
39. The execution of a money decree shall
not be stayed except on deposit of the decretal amount by the judgment-debtor
or on his furnishing a security to the satisfaction of the Court.
40. In case of a decree for restitution of
conjugal rights if the defendant refuses to comply with the terms thereof, and
the defendant is a female, she shall be called upon by the Court to seek
dissolution of marriage by way of Khula within a specified time and the Court,
if it is satisfied, dissolve the marriage according to the terms of Khula; and in the case of a male defendant,
he shall be ordered by the Court to pronounce Talak within the time specified by the Court
and on his failure to do so the Court shall dissolve the marriage.
41. No appeal shall lie against an order
for execution of a decree, except where the interest of a minor, a person of unsound mind, a lunatic or a third
party is thereby adversely affected:
Provided that no separate suit shall
lie to challenge the legality of the said order.
COSTS
42. The Qazis shall be empowered to award
costs of the suits and applications filed under this Chapter and the provisions
contained in Sections 35 and 35-A of the Code of Civil Procedure, 1908, shall
apply, mutatis mutandis to such proceedings.
43. Except the provisions of the Code of
Civil Procedure, 1908, expressly made applicable to the proceedings under this
Chapter no other provisions of the said Code shall apply thereto.
INHERENT POWERS
44. Nothing in this Ordinance shall be
deemed to limit or otherwise affect the inherent powers of the Ilaqa or the
Zila Qazi to make such orders as may be necessary for the ends of justice, or
to prevent abuse of the process of the Court.
APPEALS
45. An appeal shall lie before the Zila
Qazi against any decree passed by an Ilaqa Qazi, in a suit filed under this
Chapter within 30 days of the date of the impugned order. The judgment or order
of the Zila Qazi shall be final. The provision of Section 107 of Code of Civil
Procedure 1908 shall apply mutatis mutandis to the appeal filed under this
Section.
Provided that no appeal shall lie
against an interim or interlocutory order passed by the Ilaqa Qazi.
46. No case shall, on appeal, be remanded
to a lower Court unless it has committed an error, omission, irregularity or
acted in a manner inconsistent with the provisions of this Ordinance by reasons
of which there has not been a proper trial or complete adjudication of the dispute,
causing grave miscarriage of justice.
47. No petition for revision of a final
order or decree passed by a Zila Qazi or an Ilaqa Qazi shall lie to any Court.
48. Where a person challenges the validity
of a judgment, decree or order on the plea of fraud or want of jurisdiction, he
shall seek his remedy by making an application to the Court which passed the
final judgment, decree or order and not by a separate suit.
B. PROCEDURE FOR TRIAL OF CIVIL
CASES OTHER THAN SMALL CAUSES
49. All civil matters other than those
specified in Section 24 of this Ordinance shall be tried in accordance with the
provisions of the Code of Civil Procedure, in so far as they are not inconsistent
with the powers herein contained and the injunctions of Islam, as laid down in
the Holy Quran and Sunnah.
50. The suits under the provisions of this
part of Chapter VI shall be instituted in the Court of the Ilaqa Qazi of the
second class if the value of the subject matter of the suit is upto Rs.50,000/-
and in the Court of the Ilaqa Qazi of the first class if the value of the
subject matter of the suit exceeds the said amount i.e. Rs.50,000/-.
51. The provisions contained in Sections
25(2), 26, 27, 28(1), 30 and 31 shall apply mutatis mutandis to the trial of civil suits under this
part.
APPEALS
(41) 52. (1) Appeals
in civil suits.- A person aggrieved by a decree passed by an Ilaqa Qazi,
may prefer an appeal to--
(a) the Zila Qazi, when the amount or
value of the subject matter of the suit does not exceed fifty thousand rupees;
and
(b) the High Court, when the amount or
value of the subject matter of the suit exceeds fifty thousand rupees.
(2) Every appeal under this Section shall
be preferred within thirty days from the date of the order or decree appealed
against.
(3) An order passed by the Zila Qazi on an
appeal preferred to him under clause (a) of sub-section (1) shall be final.
(4) Subject to sub-section (3), a person
aggrieved by a decree passed by a Zila Qazi, may prefer an appeal to the High
Court; and the order of the High Court in appeal shall be final.
53. Only one appeal shall lie against the
appealable interim orders and in such cases no record shall be sent for and the
proceedings in the trial Court shall continue during the pendency of the
appeal. Copies of the impugned order and the relevant documents relied upon by
the appellant shall be filed by him along with the appeal, which shall be
disposed of by the appellate Court as expeditiously as possible. No revision
shall lie in such cases.
CHAPTER VIII
MISCELLANEOUS
(44) 54. Interpretation.- In interpreting the provisions of this
Ordinance, the Courts of Qazis shall be guided by the Injunctions of Islam set
out in the Holy Quran and Sunnah.
