Provincial assembly of the North-West Frontier Province
Whereas sovereignty over the entire universe belongs to Almighty Allah alone and the authority to be exercised by the people of Pakistan through their chosen representatives within the limits prescribed by him is a sacred trust;
And whereas implementation of Islamic way of life revolves around Amer-Bil-Maroof and Nahi-Anil-Munkir and to achieve this objective it is necessary, apart from other steps, to establish an institution of accountability, which could keep a watch on securing legitimate rights of various classes of the society, including females, minorities and children and to protect them from emerging evils and injustices in the society;
And whereas it is further necessary from the accountability point of view to extend the authority of Mohtasib to government’s administration and offices in order to have a check upon injustices, abuse of powers and other similar excesses;
It is hereby enacted as follows:
1: Short title, extent and commencement—(1) This Act may be called the North-West Frontier Province Hisba Act, 2005.
(2) It shall extend to whole of the North-West Frontier Province.
(3) It shall come to into force at once.
2: Definitions.—In this Act, unless the context otherwise requires,—
(a) “Agency” means a department, commission or any office of Provincial Government, a corporation or similar other institution which the Provincial Government may have established or which may be working under its control, but does not include the high courts and the courts working under its administrative control.
(b) “Amer-Bil-Maroof” means fulfilling the obligations of enjoining the good as laid down in Holy Quran and the Sunnah;
(c) Competent Court: Competent court means court established under CPC 198.
(d) “Expert Lawyer” means a lawyer having at least ten years experience in the profession of advocacy;
(e) “Government” means the Government of the North-West Frontier Province;
(f) Governor means governor of NWFP.
(g) High Court means the Peshawar High Court, Peshawar,
(h) “Hisba Police” means the police force deputed to work for the purposes of this Act from time to time;
(i) “maladministration” includes all such decisions, processes, recommendations, acts and deficiencies which-
(j) is contrary to law, rules or regulations or is a departure from established practice or procedure, unless it is bonafide and for valid reasons; or
(k) is perverse, arbitrary, unreasonable, unjust, biased, oppressive or discriminatory; or
(l) is based on irrelevant grounds; or
(m) involves the exercise of powers or the failure or refusal to do so, for corrupt or improper motives, such as bribery, jobbery, favouritism, nepotism and administrative excesses; or
(o) amounts to negligence, inattention, delay, incompetence, inefficiency and inaptitude in the administration or discharge of duties and responsibilities;
(p) “Mohtasib” means the Mohtasib of the province or, as the case may be, the Mohtasib of a district, appointed under this Act;
(q) “Nahi-Anil-Mukir” means fulfilling the obligations of forbidding the evil as required by the Holy Quran and Sunnah and all other matters which the Mohtasib, in the light of the Holy Quran and Sunnah, determines in consultation with the Council of Advisors;
(r) “Office” means the office of Mohtasib of the North-West Frontier Province;
(s) “Prescribed” means prescribed by rules made under this act;
(t) “Province” or “Province of Sarhad” means the North-West Frontier Province;
(u) “Provincial Advisory Council” means the Council established under this Act;
(v) “Public servant” shall mean the person defined in section 21 of the Pakistan Penal Code, 1860;
(s) “Religious scholar” means the holder of the certificate of Shahadat-ul-Aalmliah from any institute recognized by government, who has also passed the Secondary School Certificate Examination from a Board of Intermediate and Secondary Education recognised by government;
(t) “Staff” means an employee or office commissioner, elected/nominated co-worker, advisor, expert, subordinate, officer, liaison officer, etc, of an Agency.
3. Appointment of Mohtasib.—(1) There shall be a Mohtasib for the North-West Frontier Province, who shall be appointed by the Governor of the North-West Frontier Province in consultation with the chief minister of the province.
(2) A Mohtasib shall be a person who is a qualified religious scholar and is eligible to be appointed as judge of the Federal Shariat Court.
(3) Before entering upon office, the Mohtasib shall take an oath before the chief minister in the form set out in the Schedule.
(4) The Mohtasib shall, in all matters, perform his functions and exercise his powers independently, honestly and diligently and all executive authorities throughout the province shall act in aid of the Mohtasib.
