Agha Rafiq Ahmed Khan
Encyclopedia
Justice Agha Rafiq Ahmed Khan was born on 23 August 1949 in Garhi Yasin
in Shikarpur District
of Sindh
, Pakistan
and is currently the Chief Justice of the Federal Shariat Court of Pakistan
.
He is the son of Agha Mohammad Anwer Khan, and was educated at D.C. High School in Garhi Yasin. Subsequently he graduated from the C&S Government College, Shikarpur and also graduated in Law from the University of Sindh
in 1971. Also He is the son in law of Justice Mushtak Ali Kazi , who was a Judge of High Court of Sindh and Balochistan. In 2010,
, Sindh Province, Pakistan
. Basically,he belongs to the Royal Pathan Barakzai Family, from Afghanistan and is also related to the great Ahmad Shah Durrani of Persia.
He has a wife, Mrs Farzeen Agha, and four children. His two sons are Agha Haris and Agha Fahad .He has two daughters namely Hira Agha Shah and Sanaah Agha Shah .Three of their Children are married , and the fourth one is young and is pursuing his studies.
in Islamabad in 1984. He was appointed as Director Administration and Legal Services of the Pakistan International Airlines
in 1989. Reverting to his judicial career, he was promoted as District and Sessions Judge in May, 1990. He also held the position of Additional Secretary (Regulations) in Services and General Administration Department of the Government of Sindh
. He assumed the charge of Law Secretary to the Government of Sindh in 1994, and was elevated as Additional Judge of the High Court of Sindh in 1995 and confirmed as a Judge of the same court in 1996. He, however,reverted back to the Sindh Judiciary after a decision of famous Al-Jehad Trust case and was posted as District and Sessions Judge in various districts of Sindh from year 1997 to 2007. He was again elevated as Additional Judge of the Sindh High Court on 14 December 2007. After a few months, he was appointed as Secretary to the Government of Pakistan, Law and Justice Division in 2008. He was again confirmed as a permanent Judge of the Sindh High Court during December 2008 retaining his original seniority from 1995. In June 2009, he was elevated as Chief Justice of the Federal Shariat Court of Pakistan on the 5th June 2009.
It declared that sections 11, 28 and 29 incorporated in the Hudood Ordinance during the Musharraf government were in violation of Article 203DD of the Constitution.
The court asked the government to take necessary steps to amend the impugned laws in conformity with the Holy Quran and Sunnah.
The FSC also held that Section 25 of the Anti-Terrorism Act 1997 was against Article 203DD of the Constitution.
The court directed its office to send copies of the judgment to the federal government and provincial and Islamabad high courts for information, necessary action and compliance.
The court ordered that the sections should cease to be effective from June 22 next year and the judgment should also stand operative from that day.
The court order said: “All those offences whose punishments are either prescribed or left undermined, relating to acts forbidden or disapproved by the Holy Quran and Sunnah, including all such acts which are akin, auxiliary, analogous or supplementary to or germane with Hudood offences as well as preparation or abetment or attempt to commit such an offence and as such made culpable by legislative instruments would without fail be covered by the meaning and scope of the term Hudood.
“Its (FSC) jurisdiction in the matters relating to Hudood under Article 203DD of the Constitution is exclusive and pervades the entire spectrum of orders passed or decisions given by any criminal court under any law relating to the enforcement of Hudood and no other court is empowered to entertain appeal, revision or reference in such cases.
“No legislative instrument can control, regulate or amend its exclusive jurisdiction which was mandated in the Constitution. 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’ used in Article 203DD, is within its (FSC) exclusive jurisdiction and can only be impugned before it (FSC).
“Ten offences, including Zina (adultery, fornication and rape), Liwatat (sexual intercourse against the order of nature), Qazaf (imputation of zina), Shurb (alcoholic drinks, intoxications, narcotics etc), Sarqa (theft simpliciter), Haraba (robbery, highway robbery, dacoity and all categories of offences against property as mentioned in PPC), Irtdada (apostasy), Baghy (treason, waging war against state, all categories of offences mentioned in PPC)) Qisasa (right of retaliation in offences against human body) and human trafficking, are covered by the terms Hudood for the purpose of Article 203DD.
“Sections 11 and 28 of the PWA 2006 are declared violative of Article 203DD of the Constitution because these provisions annul the overriding effect of Hudood Ordinances VII and VIII of 1979.
