Free Legal Advice Pakistan

CCP Opposes Proposed Amendments

2010-01-07T21:25:00.000-08:00

Staff Report KARACHI: Chairman, Competition Commission of Pakistan (CCP), Khalid Mirza Thursday has cautioned that certain amendments being proposed in Competition Law would distort the very spirit of this law.Mirza termed these amendments as being bogus and warned that if these changes are incorporated in the law they would be tantamount in disrupting the main purpose of the law, which was introduced to act against cartelization, abuse of dominant position and deceptive marketing practices. Talking to journalists at a workshop on “Competition Law and the Role of CCP in Promoting Competition”, Mirza expressed reluctance to pinpoint those who are adamant on introducing these amendments and left the job on journalists to identify those who are carrying on this task.He also expressed his dismay over non-implementation of the decision by the regulatory bodies to give 3 percent of total collected amount of fee they charge from their clients in each quarter of the year.“The decision has not been implemented so far, thus blocking the way for CCP to gain financial autonomy”, he said.About the inquiry into the sugar issue, Mirza said that next hearing would take place on January 25, 2010, however it is hard to predict when the final decision would be taken because notices have been issued to 25 to 30 sugar mills and only after hearing their point of view would CCP announce its decision.He, however, stated that there were prima facie indications of collusive behaviour of sugar mills in the preliminary report.About the ongoing dispute on cotton yarn, CCP chief said any issue concerning competition would be dealt by them however, so far no has approached the CCP.He said that the implementation of the Competition Ordinance in letter and spirit is essential for the country’s economic growth and prosperity of the people.“Given our cutting-edge law and its promise of both near and long-term benefits to business consumers and retail consumers, it is important that our law continues to be enforced otherwise everything that we have accomplished this far will be truly futile and our country’s economic productivity will continue to stagnate as it has for the past many years,” said Khalid Mirza.He said that CCP’s successes outshine all other competition agencies in the developing countries. “We have taken up several cases of cartels, abuse of dominant position and deceptive marketing practices in important sectors of the economy, i.e. sugar, cement, banks, cement companies, the largest refinery, the three stock exchanges, cellular companies, a leading business school, a Government sponsored trust, several leading newspapers, a professional association, PIA and two fertilizer companies held by an Army Trust.”He informed that the actions taken by CCP during its short period of existence are unmatched in any other jurisdiction. “No other competition agency in any country has taken such important steps as we have done in the past two years.”

NRO II: Constitutional Superfluity

2010-01-07T05:12:00.000-08:00

By Yasser Latif Hamdani
Duniya ki tareekh gawah hai, adl bina jamhoor na hoga
History bears witness, there shall be no republic (democracy) without justice
-From Aitzaz Ahsan’s Poem “Kal, Aaj Aur Kal” - the anthem of Pakistan’s Lawyers’ Movement.
“I am for the Law. We wish for a republic of laws.” John Adams- one of the founding fathers of the United States of America.
”The first observation that I would like to make is this: You will no doubt agree with me that the first duty of a government is to maintain law and order, so that the life, property and religious beliefs of its subjects are fully protected by the State.” Mahomed Ali Jinnah- our Quaid-e-Azam.
The decision on NRO was a historic one. Based on the short order, however, a reasonable apprehension exists that by invoking articles 62-f and 227, the Court has effectively brought into play dormant Islam-inspired clauses which shall further strengthen rightwing in Pakistan. This apprehension is obviously not without merit. Articles 4, 8 and 25 – 8 and 25 being fundamental rights which according to constitutional theory are supreme- were much stronger clauses and the court did well to invoke these but this is where the court should have stopped. Ofcourse this is entirely a conjecture without the detailed judgment. That said the important thing is that the NRO has been reversed and it has strengthened democracy whether nay-sayers accept it or not. The people need to see that the system works and punishes crooks no matter how powerful they are. And there is no doubt that the Supreme Court should also take to task those holy cows that have run amok in the country but that will also happen in good time.
Still one must consider why it is that a certain section of the Pakistani liberal intelligentsia who I often agree with on most things has been up in arms against the judgment. I for one don’t understand why Asma Jahangir of all people is bringing up the issue of Islamic provisions, when the “Asma Jillani Case” which made her famous and which she makes a point to quote in her every television appearance made the Objectives Resolution the grundnorm of the Pakistani state, society and constitution? This a good a decade and a half before General Zia inserted a mutilated version of the same as the “substantive part” of the constitution of Pakistan under 2-A. Given that 62-f is General Zia’s doing but Article 227 was placed there by Zulfikar Ali Bhutto’s PPP through a unanimous vote on the Islamic constitution in 1973 that included NAP which considered itself the defender of left and secularism in Pakistan. It is unfortunate but true that the so called “Islamic Provisions” have been part and parcel of the Constitution of the Islamic Republic of Pakistan’s salient features thanks to the party in power.
So the way out is not ignoring certain sections of the constitution and crying foul that the judiciary has used one kind of law over the other (though it is no doubt upsetting to me) but to work to strengthen constitution and rule of law so that an elected legislature tomorrow may undo what has been done in the past. It certainly does not help that people like Dr. Ayesha Siddiqua have tried to reduce the issue to liberal and conservative divide and in her more recent column has had the audacity to argue that those applauding the judgment are all narrow nationalists who have it in for President Asif Ali Zardari. This after she failed to even articulate a single sentence when questioned about her article on a live TV show on Duniya TV.
Such sham arguments and shamelessness might win some people brownie points somewhere, but in the longer run it discredits forces of liberalism in Pakistan, especially when most liberals are not aligned with these few self appointed spokespersons for liberal thought. Only by treading the straight and narrow constitutional path – based on rule of law, equality of citizenship and the principle that justice is blind- will Pakistan one day emerge as a progressive democratic state. Remember the hold of religion on a democratic constitutional society can at best only be temporary for procedure and man-made constitutions have often trumped priests with a divine mission. So it shall be in Pakistan as well, for the final chapter of our history is not yet written.

