Federal Shariat Court building, Islamabad.—File photo

ISLAMABAD: The Federal Shariat Court has declared as unconstitutional and un-Islamic three sections of the Protection of Women Act 2006, holding that these take away the overriding effects of the Hudood Ordinance 1979.

A three-member FSC bench comprising Chief Justice Agha Rafiq Ahmed Khan, Justice Afzaal Haider and Justice Shahzado Sheikh announced its verdict on Wednesday on identical petitions challenging the act.

It declared that sections 11, 28 and 29 incorporated in the Hudood Ordinance during the Musharraf government were in violation of Article 203DD of the Constitution.

The court asked the government to take necessary steps to amend the impugned laws in conformity with the Holy Quran and Sunnah.

The FSC also held that Section 25 of the Anti-Terrorism Act 1997 was against Article 203DD of the Constitution.

The court directed its office to send copies of the judgment to the federal government and provincial and Islamabad high courts for information, necessary action and compliance.

The court ordered that the sections should cease to be effective from June 22 next year and the judgment should also stand operative from that day.

The court order said: “All those offences whose punishments are either prescribed or left undermined, relating to acts forbidden or disapproved by the Holy Quran and Sunnah, including all such acts which are akin, auxiliary, analogous or supplementary to or germane with Hudood offences as well as preparation or abetment or attempt to commit such an offence and as such made culpable by legislative instruments would without fail be covered by the meaning and scope of the term Hudood.

“Its (FSC) jurisdiction in the matters relating to Hudood under Article 203DD of the Constitution is exclusive and pervades the entire spectrum of orders passed or decisions given by any criminal court under any law relating to the enforcement of Hudood and no other court is empowered to entertain appeal, revision or reference in such cases.

“No legislative instrument can control, regulate or amend its exclusive jurisdiction which was mandated in the Constitution. An order granting or refusing bail before conclusion of trial in all categories of offences within the ambit of Hudood is covered by the word ‘proceedings’ used in Article 203DD, is within its (FSC) exclusive jurisdiction and can only be impugned before it (FSC).

“Ten offences, including Zina (adultery, fornication and rape), Liwatat (sexual intercourse against the order of nature), Qazaf (imputation of zina), Shurb (alcoholic drinks, intoxications, narcotics etc), Sarqa (theft simpliciter), Haraba (robbery, highway robbery, dacoity and all categories of offences against property as mentioned in PPC), Irtdada (apostasy), Baghy (treason, waging war against state, all categories of offences mentioned in PPC)) Qisasa (right of retaliation in offences against human body) and human trafficking, are covered by the terms Hudood for the purpose of Article 203DD.

“Sections 11 and 28 of the PWA 2006 are declared violative of Article 203DD of the Constitution because these provisions annul the overriding effect of Hudood Ordinances VII and VIII of 1979.

“Some portions of sections 48 and 49 of the Control of Narcotic Substances Act 1997 whereby the high courts have been empowered to entertain appeals against the order of a special court consisting of a sessions judge or an additional sessions judge, transfer within its territorial jurisdiction any case from one special court to another special court at any stage of the proceedings, were also violative of the provisions contained in Chapter 3A of Part VII of the Constitution because the offences envisaged by Act XV of 1997 are covered by the term Hudood.”

The court consequently declared both the sections as violative of Article 203DD and held that the portion which contained the words high court should be deemed to be substituted by the words FSC in both the sections.

The order said: “Section 25 of the PWA 2006 is declared violative of Article 203DD as it omits sub-sections (3) and (4) of section 14 of the offence of Qazf (enforcement of Hadd) Ordinance 1979 with the result that it has adversely affected the operation of injunctions of Islam relating to Lian. Consequently, section 29 of the Act 2006 is also declared violative of Article 203DD as it adds clause (vii a) Lian to section 2 of the Dissolution of Muslim Marriages Act 1939. This addition in the latter act also becomes invalid on account of repugnancy with the injunctions of Islam relating to Lian.

“Section 25 of the Anti-Terrorism Act 1997 does not make provision for filing an appeal before the FSC in cases where the Anti-Terrorism court decides a case relating to some of the Hudood offences included in the Schedule as from August 21, 1997, thus this omission is violative of Article 203DD.”

The court directed the federal government to rectify this error by June 22, 2011. Otherwise, the following rider shall be read at the end of clause (i) of section 25 of Act XXVII of 1997 after omitting the full stops. The rider is, “but where a private complaint or a First Information Report or information, as stipulated in section 190 of the Code of Criminal Procedure, relating to an offence falling within the purview 10 mentioned categories of Hudood offences, is decided by any court exercising criminal jurisdiction under any law of the land, the appeal therefrom shall lie to the FSC”.

NCSW reaction
The FSC decision evoked an instant reaction, with the National Commission on the Status of Women (NCSW) claiming that the judgment sought to reverse the minimum gains the women had won through the act after a long struggle for justice.

In a statement the commission said that in effect the Hudood Ordinance which had tormented and caused hundreds of innocent women to languish in jails and destroyed their social and family lives was being resurrected by the judgment.

It said the verdict negated all positive initiatives taken by the government and took the nation back to square one. The commission appeals to the government to take a firm stand against this “retrogressive judgment” which was only an attempt to use religion for political purposes.