FEDERATION OF PAKISTAN through Secretary, Ministry of Law, Justice and Parliamentary Affairs, Government of Pakistan, Islamabad vs ZAFAR AWAN

' JUSTICE ABDUL HAMEED DOGAR (CHAIRMAN).--- By this common order, we propose to dispose of Shariat Review Petitions Nos.1 and 2 of 1991 as they arise out of judgment, dated 30-11-1991 of this Court whereby Shariat Appeals Nos.16 and 17 of 1989 filed by petitioner were dismissed and the order of learned Federal Shariat Court declaring the provisions of section 197, Criminal Procedure Code (Act V of 1898) and that of subsection (5) of section 6 of the Pakistan Criminal Law Amendment Act, 1958 (Act No,XL of 1958) declaring them repugnant to the Injunctions of Islam was maintained.

2. It is inter alia, contended by Hafiz S.A. Rehman, learned counsel for the petitioner that this Court while dismissing the Shariat appeals and declaring the above provisions of law as repugnant to the Injunctions of Islam has omitted to examine the effect of provisions of section 402-C of the Criminal Procedure Code which is an error apparent on the face of the record necessitating the review of Court. When conformed with the provision of section 402-C, Cr.P.C. Learned counsel frankly conceded that it has no nexus with the provisions of section 197, Cr.P.C. Or subsection (5) of section 6 of the Act.

3. In order to bring the provisions of Chapter XVI dealing with the offences of the human body in conformity with the Injunctions of Islam, an amendment was brought in Pakistan Penal Code, 1860 vide Criminal Law (Second Amendment) Ordinance, 1990 whereby sections 299 to 338-H, P.P.C.

Were substituted. A corresponding amendment was made in section 345, Cr.P.C. Whereby offences mentioned in the above chapter were made compoundable with the consent of the victim, or as the case may be, of legal heirs of victim. Section 402-C, Cr.P.C. Was added in Criminal Procedure Code in Chapter XXIX, after section 402-B vide Criminal Law (Fourth Amendment) Ordinance, 1991 so as to bring it in conformity with the Injunctions of Islam as laid down by the Holy Qur'an and Sunnah. It was vide this added provision of law the composition, suspension, remittance and communication of sentences passed under any of the section in Chapter XVI, Pakistan Penal Code, shall not be done without consent of the victim or as the case may be of his heirs.

4. It would be advantageous to reproduce 402-C, Cr.P.C.:--- "402-C Remission or commutation of certain sentences not to be without consent.--- Notwithstanding anything contained in section 401, section 402, or section 402-A, or section 402-B the Provincial Government, the Federal Government or the President shall not without the consent of the victim Or, as the case may be, of his heirs, suspend, remit or commute any sentence passed under any of the sections in Chapter XVI of the Pakistan Penal Code."

5. The contentions of learned counsel for the petitioner are neither convincing nor in consonance with the above provisions of law, as such, are misconceived. The review petitions being devoid of force are dismissed. However, necessary amendments be made upto 31st March, 2005, failing which these provisions of law will cease to have effect.