NRO I: Void Ab Initio

2010-01-07T05:10:00.000-08:00

The Supreme Court of Pakistan has declared the controversial National Reconciliation Ordinance (“NRO”) void ab initio. This is a historical development in our judicial history from a jurisprudential point of view.
1. Quoting the Indian precedent of Indira Nehru Gandhi v. Raj Narain the learned counsel- Pakistan’s finest in my view- Salman Akram Raja argued that there could be no “legislative judgment”. Indian Supreme Court had declared null and void a proposed constitutional amendment introduced by the prime minister that stopped the judiciary from adjudicating on the validity of elections. The prime minister wanted the executive branch to determine how elections were to be administered in India. This contention has been accepted by the Pakistan Supreme Court. Now there may never a legislative judgement and this would have profound jurisprudential consequences. We will do well now to extend this logic to other issues which need not be repeated here but which have been discussed on PTH to death.
2. The court has ruled that this ordinance has been held to be violative of Article 4 of the constitution :
Right of individuals to be dealt with in accordance with law, etc.
(1)
To enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen, wherever he may be, and of every other person for the time being within Pakistan.
(2)
In particular :-
(a)
no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law;
(b)
no person shall be prevented from or be hindered in doing that which is not prohibited by law; and
(c)
no person shall be compelled to do that which the law does not require him to do.
3. The NRO has been declared violative of Article 8
Laws inconsistent with or in derogation of fundamental rights to be void.
(1)
Any law, or any custom or usage having the force of law, in so far as it is inconsistent with the rights conferred by this Chapter, shall, to the extent of such inconsistency, be void.
(2)
The State shall not make any law which takes away or abridges the rights so conferred and any law made in contravention of this clause shall, to the extent of such contravention, be void.
(3)
The provisions of this Article shall not apply to :-
(a)
any law relating to members of the Armed Forces, or of the police or of such other forces as are charged with the maintenance of public order, for the purpose of ensuring the proper discharge of their duties or the maintenance of discipline among them; or
[7]
(b)
any of the
(i)
laws specified in the First Schedule as in force immediately before the commencing day or as amended by any of the laws specified in that Schedule;
(ii)
other laws specified in Part I of the First Schedule;
and no such law nor any provision thereof shall be void on the ground that such law or provision is inconsistent with, or repugnant to, any provision of this Chapter.
(4)
Notwithstanding anything contained in paragraph (b) of clause (3), within a period of two years from the commencing day, the appropriate Legislature shall bring the laws specified in [8][Part II of the First Schedule] into conformity with the rights conferred by this Chapter:
Provided that the appropriate Legislature may by resolution extend the said period of two years by a period not exceeding six months.
Explanation :- If in respect of any law [9][Majlis-e-Shoora (Parliament)] is the appropriate Legislature, such resolution shall be a resolution of the National Assembly.
(5)
The rights conferred by this Chapter shall not be suspended except as expressly provided by the Constitution.

4. NRO is violative of Article 25
25.
Equality of citizens.
(1)
All citizens are equal before law and are entitled to equal protection of law.
(2)
There shall be no discrimination on the basis of sex alone.
(3)
Nothing in this Article shall prevent the State from making any special provision for the protection of women and children.
5. The NRO is violative of Article 62(f)
Qualifications for membership of Majlis-e-Shoora (Parliament).
A person shall not be qualified to be elected or chosen as a member of Majlis-e-Shoora (Parliament) unless :-
(f) he is sagacious, righteous and non-profligate and honest and ameen;
6. NRO is violative of Article 63 1 (p)
Disqualifications for membership of Majlis-e-Shoora (Parliament).
(1) A person shall be disqualified from being elected or chosen as, and from being, a member of the Majlis-e-Shoora (Parliament), if:- [(p) he has been convicted and sentenced to imprisonment for having absconded by a competent court under any law for the time being in force; or
7. NRO is violative of Article 175 of the constitution
175. Establishment and Jurisdiction of Courts.
(1) There shall be a Supreme Court of Pakistan, a High Court for each Province and such other courts as may be established by law.
(2) No court shall have any jurisdiction save as is or may be conferred on it by the Constitution or by or under any law.
(3) The Judiciary shall be separated progressively from the Executive within [159] [fourteen] years from the commencing day.

8. NRO is violative of Article 227 of the constitution
227. Provisions relating to the Holy Qur’an and Sunnah.
(1) All existing laws shall be brought in conformity with the Injunctions of Islam as laid down in the Holy Quran and Sunnah, in this Part referred to as the Injunctions of Islam, and no law shall be enacted which is repugnant to such Injunctions.[242] [Explanation:- In the application of this clause to the personal law of any Muslim sect, the expression "Quran and Sunnah" shall mean the Quran and Sunnah as interpreted by that sect.]
(2) Effect shall be given to the provisions of clause (1) only in the manner provided in this Part.
(3) Nothing in this Part shall affect the personal laws of non- Muslim citizens or their status as citizens.
Analysis:
This judgement lays down and reaffirms the following:
1. Equality of citizenship is supreme.
2. No class of people can be elevated or protected from law which shall apply equally to every citizen. Every class regardless of religion, caste, status, financial status etc shall enjoy similar or no immunities.
3. The Parliament may not tread upon the jurisdiction of the judiciary through legislative judgements passed from within the legislature.
4. Any laws which are not in conformity with Quran and Sunnah are to be struck down provided such an act shall not affect Non-muslims’ rights as citizens.
Fundamentally – this historical judgment which shall be quoted as precedent for many years to come regardless of its political fallout. Will it create the fundamental balance required for the federation of Pakistan based on democratic norms and equality of citizenship is yet to be seen. What is to be the future of President Zardari? Of particular concern should be 63 1 (p) which can amount to a challenge despite presidential immunity. Article 41 of the constitution puts a stop to all proceedings calling into question the election of the president but what if President Zardari was ineligible to hold office in the first place (bear in mind that president is subject to articles 62 and 63).
There is some concern shown by international opinion makers and journalists that this verdict might cause instability and prove to be a boon for the Taliban. I am afraid this is a very naive view to take. The populace’s faith in constitutional democratic process can only weaken the Taliban and not strengthen them.
As we peel the layers of this onion we must also realize that an unprecedented new situation has been created. Pakistan’s steelframe i.e. its military and civil bureaucracy now find it expedient to support the constitutional parliamentary democratic form for its best suits them under the circumstances. The fears of a “coup” are misplaced and overstated. There will be no direct coup by the military. It will continue however to be a player in the grand scheme.

Restraint Of Use Of Government Arms And State Emblems- Intellectual Property Law

2010-01-07T04:56:00.000-08:00

1. Section 103 of Trade Marks Ordinance, 2001 (hereinafter referred to as the ‘Ordinance’) deals with ‘Restraint of use of Government Arms and State emblems’,titles etc the relevant part of which reads as under:

Section 103: ‘Restraint of use of Government Arms and State emblems’—if a person, without due authority, uses in connection with any trade, business, calling or profession:

a) …………
b) …………

c) name, title and semblance of Quiad-i-Azam Muhamamd Ali Jinnah or Allama Dr. Muhamamd Iqbal or any variation thereof, or any device, emblem or title in such manner as to be calculated to lead to the belief that he is employed by, or supplies goods to, or is connected with, the Federal Government or any Provincial Government or any department or any such Government; or

d) ……………………………………

he may, at the suit of the Registrar or of any person who is authorized to sue such Arms, device, emblem or title, be restrained by injunction from continuing so to use the same:

…….emphasis added.

Sample Severability Clause For Commercial Agreements

2010-01-07T04:38:00.000-08:00

If any provisions of this Agreement shall be held to contravene or be invalid under the laws of Pakistan, such contravention shall not invalidate the entire Agreement, but shall be construed as if not containing the particular provision or provisions held to be invalid in Pakistan, or jurisdiction and the right or obligations of the parties hereto shall be construed and enforced accordingly.

Gratuity - A General View

2010-01-07T04:24:00.000-08:00

I received a query regarding the payment of gratuity under Pakistani Law. The relevant provision in Labor Law is Standing Order 12(6).

The employer has to either pay gratuity or contribute towards a provident fund or a pension fund. If there is a provident fund in existence where the employer pays equal to the contribution of the workman, there is no gratuity. The gratuity is equal to thirty days wages – gross- calculated on the basis of the last wages received if he is a fixed rate workman and/or the highest wage in the last twelve months if he is not, for every year of service.

For detailed opinion please contact me at yasser.hamdani@gmail.com.

