PESHAWAR, July 26: The Peshawar High Court on Thursday directed the attorney general to give legal opinion on certain post-18th Amendment ambiguities regarding legislative powers of parliament and provincial assemblies on criminal law.

A bench comprising Chief Justice Dost Mohammad Khan and Justice Irshad Qaiser observed that the 18th Constitutional Amendment Act didn’t clearly explain parliament and provincial assemblies’ legislative powers on criminal law.

It put on notice the federation of Pakistan through the attorney general seeking written response to the said observation and legal opinion on the matter ‘in writing but in clarity.’

The bench also issued a similar notice to the Khyber Pakhtunkhwa advocate general.

It took notice of the matter during the hearing into two petitions against a local custom, ghag, under which a man could lay claim to marriage to a girl of his choice.

The bench took exception to long delays in enforcement of a law to check the illegal custom despite issuance of repeated orders by it on different occasions.

Additional advocate general Lal Jan Khattak said the provincial law department had prepared a draft of the proposed law recommending amendments to the Pakistan Penal Code and the Code of Criminal Procedure.

He added that the said draft had been referred to the federal law division for tabling it before parliament.

Deputy attorney general Mohammad Iqbal Mohmand said the federal government had yet to receive the draft as it was being made.

The bench gave the two governments one last chance to legislate on the matter while directing the federal and Khyber Pakhtunkhwa law secretaries to show up on the next hearing slated for September 4 and submit separate written replies in the case.

One of the petitions is filed by a father of two minor girls, Mohammad Nawaz, who alleged that a jirga comprising some members of local peace committee had ordered him to pay Rs275,000 to his two nephews over denial of his daughters’ marriage in line with the custom of ghag.

The other human rights petition is filed by Shabana Akhtar, who challenged an alleged jirga decision made around a decade ago to bar her father from marrying her to anyone in the family and village under ghag.

Mohammad Essa Khan and Akbar Ali Shah, lawyers for the petitioners, said the said custom was inhuman and no civilised society could allow it.

The chief justice asked the DAG if law and order was a provincial subject, then what was the wisdom of allowing both the federal and provincial governments to legislate on criminal law and criminal procedures.

While referring to the Constitution’s Federal Legislative List, he observed that ordinary criminal law was not specifically made part and parcel of the list and even it had been done away with due to the abolition of the Concurrent Legislative List. He added that the legislative inference would be that the domain of parliament with regard to criminal law had ceased to exist.

The chief justice, however, observed that a lot of confusion had been created by the self clashing and mutually inconsistent clauses of Article 142 of the Constitution which were added through the Constitutional 18th Amendment Act, which empowered both the federal and provincial legislature to enact laws related to criminal law.

The bench also expressed displeasure over the draft of the proposed law, saying it had clearly ordered the making of a comprehensive and all encompassing law to check the customs of swara, vani and ghag but the government had been trying to make slight changes to Section 310-A of Pakistan Penal Code.

The chief justice observed that the said section had failed to address the issue and, therefore, a separate law should be made and enforced at the earliest.

He also questioned the competence of a consultant hired by the provincial law department at the monthly salary of Rs120,000, observing that the way he had prepared the draft law showed how competent he was.

The chief justice said instead of proposing punishments for those who had forced a family to follow the custom of ghag, the draft law had recommended action against poor parents of girl victims.