Women Protection Act, 2006: FSC declares Sections 11, 25 and 28 as null & void

The Federal Shariat Court (FSC), in its short order on Wednesday declared Sections 11, 25 and 28 of Women Protection Act, 2006, as null and void, terming them contrary to Islamic injunctions and made it clear that no other court is empowered to entertain appeals in Hudood cases.
A three-member bench, headed by Chief Justice FSC Agha Rafiq Ahmed Khan with Justice Syed Afzal Haider and Justice Shehzado Shaikh, said that all such offences whose punishments are either prescribed or left undermined, which relates to the acts forbidden by Holy Quran, Sunnah, would without fail be covered under the term 'Hudood'.
The court declared that the extent of jurisdiction of FSC in matters relating to 'Hudood' under Article 203DD is exclusive and pervades all orders passed by any criminal court but relating to 'Hudood' and no other court is empowered to entertain appeal, revision or reference in such cases.
"No law can control, regulate or amend this jurisdiction which was mandated in chapter 3A of part VII of the constitution of Pakistan," the order maintained. An order granting or refusing bail before conclusion of trial in all categories of offences within the ambit of 'Hudood' is covered by the word proceedings, as used in Article 203DD, hence within the exclusive jurisdiction of FSC and can only be impugned by Shariat court, it added.
The order said that under the article, 203DD of the constitution following ten offences are covered under 'Hudood': Zina (adultery), Liwatat (sexual intercourse against the order of nature), Qazaf (imputation of adultery), Shurb (alcoholic drinks/intoxicants/narcotics etc), Sarqa (theft simplicitor), Haraba (robbery, highway robbery, dacoity - all categories of offences against property as mentioned in Chapter XVII of Pakistan Penal Code), Irtdad (apostasy), Baghy (treason), Qisas (right of retaliation in offences against human body) and human trafficking.
The order further declared the sections 11 and 28 of Protection of Women (Criminal Laws Amendment) Act, 2006 (Act VI of 2006) violate Article 203DD of the Constitution because these provisions annul the overriding effect of Hudood Ordinances VII and VIII of 1979.
The apex court further made it clear that the sections 48 and 49 which pertain to Control of Narcotic Substances Act, 1997 (Act XXV of 1997) and empowers the High Court to entertain appeals are contradictory to the constitutional provisions, contained in Chapter 3A of Part VII because the offences envisaged by Act XV of 1997 are covered under the term Hudood.
The court declared that both the sections are violative of Article 203DD of the Constitution and the portion which contains the words 'High Court' should be substituted by Federal Shariat Court in both the above sections of the constitution.
Section 25 of the Women Protection Act, the order said, is also violative of Article 203DD of the Constitution as it omits subsections (3) and (4) of section 14 of The Offence of Qazf, resultantly it is against the injunctions of Islam relating to Lian.
The bench further said that section 29 of Act VI of 2006 is also violative of Article 203DD as it adds clause (vii a) Lian in section 2 of the Dissolution of Muslim Marriages Act, 1939, hence it also becomes invalid as it is repugnant to the injunctions of Islam relating to Lian. The court also made it clear that section 25 of the Anti-Terrorism Act, 1997 has no provision for filing an appeal before FSC in cases where the anti-terrorism court decides a case relating to Hudood offence.
This omission, the order said, also violate Article 203DD, hence the federal government must rectify this error June 22, 2011 otherwise the FSC verdict will turn into law and be part of clause 1 of section 25 of Act XXVII of 1997 after omitting the full stop.