“Some portions of sections 48 and 49 of the Control of Narcotic Substances Act 1997 whereby the high courts have been empowered to entertain appeals against the order of a special court consisting of a sessions judge or an additional sessions judge, transfer within its territorial jurisdiction any case from one special court to another special court at any stage of the proceedings, were also violative of the provisions contained in Chapter 3A of Part VII of the Constitution because the offences envisaged by Act XV of 1997 are covered by the term Hudood.”
The court consequently declared both the sections as violative of Article 203DD and held that the portion which contained the words high court should be deemed to be substituted by the words FSC in both the sections.
The order said: “Section 25 of the PWA 2006 is declared violative of Article 203DD as it omits sub-sections (3) and (4) of section 14 of the offence of Qazf (enforcement of Hadd) Ordinance 1979 with the result that it has adversely affected the operation of injunctions of Islam relating to Lian. Consequently, section 29 of the Act 2006 is also declared violative of Article 203DD as it adds clause (vii a) Lian to section 2 of the Dissolution of Muslim Marriages Act 1939. This addition in the latter act also becomes invalid on account of repugnancy with the injunctions of Islam relating to Lian.
“Section 25 of the Anti-Terrorism Act 1997 does not make provision for filing an appeal before the FSC in cases where the Anti-Terrorism court decides a case relating to some of the Hudood offences included in the Schedule as from August 21, 1997, thus this omission is violative of Article 203DD.”
The court directed the federal government to rectify this error by June 22, 2011. Otherwise, the following rider shall be read at the end of clause (i) of section 25 of Act XXVII of 1997 after omitting the full stops. The rider is, “but where a private complaint or a First Information Report or information, as stipulated in section 190 of the Code of Criminal Procedure, relating to an offence falling within the purview 10 mentioned categories of Hudood offences, is decided by any court exercising criminal jurisdiction under any law of the land, the appeal therefrom shall lie to the FSC”.
Garhi Yasin
Garhi Yasin Sindhi ڳڙهي ياسين is taluka of Shikarpur District, Sindh, Pakistan.One of the four talukas of Shikarpur, Garhi Yasin is of great political and historical significance to Pakistan....
in Shikarpur District
Shikarpur District
Shikarpur district is a district in the Sindh province of Pakistan. The city of Shikarpur is the capital. It is spread over an area of 2,512 km2, according to the 1998 census of Pakistan it had a population of 880,438 of which 23.51% were urban....
of Sindh
Sindh
Sindh historically referred to as Ba'ab-ul-Islam , is one of the four provinces of Pakistan and historically is home to the Sindhi people. It is also locally known as the "Mehran". Though Muslims form the largest religious group in Sindh, a good number of Christians, Zoroastrians and Hindus can...
, Pakistan
Pakistan
Pakistan , officially the Islamic Republic of Pakistan is a sovereign state in South Asia. It has a coastline along the Arabian Sea and the Gulf of Oman in the south and is bordered by Afghanistan and Iran in the west, India in the east and China in the far northeast. In the north, Tajikistan...
and is currently the Chief Justice of the Federal Shariat Court of Pakistan
Federal Shariat Court of Pakistan
The Federal Shariat Court of Pakistan is a court which has the power to examine and determine whether the laws of the country comply with Shari'a law...
.
He is the son of Agha Mohammad Anwer Khan, and was educated at D.C. High School in Garhi Yasin. Subsequently he graduated from the C&S Government College, Shikarpur and also graduated in Law from the University of Sindh
University of Sindh
The University of Sindh informally known as Sindh University is the second oldest university in Pakistan accredited by the Higher Education Commission of Pakistan....
in 1971. Also He is the son in law of Justice Mushtak Ali Kazi , who was a Judge of High Court of Sindh and Balochistan. In 2010,
Early life
Justice Agha Rafiq Ahmed Khan was born on 23 August 1949 (age 62) in ShikarpurShikarpur
Shikarpur or Shakkarpur may refer to:*Shikarpur, Pakistan, the capital of Shikarpur District in Sindh province, Pakistan*Shikarpur District, in Pakistan*Shikarpur, Muzaffarnagar, town in Uttar Pradesh, India...
, Sindh Province, Pakistan
Pakistan
Pakistan , officially the Islamic Republic of Pakistan is a sovereign state in South Asia. It has a coastline along the Arabian Sea and the Gulf of Oman in the south and is bordered by Afghanistan and Iran in the west, India in the east and China in the far northeast. In the north, Tajikistan...
. Basically,he belongs to the Royal Pathan Barakzai Family, from Afghanistan and is also related to the great Ahmad Shah Durrani of Persia.
