203B
Definitions.In this Chapter, unless there is anything repugnant in
the subject or context
523 [
(a)
"Chief Justice" means, Chief Justice of
the Court;
]
523
(b)
"Court" means the Federal Shariat Court
constituted in pursuance of Article 203C;
524 [
(bb)
"judge" means judge of the Court;
]
524
(c)
"law" includes any custom or usage having the
force of law but does not include the Constitution, Muslim Personal Law, any law relating to the procedure of any Court or
tribunal or, until the expiration of
525 [ten]
525 years from the commencement of this Chapter, any fiscal law or any law relating to the levy and collection of taxes and fees
or banking or insurance practice and procedure; and
[]
528
203C
The Federal Shariat Court.
(1)
There shall be constituted for the purposes of
this Chapter a court to be called the Federal Shariat Court.
529 [
(2)
The Court shall consist of not more than
eight Muslim
530 [Judges]
530 , including the
531 [Chief Justice]
531 ,
to be appointed by the President
532 [in accordance with Article 175A]
532 .
]
529 534 [
(3)
The Chief Justice shall be a person who is,
or has been, or is qualified, to be, a Judge of the Supreme
Court or who is or has been a permanent Judge of a High Court
535 [or a Judge of the Federal Shariat Court qualified to be a Judge of the Supreme Court]
535 .
(3A)
Of the Judges not more than four shall be persons
each one of whom is, or has been, or is qualified to be, a Judge
of a High Court and not more than three shall be ulema
536 [having at least fifteen years experience in Islamic law, research or instruction]
536 .
]
534
(4)
The
537 [Chief Justice]
537 and a
538 [Judge]
538 shall
hold office for a period not exceeding three years, but may be
appointed for such further term or terms as the President may
determine:
Provided that a Judge of a High Court shall not be
appointed to be a Judge 539 [] 539
except with his consent and 541 [, except where the Judge is,
himself the Chief Justice,] 541 after consultation by the President
with the Chief Justice of the High Court.
[
(4A)
The
543 [Chief Justice]
543 , if he is not a
Judge of the Supreme Court, and a
544 [Judge]
544 who is not a
Judge of a High Court, may, by writing under his hand addressed
to the President, resign his office.
]
542 545 [
546 [
(4B)
The Chief Justice and a Judge shall not be removed from office except in the like manner and on the like grounds as a Judge
of the Supreme Court.
]
546 547 []
547 ]
545 548 []
548
(6)
The Principal seat of the Court shall be at
Islamabad, but Court may from time to time sit in such other
places in Pakistan as the
550 [Chief Justice]
550 may, with the
approval of the President, appoint.
(7)
Before entering upon office, the
551 [Chief Justice]
551
and a
552 [Judge]
552 shall make before the President or a
person nominated by him oath in the form set out in the Third Schedule.
(8)
At any time when the
553 [Chief Justice]
553 or a
554 [Judge]
554 is absent or is unable to perform the functions of
his office the President shall appoint another person qualified
for the purpose to act as
555 [Chief Justice]
555 or, as the case
may be,
556 [Judge]
556 .
[
(9)
A Chief Justice who is not a Judge of the Supreme Court shall be entitled to the same remuneration, allowances and privileges
as are admissible to a Judge of the Supreme Court and a Judge who is not a Judge of a High Court shall be entitled to the
same remuneration, allowances, and privileges as are admissible to a Judge of a High Court:
Provided that where a Judge is already drawing a pension for any other post in the service of Pakistan, the amount of such pension
shall be deducted from the pension admissible under this clause.
]
557
203D
Powers, Jurisdiction and Functions of the Court.
(1)
The Court may,
566 [either of its own motion or]
566
on the petition of a citizen of Pakistan or the Federal
Government or a Provincial Government, examine and decide the
question whether or not any law or provision of law is repugnant
to the injunctions of Islam, as laid down in the Holy Quran and
Sunnah of the Holy Prophet, hereinafter referred to as the
Injunctions of Islam.
