Sh.Pet.No.2 of 1979

F;;j~jL{Al 3Hi.HIA':C COUH~' T' OR} Gff:'AL--JURI~Tf)f0rJ~IONT l'hr. Salc:Thuddin Ahmed, Chairman lilr. Justice Agha Ali Hyder lYlember IVlr • Justice Aftab Hussain Member IJIr. Justice Zakaullah Lodi Member Iilr. Justice Karimullill1 Durrani Hlember SHARIA1 p,~TI'nON

N.p. 2 'OF 1979 (LAHORt;)

(Hafiz IYluhall1lGadJ\meen V/s. Islamic Republic of Pakistan and another)

SHAHIA'f Pl~TITION NO.5 01,1 1979 & 6 01" 1979 (LAHORti:) (Subedar 1al YJhan and Sh.Ghulam Farooq Versus The Central Government and another) SHARIA'r PBTITION NO. 7 OF 1979 (LAI10RE) (rvIuhaJmnad Ali -etc vis .Govt. of Punjab and another)

SHA.RIAT PE'rnlION NO. 8 OF' 1979 (LAHORE) IVluhamlllS,dHussain V%s.Islamic Republic of Pakistan and another.

SHARIAT PEITITION NO. 9 OF 1979 (LAHORE)

IVlohammad Bashir Versus Islamic He public of Pakistan and another.

SHARIA'f PSTITION NO. 10 OF 1979 (LiIHORE) llliizctr Hayat vis.

:F'ederal Government and another

SHAR~~T PETITION NO.12 OF 1979 (LAHORB)

Haj i lllehim Bakhsh Versus The Government of Pakistan and another.

For the Petitioner: Haji Rahim Bakhsh (Peti tiore r) t.:-< Date of hearing: 2578/1980 SHARIA'r PETI'I'ION NO.14 OF 79 (LAHORE) Mohammad Bakhsh -etc Versus Government of Pakistan and another.

AND

SHARIN£ I)t~'lIITION NO. 150J!' 79 (LAHORE) 1\1uhammad Akram V.ld.Govt. of Pak.and another Por the Petitioner: Mr. Riaz Anwar, Advocate Date of hearing 18 & 19 - 8-1980 §HARItIJll PJC;'I'I1 IONNO. 16 OF, 1979 (LAHOR~_,

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Haji Sadiq Baig and another Versus Province of Punjab and another fur the l'et±<tioner: She Ahmed saeed, Advocate D.Jte of he'Ting 19-8-1980

SEAR-IA'l' PJ~'.rI'l'ION NO. 21 OF 1979 (LAHOnn Asghar Ali lVloonavis Government of Pakistan and another

SHimIAT PB'l'ITIONNO.23 OF 1979 (LAHORE) Ali Ahmad ::jlld another Versus Government of Pakistan and another For the Petitioner: Raja Aaizuddin, Advocate Date of hearing 27-9-1980 SI-IARINlPSTITION

NO.24 OF 1979 (LAHORJS)

Jahan Khan and ethers Federation of Pakistan and another For the Petitioner: Mr. l'ilushtaq Raj, Advocate Date of hearing 19-8-1980

SHARIAT Pb'rI'rrONNO. 25/79 (LAHOR~) Qizilbashs: Waqf Lahore through Nawab Muzaffar Ali Khan Qizilbash Versus The Chief Land Oommissioner Punjab and ambthers.

For the Petitioner: Ch. Fazle Hussain Dat:~ of Hearing 2nd, 3rd, 7th & 8th Sept.1980 ;3HARIAT P8TI~nON NO.27 OF 1979 (LAHORB) Muhammad Ibrahim Versus Barkurdar & another For the Petitioner: Mr.Muhanunad Ibrahim, Advocate Date of hearing 20-8-1980 SHARIAT PETITION NO.30 OF 19~9 (LillI0RE) Dilawar Khan and others Versus Federation of Pakistan and others.

