Preamble

WHEREAS it is expedient to provide for Nifaz-e-Nizam-e-Sharia’h through Courts in the Provincially Administered Tribal Areas of the North-West Frontier Province, except the Tribal Area adjoining Mansehra district and the former State of Amb.

AND WHEREAS clause (3) of Article 247 of the Constitution of the Islamic Republic of Pakistan provides that no Act of Majlis-e-Shoora (Parliament) or a Provincial Assembly shall apply to a Provincially Administered Tribal Area, or any part thereof, unless the Governor of the Province in which the Tribal Area is situated, with the approval of the President, so directs, and in giving such direction with respect to any law, the Governor may direct that the law shall, in its application to a Tribal Area, or to a specified part thereof, have effect subject to such exceptions and modifications as may be specified in the direction;

AND WHEREAS clause (4) of Article 247 of the Constitution of the Islamic Republic of Pakistan provides that the Governor of a Province, with the prior approval of the President, may, with respect to any matter within the legislative competence of the Provincial Assembly, make regulations for the peace and good government of a Provincially Administered Tribal Area or any part thereof;

NOW, THEREFORE, in exercise of the powers aforesaid, the Governor of the North-West Frontier Province, with the approval of the President, is pleased to direct that the laws specified in column 2 of Schedule I shall apply to the Provincially Administered Tribal Areas as afore said; and to make the following Regulation:-

1. Short title, extent and commencement. —

(1) This Regulation may be called the Nizam-e-Adl (Shariah) Regulation, 2008.

(2) It shall extend to the Provincially Administered Tribal Areas of the North-West Frontier Province, except the Tribal Area adjoining Mansehra district and the former State of Amb, hereinafter referred to as the said area.

(3) It shall come into force at once.

2. Definitions. — (1) In this Regulation, unless there is anything repugnant in the subject or context,-

(a) “A’alim” means and includes a person having advance degree in tafseer-e-Quran, Ahadith-e-Nabvi (Sallallaho Alaihe Wasallam), and/or Fiqh-e-Islami from a recognized institution;

(b) “Chairperson” and “member” respectively mean the Chairperson or, as the case may be, a member of the Committee;

(c) “Committee” means the Committee constituted under paragraph 7;

(d) “Court” means the court of competent jurisdiction established and designated as such under this Regulation, and includes a court of appeal or, as the case may be, a court of revision;

(e) “Government” means the Government of the North-West Frontier Province;

(f) “Muavin-e-Qazi” means a person whose name appears on the current panel of Muavineen-e-Qazi drawn under paragraph 7;

(h) “panel” means the current list of the names of Muavineen-e-Qazi for a specified area;

(i) “paragraph” means a paragraph of this Regulation;

(j) “prescribed” means prescribed by rules made under this Regulation;

(k) “Qazi” means a duly appointed judicial officer as specified and designated in column 3 of Schedule II;

(l) “Qazi Court” means the court of competent jurisdiction established and designated as such under this Regulation, and includes a court of appeal or, as the case may be, a court of revision;

(l) “recognized institution” means the Shariah Academy established under International Islamic University Ordinance, 1985 (Act XXX of 1985) or any institution imparting Shariah training and recognized as such by Government;

(m) “Schedule”, means a Schedule to this Regulation;

(n) “Sharia’h”, means the injunctions of Islam as laid down in Quran Majeed and Sunnah-e-Nabavi (Sallallaho Alaihe Wasallam), Ijma and Qias.

Explanation.—In the application of this clause to the personal law of any Muslim sect, the expression “Quran Majeed and Sunnah-e-Nabavi (Sallallaho alaihe wasallam)” shall mean the Quran Majeed and Sunnah-e-Nabavi (Sallallaho alaihe wasallam) as interpreted by that sect; and

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

3. Application of certain laws to the said area. — (1) The laws specified in column 2 of Schedule I, as in force in the North-West Frontier Province immediately before the commencement of this Regulation, and so far as may be, all rules, notifications and orders made or issued thereunder, shall apply to the said area.

(2) All the laws applicable to the said area, including the laws mentioned in sub-paragraph (1), shall so apply subject to such exceptions and modifications as specified in this Regulation;

4. Certain laws to cease to operate. —If, immediately before the commencement of this Regulation, there was in force in the said area any law, instrument, custom or usage having the force of law not corresponding to the Injunctions of Quran Majeed and Sunnah-e-Nabvi (Sallaho alaihe Wasallam) provisions of any of the laws applied to the said area by this Regulation, such instruments, custom or usage, as the case may be, shall upon such commencement, cease to have effect in the said area.