[
(1A)
Where the Court takes up the examination of
any law or provision of law under clause (1) and such law or
provision of law appears to it to be repugnant to the
Injunctions of Islam, the Court shall cause to be given to the
Federal Government in the case of a law with respect to a matter
in the Federal Legislative List
568 []
568 , or to the Provincial Government in the case of a law with
respect to a matter not enumerated
569 [in the Federal Legislative List]
569 , a
notice specifying the particular provisions that appear to it to
be so repugnant, and afford to such Government adequate
opportunity to have its point of view placed before the Court.
]
567
(2)
If the Court decides that any law or provision of
law is repugnant to the Injunctions of Islam, it shall set out
in its decision:
(a)
the reasons for its holding that opinion; and
(b)
the extent to which such law or provision
is so repugnant; and specify the day on which the decision
shall take effect
570 [:]
570
571 [Provided that no such decision shall be deemed
to take effect before the expiration of the period within which
an appeal therefrom may be preferred to the Supreme Court or,
where an appeal has been so preferred, before the disposal of
such appeal 572 [:] 572 ] 571
573 [Provided further that appeal against decision given after the
commencement of the Constitution (Twenty-sixth Amendment) Act, 2024
(XXVI of 2024) shall be disposed of within twelve months whereafter the
decision shall take effect unless suspended by the Supreme Court.
] 573
(3)
If any law or provision of law is held by the
Court to be repugnant to the Injunctions of Islam,
(a)
the President in the case of a law with
respect to a matter in the Federal Legislative List or the
Concurrent Legislative List, or the Governor in the case of
a law with respect to a matter not enumerated in either of
those Lists, shall take steps to amend the law so as to
bring such law or provision into conformity with the
Injunctions of Islam; and
(b)
such law or provision shall, to the extent
to which it is held to be so repugnant, cease to have effect
on the day on which the decision of the Court takes effect.
[]
574
203DD
Revision and other Jurisdiction of the Court.
(1)
The Court may call for and examine the record of
any case decided by any criminal court under any law relating to
the enforcement of Hudood for the purpose of satisfying itself
as to the correctness, legality or propriety of any finding,
sentence or order recorded or passed by, and as to the
regularity of any proceedings of, such court and may, when
calling for such record, direct that the execution of any
sentence be suspended and, if the accused is in confinement,
that he be released on bail or on his own bond pending the
examination of the record.
(2)
In any case the record of which has been called
for by the Court, the Court may pass such order as it may deem
fit and may enhance the sentence:
Provided that nothing in
this Article shall be deemed to authorize the Court to convert a
finding of acquittal into one of conviction and no order under
this Article shall be made to the prejudice of the accused
unless he has had an opportunity of being heard in his own defence.
(3)
The Court shall have such other jurisdiction as may be
conferred on it by or under any law.
203E
Powers and Procedure of the Court.
(1)
For the purposes of the performance of its
functions, the Court shall have the powers of a civil court
trying a suit under the Code of Civil Procedure, 1908 (Act V of
1908), in respect of the following matters, namely:
(a)
summoning and enforcing the attendance of
any person and examining him on oath;
(b)
requiring the discovery and production of
any document;
(c)
receiving evidence on affidavits; and
(d)
issuing commissions for the examination of
witnesses or documents.
(2)
The Court shall have power to conduct its
proceedings and regulate its procedure in all respects as it
deems fit.
(3)
The Court shall have the power of a High Court to
punish its own contempt.
(4)
A party to any proceedings before the Court under
clause (1) of Article 203D may be represented by a legal
practitioner who is a Muslim and has been enrolled as an
advocate of a High Court for a period of not less than five
years or as an advocate of the Supreme Court or by a
jurisconsult selected by the party from out of a panel of
jurisconsults maintained by the Court for the purpose.
(5)
For being eligible to have his name borne on the
panel of jurisconsults referred to in clause (4), a person shall
be an Aalim who, in the opinion of the Court, is well-versed in Shariat.
(6)
A legal practitioner or jurisconsult representing
a party before the Court shall not plead for the party but shall
state, expound and interpret the Injunctions of Islam relevant
to the proceedings so far as may be known to him and submit to
the Court a written statement of his interpretation of such
Injunctions of Islam.