AND

SHARIAT P I~;TI'J~

ION NO. 31 0:£1'

1979 (LAHORE)

fuohammad Arshad and another Versus Federation of Pakistan and others

AND

SHAHIA'.P.

PB'IIITIONNO.36 OF 1979 (LAHORE

Khurshid Muhammad Versus Federation 0 Pakistan etc.

For the Petitioners: Khawaja I1lushtaaAluned, Advocate D8te of hearing 20-8- 1980 . --

SHARIA1' R8TI'.I:ION

NOd3 OF 1979 (LAHORE~ Atta Moh&uddin Versus Province of Punjab and another.

For the Petitioner: Syed Fgzle Azim Advocate. Date of hearing 19-8-1980 SHARIiI'rP8TI11ION NOd8 Oli'1979 (LAHORi~) Kalu and another Versus Govt. of Pakistan and others.

AND

SHARIAT PE'rITION NO.4} OF. 1979 (LAHO~E) MUha.mmaa:IIa£{f~,%i'l.hi:i:a;i'J V(s-.' ~lffi:la;m~e~_epu bl i c dfulflakiEftan (2:m.d'bthe"rs •• For the Petitioners: Mr. Mahfoozul Haq Khan, Advocate Date of hearing 19-8-1980

SHARIA1' P,~TITION NO.J9 OF 1979 (LAHORe":) Muhammad Zakaullah Khan through Muhammad Z':J,fartil.:r;.ah Khan Vs. Govt. of Punjab and others SHARIAT PL~rIrr'ION NO.40 OF 1979 (LABORr.;)

Syed Ghulam Mustafa Shah VerSuS Islamic Republic of Pakistan and another.

For the Petitioner: Mr. Naseem Mahm0md, Advocate Date of hearing 19-8-1980

SHARIA'r Pi~TITION NO. 44 OF' 1979 LAHORft Bushra Bib V s. Dy.Land Commissioner a,nd others

AND

SHARIAT P~TITION NO. 54 OF 1979 (LAHORsl Syed Ali Akbar N~hmood Shah Versus Dy. Land Commissioner Rahimyar Khan and others

AND

SHARINJ: PETI'I'IONNO. 55 OF 1979 (LAHOH~

MuhaJillnad Uzaiq Shah V s. Dy.Land Commissioner and others __

AND

SHARI~T PETITION NO.56 OF 1979 (LAHOR~)

Tabseem Arunad Shah Versus Dy.Land CommisSioner Rahimyar Khan and others

AND

SHARTA.T PETITION NO. 57 OF 1979 (LAHORE)

~fuhmmnad Awais Shah Versus Dy.Land Commissioner Rahimyar Khan and others •.

AND

SHARI AT PE'l'ITIONNO. 58 OF' 1979 (LAHORB) Amina Bibi Versus Dy.Land Commissioner and others For the PBtitioners: Iftikhar Ali Shaikh, Advocate Date of hearings: 30th Aug., 7th and 20th Sept.1980 SHARIAr PETITION NO. 46 OF 1972 (LAHOR.8J Muhmmnad Yousaf VerSUS Federal Government and another.

SHARIAT PETITION NO. 47 OF 1979 (LAHORE)

Mushtaq Ahmad Khan Versus Government of Punjab and another

SHARIAT PETITION NO. 48 OF 1979 (LABORE)

Muhammad Iqbal Versus Islamic Repub~ic of Pakistan and another.

Memo OIi'1 7 LAHORE of Pakistan, and others Memo Sl:I

~BIAT ~'~.::L'ITIONN~ :5(1 OF_ 197.2.(LAHORE)

~.ehaltWaii. 1OlanVintiGCIJ-~h~rsfVlsliG6~o~c1Pu.nja:bS ~ others Petitioner: Memo

SHARIAT PETITION NO. 61 OF 1979 (LAHORE)

Muhammad Younas etc. VersuS Govt. of Pakistan Petitioner: Nemo SHARIA'l PETITION NO. 63 OF 1979 (LAHORE) Bashir Ahmad and others Versus Government of Pakistan and another Petitioner: Nemo

SHARIAT PETITION NO. 64 OF 1 9 LAHORE)

Elahi Bakhsh & another V s. Govt. of Punjab. Petitioner: Remo

SHARIAT PETITION NO. 65 OF 1979 (LAHORE)

Muhammad Ashraf Versus Islamic Republic of Pakistan and ~thers.