4. Tenure.—(1) The tenure of the office of the Mohtasib shall be four years but the competent authority may extend the term of his tenure.
(2) The Mohtasib may, at any time, resign from his office by tendering resignation in writing.
5. Mohtasib not to hold office of profit, etc —- (1) The Mohtasib during his appointment shall not hold any office of profit or enter into any profession carrying the right to remuneration.
(2) The Mohtasib, during a period of two years after his retirement, shall not be eligible to contest election of the National or a Provincial Assembly.
6. Terms and conditions of service.—- (1) The provincial Mohtasib shall be entitled to the same privileges, allowances and pay as are admissible to a Judge of the Federal Shariat Court.
(2) A District Mohtasib shall be entitled to the privileges, pay and allowances as are admissible to a Sessions Judge.
(3) A Mohtasib may be removed from office on the ground of misconduct or of being incapable of properly performing the duties of his office by reason of physical or mental incapacity and in this context will be served with a notice in advance. If in the opinion of the Mohtasib the reasons of his removal are not based on facts, he shall be entitled to challenge the bona fide of the notice before the Peshawar High Court, which shall be heard by a Division Bench of the said Court; provided that if no hearing date is fixed for ninety days from the date of approaching the Court, then it shall be deemed that the notice of removal has become effective.
(4) In case a Mohtasib applies for hearing of his case under sub-section (3), he shall forthwith cease to function as Mohtasib.
(5) Where a Mohtasib has been removed on the ground of misconduct, he shall not be eligible, for a period of four years from the date of his removal, to be appointed in any government Department or to become a member of National Assembly or a Provincial Assembly.
7. Acting Mohtasib — (1) If the Provincial Mohtasib, for any reason such as leave, etc. is unable to attend his office, the competent authority shall direct any District Mohtasib to act as Provincial Mohtasib.
(2) if the office of the Provincial Mohtasib becomes vacant for any other reason, Government shall appoint an acting Provincial Mohtasib.
8. Delegation of Powers to District Mohtasib.—The Provincial Mohtasib shall, in the prescribed manner, be competent to delegate his power to a District Mohtasib in writing.
9. Appointment of staff and terms of employment—(1) Government shall determine the terms and conditions of service and pay and allowances in respect of the staff members of the Mohtasib.
(2) A district Mohtasib shall take oath of office before the Provincial Mohtasib in the form set forth in schedule ‘B’.
10. Power and duties of Mohtasib—-The Mohtasib shall, on a written or oral complaint of any person, or on reference from the High Court, the Supreme Court or the Provincial Assembly, or Suo moto, shall have the authority to- (a) Enquiries into the allegations of maladministration against any agency or its employees;
(b) Protect/watch the Islamic values and etiquettes;
(c) Watch the media established by Government or working under the administrative control of Government to ensure that its publications are useful to the purpose of upholding Islamic values;
(d) Forbid persons, agencies and authorities working under the administrative control of government to act against Shariah and to guide them to good governance;
(e) Formulate such directives and principles which may help in making the conduct of authorities working under this section to be effective and purposeful; and
(f) Extend to the provincial administration in discharging its functions smoothly and effectively; provided that the Mohtasib shall not interfere in any matter which is sub-judice before a court of competent jurisdiction or which relates to external affairs of Pakistan or the relations or dealings of Pakistan with any foreign state or Government or relates to or is connected with the defence of Pakistan or any part thereof, the Military, Naval and Air Forces of Pakistan or the matters covered by laws relating to these forces.
11: Procedure and evidence—-(1) A complaint shall be made in writing or orally by the person aggrieved or, in case of his death, by his legal heirs, to the Mohtasib, which may be delivered personally to the Mohtasib himself or his concerned member of staff or by post, Email or Fax, etc.
