FEDERATION OF PAKISTAN and another vs N.W.F.P. GOVERNMENT and others

ORDER

1. ' The learned Attorney-General has made a statement before us that the Ordinance relating to enforcement of the provisions of Qisas and Diyat has been drafted and is at present in the process of final scrutiny which should be completed within a couple of days and the necessary Ordinance promulgated by 5th September, 1990. He has further stated that to familiarise the enforcement agencies with the new provisions and to ensure their proper implementation the provisions of the proposed Ordinance shall he enforced by 12th Rabi-ul-Awwal 1411 A.H. He has prayed that the Review Petition may he disposed of in the light of his above statement, as it has become infructuous.

2. 'We consider that in view of the importance of the subject and to prevent any chaos and disruptiiin in the administration of criminal justice some time should be allowed to educate and familiarise the enforcement agencies with the new provisions. We, therefore, accept the submission of the learned Attorney-General.

3. ' The new Ordinance incorporating the provisions relating to Qisas and Diyat shall be promulgated by 5th September, 1990 and all the provisions thereof shall be enforced at the latest by 12th Rabi- ul-Awwal 1411 A.H.

4. ' Accordingly, it is ordered that the decision of this Court dated 5th July, 1989, whereby the provisions declared and held therein as repugnant to the injunctions of Islam, and which was to take effect on 23rd March, 1990, would now, on the disposal of this Review Petition, shall take effect on 12th day of Rabi-ul-Awwal 1411 A.H.; on which day the said provisions to the extent they have been declared and held to be repugnant to the injunctions of Islam, shall cease to have effect.

5. ' It is also held and ordered that even if the required law is not enacted and/or enforced by 12th of Rabi-ul-Awwal 1411 A.H., the said provisions would nevertheless cease to have effect on 12th Rabi- ul-Awwal. In such state of vacuum, vis-a-vis, the statute law on the subject, the common Islamic law/the injunctions of Islam as contained in the Qur'an and Sunnah relating to the offence of Qatl and Jurh (hurt) shall he deemed to be the law on the subject. The Pakistan Penal Code and the Criminal Procedure Code shall then be applied mutatis mutandis, only as aforestated. The same will be the position if an Ordinance for the law of Qisas and Diyat is enforced on or before 12th Rabi- ul-Awwal and the same lapses or otherwise becomes unenforceable due to any reason, creating a similar vacuum in the statute law on the subject. In the aforevisualised situations, the Courts, while hearing and deciding the cases of Qatl and Jurh (hurt) in accordance with common Islamic law/injunctions of Islam as contained in Qura'an and Sunnah may also seek guidance from the provisions of the aforementioned Ordinance if it, in the meanwhile, having once been enforced, had lapsed or otherwise had become un-enforceable. All these matters stand disposed of.