SHARIAT PB'I'ITIONNO. 72 OF 1979 (LAHORE)

Salim Akhtar IChan V!s.Govt. of Punjab. Petitioner: Nemo SHARIAT PETITION NO.45 OF 1979 (Lju~ORE) Malik Ghulam Haider and others Versus Goverrunent of Pakistan For the BEtitioner: Mr. Riaz Anwar, Advocate Date of hearing: 1Bth and 19th August, 19BO.

SHARIAT PETITION NO. LAHORB)

Salim Akhtar Khan V s. Punjab For the Petitioner: IVIr. Muhammad Arshad, Date of hearing : 19-~-1980

SHARIAT PETITION

Fazal Muhammad etc.

o£ Pakistan etc.

For the Petitioner: Mr. Fazal Muhammad, petitioner Date of hearing 30/8/1980

SHARIAT PETITION NO. 75 OF 19$9 (LAHORE)

Umar Din Versus Government of Pakistan etc For the Petitioner: Mr.Muhamnlad Anwar Buttar, Advocate Date of hearing 20th, 23rd, 24th and 25th August,80

SHARI AT PETITION NO. 27 OF 1

P~r Qutub Shah V s. The State Peti tioner: l\ilmu: Mr. Abdul Bari, Advocate For the Respondent: Mr. Inayat Blahi, Advocate General of N.W.F.P.

31-8-1980oand 29-11-1980 SHARIA'r PETI'rION Syed Ali Khan V s.

For the Petitioner Ch. Muhammad Sadiq, Advocate Date of hearing : 31st, Augt, 8th, 9th, 10th, 13th & $4th September, 1980.

SHARIAT PGTITION NO. 5 OF 1980 (PESHNYi\.R) Syed Khushal Khan etc. vis. Fede:'al Govt. of Pakistan.

For the Petitioner: liir.Ghul . am Naqshb Date of hearing an, Advocate 30th Aug. & 17th September, Bo 5r von td •••• p.....,/ f1

SHARIAT PETITION NO.36 OF 1979 (KARAOHI)

Syed Qamarul Hasnain etc Versus Federation of Pakistan.

For the Petitioner: Mr. Faiq Hussain Rizvi, Advocate Date of hearing: 27-8-1980

SHARIAT PETITION NO.13 OF 1980 (LAHORE

Feroz V s. Federation of Pakistan and others Petitioner: Nemo

SHARIAT PETITION NO. 14 OF 1980 (LAHORE)

Ahmad Ali and others Versus Federal Govt. & others

SHARIAT PETITION NO. 1 'I

Dost Muhammad & others i

and others. ! I

i For the P~titioner: Haji Muhammad Anwar Butter, Advocalte Date of hearing 26-8-1980 I

SHARIAT PETITION NO. 18 OF 1980 (LAHORE)

Inayat Ali and G~hers Versus Government of Pakistan and others.

For the Petitioner: Mr. Muhammad Ashraf Wahla, Date of hearing: 30-8-1980

SHARIAT PETITION NO. 19 OF 1 80 LAHCRE)

Jamal Din V s. Muhammad Sher and others Petitioner: Nemo

SHARIAT PETITION NO. 20 OF 1980 (LAHORE)

Shaikh Abdul Wadood Versus Government of Pakistan and others.

