THE SHAR'I NIZAM-E-ADL ACT, 1999.

([1][KHYBER PAKHTUNKHWA] ACT NO. VII OF 1999)

CONTENTS

PREAMBLE

SECTIONS

1.                  Short title, extent and commencement.

2.                  Definitions.

3.                  Application of laws to the said Area.

4.                  Courts and Judicial Officer.

5.                  Conduct and Character of Judicial Officers and [2][Magistrate-cum-Illaqa Qazi].

6.                  Appointment of Qazi.

7.                  Powers, functions and duties of Qazi.

8.                  The Committee.

9.                  Muavineen-e-Qazi.

10.              Musleheen.

11.              A'alim Wakeel.

12.              Observance of time schedule.

13.              Aid and Assistance to the Courts.

14.              Directions to law enforcing agencies.

15.              Action against investigating officer.

16.              [3][Magistrate.]

17.              Language of the Court and of its record.

18.              Powers to make rules.

19.              Repeal.

THE SHAR'I NIZAM-E-ADL ACT, 1999.

([4][KHYBER PAKHTUNKHWA] ACT NO. VII OF 1999)

 [First published after having received the assent of the Governor of the [5][Khyber Pakhtunkhwa] in the Gazette of the [6][Khyber Pakhtunkhwa](Extraordinary), dated the 13^th October, 1999.]

AN

ACT

to provide for Shar'i Nizam-e-Adl through Courts in Kohistan District.

Preamble.—WHEREAS it is expedient to provide for Shar'i Nizam-e-Adl through Courts in Kohistan District;

It is hereby enacted as follows:—

1.         Short title, extent and commencement.— (1) This Act may be called the Shar'i Nizam-e-Adl Act, 1999.

(2)                It shall extend to Kohistan District of the [7][Khyber Pakhtunkhwa], hereinafter referred to as 'the said area'.

(3)                It shall come into force on the 16th April, 1999.

2.                  Definitions.— (1) In this Act, unless the context otherwise requires, the following expressions shall have the meanings hereby respectively assigned to them, that is to say:—

(a)                "Chairman" means the Chairman  of the Committee;

(b)               "Committee" means the Committee constituted under section 8;

(c)                "Court" means a court of competent jurisdiction designated as such under this Act, and includes a Court of Appeal or, as the case may be a Court of Revision;

(d)               "Government" means the Government of the [8][Khyber Pakhtunkhwa];

(e)                "High Court" means the Peshawar High Court;

(f)                "Judicial Officer" means an Officer specified in sub-section (2) of section 4;

(g)               "member" means a member of the Committee;

(h)               "Muavin-e-Qazi" means a person whose name appears on the current panel of Muavineen-e-Qazi drawn under section 9;  

(i)                 "panel" means the current panel of Muavineen-e-Qazi;

(j)                 "parties" means the parties to a dispute pending disposal in a court established under this Act;

(k)               "prescribed" means prescribed by rules made under this Act;

(l)                 "Qazi" means a presiding officer of a court and includes a Judicial Officer;

(m)             "recognised Islamic institution of learning" means a religious educational institution of Muslims, recognised as such by Government;

(n)               "section" means a section of this Act; and

(o)               "Shariah" means the Injunctions of Islam as laid down in Qur'an Majeed and Sunnah-e-Nabavi (Sallulluho alaihe wasallam).

                  Explanation.- In the application of clause (o) to the personal law of any Muslim sect, the expression "Qur'an Majeed and Sunnah-e-Nabavi (Sallallaho alaihe wasallam)" shall means the Qur'an Majeed and Sunnah-e-Nabavi (Sallallaho alaihe wasallam) as interpreted by that sect.

                        (2)        All other expressions, not defined expressly in this Act, shall have the same meanings as assigned to them in any other law for the time being in force in the said area.