(2) Where the Mohtasib proposes to conduct an investigation, he shall issue to the principal or subordinate office of the Agency concerned a notice calling upon it to make reply to the allegations made. If no reply is received within a reasonable time from the concerned Agency or the officer under its control competent to give reply, the Mohtasib shall initiate investigation proceedings, which will be informal, but in special circumstances, the Mohtasib may adopt such procedure as he considers appropriate for such investigation. The Mohtasib shall, in accordance with the rules made under this Act, pay expenses and allowances to the affected parties or the witnesses produced by them. The Mohtasib shall be empowered to check or cause to be checked through his employees the official records of the concerned Agency; provided that such documents do not pertain to state secret documents. Where the Mohtasib, with respect to any complaint, does not consider it appropriate to take any action, he shall inform the complainant. The Mohtasib shall regulate the procedure for the conduct of business under, or the exercise of powers coffered by, this Act.
12. Implementation of orders, etc—-(1) On completion of the action in relation to a complaint, the Mohtasib shall have the power to issue directive to the competent officer of the Department concerned for its implementation and may, at the same time, take up such steps as considers expedient. The concerned Agency within the time limit mentioned in the directive, inform the Mohtasib about the action taken in that behalf, failing which the concerned Agency or competent officer will render itself or himself, as the case may be, to the following actions:
(a) One or more actions under the North-West Frontier Province Removal from Service (Special Powers) Act, 2000.
(b) In case of non-cooperation with the Mohtasib or his staff during investigation, action for interference in smooth functioning of Government.
(2) The Mohtasib shall, for the purpose of this Act, have the same powers as are vested in a Civil Court under the Code of Civil Procedure, 1908 (V of 1908), in respect of the following matters, namely:
(a) Summoning and enforcing the attendance of parties and examining him on oath;
(b) Compelling the production of documents; and
(c) Receiving evidence on affidavits.
(3) Where the Mohtasib is satisfied in respect of a complaint under consideration that any functionary of Government has committed a cognizable offence or a civil suit can be instituted against him, he shall direct the concerned Agency to initiate action as aforesaid in accordance with law.
13. Access to documents.—- The Mohtasib, any member of his staff or a member of Hisba Force, authorised in this behalf, shall have the right to enter into any office of Government for investigation and examine and take copies of documents during such investigation; provided that if any document is taken into possession from the records, he shall give a receipt thereof as a token of such possession.
14. Contempt of Mohtasib.— (1) In respect of contempt of Court, the Mohtasib shall have the same powers as are vested, under Contempt of Court, 1976, in the High Court;
(a) Hinders or become a source of hindrance in the smooth proceedings before the Mohtasib or does anything causing difficulties in the completion of such proceedings;
(b) Give such statement which defames Mohtasib, or any of his officer or representative;
(c) Acts in a manner which, in relations to proceedings before the Mohtasib, influence the mind of the Mohtasib to take a partial decision; or
(d) Acts in a manner which, any law for the time being in force, falls within the definition of contempt; provided that any comments made in good faith and in the public interest on any act or on report of the Mohtasib or his staff or representative shall not be treated as contempt.
(2) The aggrieved against any order of the Mohtasib under section (1) may, within 30 days of such order, appeal in the High Court which shall be heard by a Division Bench of the said court.
15. Provincial Advisory Council. — The Provincial Mohtasib, under his chairmanship, shall establish a Provincial Advisory Council, consisting of –
(a) two Ulema of repute;
(b) two senior advocates from Bar;
(c) two representatives of Government in PBS-20.
16. Meetings of Provincial Advisory Council.—The Provincial Advisory Council shall, for purpose of consultations, meet at such times and at such places as the Provincial Mohtasib may, from time to time, direct.
(2) Unofficial members of the Advisory Council shall be entitled to such honoraria as the Mohtasib may, with the approval of government, determine.
17. District Mohtasib.—
(1) The Provincial Mohtasib may, for a district or for more than one district, appoint a District Mohtasib.
(2) A person qualified to become a non-official member of the Provincial Advisory Council shall be eligible for appointment as a District Mohtasib.
(3) The tenure of a District Mohtasib shall be four years.
(4) In case of appointment of a District Mohtasib for more than one district, the Provincial Mohtasib shall determine the district where central office of such District Mohtasib shall take place.
(5) A district Mohtasib, before entering his office, shall take oath in the Form in Schedule B before the Provincial Mohtasib.