SHARIAT PETITION)"NO. 22 OF 1980 (LAHORE)

Mst. Khalida Adeeba Khurram Versus Islamic Republic of Pakistan and others. ~etitioner: Memo

SHARIAT BETITION NO.4 OF 1980 (R'PINDI)

AzmatAli and 2 others Versus Federation For the Petitioners: Mr. S.M. Zafar, Sr.Advocate Date of hearing: 22nd and a5rd September, 1980 Bashir PetRoner:

SHARIAT PETITION, NO. 4 OF 1980 (LAHORE)

Gulab Din Versus Federatiow Petitioner: Memo Oontd ••••P-6j

Mr. Ghulam Muhammad Qadri, Advocate 1-10-1980, 4-10-1980 i • i

SHARIAT PETITIO~ NO.

Syed Bakhtiar Abbas V s. The Government and anohter.

For the Petitioner: Syed Mohmmnad Ali Zaidi, Advocate' Date of hearing : 4-10-1980 SHARIAT PETITION NO.76 OR 19t9(LAHORE} Baboo Ali Haider and others Versus Federal Goverrunent and others.

For the Petitioner: Mr. Ghulam Muhammad Chahal, Advocate Date of hearing 4-$0-1980

SHARIAT PETITION NO.2 LAHORE)

Muhammad Anwer V s. Federation of Pakis tan For the Petitioner: Ch. Muh~nad Nazeer Ahmed, Advocate Date of hearing: 4-10-1980, 6-10-1980

SHARIAT PETITION NO. 5 OF 1980 (LAHORE)

Rahsid Ahmad Versus Goverrunent of Punjab. For the Petitioner: Mr. Muhammad Ismail Qureshi, Advoclate Date of hearing: 7-10-1980 I i

SHARIAT PETTTION NO. OF 1 80 (LAHORE

She Nasrullah M~shtaq etc. V s. Iskamic Republic of Pakistan etc.

For the Petitioner: Mr. Raza Hussain Shamzi, Advocate i Date of hearing: 7-10-1980

SHARIAT PETITION NO.8 OF 1980'(LAHORE)

Mistri Mohammad Hussain Versus Mian Ilam Din and others.

Petitioner

SHARIAT PETITION NO.3 OF 1980 (R'PINDI)

Fazal Rehman Foundation and others Versus Federation of Pakistan and others.

For the Petitioner: Mr. Rashid Murtaza Qureshi, Advocate Date of hearing: 7-10-1980 i

Mr. Inayat Elahi, Advocate General of NWFP G) On behalf of i Mr. Sahibzada Akhtar Munir, Assistant ~ N.W.F.P. Governmfnt Advoaate General of N.W.F.P. ~ i

Syed Iftikhar Ahmed, Deputy Attorney ~ On behalf of I General for Pakistan § Federation of Patistan i

This order will dispose of: (1) S.P.No.2/79(Lahorej I

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(2)S.P.No.5/79(Lahore) (3) S.P.No.6/79(Lahore)(4) S.P.No.t/

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79(Lahore)(5) S.P.No.S/79(Lahore) (6) S.P.No.9/79(Lahore) I

(7)S.P.No.1G/79 (Lahore) (S) S.P.No.12/79(Lahore) (9) S.Pl

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No. 14/79(Lahore) (10) S.P.No.15/79(Lahore) (11) S.P.No.16/79- ! •• (Lahore) (12) S.P.No.21/79(Lahore)(13) S.P.No.23/79(Lahore) (14) S.P.No.24/79(Lahore) (15) S.P.No.25/79(Lahore) (16) S.P.No.27/79(Lahore)(17) S.P.No.30/79 (Lahore) (18) S.P.

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No.31/79(Lahore) (19) S.P.No.33/79(Lahore) (20) S.P.No.36/79- (Lahore) (4~) S.P. No.3S/79(Lahore) (22) S.P.No.39/79 (Lah~re) (23) S.P.No.40/79(Lahore) (24) S.P.No.43/79(Lahore) (25) S.P.