The proposed abolition of the Federal Shariat Court

2009-01-27T23:47:00.001-08:00

Mutahidda Qaumi Movement i.e. MQM has introduced its constitutional amendment bill focusing predominantly on provincial autonomy which is- as the bill rightly points out in its statement of reasons and objectives- the cornerstone of the struggle that led to Pakistan. What is even more exciting is the proposed abolition of the Federal Shariat Court. This move shall restore to the Supreme Court of Pakistan its role as the arbiter in all matters and shall finally put FSC out of his misery.

As an alternative to the FSC, MQM proposes that Sharia related matters should be decided by a three judge bench both in the Supreme Court and the High Court out of which 2 judges should be Muslim. This step itself is revolutionary as it envisages a Non-Muslim judge presiding over sharia matters in toto. The FSC in contrast had 8 Muslim judges only. All in all this is an excellent piece of legislation that will go a long way in restoring to Pakistan some sanity.

LHC instructions on Succession Certificates

2009-01-25T09:08:00.000-08:00

SUCCESSION CERTIFICATES

Introductory.--

The following instructions are issued regarding the grant of certificates for the collection of debts on succession which previously were dealt with under the Succession Certificate Act, 1889. The provisions of that Act are now incorporated in the Succession Act, 1925.

2. Civil Judges empowered to grant certificates.-- All Civil Judges of the first and second class have been invested with the functions of a District Court for the purposes of granting succession certificates by Punjab Government Notification No.781, dated 15th July 1914, which continues to be in force--(vide General Clauses Act, 1897, section 24).

Forum of Appeal.-- Applications under Part X of the Succession Act, 1925, will usually be dealt with by Civil Judges and appeals from their orders granting, refusing or revoking certificates will lie to the District Judge. When a District Judge finds it necessary to deal with any application under the Act as an original Court the appeal will lie to the High Court under Section 384, sub-section (1) of the Act.

3. Turning to the procedure prescribed by the Act the following points should be borne in mind-
(a) Succession Certificate, etc., should be obtained by an heir for recovery of debts due to a deceased person.-- A Civil Court is prohibited in all cases from passing or executing a decree in a suit by or upon the application of a person claiming to be entitled to recover a debt or decree in favour of any person deceased, without the production of a probate or letters of administration, or a succession certificate granted under the Succession Act of 1889, or the Succession Act of 1925, or a certificate granted under the Administrator-General Act, III of 1913. In this connection attention is also drawn to the provisions of Order VII, Rule 4, of the Code of Civil Procedure, as to plaintiff's suing in a representative character. The grant of a probate, letters of administration or a succession certificate is not, however, an essential condition precedent to the institution of a suit, but the requisite probate, letters or certificate must be produced before the passing of a decree.
In the case of a Joint Hindu family when property passes by survivorship, no succession certificate is necessary (ef.,20 P.R., 1901)
(b) Definition of debt.-- The word "debt" as used in section 214, sub-section (1), is defined to include any debt except rent, revenue or profits payable in respect of land used for agricultural purposes. The prohibition imposed on the Civil Courts does not therefore extend to Revenue Courts when dealing with suits under these heads (section 214, sub-section (2) ).
Certificate for a fraction of the debt.-- There was a difference of opinion amongst the High Courts as to whether a certificate could be granted with respect to a fraction of a debt but now by Act XIV of 1928 grant of such a certificate is made legal.
(c) Application for a Succession Certificate to be signed and verified. Its contents.-- The particulars to be specified in an application for a certificate are specified in section 372, and every application requires to be signed and verified in accordance with the provisions of the Code of Civil Procedure applicable to plaints; and subsection (2) of this section prescribes the manner of dealing with allegations contained in the application which may be found to be false. As the application now partakes of the nature of a verified plaint, great care should be taken to insist on its being properly and concisely drawn up, and that it is complete in regard to the matters required by section 372.
(d) Manner of inquiry and security to be taken from the grantee of certificate.-- The proceedings in hearing applications may be summary to some extent, in that intricate questions of law and fact need not be gone into, the person having the best title prima facie being granted the certificate. At the same time, the court is not relieved of the obligation to hear the parties and take sufficient evidence to enable it to decide who is the person best entitled to a certificate, as well as all other points which may ordinarily be necessary to enable it to dispose of the petition. If the summary power conferred by section 373, subsection (3), is followed in any case, the court is bound to demand security from the person to whom it proposes to grant the certificate as a condition precedent to such grant.
(e) Objections to application. Procedure in case of several claimants for a certificate.-- Persons objecting to an application by another person can be heard without themselves becoming applicants, but every person opposing an application who claims a certificate for himself, must file a proper application in the manner prescribed by section 372. Every such application must be disposed of by a separate order; but the question of right to a certificate among several applicants will generally be most conveniently heard in a single proceeding between the contending parties;
(f) Points to be considered in deciding the cases of rival claimants.-- In deciding which of several applicants is entitled to a certificate, it is open to the court to consider the extent of interest and the fitness in other respects of the several applicants;
(g) Application and certificate to contain details of debts and securities. Extension and amendment of the certificate.-- The debts and securities in respect of which a certificate is applied for must be detailed at length in the application and also in the certificate and the certificate must be limited in terms to the debts and securities specified in the application and also in the certificate-[section 372, sub-section (1), clause (f) and section (374)]. At the same time, the court is empowered (by section 376) to extend the certificate, on the application of the holder thereof, to any debt or security not originally specified therein, and otherwise to amend the certificate (section 378).

4. Form and contents of certificate.-- The particulars required in the certificate are specified in section 374, and the forms are prescribed by section 377, and will be found in schedule VIII. Courts should be careful to see that certificates are properly framed and that all necessary particulars and powers are duly inserted in the first instance, so as to obviate the necessity for subsequent amendment of the certificate.

5. Requisition of security from grantee of certificate.-- It has already been pointed out that, in any case in which a court proposes to grant a certificate upon summary inquiry, without determining any intricate question of law or fact which may be involved, security must be taken under section 375, sub-section (1), from the person to whom it is proposed to grant a certificate before it is granted. The same remark applies to action under section 373, subsection (4), of the Act, namely, when there are more applicants than one for a certificate, and more than one of them are found to be interested in the estate. It is, however, open to the court to demand security in any other case.

6. Court-fees in cash on application for a certificate or for its extension.-- Attention is drawn to the provisions as to court-fees contained in section 379 of the Succession Act, 1925, as substituted by the West Pakistan Amendment Ordinance No.XXXI of 1965. Where the District Judge allows an application for the grant of a certificate or for the extension of certificate, he shall calculate the amount of court-fee payable under the Court Fees Act, 1870, on the certificate or the extension of certificate and shall not grant the certificate or the extension of the certificate until the Court-fee so calculated has been paid by the applicant.
The amount of court-fee should be calculated according to the law in force on the date of the application, and it is not affected by any subsequent change in the law.
No specific procedure for obtaining or sale of the court-fee by or to the applicants for the grant of succession certificates has been prescribed and the general procedure in this behalf has to be followed.

#[7. Conclusiveness of certificate.-- A succession certificate under the Act has effect throughout Pakistan (section 380).]

8. Revocation of certificate.-- Provision is made in section 383 for revoking #[Succession] Certificate on certain grounds which are specified.

9. Grant of Probate or Letters supersedes succession certificate.-- Under Section 215, a grant of Probate or Letters of Administration, supersedes a #[Succession] Certificate granted under Part X of the Succession Act, 1925, or under the Succession Certificate Act, 1889.