3.         Application of laws to the said Area.— (1) Notwithstanding anything contained in any other law for the time being in force in the said area;

(a)        all the laws applicable to the said area, and all rules, notifications and orders made or issued thereunder, shall so apply subject to established principles of Sharia'h and such exceptions and modifications as specified in this Act;

(b)        all cases, suits, inquires, matters and proceedings in Courts shall be decided in accordance with Sharia'h:

Provided that cases of non-muslims in matters of adoption, divorce, dower, inheritance, marriage, religion, religious rites, usages and wills shall be conducted and decided in accordance with their respective personal laws;

(c)        a Qazi shall, while dealing with any civil or criminal matter or exercising any power or performing any function or discharging any duty, follow the established principles of Sharia'h.

(2)       No proceedings, decision or order in a case shall be irregular, illegal or void on the ground alone that any provision of any codified procedural law for the time being in force therefore, has not been followed, unless it is against the established principles of Sharia'h.

4.         Courts and Judicial Officer.— (1) Besides the Federal Sharia't Court and High Court, there shall be the Courts of the following Judicial Officers in the said area, namely:

(a)        Zilla Qazi;

(b)        Izafi Zilla Qazi;

(c)        Aa'la A'alaqa  Qazi; and

(d)       A'alaqa  Qazi.

(2)       Any reference in any law for the time being in force in the said area to, or to the Court of, a District Judge or Sessions Judge, an Additional District Judge or Additional Sessions Judge, a Senior Civil Judge or Judicial Magistrate empowered under section 30 of the Code of Criminal Procedure, 1898, or any other law for the time being in force in the said area, and a Civil Judge or Judicial Magistrate shall be read as reference to a Zilla Qazi, an Izafi Zilla Qazi, an Aa'la A'alaqa Qazi, and an A'alaqa Qazi respectively.

5.         Conduct and Character of Judicial Officers and [9][Magistrate-cum-Illaqa Qazi].— (1) The conduct and character of Judicial Officers and [10][Magistrate-cum-Illaqa Qazi] shall be in accordance with the Islamic principles.

(2)       A Qazi shall order his official and personal conduct and character in accordance with Islamic injunctions, and shall follow the Eijabi and Salbi conditions for a Qazi and A'adil Shahid prescribed by recognised Fuqaha'a.

(3)        Government may, from time to time, take such measures for the purposes of sub-section (1) as it deems necessary.

6.         Appointment of Qazi.— (1) Any person to be appointed as Qazi shall be a person whose conduct and character is in accordance with the injunctions of Islam and who is a duly appointed Judicial Officer in the [11][Khyber Pakhtunkhwa].

(2)        A Judicial Officer mentioned in sub-section (1) of section 4 shall be appointed by transfer from among the respective Judicial Officers mentioned in sub­section (2) thereof:

Provided that such officer has completed shariat course of at least three months duration from a training institution recognised by Government.

(3)      Subject to sub-section (1), for the purpose of appointment under sub-section (2), preference will be given to those who possess L.L.M Sharia'h Degree or an equivalent qualification in Islamic laws.

7.         Powers, functions and duties of Qazi.— (1) In relation to proceeding with and conducting the criminal or civil cases, all powers, functions and duties conferred, assigned or imposed on Judicial Officers in the [12][Khyber Pakhtunkhwa] under any law for the time being in force, shall, subject to application of such law and established principles of Sharia'h, be exercised, performed or discharged by them as designated in section 4.

(2)               The Zilla'a Qazi shall have the power to authorise, through the [13][District Police Officer], on the basis of special reasons to be recorded about improper investigation, either suo moto or on the request of the concerned Qazi or a party, any other officer of an investigating agency or establishment working within the area of his jurisdiction, in lieu of or in addition to, the investigating officer already authorised, to investigate a particular case and submit his report to the Zilla'a Qazi about details of his investigation and findings. Where necessary, the Zilia'a Qazi, in the light of the report of the investigating officer specially authorised or any other information, may cause a magisterial inquiry to be conducted against the delinquent investigating officer.