He has a wife, Mrs Farzeen Agha, and four children. His two sons are Agha Haris and Agha Fahad .He has two daughters namely Hira Agha Shah and Sanaah Agha Shah .Three of their Children are married , and the fourth one is young and is pursuing his studies.
Legal career
Kingdom Justice Agha was enrolled as a Member of the Sindh Bar Council in 1972. He joined Sindh Judicial Services as Civil Judge and First Class Magistrate in 1973 through competitive examination of the Sindh Public Service Commission. He was promoted as Senior Civil Judge and Assistant Sessions Judge in 1978, and subsequently as Additional District & Sessions Judge in 1983. In 1985, he was appointed as Secretary, Sindh Legislative Assembly in 1985. During this period, he attended a Shariah training Course in the International Islamic UniversityInternational Islamic University
International Islamic University may refer to:*The International Islamic University Malaysia *The International Islamic University, Islamabad *The International Islamic University, Chittagong...
in Islamabad in 1984. He was appointed as Director Administration and Legal Services of the Pakistan International Airlines
Pakistan International Airlines
Pakistan International Airlines Corporation commonly known as PIA, is the flag carrier airline of Pakistan. The airline has its head office on the grounds of Jinnah International Airport in Karachi. and operates scheduled services to 24 domestic destinations and 38 international destinations in 27...
in 1989. Reverting to his judicial career, he was promoted as District and Sessions Judge in May, 1990. He also held the position of Additional Secretary (Regulations) in Services and General Administration Department of the Government of Sindh
Government of Sindh
Government of Sindh is based in Karachi, Sindh, Pakistan. سندھ is one of the four provinces of Pakistan and is home to the Sindhis, Muhajirs, Pashtuns and a whole array of other ethnic and linguistic groups. Neighbouring regions are Balochistan to the west and north, Punjab in the north and...
. He assumed the charge of Law Secretary to the Government of Sindh in 1994, and was elevated as Additional Judge of the High Court of Sindh in 1995 and confirmed as a Judge of the same court in 1996. He, however,reverted back to the Sindh Judiciary after a decision of famous Al-Jehad Trust case and was posted as District and Sessions Judge in various districts of Sindh from year 1997 to 2007. He was again elevated as Additional Judge of the Sindh High Court on 14 December 2007. After a few months, he was appointed as Secretary to the Government of Pakistan, Law and Justice Division in 2008. He was again confirmed as a permanent Judge of the Sindh High Court during December 2008 retaining his original seniority from 1995. In June 2009, he was elevated as Chief Justice of the Federal Shariat Court of Pakistan on the 5th June 2009.
Oath taking as Chief Justice FSC
Justice Agha Rafiq took Oath as the 12th Chief Justice of The Federal Shariat Court on 5 June 2009 , President of Pakistan, Asif Ali Zardari gave Oath of Office at the Presidency ,Islamabad and it was an Auspicious Event in which the Prime Minister of Pakistan , Syed Yousuf Raza Gillani and Chief Justice of Pakistan , Iftikhar Muhammad Chaudhary were also present .Judgement on Women Protection Act 2006
A three-member FSC bench comprising Chief Justice Agha Rafiq Ahmed Khan, Justice Afzaal Haider and Justice Shahzado Sheikh announced its verdict on Wednesday on identical petitions challenging the act.It declared that sections 11, 28 and 29 incorporated in the Hudood Ordinance during the Musharraf government were in violation of Article 203DD of the Constitution.
The court asked the government to take necessary steps to amend the impugned laws in conformity with the Holy Quran and Sunnah.
The FSC also held that Section 25 of the Anti-Terrorism Act 1997 was against Article 203DD of the Constitution.
The court directed its office to send copies of the judgment to the federal government and provincial and Islamabad high courts for information, necessary action and compliance.
The court ordered that the sections should cease to be effective from June 22 next year and the judgment should also stand operative from that day.
The court order said: “All those offences whose punishments are either prescribed or left undermined, relating to acts forbidden or disapproved by the Holy Quran and Sunnah, including all such acts which are akin, auxiliary, analogous or supplementary to or germane with Hudood offences as well as preparation or abetment or attempt to commit such an offence and as such made culpable by legislative instruments would without fail be covered by the meaning and scope of the term Hudood.
“Its (FSC) jurisdiction in the matters relating to Hudood under Article 203DD of the Constitution is exclusive and pervades the entire spectrum of orders passed or decisions given by any criminal court under any law relating to the enforcement of Hudood and no other court is empowered to entertain appeal, revision or reference in such cases.