(45) 55. Mediation.- (1) Before the
commencement of the trial of a suit or a case compoundable under any law for
the time being in force, a Zila Qazi or an Ilaqa Qazi may, with the consent of
the parties, appoint a person as mediator for bringing about a settlement of
the dispute between the parties.
(2) A mediator appointed under sub-section
(1) shall, within fifteen days of his appointment, submit his report to the
Zila Qazi or the Ilaqa Qazi as the case may be.
(3) If the parties reach a settlement, the
Zila Qazi or the Ilaqa Qazi, as the case may be, may pronounce his decision
accordingly.
(4) If the mediator reports that the
parties have not reached any settlement, the Zila Qazi or the Ilaqa Qazi, as
the case may be, shall proceed with the trial of the case.
(48) 56. Pending cases.- (1) Upon the establishment of the
Courts of Qazis, all cases to which the jurisdiction of the Courts of Qazis
extends and which may be pending in or before any court, tribunal or authority
immediately before the establishment of the Courts of Qazis shall stand
transferred to the Courts of Zila Qazis and Ilaqa Qazis of competent
jurisdiction.
(2) In respect of a case transferred to a
Zila Qazi or an Ilaqa Qazi by virtue of sub-section(1), the Zila Qazi or the
Ilaqa Qazi, as the case may be, shall proceed with the trial in accordance with
the provisions of this Ordinance and shall deal with any evidence already
recorded and proceeding already taken as if such evidence or proceeding has
been recorded or taken under this Ordinance.
(49) 57. Suits for or against Government.-
The High Court shall, from time to time, designate the Ilaqa Qazis of the first
class and the Zila Qazis who shall try suits and hear appeals, as the case may
be, for or against the Government or any public officer as defined in clause
(17) of section 2 of the Code of Civil Procedure, 1908, (Act V of 1908), in his
official capacity:
Provided that such Ilaqa Qazis and
Zila Qazis shall try such suits and hear such appeals at the headquarters of
the Zila.
(52) 58. Representation through authorised
agents.- A party to any
proceedings under this Ordinance may be represented by an authorised agent,
including a legal practitioner or an Aalim. An Ilaqa or Zila Qazi may require
any person possessing special knowledge of Law applicable to the case under
trial in his Court, to appear in the Court as an amicus curiae to assist in the disposal of the case
on some suitable remuneration.
(53) 59. Abolition of existing civil and
criminal courts.- On the establishment of the Courts of Qazis under this
Ordinance, the criminal courts established under the Code of Criminal
Procedure, 1898, (Act V of 1898),and the civil courts established under the
Civil Courts Ordinance, 1962, shall stand abolished and any court established
under any other law shall cease to exercise jurisdiction in respect of any
matter to which jurisdiction of the Courts of Qazis extends.
(54) 64. Power to make rules.- (1) The
Provincial Government may, by notification in the official Gazette, make rules
for carrying out the purposes of this Ordinance.
(2) Subject to the provisions of this
Ordinance and the rules, the High Court may lay down such guide-lines and issue
such instructions as it considers necessary or expedient for carrying out the
provisions of this Ordinance into effective operation.
(55) 65. Laws to apply to proceedings under
the Ordinance.- The provisions contained in the Code of Criminal Procedure,
1898, and the Evidence Act, 1872, shall, in so far as they are not inconsistent
with the provisions contained herein before and the injunctions of Islam, as
laid down in the Holy Quran and Sunnah, apply to the proceedings under this
Ordinance.
DISSENTING NOTE OF MR BASHIR AHMED ANSARI,
I deeply regret, I am unable to
subscribe to the ideal behind the promulgation of the Establishment of Courts
of Qazis Ordinance, 1981, that procedural laws tend to hamper and delay speedy
dispensation of justice. It cannot also be said that procedural laws are
against the injunctions of Islam as defined in Article 227 of the 1973
Constitution. True, here and there some provisions exist which can be said to
be against such injunctions and it can be remedied by amendment. There is no
manner of doubt that the country is committed to be governed by Laws which
shall be in conformity with the Injunctions of Islam as laid down in Holy Quran
and Sunnah. But the proposed Ordinance, both in its original shape and as
amended, I may be excused to say, goes beyond the constitutional provision,
Article 227, which has also been saved by the P.C.O. 1981.
No religion or society lays so much
stress on doing justice between man and man and between subject and State than
polity of Islam. Dispensation of justice (Ad’l) is the corner stone of a
The criticism against procedural laws
was noticed by the Law Commission headed by the late Mr. Justice S.A. Rehman
who observed that procedural laws were frequently abused but it was more due to
the human factor which is associated with its enforcement than with the
inherent good sense of such laws. I, therefore, earnestly hope and pray that
people are not deprived of their basic rights and that too in the name of
Islam. Curtailing right of review by superior Courts is fraught with extreme
danger to the whole legal system. In present times, we are faced with such
complex and complicated problems which need to be attended to with great care
and caution.
I would also suggest that the
Ordinance is circulated for public opinion.
My minute of dissent may be forwarded
with the Commission’s recommendations.
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