10. Decision in Succession Certificate proceedings does not operate as res judicata.-- By Section 387 of the Act, no decision, given in dealing with an application #[for the grant of a Succession Certificate] under the Act, upon any question of right between any parties, bars the settlement of the same question by a competent Civil Court.

11. Surrender of the certificate if it is invalid or has been superseded.-- By section 389, the holder of a Succession Certificate, which has been superseded or is invalid from any of the causes mentioned in section 386, is bound to deliver it up on being required to do so by the court which granted it and may be punished for wilfully or without reasonable cause omitting to do so.

Marriage between a Christian man and a Muslim woman

2009-01-17T07:57:00.000-08:00

By Yasser Latif Hamdani

Legal Query

Can Muslim woman and a Christian man get married in Pakistan? What family law would govern their marriage?

Legal Opinion

This is one of those grey areas in Pakistani law which needs to be considered in entirety. The supreme Pakistani law, the constitution of Pakistan 1973, gives every citizen of the Pakistan the freedom of religion (article 20) which includes the right to choose one's faith.

While the statutes are more or less silent, Karachi High Court in its judgment in the matter of Muhammad Ishaq Yaqoob v. Umrao Charli 1987 CLC 410 ruled that a marriage between a Muslim woman and a Non-Muslim man is "void ab initio and invalid". Exception under Hanafi Islamic Law may be made for Muslim men marrying Ahl-e-Kitab women.

The real question is whether there is a method to protract a secular marriage under civil law in Pakistan. It must be remembered that Pakistan after 1947 took a constitutional position repeatedly that all laws enforced before the creation of Pakistan- even if considered repugnant to Islam- shall remain enforced till they are repealed or amended by a Pakistani legislature. Therefore we must consider whether a citizen of Pakistan describing himself a Muslim is some how bound to follow the Islamic law of marriage. Section 1(2) of the Muslim Family Law Ordinance 1961 states: It extends to whole of Pakistan, and applies to all Muslim citizens of Pakistan, wherever they may be.

The only course of action for such a Muslim woman thus is to

1. either convert the Non-muslim man to Islam

2. To convert to the religion of the Non-Muslim man i.e. Christian

3. Declare that she is no longer a Muslim and contract a civil marriage as a Non-Muslim citizen of Pakistan.

This is purely a legal position and is not a comment on the fairness or unfairness of these laws.

Funds Appropriation

2009-01-17T07:48:00.000-08:00

By Yasser Latif Hamdani

We received a query which I am re-wording so as to not reveal anything confidential. A business concern received funding from a government organization for a project, logistics of which required purchase of equipment to be used for the purchase of certain equipment. The business concern obtained the equipment at a lower cost than previously anticipated. What happens to balance funds?

Legal Opinion:

Not knowing the exact nature of the agreement and/or binding legal commitments that you may have, I can only say that if a quotation was given to the government agency for the purchase of the equipment, then you are bound to return the balance amount to the government. However if the grant was for the project and did not specify amounts to be spent on equipment, funds may be retained provided that they are directed towards the project at hand.

Sample Force Majeure Clause for contracts under Pakistani law

2009-01-13T21:58:00.000-08:00

a. Neither Party hereto shall be liable for any breach of its obligations under this Agreement resulting from causes beyond its reasonable control, including but not limited to war, fires, insurrection, embargoes, ( each an "Event of Force Majeure').

b. As used herein the term “Force Majeure” shall mean and include but shall not be limited to any acts of God, explosion, fire, flood, drought or perils of the sea or air, explosion, sabotage, embargo, riot, civil commotion, war or other hostilities, governmental or parliamentary legislative acts, regulations or orders, suspension of any operations of Mobilink or any of its cell sites or other telecommunications equipment, or any other circumstance beyond the reasonable control of the delayed Party, and provided the Party delayed notifies the other Party without delay in writing of the beginning and end of any such circumstances. The Party delayed shall use every endeavour to minimize the hindrance or prevention of such fulfillment. Upon the ending of such circumstance, the delayed Party shall without delay resume the fulfillment of its obligations including any obligations the performance of which was interrupted thereby. The Parties do however acknowledge that no circumstances of Force Majeure exist as on Contract Effective Date. Should, however, a circumstance of Force Majeure uninterruptedly continue for over a period of more than forty-five (45) days, either Party has the right to terminate in writing this Agreement.

Incorporation of a Company under Companies' Ordinance 1984

2009-01-12T02:08:00.000-08:00

Step1.

Seek the availability of a name proposed for the company from the Registrar of Companies.
Time to complete:
1 day

Cost to complete:
PKR 200

The company may propose one or more names, in order of preference. The name should not be inappropriate, deceptive, or designed to exploit or offend any religion. It should neither be identical to nor have any close resemblance to any existing company name. The availability of the name can be checked online by searching existing company names. Certain guidelines prohibit the association of the company name with state sponsorship with the national leaders and the like. The official confirmation (or denial) of the name availability is received by email in 24 hours. This confirmation satisfies name search requirements if the name search fee of PKR 200 is paid into the bank account of the regulatory authority.

Step 2.

Pay the fee for procedures 1, 3, and 4, and obtain bank receipt/ copy of treasury challans

Time to complete:
1 day

Cost to complete:
no charge

The company pays stamp duty to the provincial government. A copy of the original treasury challan in the amount of the registration and filing fee must be deposited with the Habib Bank Ltd. or the State Bank of Pakistan. The amount is payable under the following headings and account numbers at the stated banks: - Account 1200000, Receipts from civil administration and other functions. - Account 1210000, Receipts from general administration. - Account 1213400, Economic regulations (receipts under the companies ordinance). The company picks up the treasury challan forms at the bank counter and completes them for payment purposes, pays the amount due to the official accounts, and obtains a copy of the form. The bank sends another copy to the relevant departments.

Step 3.

Obtain stamp paper on which the Declaration of Compliance will be drafted

Time to complete:
1 day

Cost to complete:
PKR 100

Formerly, the original copy of the memorandum and articles of association had to be stamped according to the Stamp Act of the relevant province of Pakistan in which the company proposed to be registered. Stamp duties vary from province to province. The Stamp Act prescribes the adhesive stamps to be affixed to the first page of the documents before they are executed. The unsigned copy of the memorandum and articles of association is submitted to the Stamp Office of the relevant provincial government agency with the proof of payment to the Treasury bank account. The documents are returned, duly stamped, the same afternoon. The following fees are paid in Sindh: - Memorandum of association without articles of association: PKR 2,000. - Memorandum of association with articles of association: PKR 1,000 if authorized capital is less than PKR 500,000; PKR 2,000 if authorized capital is more than 500,000: Under the Sindh Finance Act, 2006, since July 2006 the rates of stamp duty for the memorandum and articles of association for the Provinces of Punjab, Sindh, Balauchistan, and the Northwest Frontier Provice have been rescinded. However, under the Stamp Act, the fee of PKR 100 for the declaration of compliance on nonjudicial stamp paper still applies.

Step 4.