No.44/79 (Lahore) (26) S.P.No.45/79(Lahore)(27) a.p.No.4617~- (Lahore) (2S) S.P.No.47/79(Lahore) (26) S.P.No.48/79(1ahor~) (30) S.P.No.49/79(Lahore) (31) S.P.No.51/79(Lahore) (32) S~P. I

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No. 54/79 (Lahore) (33) S.P.No.55/79(Lahore) (34) S.P.No.56/~9- (Lahore) (35) S.P.No.57/79(Lahore) (36) S.P.No.5S/79(Lahore)

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(37)S.P.No.61/79(Lahore) (3S) S.P.No.63/79(Lahore) (39) S~P. No.64/79(Lahor~) (40) S.P.No.65/79(Lahore) (41) S.P. NO.72V

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79(Lahore) (42) S.P.No.73/79(Lahore) (43) S.P.No.74/79(Lahore)

(44)S.P.No.75/79(Lahore) (45) S.P.No.27/79(Peshawar) (46) S.P.

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No.1/S0(Peshawar) (47) S.P.No.5/S0(Peshawar) (48) S.P.No.3p/ 79(Karachi) (49) S.P.No.13/S0 (Lahore) (50) S.P.No.14!SO(Lahore) i

(51)S.P.No.17/S0(Lahore) (52) S.P.No.1S!SO(Lahore) (53) S!.P. i

No.19/S0(Lahore) (54) S.P.No.20/S0(Lahore) (55) S.P.No.2·2!~0-

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(Lahore) (56) S.P.4/19S0(R) (57) S.P.5/19S0(R) (5S) s.p.3/1 19S0(Lahore) (59) S.P.4/19S0(Lahore) (60) S.P.2S/79(Lahore!)

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(61)S.P.35/79(Lahore) (62) S.P.No.76/79(Lahore)(63) S.P. I 23/S0(Lahore) (64) S.P.5/S0(Lahore) (65)S.P.7/S0 (Lahore) I (66)S.P.S/SO(Lahore)(67) S.P.3/S0(R).

1.The ceiling of oi'mership of 150 acres of land prescribed in the Regulation and reduced to only a maximum of 100 acres by Act. II of 1977 renders nugatory the rights conferred by the Holy Ouran and the Sunnah on an individual (a) to own prope:cty without any limitation 2.cd (b) to inheri t further .landed property in excess of the above limit.

2.Property of wagf, vesting as it does in Allah and not a tpersont, cannot be made subject to the other enactments, for examDle ,the Punjab Acqui:3 i tion of land (Housing) Act, 1973 io3 also repugnant to the Holy Cluran cnd th(~ Sunnah.

These cases are being dealt with together since they seek to challenge one or the other of the provisions of the same statute, i.e. Martial Law Regulation 115 (hereinafter to be called the Regulation) and Act II of 1977 relating respectively to the land reforms of 1972 and 1977 on grounds of their repugnancy to the Holy Quran and Sunnah of the Prophet (PBH). In some petitions provi- sions of the Punjab Pre-emption Act as well as the N.W.F.P Pre-emption Act are also challenged on the same ground but the points raised in those petitions mainly involve consideration of problems which arise in the treatment of the subject of pre-emption under clause (d) of sub-para (3 of para 25 of the Regulation referred to above. Similarly a number of petitions involve consideration of validity of other enactments concerning acquisition of land e.g. Punja~ Acquisition of land (Housing) Act, 1973, Development of I Cities Act, 1976, and Capital Development Authority Ordina~ce 1960. The arguments on the vires of some of these enactmen~s initially centred round the authority of an Islamic State I to acquire forcibly property of its citizens for public purposes but the main emphasis came ultimately to be laid on the want or in-adequacy of consideration.

1.The ceiling of ownership of 150 acres of land prescribed in the Regulation and reduced to only a maximum of 100 acres by Act. II of 1977 renders nugatory the rights conferred by the Holy Quran and the Sunnahon an individual (a) to own property without any limitation and (b) to inherit further landed property in excess of the above limit.

2.Property of waqf,vesting as it does in Allah and not a 'person', cannot be made subject to the said ceiling.

3.The provision of acquisition of land made in other enactment~for example ,the Punjab Acquisiti~n of land (Housing) Act, 1973 is also repugnant to the Holy Quran and the Sunnah.