(6) A District Mohtasib shall be entitled to the same pay, allowances and privileges as are admissible to a District and Session Judge.
(7) A District Mohtasib may be removed from the office by the Provincial Mohtasib on the ground of corruption or of being incapable of properly performing his duties of office by reason of physical or mental ability. In such case he shall be served with a show-cause notice, which will be replied to by the District Mohtasib within seven days from the date of service.
(8) On failure of the District Mohtasib to reply within the stipulated period or the reply being found un-satisfactory, the order of removal of the District Mohtasib may be issued by the Provincial Mohtasib.
(9) The District Mohtasib, on his removal from office under sub-section (8), may, within 30 days of the order, appeal in the High Court.
(10) When a District Mohtasib has been removed on the ground of corruption, he shall not be eligible, for a period of four years from the date of his removal, to be appointed in any Government Department or to become a member of the Parliament or a Provincial Assembly or a Local Government.
18. Delegation of Powers.—The Provincial Mohtasib may, in writing, delegate his powers to a District Mohtasib for a period of three months and subject to such restriction as may be specified therein.
19. District Advisory Council.—
(1) As soon as may be after appointment of a District Mohtasib, he shall establish a District Advisory Council, consisting of at least five members under his chairmanship, of whom one shall be a religious scholar, one a law graduate, one a respectable resident of district concerned and one a district officer of Provincial Government.
(2) The District Advisory Council shall advise on matters which are referred to it, from time to time, by the District Mohtasib concerned.
20. Tehsil Mohtasib.—
(1) A District Mohtasib, with the permission of the Provincial Mohtasib, may appoint as many Tehsil Mohtasib as the need may be.
(2) A person qualified to become a District Mohtasib shall be eligible for appointment as Tehsil Mohtasib.
(3) The tenure of the Tehsil Mohtasib shall be four years.
(4) In case of appointment of a Tehsil Mohtasib for more than one Tehsil, the District Mohtasib concerned shall determine the Tehsil where central office of such Tehsil Mohtasib shall take place.
(5) A Tehsil Mohtasib shall be entitled to the same pay, allowances and privileges as are admissible to a Civil Jude.
(6) A Tehsil Mohtasib may be removed from office by the District Mohtasib concerned on the ground of corruption or being incapable of properly performing his duties of office by reason of physical or mental inability. In such a case he shall be served with a show-cause notice, which shall be replied to by the Tehsil Mohtasib within seven days from the date of service.
(7) On failure of the Tehsil Mohtasib to reply within the stipulated period or the reply being found unsatisfactory, the order of removal of the Tehsil Mohtasib may be issued by the District Mohtasib concerned.
(8) The Tehsil Mohtasib, on his removal from office under sub-section (7), may within 30 days of the order, appeal to the Provincial Mohtasib, whose decision thereon shall be final.
(9) Where a Tehsil Mohtasib has been removed on the ground of corruption, he shall not be eligible, for a period of three years from the date of his removal, to be appointed in Government Department or to become a member of Parliament or a Provincial Assembly or a Local Government.
21. Acting Tehsil Mohtasib.—
(1) If a Tehsil Mohtasib, for any reason, is unable to attend his office temporarily, the District Mohtasib concerned shall direct any other Tehsil Mohtasib to act as Tehsil Mohtasib to perform his duties in addition to his own duties.
(2) If the office of a Tehsil Mohtasib becomes vacant for any reason, the District Mohtasib concerned shall direct any Tehsil Mohtasib to act as Tehsil Mohtasib of the Tehsil concerned till appointment of new Tehsil Mohtasib for the Tehsil.
(3) No Acting Tehsil Mohtasib shall, in any case, be appointed for a period of more than three months.
22. Delegation of Power to a Tehsil Mohtasib.—A District Mohtasib shall, in the prescribed manner, be competent to delegate his powers to a Tehsil Mohtasib of his District in writing.