Time to complete:
3 days

Cost to complete:
registration fee + PKR 200, filing fee per document, 4 documents + PKR 50 for the Certificate of Registration
The following company incorporation documents are required for a private company: - Form-1, Declaration of compliance. - Form-21, Identifying the location of the office. - Form-29, Particulars of directors, secretary, chief accountant, auditors, and others. Note: Form 1 is to be signed by (a) an advocate entitled to appear before any High Court in Pakistan or the Supreme Court; (b) a qualified chartered accountant (member of ICAP or ICMAP) practicing in Pakistan, or (c) a person named in the articles of association as a director or other officer. Also to be submitted with these documents are the subcriber’s national identity card and four copies of the memorandum and articles of association, with the signature of each member (in presence of a witness) and with a special stamp affixed. It is not mandatory to hire a lawyer or accountant to incorporate a company, but doing so is generally preferred for ease of accomplishment. Any initial subscriber to the memorandum of association has to declare that all the formalities of company incorporation are completed before the certificate of incorporation is issued. The fee of incorporation was reduced recently. Fee schedule for company registration: - Nominal share capital under or at PKR 100,000: fee is PKR 2,500. - Nominal share capital over PKR 100,000: fee is PKR 2,500, along with an additional fee to be determined based on every PKR 100,000, or part thereof, of nominal share capital. The additional fee is PKR 500 for the first PKR 100,000 up to PKR 5,000,000 and PKR 250 after the first PKR 5,000,000. In any case, the total company registration fee must not exceed PKR 10 million.

Step 5.

Make a company seal

Time to complete:
2 days

Cost to complete:
PKR 1000

The company seal is prepared after the certificate of incorporation is obtained. It is affixed on significant documents according to the provisions of the articles of association.

Step6.

Apply for a national tax number (NTN) and register for income tax.

Time to complete:
2 days

Cost to complete:
no charge

Companies can check the status of their national tax number (NTN) within 24 hours of application. Since 2002, NTN are issued with a continuous valid term. Companies no longer need to renew their NTN. Income tax is paid on filing the return, which is due in 6 months from the end of the company’s financial year (usually in June). In addition, the Income Tax Department charges a fee of 2.5% for the workers welfare fund at the time of its income tax assessment. The company is also supposed to act as a tax withholding agent for the state and deduct and deposit tax on most payments made in connection with its business activities. For this purposes, the company must file monthly returns with the tax authorities. Every company must obtain the NTN by providing proof of registration, the memorandum and articles of association, the bank account number, the NTN of its directors, and an attestation of the registered business address. All required documents must be submitted to a station by a Class-I of Gazette Officer or an officer of a bank. A company can start its business activities without first obtaining the NTN, but the number is generally required by all the registering authorities: Chambers of Commerce, the Import-Export Regulatory Authority, the utility authority, and the like. The NTN branch (centralized for the entire country) at Islamabad allots a uniform number. The required form, along with the duly-verified documents must be submitted to the same NTN Center after the company is incorporated. The center quickly processes the application and issues the NTN in a week. The certificate is sent to the applicant’s registered address. If it is not delivered at the postal address, it can be obtained from the NTN center over the phone, and its status is communicated instantly. If undelivered, the NTN certificate can be collected from the specified office of the Central Board of Revenue (distinct from the NTN Center).

Step 7.

Time to complete:
12 days

Cost to complete:
no charge

The Central Board of Revenue (CBR) has simplified the registration process for sales tax by providing two methods to file Form ST-1: 1) Complete Form ST-1 and file it by courier with the registration wing of the Sales Tax Directorate. Application forms may be downloaded at www.cbr.gov.pk. 2) Complete Form ST-1 at a local registration office. The form is available at all facilitation counters of local registration offices. To ensure that applicants can monitor the process, applications must be sent by mail with acknowledgment of return receipt due. The same procedure must be followed for deregistration (Form ST-3) and for change of registration (Form ST-2). The local registration office sends the completed application forms to the Central Registration Office in the CBR. Note that the forms must be completed in capital letters with black ink. In either case, there is no need to enclose additional documents with the application form. The Central Registration Office, with online access to the NTN database and the National Database and Registration Authority(NADRA) database, must verify the details the application with database. On verification, the Central Registration Office must generate and issue a registration certificate to the applicant. The system was designed so that it can correct minor mistakes automatically without bothering the taxpayers. Registration status may be checked online at http://www.cbr.gov.pk/.

Step 8.

Time to complete:
7 days (simultaneous with the previous procedure)

Cost to complete:
no charge

In practice, taxpayers do not usually register for the tax voluntarily unless the tax authority prompts them to do so. Companies are not charged local taxes except for professional taxes. A manufacturer owning fixed assets might have to pay certain local levies on its fixed assets. There is no registration for the latter. Professional tax is an annual tax and is paid irrespective of paid up capital or turnover in smaller companies. The department generally obtains the list from the Registrar for the issuance of payment challans. Before a challan is issued, a pro forma notice is served to the company, asking for details used for the assessment. There are no registration fees for the professional tax, which is not deducted at the source but rather paid into the bank account of the concerned department after assessment and issuance of the challan.

Step 9.

Time to complete:
11 days (simultaneous with the previous procedure)

Cost to complete:
no charge

Employment tax or social security registration is not mandatory but is subject to notification in the Official Gazette. The Social Security Institute (SSI) is managed by the provincial government and levies employers, whether incorporated or not, at 7% of wages, up to PKR 3,000 per month. According to the Workers’ Children (Education) Ordinance of 1972 if at any one time during a year an employer employs 10 or more employees, it must pay to the provincial government an education cess of PKR 100 per worker per year. The levy is used to provide free education for two children of every worker employed by the company.

Step 10.

Time to complete:
11 days (simultaneous with the previous procedure)

Cost to complete:
no charge

The provisions of the Employees’ Old-Age Benefits Act, 1976, automatically apply to every industry or company in which 10 or more persons are employed by the employer, directly or through any other person, or were so employed on any day during the preceding 12 months. The act shall continue to apply to every such industry or company even if the number of persons employed by the company is, at any time after the act becomes applicable to it, reduced to fewer than 10. The per-month contribution was increased to PKR 240 for employers and PKR 40 for employees as of July 1, 2006, as announced by the government in Finance Act, 2006. This increase resulted from the increase in the minimum wage from PKR 3,000 to PKR 4,000.

Step 11.

Time to complete:
7 days (simultaneous with the previous procedure)

Cost to complete:
PKR 10

Registration of establishment and fee for registration: (1) Every establishment, other than a one man shop, and factories employing clerical staff within the factory premises, shall be registered with the Deputy Chief Inspector for the area within which such establishment is situated. For the purposes of this section, a one-man shop means a shop run by an employer or by any member of his family without engaging an employee. (2) An application for the registration of an establishment shall be made by the employer on Form A and shall be accompanied by a Treasury challan under Head [9][XXXVI-Miscellaneous Departments-G-Miscellaneous-(S)-Receipts under the West Pakistan Shops and Establishments Ordinance of1969] for an amount depending on the number of workers. - 1 to 5 workers: fee is PKR 2. - 6 to 10 workers: PKR 3 - 11 to 20 workers: PKR 5. - More than 20 workers: PKR 10. (3) An application for establishment registration shall be made within 3 months of the ordinance coming into force (for establishments existing at the time) and within 2 months of setting up the establishment or the application of the ordinance to it (if an establishment is set up after the ordinance comes into force or if the provisions of the ordinance are subsequently applied to it). (4) On receipt of the application and the fees specified in Subsection 2, the Deputy Chief Inspector shall, on being satisfied about the correctness of the application, register the establishment in the Register of Establishments to be maintained in Form B and shall issue a registration certificate to the employer in Form C. (5) The registration certificate shall be prominently displayed by the employer at the establishment and shall be renewed every 2 years on depositing the fee prescribed in Subsection 2.

