Momin Khan vs Pop etc.

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JUDGMENT SHEET

IN THE LAHORE HIGH COURT

MULTAN BENCH, MULTAN

JUDICIAL DEPARTMENT

JUDGMENT

W.P.No.5476/2025

Moman Khan VS. The Province of Punjab etc.

Date of hearing 10.09.2025 Petitioner by Mr. Tahir Mehmood and Sohail Nawaz, Advocates Respondents by Kanwar Sajid Ali, Assistant Advocate General Ch. Muhammad Iqbal, J:- Through this Writ Petition, the petitioner has challenged the validity of order dated 12.04.2025 passed by the Additional Deputy Commissioner (General), Dera Ghazi Khan whereby he observed that the individuals who are not residents of Taunsa Sharif shall purchase land for burial of their deceased.

2.Arguments heard. Record perused.

3.Admittedly, as per revenue record and report of Assistant Commissioner dated 04.04.2025 approximately land measuring 720 Kanals is Ghair Mumkin Qabristan Maqbooza Ahl-e-Ilsam out of which a major chunk of land has been encroached upon by the illegal occupants and only 80 Kanals land is left as graveyard for burial of dead bodies of the residents of the locality. As the Shrine of Khawaja Shah Muhammad Suleman Taunsvi is in the said locality and his followers/ disciples throughout the county visit the said shrine, if any disciple dies during his stay at the premises of Shrine his dead body as well as dead bodies of the other surrounding localities are normally buried in the said graveyard (Qabristan). Resultantly the land of said graveyard has gone insufficient for which reason off and on a raw / nuisance

occurs between the management of graveyard, local residents and non-residents on the burial of a dead body. For permanent settlement of above controversial issue the District Administration, Deputy Commissioner passed the impugned order dated 12.04.2025 which is as under:-

“It is stated that the matter was placed in DIC meeting held on 05.04.2025 wherein the committee unanimously decided that those who live in the Tauynsa Tehsil and whose ancestors are buried in this cemetery can bury their dead there, and those who are outsiders shall purchase the land for the graves in the said area/ adjacent area and bury them accordingly as the graveyard land is insufficient considering the future needs.”

After applying careful consideration of the facts and circumstances surrounding the passing of direction by the Additional Deputy Commissioner barring the non-residents of Taunsa Sharif to bury their dead bodies in the existing graveyard and making any advice to purchase some other land for the burial of their deceased is tainted with blatant absurdity and ludicrous in its entirety as imposition of such a condition is found to be inequitable, harsh and tantamount to infringement of the fundamental rights of individuals as to a dignified burial of their dear one , irrespective of their residential and fascial status. The imposition of such discriminatory restriction places an undue and unjustifiable burden on non-residents as well as the disciple of the above shrine, which militates against the principles of fairness and equal treatment under the law.

4.Furthermore, it is incumbent upon the authorities to facilitate the religious duty of burial of a Muslim rather than obstruct it. The sanctity and the necessity of prompt burial of the deceased are emphasized in Islam and imposition of any administrative condition would cause delay or complicates the process of burial and same is contrary to injunctions of Islam. The principles of Islam (Quran & Sunnah) have embosomed universal and eternal guidance in every walk of life for all the

generations to come and Islam does not differentiate between residents, non-residents, caste, colour and divergent fiscal status in matters of religious rites, especially regarding the burial of a Muslim. Denial of burial of non-residents is not only unjust in legal terms but also violative to the moral and ethical foundations laid down in the Shariah. Furthermore, land reserved as graveyard for burial of dead body of Muslim has attained a sacred character, and its sale or imposition of discriminative restriction becomes highly problematic. Thus, the impugned order is against the spirit of Islam.

5.The land in question, which is being used as graveyard from the time immemorial falls within the definition of a waqf property. A waqf property has been defined in Section 2(e) of the Punjab Waqf Properties Ordinance, 1979 as under: “Waqf Property” means property of any kind permanently dedicated by a person professing Islam for any purpose recognised by Islam as religious, pious or charitable, but does not includes property of any such waqf as is described in section 3 of the Mussalman Waqf Validating Act, 1913 (VI of 1913), under which any benefit is for the time being claimable for himself by the person by whom the waqf was created or by any member of his family or descendants.”

A Larger Bench consisting of four Hon’ble Members of the August Supreme Court of Pakistan in a judgment titled as Haji Ghulam Rasool and others Vs. The Chief Administrator Auqaf, West Pakistan (PLD 1971 SC 376) has held that the graveyard which is a public waqf, no exclusive or preferential right can be claimed. The right of necessity must be a common right subject to availability of space. There is no provision available in the West Pakistan Waqf Properties Ordinance, 1961 regarding sale/purchase of the land of graveyard ()مقبوضہ اہ ِل اسالم. In a judgment titled as Noor Mohammad and another Vs. Ballabh Das and others (AIR 1931 Oudh 293) it has been held that there is no distinction in law between a public or private graveyard and a graveyard simpliciter. The use of a piece of land as a graveyard establishes dedication and the land thereby becomes waqf

property which is not available for sale/purchase transaction. Another reliance is placed on a judgment titled as Syed Mohd. Salie Labbai (Dead) by L.Rs. and others Vs. Mohd. Hanifa (Dead) by L.Rs. and others (AIR 1976 SC 1569).

6.Furthermore, it has been brought to the notice of the Court that total area of the graveyard is 720 Kanal 09 Marla out of which a major parcel of land has been encroached upon by the illegal occupants and local administration unfortunately remained negligent to get retrieval of the said land from the illegal occupants but the Additional Deputy Commissioner, Dera Ghazi Khan instead of taking steps to retrieve the possession of the land of the graveyard from illegal occupants has passed the impugned arbitrary order which on the face of it is illegal, unlawful and without any justification.

7.Resultantly, this Writ Petition is allowed and the order dated 12.04.2025 passed by the Additional Deputy Commissioner (General), Dera Ghazi Khan is hereby set aside. The Deputy Commissioner, Dera Ghazi Khan is directed to retrieve the possession of the land of the graveyard from illegal occupants, if any, and submit compliance report within three months to this Court through Deputy Registrar (Judicial) of this Court.

(Ch. Muhammad Iqbal) Judge

Approved for reporting.

Judge Abdul Hafeez