5. Courts, Judicial Officers, and their powers and functions. – (1) Any person to be appointed as Illaqa Qazi shall be a person who is a duly appointed judicial officer in the North-West Frontier Province. Preference shall be given to those judicial officers who have completed Shariah course of four months duration from a recognized institution.

(2) 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 North-West Frontier Province under any law for the time being in force, shall, subject to application of such law in the said area and established principles of Shariah, be exercised, performed or discharged by them as designated in column 3 of Schedule II.

(3) A Zilla Qazi shall have the power to authorise, through the District Police Officer concerned, on the basis of special reasons to be recorded about improper investigation, either suo motto 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 Qazi about details of his investigation and findings. Where necessary, the Zilla 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.

(4) Subject to the general superintendence of the High Court, a Zilla Qazi shall supervise the work of subordinate Courts, and, through the District Police Officer concerned, 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 Shariah.

(5) 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:

Provided that if any officer incharge of police station or investigation officer fails to submit complete challan within specified period, the Qazi concerned shall refer the matter to competent authority for disciplinary action against the police officer responsible for such delay, upon which necessary action shall be taken against him forthwith and shall be duly communicated to the referring Qazi.

(6) The officer-in-charge of a police-station shall submit a copy of the first information report to concerned Qazi within twenty four hours of its lodging, and inform the concerned 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:

(7) All executive authorities in the said area, 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.

(8) 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.

6. Proceedings to be in accordance with Shariah. –

(1) A Qazi shall seek guidance from Quran Majeed and Sunna-e-Nabvi (Sallallaho Alaihe Wasallam) for the purposes of procedure and proceedings of conduct, resolution and decision, of cases and shall decide the same in accordance with Shariah. While expounding and interpreting the Quran Majeed and Sunna e Nabvi (Sallallaho Alaihe Wasallam) the Qazi shall follow the established principles of expounding and interpreting Quran Majeed and Sunna-e-Nabvi (Sallallaho Alaihe Wasallam), and, for this purpose, shall consider the expositions and opinions of recognized Fuqaha’a of Islam.

(2) No court shall entertain a suit unless the plaintiff verifies that copies of plaint alongwith supporting documents have been sent, through registered post with acknowledgment due to all the defendants, except in case of a suit for perpetual injunction accompanied by an application for temporary injunction.

(3) The pleadings shall be accompanied by attested copies of all relevant public and private documents and affidavits of all the unofficial witnesses duly attested by an Oath Commissioner. The affidavits so submitted shall be treated as examination-in-chief of such witnesses:

Provided that if, after submission of pleadings new issue arises in the opinion of court, the party intending to file may be allowed to submit fresh or amended affidavits of unofficial witnesses, as may be necessary for arriving at just conclusion of case.

(4) In all cases of civil nature written statement shall be submitted within seven days and where the defendant fails to do so his defence shall be struck off:

Provided that the court may extend time for filing of written statement in extra ordinary circumstances.

(5) After completion of evidence, the court shall ask the parties to argue, either verbally or in writing, on the adjourned date, and, if either of the party fails to do so, the court shall pronounce judgment on merits, without any further adjournment for arguments:

Provided that it shall be the duty of the court to make list of relevant reported judgments, referred to by any party as precedent, which shall form part of judicial record.

(6) No adjournment shall be granted to either party in any civil or criminal proceedings, except where the court is satisfied that adjournment is unavoidable. In such case the requesting party shall deposit the costs as may be determined by the court.

(7) Soon after the commencement of this Regulation, Government, in consultation with High Court, shall take necessary steps to establish as many courts to ensure expeditious dispensation of justice within prescribed time schedule.

(8) Where the number of pending cases at a time exceeds more than one hundred and fifty in a court of Zilla Qazi or, as the case may be, Izafi Zilla Qazi, or exceeds more than two hundred cases in a court of Aala Illaqa Qazi or, as the case may be, Illaqa Qazi, it shall be necessary to establish a new court to release the work load of the court concerned:

Provided that a Qazi posted in the said area shall be entitled to such additional special allowance as may be prescribed.

(9) A period of not more than six months for disposal of a civil case, and a period of not more than four months for disposal of a criminal case, shall be standard time schedule, excluding the time spent for Sulh proceedings.

(10) A Qazi shall finalize a case within the prescribed time schedule and, in case of any delay in disposal of any case beyond such schedule, shall report the cause and reasons of such delay to the Zilla Qazi or, as the case may be, to the High Court, and shall act on the directions issued by such court in that behalf.