(3)               Subject to the general superintendence of the High Court, the Zilla'a Qazi shall supervise the work of subordinate Courts, and, through the [14][District Police Officer], the investigating officers and officers-in-charge of police-stations in relation to investigation of cases, and of the process serving staff, within the local limits of his jurisdiction, and shall ensure that all matters relating to investigation, in substance as well in procedure, are carried out strictly in accordance with the established principles of Sharia'h.

(4)               It shall be the duty of every officer-in-charge of a police station to ensure that complete challan in each criminal case is submitted to the concerned Court within fourteen days from the date of lodging the first information report, except in a case in which the concerned Qazi has granted special extension of time for a specified period for the reasons to be recorded.

(5)               The officer-in-charge of a police-station shall submit a copy of the first information report to concerned Qazi or, as the case may be, [15][Magistrate/Aa’la A’alaqa Qazi], and to the Zilla'a Qazi and the [16][Magistrate/Aa’la A’alaqa Qazi], within twenty four hours of its lodging, and inform the concerned Qazi or [17][Magistrate/Aa’la A’alaqa Qazi], from time to time, about the position and further progress of investigation of the case, and act on his directions, if any, concerning investigation of such a case:

Provided that, notwithstanding anything contained in any other law, complete challan in each criminal case shall be submitted, without the intervention of any other Court, directly to the concerned Court.

(6)       A Qazi shall seek guidance from Quran Majeed and Sunnah-e-Nabavi (Sallallaho alaihe wasallam) for the purposes of procedure and proceedings of conduct of, and resolution and decision of, cases pending disposal in his Court, and, while expounding and interpreting Quran Majeed and Sunnah-e-Nabavi (Sallallaho alaihe wasallam), shall follow the established principles of expounding and interpreting Quran Majeed and Sunnah-e-Nabavi (Sallallaho alaihe wasallam), and, for this purpose, shall consider the expositions and opinions of recognised Fuqaha'a of Islam.

(7)      A Qazi shall, subject to established principles of Sharia'h and the provisions of the laws for the time being in force in the area of his jurisdiction, follow the measures taken and instructions and direction issued by Government, in consultation with the Chief Justice of the High Court, in conformity with the provisions of this Act, and shall abide by the instructions and directions so issued by it about conduct and disposal of cases and time schedule.

8.        The Committee.— (1) Government shall, within a period of two months from the date of commencement of this Act, constitute a committee consisting of the following members, namely:

(2)       The Committee constituted under sub-section (1) shall have the authority to select Muavineen-e-Qazi, and the names of such Muavineen shall be declared, by notification in the official Gazette, for each calendar year, in the form of a panel of upto thirty ulema of known integrity and good character, and being well-versed in Sharia'h:

Provided that the names of such persons shall be retained on the future panel, unless the Committee decides to delete the name of any person from the panel.

(3)               The Committee may register ulema, each of whom to be known as A'alim Wakeel, who may be qualified to become Muavineen-e-Qazi, to act as Wakeel in the Courts.

(4)               Subject to sub-section (6), the Committee may, either of its own motion or at the instance of any person, take disciplinary action against a Muavin-e-Qazi or an A'alim Wakeel, and may delete his name from the panel of Muavineen-e-Qazi or, as the case may be, deregister him as an A'alim Wakeel.

(5)               The Committee shall issue notice in writing to such Muavin-e-Qazi or A'alim Wakeel, specifying the charges against him, consider his written reply, if any, and, if he so wishes, personally hear him before taking action under sub-section (4).

(6)               Any person aggrieved by the decision of the Committee may apply to the Committee, within one month of the announcement of the decision, for review and the decision of the Committee in review shall be final.

(7)       The Committee shall meet once in every three months, and may also meet as arid when necessary, for—

(a)                preparation of panel of Muavineen-e-Qazi;

(b)               registration or deregistratlon of an A'aiim Wakeel;

(c)                inclusion or deletion of names of persons in the current panel;

(d)               revision of the panel for the corning year before the end of the current year;

(e)                interview of persons for appointment as Muavineen-e-Qazi or registration as           A'aiim Wakeel; and

(f)                any other matter ancillary or incidental thereto.

