Police officers walk past the Supreme Court of Pakistan building, in Islamabad, Pakistan April 6, 2022. REUTERS
ISLAMABAD:
The Supreme Court’s Sharia Court of Appeal on Monday issued notices to the federation in an appeal challenging the ruling of the Federal Sharia Court (FSC) which declared the quota system un-Islamic and adjourned the hearing until the first week of April.
A five-member bench headed by Justice Jamal Khan Mandokhail heard the case. Other members of the bench included Justice Shahid Waheed, Justice Irfan Saadat Khan and Islamic scholars Justice (retd) Dr Khalid Masood and Dr Qibla Ayaz.
During the proceedings, Justice Mandokhail observed that the issue was of great national importance and asked Additional Attorney General (AAG) Munawar Iqbal Duggal to explain how the quota system could be justified in view of Islamic principles.
The lawyer argued that Article 27 of the Constitution explicitly provides for the quota system and authorizes Parliament to legislate in this regard. He further argued that legislation had already been passed to extend the duration of the quota system.
Justice Mandokhail noted that the initial 40-year period of the quota system had already expired. Justice Irfan noted that the quota system was based on population ratio; the AAG responded that quotas were indeed implemented based on provincial population.
Justice Mandokhail questioned whether the policy actually conveyed the message that less populated provinces should increase their numbers to ensure greater representation.
The appeal was filed by the federal government against the Federal Sharia Court’s verdict declaring the quota system contrary to Islamic injunctions. The court adjourned further hearing of the case till the first week of April after issuing notices.
The same Sharia Court of Appeal also issued notices to the federation and all provinces in an appeal challenging the FSC decision which declared the government’s power to remit sentences un-Islamic.
During the hearing, Justice Mandokhail observed that under Islamic law, punishments fall into two categories: those prescribed in the Holy Quran and those imposed under tazir.
He noted that in tazir cases, the judge determines the sentence based on the circumstances of each case. He questioned how a defendant could ask the government for a reduced sentence. “If such a practice is allowed, the courts will become redundant,” he said.
He further observed that a person who is himself a party to a case cannot be allowed to have his sentence withdrawn as this would lead to the collapse of the justice system.
Justice Irfan observed that while compromise is possible in murder cases, offenses like theft cannot be resolved through reconciliation.
Justice Mandokhail added that if a victim approached the state for justice after a robbery and later found out that the government had withdrawn the case, it would amount to justice denied.
Justice Waheed ordered the parties not to take the matter lightly and present full arguments. Justice Mandokhail pointed out that these cases dated back to 1989 and said efforts would be made to hear them on a daily basis.
The bench clarified that it would not seek the opinion of the Council of Islamic Ideology (CII), observing that it would not be appropriate for the court to disagree with such an opinion.
The case concerns Sections 401 and 402 of the Pakistan Penal Code and the Criminal (Amendment) Act, 1958, which Syed Islamuddin challenged before the FSC. In 1991, the FSC declared the relevant provisions un-Islamic.
The same year, the federal government challenged the 1991 verdict in the Supreme Court. The Sharia Appeals Chamber adjourned further hearing of the case until the first week of April after issuing notices to all parties concerned.