(11) If the Zilla Qazi or, as the case may be, the High Court, upon examination of causes of delay, is of the opinion that the delay has been caused due to the delaying tactics of a party, it shall fix a penalty or cost to be recovered from the defaulting party and direct the court concerned to dispose of the case within an extended period of not more than one month.

(12) If in the opinion of Zilla Qazi or, as the case may be, of the High Court, presiding officer of the court dealing with the case or proceeding is responsible for delay in its disposal, the Zilla Qazi or, as the case may be, the High Court may, after providing him an opportunity of hearing, make an entry in his service record.

(13) The Muavin-e-Qazi shall remain associated with the entire judicial proceedings, and shall submit his opinion in writing, which shall be part of the record. Such a Muavin-e-Qazi shall honestly and prudently assist the court in arriving at a correct conclusion regarding the proper application of Islamic laws in the relevant references from Quran Majeed, Ahadith-e-Nabvi (Sallallaho Alaihe Wasallam), Fatawa and other books of Fiqh and Shariah of the recognized Fuqahah of Islam:

Provided that a Qazi shall mention the facts of attendance of Muavin-e-Qazi and his submission of written opinion in the order sheet of the case.

(14) In criminal cases, the Investigating Officer shall prepare copies of the case file in triplicate, in addition to judicial file, so that the trial court may retain the judicial file for regular trial, and the remaining two files may be sent to the court concerned when requisitioned.

(15) The Muavin-e-Qazi, who has assisted the court, whose judgment, decree or order is under challenge through appeal or revision, may be called for hearing before the appellate or revisional Court.

(16) An appeal or revision under this Regulation shall be filed within thirty days from the date of the decision in the respective case, after sending its copies, through registered post with acknowledgement due, to the opposite party, and the appellate or revisional court shall decide the same within thirty days, without remanding it on any ground whatsoever:

Provided that such court shall have the power to rectify any illegality or irregularity or omission which, in the opinion of the said court, may result injustice to any of the parties.

(17) Any decree shall be executed, either by the court which passed it, or by the court to which it is sent for execution, within sixty days.

7. Muavin-e-Qazi and A’alim Wakeel:—(1) Government shall, as soon as may be, constitute a committee consisting of the following members, namely.-

(i) A serving judge of the High Court

nominated by the Chief Justice of that Court… …..Chairperson

(ii) Registrar, Peshawar High Court …………..…………Member

(iii) Secretary to Government of NWFP, Law Parliamentary Affairs and Human Rights,

Department; …………………………………………..Member

(iv) District Coordination Officer of the district…………….Member concerned; and

(v) Two eminent A’alims from the concerned ………….…Members district.” .

(2) The Committee constituted under sub-paragraph (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, for each district or protected area, in the form of a panel of up to thirty ulema of known integrity and good character, being well-versed in Sharia’h:

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

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

(4) 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.

(5) Subject to sub-paragraph (6), the Committee may, either of its 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 an A’alim Wakeel.

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

(7) 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.

(8) 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.

(9) The name of a person may be included in the panel, or, as the case may be, registered as Alim Wakeel, if he possesses a degree of Shahadatul A’almia or L.L.B. Shariah or B.A. (Theology), or L.L.B. from a recognized institution or university who has experience in Ilm-e-Fiqh and Sharia’h, and teaching of Islamic principles of Sharia’h and jurisprudence related to Islamic laws.

(10) The names of Muavineen-e-Qazi and A’alim Wakeel shall be notified in the Official Gazette, and deletion of any of such name, or as the case may be, deregistration shall also be notified in the official Gazette.

(11) Government shall provide funds to the concerned Zilla Qazi for payment to Muavineen-e-Qazi performing duty in courts within the district.

(12) A Muavin-e-Qazi shall be entitled to such honoraria as may be determined by Government, but shall not demand or receive, directly or indirectly, any pecuniary gain from a party or parties to a dispute pending disposal in, or has recently been disposed of by, a court in the said area.

(13) The concerned Zilla Qazi shall send his comments about the punctuality, regularity, efficiency, honesty, knowledge, capability and other aspects of character of each Muavin-e-Qazi and A’alim Wakeel, to the Committee, before the middle of the month of November in each calendar year.

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

(15) The Committee may, before the end of the current calendar year, in the light of the comments of the concerned Zilla Qazi, or on any other information or considering the needs of the courts in the concerned area, revise the panel, and may include therein or delete there from the name of any person for reasons to be recorded, and such panel shall be urgently notified in the official Gazette.