In any case the state had no right to acquire property without payment of proper compen- sation which should be equivalent to the market value of the land current at the time of acquisition. Act. II of 1977 does provide for payment of compensation but firstly it is too inadequate and has no relation to the prevailing market Yalue, and secondly it is only for the stage when a land~~n1er was required to surrender area in excess of the limit of one hundred acres within four months of the enforcement of the said Act; it does not provide for a subsequent surrender of the area which a land owner may inherit in future thus ][raising his ownership of land to a limit in excess of the ceiling.

5)lbe compensation as provided for land acquired under the Punjab,Acquisition of land (Housing)

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Act, 1973, read~the Punjab Development of Cities Act, 1976, at a maximum amount of twenty thousand rupees per acre is extremely inadequate and forms only a small pro-portion of the value of similar land prevailing in the market at the time of acquisition. The states right to acquire properties cannot at any rate be made subject to payment of compensation fixed so capriciously.

The provisions of the CDA Ordinance XXIII of 1960 freezing the value of property wi thin :.::. certain areas at the value prevailing between the Ist day of January, 1954 and the 31st day of December, 1958 though quite a large portion of it has yet re bad.

i to be acquired by the CD~ The provision of inadequate compensation is also bad for the above reason.

7)lhe ban imposed on the right to partition certain properties, the restrictions imposed on alienation of land and the statutory right~ conferred upon I the tenants by paras 22, 2a and 25 respectively impinge upon the sharia rights of the owners to enjoy and dispose of their properties in any manner they like and to let them out to tenants on any conditions mutually acceptable.

The sharia recognises only three types of pre-emptors_ vi2., cosharers, participators in appendages and neighbours. To qualify as pre-emptor a person must be ovmer either in the same property or in the neighbouring property. The conferment of right of pre- emption on a tenant as done by para 25(3)(d) of Martial Law Regulation 115 or on potential heirs or even on persons who are co-owners in the village or Patti as provided in the Punjab Preemption Act is repugnant to the Sunnah of the Holy Prophet.

Section 5 of th~ Punjab Pre-emption Act exempts a shop, Sarai or Katra from the right of pre- emption. 1bis exemption is in violation of the right of preemptiodconferred by the Sunnah of the Prophet (PBH).

Section 7 of the Punjab Preemption Act provides that no right of pre-emption in urban immovable property can accrue unless custom of'pre-emption is proved to exist in any locality. This is also in violation of the Shari a right of preemption. ;

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Section 8 of the Punjab Preemption Act authorise~ I the Board of Revenue to exempt from the operati01 of the Act any property or class of property. . This also is violative of the above ri~1t.

12)Sections 19 and 20 of the Punjab Pre-emption Act, provide for service of noticeor,'lthe pre-emptors prior to the sale, offering to sell the property to them. This also is violative of the ri@'lt of preemptors since if a person is not willing to purchase the property at that stage he would forfeit his right of pre-emption The right of pre-emption enjoyed by non-muslims is contrary to the Sunnah of the holy Prophet. 1be period of limitation of one year for a suit - provided for pre-emption/ by s .30 Punjab Pre-emption Act, 3.31 NWFP Pre-emption Act, and Art 10, Limitatioi'l Act and period of 6 years under i\.rt.120 Limi tat~on Act. is also repugnant to Sunnah of the Holy Prophet.

In some petitions the provisions of the Constitution were also challenged but it is not necessary to refer to the grounds of challenge, since this Court has no jurisdiction to go into those matters.

declaration of personal rights of the petitioners and consequent injunctions have been sought but such reliefs cannot be granted by this Court which has no authority to deal with disputes of personal Section 14 Punjab Pre-emption Act provides that no person other than a person who was at the the same group of agricultural tribes as the vendor, shall have a right of pre-emption in respect of agricultural land sold by a member of an agricultural not necessary to give a finding on it since in view of the notification issued under the Punjab Alienation of Lands Act", giving all ther~s idents of Punjab the status of members of an agricultural tribes, this provision has The first point is whether this Court has jurisdiction to determine the vires of Martial Law provisions regarding the limit imposed on the ownership of land and the questions of inadequacy or otherwise of any compensation fixed in either of these laws for excess land directed to be surrendered. The question of juris- diction also arisrein respect of other laws providing for acquisition of land for housing schemes or for providing

