He made the observation after the federal and Khyber Pakhtunkhwa governments failed to enact a law regarding the customary practice of “ghag” under which a man can lay claim to a woman for marriage.

A division bench comprising the chief justice and Justice Irshad Qaiser again directed the Khyber Pakhtunkhwa government to table a bill on “ghag” in the provincial assembly for legislation and to make this act punishable offence or else the court would enact law for ending the crime in the society.

The bench also directed secretary, Law Division, Islamabad and secretary Law, Khyber Pakhtunkhwa to appear in the court at the next hearing and submit their written opinion on the issue.

The chief justice expressed concern over the error made by the consultant of law department in the proposed bill for laws against “ghag”. He found that in the bill the parents of the girl were mentioned as the accused instead of accusing those who forcibly used “ghag” for their purpose.

Terming it a blunder, he asked the law department to take the matter seriously. During the course of hearing, the chief justice observed that a very serious anomaly had been made in Article 142 of the Constitution after 18th Amendment as clauses B and C of the article presented conflicting view regarding legislation in criminal laws. “In the abovementioned clauses of Article 142 of the Constitution, powers of legislation in criminal laws were given to both the provincial and national assemblies but further breakdown was not mentioned,” he argued.

The chief justice observed that a lot of confusion had been created by the inconsistent clauses of Article 142 of the Constitution that were added in the 18th Amendment.The bench put on notice the federal government through attorney general and the Khyber Pakhtunkhwa government through advocate general to explain and clear the confusion created in the Constitution after the 18th Amendment regarding legislation in criminal laws.

“Why the government avoids declaring this detestable act as punishable offence? Why the rulers don’t legislate for preventing this un-Islamic and unlawful act when everyone including scholars, politicians, civil society members and parliamentarians are against this customary practice?” the chief justice told Deputy Attorney General Muhammad Iqbal Mohmand and Additional Advocate General Lal Jan Khattak, who were representing the federal and provincial governments in the cases.

The bench was hearing two writ petition, one filed by a father who sought help from the high court to save his two minor daughters from becoming victims of the decision of a local jirga based on “ghag”.