(8)               The Chairman and three members shall form quorum for a meeting. A meeting may be convened at the request of two members if the Chairman is of the view that there is enough work to be disposed of in such meeting. All the decisions in a meeting shall be taken by two-third majority of votes of the members attending the meeting and the vote of the Chairman.

(9)               Government shall provide funds for the expenses of the Committee which shall include travelling charges, entertainment charges, expenses on stationery and other administrative expenses.

(10)           The office of the Committee shall be located in Peshawar High Court building or at any other place provided by Government.

(11)           The Committee shall decide that an officer of Peshawar High Court or Provincial Government shall be the Secretary of the Committee who shall maintain record and shall administratively deal with the business of the Committee.

9.         Muavineen-e-Qazi.— (1) The concerned [21][District Coordination Officer], in consultation with the concerned Zilla Qazi, shall, subject to the following sub-sections, recommend to the Committee the name of a person who, in the opinion of both the [22][District Coordination Officer] and the Zilla Qazi, is eligible for inclusion of his name in the panel or, as the case may be, for registration as A'aiim Wakeel.

(2)       The name of a person may be included in the panel, if he-

(a)               is eligible to become a Qazi, except for the condition of age; or

(b)               has learning and experience in Ilin-e-fiqh and Sharia'h and teaching of laws related to Islamic principles/jurisprudence, from a recognised University/Islamic Institute of learning, having international or national reputation or having recognition by the University Grants Commission, such institution having been notified by the Government.

(3)               The Committee, on the recommendation of the concerned [23][District Coordination Officer] under sub-section (1) or on the information of any other person or suo moto, shall call such person for interview and shall approve the names of suitable persons for inclusion in the panel or, as the case may be, for registration as A'alim Wakeel to act as such.

(4)               A Qazi shall, for the purpose of expounding and interpreting the Injunctions of Islam relevant to the proceedings of a case pending there, call upon one or more of such Muavineen-e-Qazi for his assistance.

(5)               A Qazi shall not allow a person to act as Muavin~e-Qazi or A'alim Wakeel, whose name is either not included in the panel or has been deleted from it, or, as the case may be, has either not been registered as A'alim Wakeel or has been deregistered.

(6)               A Qazi shall provide facility to a Muavin-e-Qazi called for assistance of the Court to hear evidence and arguments, and to persue the record of the case, and the Qazi shall, before decision of the case or proceeding, hear him on the legal points involved in the case or proceeding in the light of Sharia'h.

(7)               A Muavin-e-Qazi, when called by the Court, shall assist the Court in arriving at correct conclusion regarding the proper application of Islamic laws in the circumstances of a case and shall quote references from Quran Majeed, Ahadith-e-Nabavi (Sallallaho alaihe wasallam) and Fatawa and books of Fiqh of the recognised Fuqaha'a of Islam.

(8)               The concerned Zilla Qazi shall send his comments about punctuality, regularity, efficiency, honesty and other aspects of character of each of the Muavineen-e-Qazi and A'alim Wakeel, to the Committee, in the middle of November in each year.

(9)               The Committee before the end of the current calendar year, in the light of the comments of the concerned Zilla'a Qazi or any other information or the needs of the Courts of the concerned area, may revise the panel and may include therein or delete therefrom the name of any person for reasons to be recorded.

(10)           A Muavin-e-Qazi shall be entitled to such honoraria and allowances as may be prescribed by Government, but he shall neither be entitled nor demand or receive, directly or indirectly, any pecuniary gain from the parties to a dispute pending disposal in a court in which he may act as Muavin-e-Qazi.

(11)           Government shall provide funds to the concerned Zilla Qazi for payment to Muavineen-e-Qazi who appear, in accordance with the instructions of the concerned Zilla'a Qazi, in the Courts in the area of his jurisdiction.