(16) The Committee shall meet once in every three months, and may also meet as and when necessary, for-

(a) preparation of panel of Muavineen-e-Qazi, and inclusion or deletion of the names of the persons in, or from, the current panel;

(b) registration or deregistration of A’alim Wakeel;

(c) revision of the panel for the coming year before the end of the current year;

(d) interview of persons for appointment as Muavineen-e-Qazi or registration as A’alim Wakeel;

(e) hearing the Muavin-e-Qazi or A’alim Wakeel, having objection to the deletion of his name, or his deregistration; and

(f) any other matter ancillary, consequential, incidental or relevant thereto.

(17) The Chairperson or, in case of his absence, his nominee, and two members shall form quorum for the meeting.

(18) A meeting may be convened at the request of two members, if the Chairperson, is of the view that the convening of the meeting is necessary.

(19) All the decisions in a meeting shall be taken by majority of votes of the total members.

(20) Government shall provide funds for all the necessary expenses of the Committee.

(21) The office of the Committee shall be located at a place determined by Government in consultation with the Chairperson.

(22) The Secretary of the Committee shall be a person or officer so authorised by Government after consultation with the Chairperson, who shall maintain the record and administratively deal with the business of the Committee.”.

8. Power to appoint Musleh. — (1) Any civil or criminal case, subject to mutual consent of parties, may be referred to Musleh before recording of evidence, either on the agreement of the parties regarding the names of such Musleh or Musleheen, or in case of their disagreement, to such Musleh or Musleheen whose names appear on the list maintained by the court for such purpose:

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

(2) The Musleheen shall record their opinion with regard to a dispute referred to them with reasons therefor.

(3) 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 reason, in resolving it, the Court, may, on the application of a party or suo motto, for reasons to be recorded, withdraw the order of such reference, and, after such withdrawal, it shall resolve the dispute in accordance with Shariah as if it were not referred for sul’h:

Provided that, in no circumstances, a case shall remain with a Musleh or, as the case may be, Musleheen for a period of more than fifteen days, and, on the expiry of the aforesaid period, shall stand withdrawn to the court for further proceedings.

(4) The Musleh or, as the case may be, the Musleheen, appointed for such resolution of the dispute, after hearing the parties and their witnesses, 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 submit a report of their opinion to the concerned court without delay:

Provided that, in case the opinion is not unanimous, the opinion of the majority members and the opinion of each dissenting member, separately or jointly, with reasons therefor, shall be so submitted.

(5) The Court shall, if it is satisfied that the opinion in a case referred to for sul’h under sub-paragraph (1) is in accordance with Shariah, 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 Shariah, 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 Shariah as if it were not referred for sul’h.

(6) The court shall, before proceeding further, provide an opportunity to the parties to submit objections, if any, to such report, and, if any, objections are so made, the court shall, after hearing the parties, decide about the correctness or otherwise of the objections.

(7) The court may either make the opinion of the Musleh or Musleheen, or the opinion of their majority, as rule of the court and decide the case accordingly, or, for solid and convincing reasons, reject such opinion and proceed further to decide the case in accordance with the established principles of Shariah.

(8) The court shall, 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 or, as the case may be, their residence, and the time spent in dealing with the case, in particular circumstances of each case, fix the remuneration of such Musleh or Musleheen, to be paid by each party in such proportion as may be determined by the court.

9. Conduct of Judicial Officers. — (1) The conduct and character of each Qazi shall be in accordance with the Islamic principles.

(2) Notwithstanding anything contained in any law for the time being in force, all cases, suits, inquires, matters and proceedings in Courts, pertaining to the said area, shall be decided by the Courts concerned in accordance with Shariah:

Provided that cases of non-Muslims in matters of adoption, divorce, dower, inheritance, marriage, usages and wills shall be conducted and decided in accordance with their respective personal laws.

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

10. 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 or in English and the record of the Court shall also be maintained in the said language.

11. Powers to make rules. — Government, in consultation with the High Court, may make rules for carrying out the purposes of this Regulation.

12. Regulation to override other laws. —The provisions of this Regulation shall have effect notwithstanding anything to the contrary contained in any other law for the time being in force in the said area.

13. Repeal. — (1) The Provincially Administered Tribal Areas Shari Nizam-e-Adl Regulation, 1999 (NWFP. Reg. I of 1999), and rules framed thereunder are hereby repealed.