Law of charitable foundations in Pakistan

2009-01-12T02:04:00.000-08:00

By Binish Razi (solicitor) and Yasser Latif Hamdani esq.

This opinion covers the benefits and legal requirements of establishing a charitable foundation.

In general, a charity is an organization established for humanitarian purposes. It may make a profit but all profits should be applied in furthering the charitable purpose of the organization. The owners, members, trustees or other private persons who may control or influence the organization may not use the profit of the charitable organization for their personal gain.

Benefits

The benefits of establishing and registering a charitable foundation/Non-Profit Organization under Pakistani law, are three fold:

(a) Tax Exemption for all activities under Income Tax Ordinance 2001 and Income Tax Rules 2002.
(b) Tax Exemption for the donors vis a vis donations made to such a foundation/NPO.
(c) Some of the various laws that deal with the issue confer the status of artificial legal person to the organization and hence the assets owned by such an organization shall be held in perpetuity and recognition as a bona fide foundation.

These are in addition to the benefits gained from Corporate Social Responsibility (e.g. good public relations, competitive edge, good reputation, employee participation and retainership).

Process and order

In order to gain all the benefits outlined in section 3 above, the setting up of the charitable foundation should be taken as a two-stage process.

First a charity/foundation is registered under any of the relevant laws detailed in section 5 below.

Second the same charity/foundation applies on a separate application form for approval as a non profit organization and tax exemption under the relevant Income Tax laws detailed in section 6 below.

An erroneous assumption is that once a charitable foundation is registered, it is automatically registered with the CBR. This is wrong and requires careful consideration.

Legal requirements/relevant laws

The various laws that deal with charitable foundations/non-profit organizations may be broadly classified into these categories:

Those that require registration and are relevant to us are as follows:

(a) Companies Ordinance 1984 - In the purview of Section 42, the Ordinance allows a company to be incorporated for objectives such as Charity, Commerce, Sport, Religion, Education, Culture, Arts and any other socially useful purpose.

(b) Trusts Act 1882 Public Charitable Trusts may be set up under this by executing a trust deed, registerable under Trust Act 1908.

(c) Societies registration Act 1860 i.e. Societies, Associations, Clubs etc are all registered under this. Fine Arts, Science, Museums, Libraries, educational endeavors, think tanks etc may all be registered under these.

(d) Voluntary Social Welfare Organizations Ordinance 1961 covers the welfare of the disadvantaged members of society women, children, oppressed religious and ethnic minorities and other backward classes of people , delinquents, handicapped people, beggars, destitute and poor, senior citizens, socially handicapped people or for parents education, social welfare in general etc.

Others that – mostly irrelevant to our particular situation- recognize certain kinds of

(e) Charitable and Religious Trusts Act 1920
(f) Musalman Wakf Act and the two Musalman Wakf Validating Acts 1923, 1913 and 1930 respectively
(g) Charitable Endowments Act

Nonprofit Organizations in Pakistan may be registered or incorporated by adopting any one of four forms, namely, society, trust, nonprofit company with limited liability, and social welfare agencies.

A. Societies Registration Act 1860

A society may be established under the Societies Registration Act, 1860, if seven or more persons join together of whom at least three must be the members of the Managing Committee. To establish a society a Memorandum and Rules and Regulations of Association must be printed. These documents must contain clauses which not only state the objectives for which the society is being established, but also how it will operate. This is considered to be one of the more lenient Acts with respect to registration requirements and to accounting and audit regulations.

The Memorandum of Association must include the following:

The name and registered address of the society.
The names, addresses and occupation of each present member of the Managing Committee.
Rules and Regulations of the society or Articles of Association duly signed by all office bearers.
In the case of an educational society, the academic certificates of all the subscribers must be produced.
Copies of the National Identity Cards of the office bearers.
Rent agreement of the office premises.

In addition to the Memorandum of Association, the Rules and Regulations for governing the society must be set out and filed with the Registrar of Societies. The Rules and Regulations, certified by not less than 3 members of the Managing Committee, must contain obligatory clauses relating to:

Membership
General Body and Managing Committee
Meetings and quorum
Notices for meetings
The manner of elections and removal of officers
Procedures relating to accounting and audit
Dissolution

B. Trusts Act 1882

A trust is a ‘gift’ of property to a person or institution providing benefit to both parties. In order to create a trust it is necessary that there should be a creator or author of the trust, a person in whom confidence is reposed, i.e. the trustee, and a person for whose benefit the trust is created i.e. the beneficiary. Beneficiaries cannot be specific individuals, but must be society generally or a particular section or class of society.

A trust is established under the Trusts Act, 1882. For this type of trust, the three conditions of a creator, trustee and beneficiary being present, are unconditional requirements. A public charitable trust is a trust which is established for the benefit of the society or at least a certain section of society. There are no particular laws relating to public trusts. However, the rules in the Trust Act of 1882 can be applied to the public and charitable trusts. In the case of public charitable trusts, the conditions governing private trusts are equally important. However, if the objectives are not clear, unlike the private trusts, these trusts would be sustained as long as there is an intention of charity.

There must be some trust property, whether in cash or capital assets (land or buildings)
The objectives of the trust must be charitable or for the benefit of society

The application for the registration of trust requires the following:

Particulars of documents creating the trust.
Particulars of the trustees and the beneficiaries.
Details of what the trust property is going to be. There is no minimum value of property for starting a trust. If the property is an immovable property then the transfer deed shall be on a stamp paper on the value of the property and it shall be registered.
Preparation of the trust deed, that is, i.e. declaration of having created a public charitable trust.

C. Companies Ordinance 1984

A nonprofit company is registered under Section 42 of the Companies Ordinance, 1984 as a public company with limited liability provided it meets the following criteria:

It directs, or it intends to direct its profits, if any, or any other form of income from the business carried out, in advancing its objectives.
It disallows the payment of any return to its members.

Registration is done through the SECP.

5. Approval of a Non-Profit Organisation

This section examines the income tax benefits of setting up a non-profit organisation. The references to the “Ordinance” and the “Rules” in this section shall mean the Income Tax Ordinance 2001 and the Income Tax Rules 2002 respectively.

The definition of “non-profit organization” is contained in Clause 36 of Section 2 of the Ordinance:

“2(36) “non profit organization” means any person

a) established for religious, charitable or educational purposes or for the promotion of amateur sport;
b) which is registered under any law as a nonprofit organization and in respect of which the Commissioner has issued a ruling certifying that the person is a nonprofit organization for the purposes of this Ordinance; and
c) none of the income or assets of the person confers, or may confer a private benefit on any other person.”

A. Tax Benefits

Charities approved by the Commissioner of Income Tax are exempt from the levy of minimum tax of 0.50% of their turnover.

Charitable donations, both in cash or in kind, entitle the donor to a tax credit (tax rebate) against its tax liability (subject to certain conditions).

The following heads of income are exempt from tax for any trust or charitable organisation established under any legal obligation (e.g. Muslim Waqf, Societies Registration Act 1860, Charitable Endowments Act 1890, the Social Welfare Agencies (Registration and Control) Ordinance 1961 or the Companies Ordinance 1984). The exemptions are applicable to the extent the monies are actually applied or set apart for application to the religious or charitable purposes of such organisation in Pakistan:

(a) Voluntary contributions including donations and subscriptions.