10.       Musleheen.— (1) A Qazi shall, at the initial stage of the proceedings, ask the parties whether they want to get their dispute resolved through musleheen, and, if they so agree, shall refer their dispute to one or more musleheen for its resolution in accordance with Sharia'h.

(2)        Where the parties to a dispute before the Court agree, the Court may refer the dispute to one or more musleheen, appointed by mutual consent of the parties, for its resolution in accordance with Sharia'h:

Provided that the cases falling within the purview of Huddod laws and cases by or against the Federal Government or a Provincial Government or any statutory body or persons under legal disabilities shall not be referred for sul'h.

(3)               Any person may be appointed as musleh by the Court for the purposes of resolution of a dispute if the parties mutually so agree.

(4)               The musleheen shall be assisted by Muavin-e-Qazi in advisory capacity, with respect to Sharia'h, in each case, during the course of sul'h.

(5)        Where a musleh or, as the case may be, musleheen, to whom a dispute has been referred for resolution, either fail or refuse to resolve it, or the Court is of the opinion that unnecessary delay has been caused, without sufficient reasons, in resolving it, the Court may, on the application of a party or suo moto, for reasons to be recorded, withdraw the order of such reference and, after such withdrawal, it shall resolve the dispute in accordance with Sharia'h as if it were not referred to for sul'h.

(6)               The musleheen shall record their opinion with regard to a dispute referred to them, with reasons therefor.

(7)               One or more musleheen, in consultation with Muavin-e-Qazi, after hearing the parties and their witness, if any, perusing the relevant document, if any, and inspecting the spot, if need be, shall form opinion about resolution of the dispute with reasons therefor, and shall submit the same to the concerned court without delay.

(8)               The Court shall examine the report submitted to it and shall proceed further in terms of sub-section (9):

Provided that before proceeding further the Court shall provide an opportunity to the parties to make objections, if any, to the report of the musleh or musleheen, as the case may be.

(9)               The Court shall, if it is satisfied that the opinion in a case referred for sul'h under sub-section (2) is in accordance with Sharia'h, make it the rule of the Court, and shall announce it as such, but, if the Court comes to the conclusion that the opinion is not in accordance with Sharia'h, it shall declare the opinion, for reasons to be recorded, as null and void and shall start its proceedings for decision of such dispute in accordance with Sharia'h, as if it were not referred for sul'h, and the Muavin-e-Qazi appointed for such resolution shall cease to be Muavin-e-Qazi for further hearing in that case.

(10)           The Court shall, in the circumstances of each case, keeping in view the actual expenses incurred by the musleh or musleheen, on travelling to, and stay at, the place other than the place of his/their residence and the time spent in dealing with the case, fix the remuneration to be paid by each party to the musleh or musleheen in such proportion as determined by it.

11.       A'alim Wakeel.— (1)            The name of each A'alim Wakeel, like Muavineen-e-Qazi, shall be notified in the official Gazette.

(2)               An A'alim Wakeel shall, for the purposes of conducting cases in courts established under this Act, have the same status, rights, duties and liabilities as an Advocate or pleader appointed under any law for the time being in force may have.

(3)               A party to any proceedings before the Court may either conduct the proceedings personally or through special attorney or may duly authorise an Advocate or a duly registered A'alim Wakeel, to act as Wakeel of such party for the purposes of such proceedings:

Provided that the Court may provide the services of counsel to a party if, keeping in view the financial position of such party, it so deems necessary.

12.       Observance of time schedule.— A Qazi shall try his best to finalise a case within the time schedule, if any, prescribed by Government. In case of delay in disposal of a case beyond the prescribed time schedule, he shall report the cause and reasons of delay to the next higher Court, and act on the instructions issued by such Court in this respect:

Provided that unless otherwise prescribed, a period of not more than six months for disposal of a civil case and a period of not more than three months for disposal of a criminal case shall be standard schedule time.