(7)
The Court may invite any person in Pakistan or
abroad whom the Court considers to be well-versed in Islamic law
to appear before it and render such assistance as may be
required of him.
(8)
No court-fee shall be payable in respect of any
petition or application made to the Court under
577 [Article 203D.]
577
[
(9)
The Court shall have power to review any decision
given or order made by it.
]
578
203F
Appeal to Supreme Court
(1)
Any party to any proceedings before the Court
under Article 203D aggrieved by the final decision of the Court
in such proceedings may, within sixty days of such decision,
prefer an appeal to the Supreme Court
579 [:]
579
580 [Provided that an appeal on behalf of the
Federation or of a Province may be preferred within six
months of such decision.] 580
(2)
The provisions of clauses (2) and (3) of Article
203D and clauses (4) to (8) of Article 203E shall apply to and
in relation to the Supreme Court as if reference in those
provisions to Court were a reference to the Supreme Court.
581 [
(2A)
An appeal shall lie to the Supreme Court
from any judgment, final order or sentence of the Federal
Shariat Court-
(a)
if the Federal Shariat Court has on appeal
reversed an order of acquittal of an accused person and
sentenced him to death or imprisonment for life or
imprisonment for a term exceeding fourteen years; or, on
revision, has enhanced a sentence as aforesaid; or
(b)
if the Federal Shariat Court has imposed
any punishment on any person for contempt of the Court.
(2B)
An appeal to the Supreme Court from a judgment,
decision, order or sentence of the Federal Shariat Court in a
case to which the preceding clauses do not apply shall lie only
if the Supreme Court grants leave to appeal.
]
581 582 [
(3)
For the purpose of the exercise of the
jurisdiction conferred by this Article, there shall be
constituted in the Supreme Court a Bench to be called the
Shariat Appellate Bench and consisting of,
(a)
three Muslim Judges of the Supreme Court; and
(b)
not more than two Ulema to be appointed by
the President to attend sittings of the Bench as ad-hoc
members thereof from amongst the Judges of the Federal
Shariat Court or from out of a panel of Ulema to he drawn up
by the President in consultation with the Chief Justice.
]
582
(4)
A person appointed under paragraph (b) of clause
(3) shall hold office for such period as the President may determine.
(5)
Reference in clauses (1) and (2) to Supreme Court
shall be construed as a reference to the Shariat Appellate Bench.
(6)
While attending sittings of the Shariat Appellate
Bench, a person appointed under paragraph (b) of clause (3) shall
have the same power and jurisdiction, and be entitled to the same
privileges, as a Judge of the Supreme Court and be paid such
allowances as the President may determine.
203H
Pending proceedings to continue, etc.
(1)
Subject to clause (2) nothing in this Chapter
shall be deemed to require any proceedings pending in any court
or tribunal immediately before the commencement of this Chapter
or initiated after such commencement, to be adjourned or stayed
by reason only of a petition having been made to the Court for a
decision as to whether or not a law or provision of law relevant
to the decision of the point in issue in such proceedings is
repugnant to the Injunctions of Islam; and all such proceedings
shall continue, and the point in issue therein shall be decided,
in accordance with the law for the time being in force.
(2)
All proceedings under clause (1) of Article 203B
of the Constitution that may be pending before any High Court
immediately before the commencement of this Chapter shall stand
transferred to the Court and shall be dealt with by the Court
from the stage from which they are so transferred.
(3)
Neither the Court nor the Supreme Court shall in the
exercise of its jurisdiction under this Chapter have power to grant
an injunction or make any interim order in relation to any
proceedings pending in any other court or tribunal.
203J
Power to make Rules.
(1)
The Court may, by notification in the official
Gazette, make rules for carrying out the purposes of this Chapter.