(b) Grants received from Federal, Provincial or District Governments.

(c) Foreign grants.

(d) Income from property.

(e) Profits on investments in the securities of the Federal Government.

(f) Profit on debt from scheduled banks.

B. Registration as a Non-Profit Organisation

In order to get approval from the Commissioner of Income Tax pursuant to the Ordinance an application must be made in the prescribed form (detailed in Rule 211) and the application form must be signed by the President or Secretary of the organisation.

The documents required to be submitted along with the application form are as follows:

(a) a duly attested copy of the constitution, memorandum and articles of association, rules and regulations or bye-laws;

(b) a certified copy of the registered trust deed, in case of a Trust;

(c) a certified copy of certificate of registration of welfare organisation;

(d) duly attested copies of the balance sheet and of revenue accounts of the organisation as audited by a qualified accountant for the year immediately preceding the year in which the application is made;

(e) the names and addresses of the promoters, directors, trustees, president, secretary, treasurer, manager and other office bearers, as the case may be, of the organisation, and indicating clearly their family relationships, if any, with each other;

(f) an evaluated and certified report with regard to the performance of the organisation for achieving its aims and objects during the preceding financial year preceding the date on which application is made. This can be done by the Philanthropy Centre of Pakistan or the concerned Commissioner of Income Tax.

In addition, the constitution, memorandum and articles of association, trust deed, rules and regulations or bye-laws, as the case may be, must conform(s) to the provisions of sub-rule (1) of rule 213. This requires the following:

(a) for the audit of the annual accounts of the organisation every year by a qualified accountant;

(b) for welfare organisations other than Trusts for the quorum of a meeting of the members of the body to be not less than four or one-third of the total number of the members of such body, whichever is greater;

(c) where the organisation is a Trust as defined in the Trust Act, 1882, for the quorum of a meeting of the members to be not less than three or one-third of the total number of the members of such a body, whichever is greater;

(d) for the transfer of its assets, in the event of its dissolution, after meeting all liabilities, if any, to another organisation which is an approved non-profit organisation, within three months of the dissolution under intimation to the Commissioner;

(e) for the utilisation of its money, property or income or any part thereof solely for promoting its objects;

(f) for prohibiting any portion of its money, property or income being paid or transferred directly by way of dividend, bonus or profit to any of its members or the relative or relatives of a member or members;

(g) for the maintenance of accounts of the organisation being kept in a scheduled bank or in a post office or national savings organisation, National Bank of Pakistan or nationalised commercial banks;

(h) for prohibiting the making of any changes in the constitution, memorandum and articles of association, trust deed, rules and regulations or bye-laws, as the case may be, without the prior approval of the Commissioner; and

(i) for restricting the surpluses or monies validly set apart, excluding restricted funds, upto twenty-five per cent of the total income of the year:

Provided that such surpluses or monies set apart are invested in Government securities, NIT units, a collective investment scheme authorized or registered under the Non-Banking Finance Companies (Establishment and Regulation) Rules, 2003, mutual fund, a real estate investment trust approved and authorized under the Real Estate Investment Trust Rules, 2006, or scheduled banks:

Explanation: For the purposes of the Rules, “restricted funds” mean any fund received by the organization but could not be spent and treated as revenue during year due to any obligation placed by the donor.

On receipt of the application, the Commissioner may make such inquiries or call for such further information as the Commissioner may deem necessary and after completion of formalities may approve the organization for the purpose of clause (36) of section 2 of the Ordinance.

The Commissioner may refuse to approve the organisation if the Commissioner is satisfied that the organisation -

(a) has been or is being used for personal gain of any particular person or a group of persons;

(b) has been propagating the view of a particular political party or a religious sect;

(c) has been or is being managed in a manner calculated to personally benefit its members or their families; or

(d) has not been or will not be able to achieve its declared aims and objects in view of its set up, administration or otherwise as evaluated and certified by an independent certification agency.

The Commissioner of Income Tax will finalise applications within two months of receipt of the application.

C. On-going obligations of Non-Profit Organisations

(a) To file a Return of Income with specified attachments;

(b) To collect, deduct, withhold tax at source;

(c) After every three years to provide an evaluation and certified report on its performance and achieving its aims and objects during the three preceding financial years/

Companies Ordinance 1984 Amendment

2009-01-11T22:52:00.000-08:00

The declining trend in the Securities Market and the consequent reduction in the value of the shares of listed companies provides an opportunity to them to buy-back their own shares.Therefore, on an initiative and proposal of the Securities and Exchange Commission of Pakistan (SECP), section 95A of the Companies Ordinance, 1984 has been amended vide Companies (Amendment) Ordinance, 2009 to enable the listed companies to buy-back their own shares and hold them as treasury shares. Previously the Companies Ordinance permitted the listed companies to buy-back their own shares, however, the purchased shares had to be cancelled forthwith resulting in the reduction of the paid-up capital of the company. After the latest amendment, the listed companies can buy-back their own shares and hold them as treasury shares, which can then be re-issued/resold in the manner to be prescribed by the SECP in the regulations.According to the amended section 95A, the decision to buy-back the shares is required to taken by the board of directors as well as three-fourth of the members who are present and entitled to vote in a general meeting of the company. The decision shall clearly specify the number of shares proposed to be purchased, purpose of purchase i.e. cancellation or holding the shares as treasury shares, the purchase price, period within which purchase shall be made, source of funds, justification for the purchase and effect on the financial position of the company.The shares can be purchased either through tender process or through the stock exchange in the manner to be prescribed by the regulations. The law also provides that the purchase shall always be made in cash and only out of the distributable profits or reserves specially maintained for the purpose by the company. Importantly, it also provides that the voting rights and the right to receive dividend of the shares so purchased shall remain suspended as long as the company itself holds them as treasury shares. A hefty fine of up to thirty million rupees has been provided for violation of the law in addition to liability for any losses or damages caused by such violation.It is expected that listed companies which feel that their shares are under-valued at the stock market and have cash reserves available with them will grab the opportunity to buy-back their shares. In case the shares are cancelled after purchase, the earning per share of companies will be improved. If they are retained as treasury shares, they can be resold at a higher price later. In any case the purchase will bring stability in market price of such shares.SECP is preparing regulations for this purpose, which shall be notified in the Official Gazette for seeking public opinion during the coming week

Courtesy Daily Times http://www.dailytimes.com.pk/default.asp?page=2009%5C01%5C11%5Cstory_11-1-2009_pg5_2

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2009-01-11T22:42:00.000-08:00

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Muslim Family Law Ordinance 1961

2009-01-11T22:36:00.000-08:00

(VIII OF 1961)
An Ordinance to give effect to certain recommendations of the commission on marriage and Family Laws.
Whereas it is expedient to give effect to certain recommendation of the commission on Marriage and Family Laws.

Now, therefore in pursuance of the proclamation of the seventh day of October 1958, and in exercise of all powers enablinghim in this behalf, the President is pleased to make and promulgate the following Ordinance:-

1. Short title, extent, application and commencement(1) This Ordinance may be called the Muslim Family Laws Ordinance, 1961.(2) It extends to whole of Pakistan, and applies to all Muslim citizens of Pakistan, wherever they may be.(3) It shall come into force on such date as the Federal Government may, by notification in the official Gazette, appoint in this behalf.