13.       Aid and Assistance to the Courts.— All executive authorities in Kohistan District, including members of law enforcing agencies and members of other services of Pakistan, shall act in aid and assistance of the Courts, and shall implement their judicial orders and decisions.

14.               Directions to law enforcing agencies.—   Government may, where necessary, issue such directions to any law enforcing agency as are necessary in relation to the service of Courts' processes on the parties, witnesses or any other person, and, for any general or specific purposes, in order to ensure the conduct of such law enforcing agency in aid and assistance of the Courts.

15.               Action against investigating officer.—The administrative authority of an investigating officer or officer in charge of a police station, either suo mow or on the complaint or decision of the concerned Qazi or [24][District Coordination Officer], shall conduct disciplinary proceedings against such officer if he either—

(i)         conducts a criminal case against the established principles of Sharia'h; or

(ii)        delays the submission of a copy of the first information report to the concerned Qazi or, as the case may be, an [25][Magistrate-cum-Illaqa Qazi], and Zilla Qazi and [26][Magistrate/ Aa’la Illaqa Qazi]; or

(iii)       does not properly inform the concerned Qazi or [27][Magistrate-cum-Illaqa Qazi] about the position and progress of a criminal case within his jurisdiction; or

(iv)       fails to comply with the directions of the concerned Qazi or [28][Magistrate-cum-Illaqa Qazi], concerning investigation; or

(v)        fails to complete investigation without sufficient cause within the specified period; or

(vi)       does not submit complete challan within the prescribed period in the light of sub-section (4) of section 7.

and shall inform the concerned Qazi or [29][Magistrate-cum-Illaqa Qazi] about the position and further progress and result of such proceedings:

Provided that no disciplinary action shall be taken against him, if he deviates from the provisions of any other procedural law while following established principles of Sharia'h.

16.       [30][Magistrate].— (1) There shall be [31][as many Magistrates] as Government may think fit.

(2)        All the Magistrates mentioned in sub-section (1) shall, subject to the established principles of Sharia'h, perform their functions under any law for the time being in force.

(3)               It shall be the duty, responsibility and authority of the [32][District Coordination Officer of the District concerned] to establish Amn and to work for Sadd-e-Zarai'a-e-Janayah, and, for this purpose, may take action against a person, a section of person or a community of a locality in accordance with the concept of collective responsibility, subject to the established principles of Sharia'h.

(4)               Subject to the provision of this Act, the [33][District Coordination Officer of the District concerned] shall supervise the investigation and prosecution of all the criminal cases.

Explanation: In sub-section (3),—

(i)         "Sadd-e-Zarai'a-e-Janayah" shall include all steps and measures taken in accordance with Sharia'h and any law for the time being in force for prevention of crimes; and

(ii)        the concept of "collective responsibility" refers to the behaviour and conduct of the inhabitants of any area or part thereof as reflected in section 3 of the [34][Khyber Pakhtunkhwa] Suppression of Crimes Ordinance, 1978 ([35][Khyber Pakhtunkhwa] Ord. Ill of 1978).

17.       Language of the Court and of its record.—All the processes and proceedings of the Court, including the pleadings, evidence, arguments, orders and judgements shall be recorded and conducted in Urdu, and the record of the Court shall also be maintained in the said language.

18.       Powers to make rules.— Government may make rules for carrying out the purposes of this Act.

19.      Repeal.— (1) The Kohistan District (Nifaz-e-Nizam-e-Shariah) Act, 1995 (Act No. IV of 1995) is hereby repealed.

(2)        Notwithstanding the repeal of the Act under sub-section (1), the repeal shall not—

(a)                revive anything not in force or existing at the time at which the repeal takes effect;

(b)               affect the previous operation of any law or anything duly done or suffered thereunder;

(c)                affect any right, privilege, obligation or liability acquired, accrued or incurred under the law;

(d)               affect any penalty, forfeiture or punishment incurred in respect of any offence committed against the law; or

(e)        affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment;

and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be impose, as if the law had not been repealed.