(2)
In particular, and without prejudice to the
generality of the foregoing power, such rules may make provision
in respect of all or any of the following matters, namely: -
(a)
the scale of payment of honorarium to be made to
jurisconsults, experts and witnesses summoned by the Court to
defray the expenses, if any, incurred by them in attending for
the purposes of the proceedings before the Court;
585 []
585
(b)
the form of oath to be made by a
jurisconsult, expert or witness appearing before the Court
586 [;]
586
[
(c)
the powers and functions of the Court
being exercised or performed by Benches consisting of one or
more members constituted by the Chief Justices;
(d)
the decision of the Court being expressed
in terms of the opinion of the majority of its members or,
as the case may be, of the members constituting a Bench; and
(e)
the decision of cases in which the members
constituting a Bench are equally divided in their opinion.
]
587
(3)
Until rules are made under clause (1), the Shariat
Benches of Superior Courts Rules, 1979, shall, with the necessary
modifications and so far as they are not inconsistent with the
provisions of this Chapter, continue in force.
535
Inserted by Constitution (Twenty-sixth Amendment) Act, 2024 (26 of 2024), Section 18
(with effect from
October 21, 2024).
546
Substituted by
Constitution (Eighteenth Amendment) Act, 2010, Section 74(iv)
(with effect from
April 19, 2010) for :
(4B)
The President may, at any time, by order in
writing,
(a)
modify the term of appointment of a Judge;
(b)
assign to a Judge any other office; and
(c)
require a Judge to perform such other
functions as the President may deem fit; and pass such other
order as he may consider appropriate.
Explanation: In this clause and clause (4C),
"Judge" includes Chief Justice.
547
The following was omitted by
Constitution (Eighteenth Amendment) Act, 2010, Section 74(v)
(with effect from
April 19, 2010) : :
(4C)
While he is performing the functions which he is
required under clause (4B) to perform or holding any other
office assigned to him under that clause, a Judge shall be
entitled to the same salary, allowances and privileges as are
admissible to the Chief Justice or, as the case may be, Judge of
the Court.
548
The following was omitted by
Constitution (Eighteenth Amendment) Act, 2010, Section 74(v)
(with effect from
April 19, 2010) : :
(5)
A Judge of a High Court who does not accept
appointment as a
549 [Judge]
549 shall be deemed to have retired
from his office and, on such retirement, shall be entitled to
receive a pension calculated on the basis of the length of his
service as Judge and total service, if any, in the service of Pakistan.
564
The following was omitted by
Constitution (Second Amendment) Order, 1981 (President's Order No. 7 of 1981), Section 3
(with effect from
May 27, 1981) : :
565 [
203CC
Panel of Ulema and Ulema members.
(1)
The President may, in consultation with the Chairman, draw up a
panel of Ulema who are well-versed in Islamic law for being
associated with the Court in cases before it.
(2)
The Chairman shall, in all cases before the Court, request the
Ulema not exceeding three, borne on aforesaid panel to attend the
sittings of the Court as Ulema members and, while so sitting, they
shall have the same power and jurisdiction, and be entitled to the
same privileges, as a member and such allowances as may be
determined by the President.
] 565
572
Substituted by Constitution (Twenty-sixth Amendment) Act, 2024 (26 of 2024), Section 18
(with effect from
October 21, 2024) for ".".
573
Inserted by Constitution (Twenty-sixth Amendment) Act, 2024 (26 of 2024), Section 19
(with effect from
October 21, 2024).
582
Substituted by
Constitution (Third Amendment) Order, 1982 (President's Order No. 12 of 1982), Section 2
(with effect from
August 15, 1982) for :
(3)
For the purpose of the exercise of the jurisdiction conferred by this Article, there shall be constituted in the Supreme Court
a Bench consisting of three Muslim Judges of the Supreme Court, to be called the Shariat Appellate Bench, and reference in
the preceding clauses to "Supreme Court" shall be construed as a reference to the Shariat Appellate Bench.
584
The following was omitted by
Constitution (Second Amendment) Order, 1982 (President's Order No. 5 of 1982), Section 8
(with effect from
March 22, 1982) : :
203I
Administrative arrangements, etc.
The Federal Government shall make all such administrative arrangements, and make available to the Court the services of such
officers and experts, as it may consider necessary for the convenient performance of the functions of the Court.