“No legislative instrument can control, regulate or amend its exclusive jurisdiction which was mandated in the Constitution. 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’ used in Article 203DD, is within its (FSC) exclusive jurisdiction and can only be impugned before it (FSC).
“Ten offences, including Zina (adultery, fornication and rape), Liwatat (sexual intercourse against the order of nature), Qazaf (imputation of zina), Shurb (alcoholic drinks, intoxications, narcotics etc), Sarqa (theft simpliciter), Haraba (robbery, highway robbery, dacoity and all categories of offences against property as mentioned in PPC), Irtdada (apostasy), Baghy (treason, waging war against state, all categories of offences mentioned in PPC)) Qisasa (right of retaliation in offences against human body) and human trafficking, are covered by the terms Hudood for the purpose of Article 203DD.
“Sections 11 and 28 of the PWA 2006 are declared violative of Article 203DD of the Constitution because these provisions annul the overriding effect of Hudood Ordinances VII and VIII of 1979.
“Some portions of sections 48 and 49 of the Control of Narcotic Substances Act 1997 whereby the high courts have been empowered to entertain appeals against the order of a special court consisting of a sessions judge or an additional sessions judge, transfer within its territorial jurisdiction any case from one special court to another special court at any stage of the proceedings, were also violative of the provisions contained in Chapter 3A of Part VII of the Constitution because the offences envisaged by Act XV of 1997 are covered by the term Hudood.”
The court consequently declared both the sections as violative of Article 203DD and held that the portion which contained the words high court should be deemed to be substituted by the words FSC in both the sections.
The order said: “Section 25 of the PWA 2006 is declared violative of Article 203DD as it omits sub-sections (3) and (4) of section 14 of the offence of Qazf (enforcement of Hadd) Ordinance 1979 with the result that it has adversely affected the operation of injunctions of Islam relating to Lian. Consequently, section 29 of the Act 2006 is also declared violative of Article 203DD as it adds clause (vii a) Lian to section 2 of the Dissolution of Muslim Marriages Act 1939. This addition in the latter act also becomes invalid on account of repugnancy with the injunctions of Islam relating to Lian.
“Section 25 of the Anti-Terrorism Act 1997 does not make provision for filing an appeal before the FSC in cases where the Anti-Terrorism court decides a case relating to some of the Hudood offences included in the Schedule as from August 21, 1997, thus this omission is violative of Article 203DD.”
The court directed the federal government to rectify this error by June 22, 2011. Otherwise, the following rider shall be read at the end of clause (i) of section 25 of Act XXVII of 1997 after omitting the full stops. The rider is, “but where a private complaint or a First Information Report or information, as stipulated in section 190 of the Code of Criminal Procedure, relating to an offence falling within the purview 10 mentioned categories of Hudood offences, is decided by any court exercising criminal jurisdiction under any law of the land, the appeal therefrom shall lie to the FSC”.
Judicial Posts
He is also the Chairman of the Jail Commitee of Pakistan and Senior Member of the Judicial Commission of Pakistan , National Judicial (Policy Making)Committee, Law & Justice Commission of Pakistan, Advisory Board of the Al-Mizan Foundation, Administration Committee of Al-Mizan Foundation, and the Board of Governors, Trustees, and Selection Board of the International Islamic University, Islamabad and also Senior Member of Allama Iqbal Open. University of Pakistan.Now Justice Agha Rafiq is the senior member of the Saleem Shahzad Commission.Now he is one of the Board of Governors of Shaheed Benazir Bhutto Chair University of Sindh.Official Visits
Mr Justice Agha Rafiq Ahmed Khan participated in Training Course on Judicial Ethics organised by Royal Institute of Public Administration (RIPA), London in June 2009 Also ,he visited Morocco in 2010 after an official invitation and met the Chief Justice of Morrocco and Minister of Law & Justice . Justice Agha once again visited Morocco in September 2011 to attend the International Judicial Conference of Chief Justices of Arabic Countries , and represent Pakistan .See also
- Justice Mushtak Ali KaziMushtak Ali KaziJustice Mushtak Ali Kazi , was a renowned jurist and writer of Pakistan and Judge of High Court of Sindh .-Birth and Family:Kazi was born in Sindh then part of the Bombay Presidency of British India on 21 December 1917. He was a distinguished alumnus of the University of Bombay...
- Chief Justice of the Federal Shariat Court