2. Definition(a) “Arbitration Council” means a body consisting of the Chairman and a representative of each of the parties to a matter dealt with this Ordinance:
Provided that where any party fails to nominate a representative within the prescribed time, the body formed without such representative shall be the Arbitration Council.
(b) “Chairman” means the Chairman of the Union Council or a person appointed by the Federal Government in the Cantonment areas or by the Provincial Government in other areas or by an Officer authorised in that behalf by any such Government to discharge the functions of chairman under Ordinance:Provided that where the Chairman of the Union Council is a non-Muslim, or he himself wishes to make an application to the Arbitration Council, or is, owing to illness or any other reason, unable to discharge the functions of Chairman, the Council shall elect one of its Muslim members as Chairman for the purposes of this Ordinance.
(c) “Prescribed” means prescribed by rules made under Sch. II.
(d) “Union Council” means the Union Council or the Town or Union Committee constituted under the Basic Democracies Order, 1959 and having jurisdiction in the matter as prescribed.
(e) “Ward” means a ward within a Union or Town as defined in the aforesaid Order.

3. Ordinance to override other laws, etc.(1) The provisions of this Ordinance shall have effect notwithstanding any law, custom or usage, and the registration of Muslim marriages shall take place only in accordance with these provisions.(2) For the removal of doubt, it is hereby declared that the provisions of the Arbitration Act, 1940 (X of 1940), the Code of Civil Procedure 1908 (Act V of 1908), and any other law regulating the procedure of Courts shall not apply to any Arbitration Council.

4. Succession.In the event of death of any son or daughter of the propositus before the opening of succession, the children of such son or daughter, if any, living at the time the succession opens, shall per stripes, receive a share equivalent to the share which such son or daughter, as the case may be, would have received if alive.

5. Registration of marriage.(1) Every marriage solemnized under Muslim Law shall be registered in accordance with the provisions of this Ordinance.(2) For the purpose of registration of marriage under this Ordinance, the Union Council shall grant licenses to one or more persons, to be called Nikah Registrars, but in no case shall more than on Nikah Registrar be licensed for any one Ward.(3) Every marriage not solemnized by the Nikah Registrar shall, for the purpose of registration under this Ordinance be reported to him by the person who has solemnized such marriage.(4). Whoever contravenes the provisions of such-section (3) shall be punishable with simple imprisonment for a term which may extent to three months, or with fine which may extend to one thousand rupees, or with both.(5). The form of nikahnama, the registers to be maintained by Nikah Registrars, the records to be preserved by Union Councils, the manner in which marriage shall be registered and copies of nikhanama shall be supplied to parties, and the fees to be charged thereof, shall be such as may be prescribed.(6) Any person may, on payment of the prescribed fee, if any, inspect at the office of the Union Council the record preserved under sub-section (5), or obtain a copy of any entry therein.

6. Polygamy.(1) No man, during the subsistence of an existing marriage, shall except with the previous permission in writing of the Arbitration Council, contract another marriage, nor shall any such marriage contracted without such permission be registered under this Ordinance.(2) An application for permission under Sub-section (1) shall be submitted to the Chairman in the prescribed manner together with the prescribed fee, and shall state reasons for the proposed marriage, and whether the consent of existing wife or wives has been obtained thereto.(3) On receipt of the application under Sub-section (3), Chairman shall ask the applicant and his existing wife or wives each to nominate a representative, and the Arbitration Council so constituted may, if satisfied that the proposed marriage is necessary and just, grant, subject to such condition if any, as may be deemed fit, the permission applied for.(4) In deciding the application the Arbitration Council shall record its reasons for the decision and any party may, in the prescribed manner, within the prescribed period, and on payment of the prescribed fee, prefer an application for revision, to the Collector concerned and his decision shall be final and shall not be called in question in any Court.(5) Any man who contracts another marriage without the permission of the Arbitration Council shall,(a) pay immediately the entire amount of the dower whether prompt or deferred, due to the existing wife or wives, which amount, if not so paid, shall be recoverable as arrears of land revenue; and(b) on conviction upon complaint be punishable with the simple imprisonment which may extend to one year, or with fine which may extend to five thousand rupees, or with both.

7. Talaq.(1) Any man who wishes to divorce his wife shall, as soon as may be after the pronouncement of talaq in any form whatsoever, give the chairman a notice in writing of his having done so, and shall supply a copy thereof to the wife.(2) Whoever, contravenes the provisions of sub-section (1) shall be punishable with simple imprisonment for a term which may extend to one year, or with fine which may extend to five thousand rupees, or with both.(3) Save as provided in sub-section (5) talaq, unless revoked earlier, expressly or otherwise, shall not be effective until the expiration of ninety days from day on which notice under sub-section (1) is delivered to the Chairman.(4) Within thirty days of the receipt of notice under Sub-section (1), the Chairman shall constitute an Arbitration Council for the purpose of bringing about a reconciliation between the parties, and the Arbitration Council shall take all steps necessary to bring about such reconciliation.(5) If the wife be pregnant at the time talaq is pronounced, talaq shall not be effective until the period mentioned in Sub-section (3) or the pregnancy, whichever later, ends.(6) Nothing shall debar a wife whose marriage has been terminated by talaq effective under his section from remarrying the same husband, without an intervening marriage with a third person, unless such termination is for the third time so effective.

8. Dissolution of marriage otherwise than by talaq.Where the right to divorce has been duly delegated to the wife and she wishes to exercise that right, or where any of the parties to a marriage wishes to dissolves the marriage otherwise than by talaq the provisions of section 7 shall, mutatis mutandis and so far as applicable, apply.

9. Maintenance.(1) If any husband fails to maintain his wife adequately, or where there are more wives than one, fails to maintain them equitably, the wife, or all or any of the wives, may in addition to seeking any other legal remedy available apply to the Chairman who shall constitute an Arbitration Council to determine the matter, and the Arbitration Council may issue a certificate specifying the amount which shall be paid as maintenance by the husband.(2) A husband or wife may, in the prescribed manner, within the prescribed period, and on payment of the prescribed fee, prefer an application for revision of the certificate, to the Collector concerned and his decision shall be final and shall not be called in question in any Court.(3) Any amount payable under Sub-section (1) or, (2) if, not paid in the due time, shall be recoverable as arrears of land revenue.

PUNJAB AMENDMENTIn sub-section (2), the full-stop occurring at the end shall be replaced by a colon and thereafter the following proviso shall be added, namely:Provided that the Commissioner of a Division may, on an application made in this behalf and for reasons to be recorded, transfer an application for revision of the certificate from a Collector to any other Collector, or to a Director, Local Government, or to an Additional Commissioner in his Division. [Ord. II of 1975, Section 2].

10. Dower.Where no details about the mode of payment of dower are specified in the nikahnama or the marriage contract, the entire amount of the dower shall be presumed to be payable on demand.

11. Power to make rules.(1) The Government may make rules to carry into effect the purposes of this Ordinance.(2) In making rules under this section, such Government, may provide that a breach of any of the rules shall be punishable with simple imprisonment which may extend to one month, or with fine which may extent to two hundred rupees, or with both.(3) Rules made under this section shall be published in the official Gazette and shall thereupon have effect as if enacted in this Ordinance.

12. Amendment of child marriage restraint act, 1929 (xix of 1929). Omitted by Ord. 27 of 1981.

13. Amendment of the dissolution of muslim marriages act, 1939 (viii of 1939). Omitted by Ord. 27 of 1981