23. Special Powers of Mohtasib.—Without prejudice to the powers conferred by section 10, the Mohtasib shall have the following powers:
(i) To monitor adherence of moral values of Islam at public places;
(ii) To discourage exhibition of extravagance, particularly at the time of marriages and other family functions;
(iii) To follow code of Islam in giving dowry;
(iv) To discourage beggary;
(v) To monitor adherence of Islamic values and its respect and regard at the times of iftar and traveh;
(vi) To discourage entertainment shows and business transaction at the time of Eids and Friday prayers around mosques where such prayers are being held;
(vii) To remove causes of dereliction in performance and proper arrangement of Eid and Friday prayers;
(viii) To discourage employment of under-age children;
(ix) To remove unnecessary delay in discharge of civil liability which is not disputed between the parties;
(x) To prevent cruelty to animals;
(xi) To remove causes of negligence in maintenance of mosques;
(xii) To observe decorum of Islam at the time of Azan and Fardh prayers;
(xiii) To prevent misuse of loud-speakers and sectarian speeches;
(xiv) To discourage un-Islamic and inhuman customs;
(xv) To check the tendency of indecent behaviour at public places including harassment of women;
(xvi) To eradicate the deal as profession in Taweez, palmistry, magic, etc;
(xvii) To protect the rights of minorities, particularly to regard the sanctity of their religious places and sites where they perform their religious ceremonies;
(xviii) To eliminate un-Islamic traditions, which affect the rights of women, particularly taking measures against their murders in the name of Honour, to remove the tendency of depriving them of their right of inheritance, to eliminate the tradition of Cirri, and to protect their rights guaranteed by Sharia and law;
(xix) To monitor weight and measures and eliminate adulteration;
(xx) To eliminate artificial price hike;
(xxi) To protect government properties;
(xxii) To eliminate bribery from government offices;
(xxiii) To incite feeling of service to people at large amongst government functionaries;
(xxiv) To advise those who are found to be disobedient to their parents;
(xxv) To perform any other functions which the Provincial Mohtasib determines from time to time in consultation with the Advisory Council;
(xxvi) To mediates amongst parties and tribes in matters pertaining to murders, attempts to murder and similar other crimes threatening to law and order situation.
24. Public Servant.—The Mohtasib and all his staff including Hisba Force shall be deemed to be public servant within meaning of section 21 of the Pakistan Penal Code, 1860 (XLV of 1860).
(1) No court or authority shall be competent to question the legal status of the proceedings before a Mohtasib.
(2) No court or authority shall have the power to pass any injunction or any interim or a stay order with regard to any matter under consideration of the Mohtasib.
(3) No suit or legal proceeding shall lie against the Mohtasib or his staff for anything in good faith done or intended to be done.
26. Hisba Police.—A Mohtasib will be provided with requisite police force to enable him to conduct his affairs under this Act.
27. Conciliation Committee.—
(1) The Provincial Mohtasib in consultation with the District Advisory Council, shall establish a conciliation committee, at police station level, that consists of
(i) Two religious scholars of repute,
(ii) A local lawyer,
(iii) A minority representative from the area,
(iv) A respectable local resident, and
(v) Station House Officer or his nominee
(2) A District Mohtasib may terminate the membership of any committee member, after consultation with the Advisory Council.
28. Offences to be Non-Cognizable.— Defiance of the order of the concerned Mohtasib in the performance of his duties under section 23 of this Act shall be non-cognizable offence punishable with imprisonment for a term of six month and a fine up to 2000 rupees.
29. Power to Make Rules.—Government from time to time makes rules for carrying into effect the provision of this Act.
30. Over-riding effect.—The provisions of this Act, to the extent provided hereunder, shall have over-riding effect vis-à-vis any other law for the time being in force.
31. Removal of Difficulties.—Government may, by notification in the official Gazette, remove any difficulty or hindrance in connection with the implementation of the Act.
NOTE : The Hasba Bill was passed by the Muthahida Majlis Amal (MMA) government in the NWFP conferred judicial powers on ombudsman not only to inquire into cases of maladministration of government agencies but also to keep an eye on the religious and personal affairs of individuals thus blocking the powers of judicial review by civil and criminal courts. A nine-member Supreme Court bench had on August 4 struck down as unconstitutional several of the bill’s clauses and asked the NWFP Governor not to give his assent to the law in its present form.[Outlook Magazine Sept 2005]