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The jurisdiction of this court extends under Articlel 203-D of the Constitution to the declaration of any 'law,l! or provisions of any 'law' as repugnant to the injunctions of Islam as laid down in the Holy Quran and the Sunnah of the Holy Prophet. The term 'law' is defined in that Article and excludes inter alia the constitution from its scope. It is not, therefore, within the jurisdiction of the Court to make such a declaration in respect of the Constitution.

Martial Law Regulation 115 came into force on 11-3-7~

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while the Constitution was enforced on 14th August, 1973. The Constitution of 1962 stood abrogated since March, 1969. It was for this reason that the Interim Constitution of 1972\ i

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had to be enforced with effect from the 21st day of April,

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1972. The framers of the Constitution were fUlly conscious I of the frail foundation on ','111ich c Nartial La\'1Regulations

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stood unless they were validated by the Constitution ot

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by legislation. The interim Constitution restored the funda-' mental rights which stood sus~ended since the date of imposition of Martial Law of 1969. The constitution makers IHere also conscious of the legal position that l1artial Law compensation for the excess land which an owner of land was required to surrender to the government. Several provisions were therefore added to the Interim Constitution to guarantee the validity of interalia the above Regulation.

to be an existing law and further provided that no Bill to amend or repeal it shall be introduced or moved without the previous sanction of the President thus making an unusual endb~achment on the authority of the Parliament which is generally exclusive in matters of legislation.

say the least extrw-ordinary, since it declared that any lawsjH\,which perm~t a person to own benef~.cially or .. . . I ~ r

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beneficially an area of land greater than that which immediate~y I before the commencing day (21.4. 1972), he could lawfully have I owned beneficially or possessed beneficially shall be invalid. I i

This provision permanently deprived the legislative organ of th:e state of any authority to increase or abolish the ceiling of o1tmership of land fixed by the Regulation.

Article 7 of the Intetlim Constitution while declaring as void, laws\'!hich were inconsistent viith the rights conferred) by the chapter ralating to fundamental rights, excepted laws specified in the first schedule to the constitution from its

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or provision is inconsistent with or repugnant to any provisiorl

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of the chapter relating to fundamental rights. The Regulation !

of the laws described under the heading 'Martial Law Regulation and Martial Law Orders~

shall be compulsorily acquired or taken possession of save for public purposes or save by the authority of law which provides compensation or specifies the principles or the manner in which the compensation is to be determined and given.Glause housing facilities and also any'existing law'which obviously included the Regulation. In clause (4) it was provided that

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any such law as is referred to in clause 2 or clause 3 of the I i j Article or determined in pursuance thereof shall not be questiFned I.

in any court.

These provisions clearly aimed at providing protection to the Regulation which does not provide official Gazette, extra ordinary issue on the 15th of April, 1972. However, on the 17th April, 1972 a full E8nch of the Lahore High Court delivered Judgement in the case of Zia-ur-Rehman versus the state (PLD 1972 Lahore 382) and held Gen. Mohammad Yayha Khan to be a usurper and the laws promulgated by him throughout the duration of his regime to be void. It also held that Law of 1969, unless they be condonable as being in aid of good government and/or in aid of reassertion and recapture the of poWer by the real sovereign i.~elpeople would unless shown otherv-lise,be void. In the case of Miss Asma Jilani versus the Government of the Punjab (PLD 1972 Supreme Court 139) judgment of which was delivered by their lordships of the Supreme Court on the 20th April, 1972 the same view was adopted by that court. The Supreme Court however condoned the folloWing acts:

1)All transactions which are past and closed.

2)All acts and legislative measures which are in accordance with or could have been made mader the abrogated constitution or the previous legal order.

3)All acts which tend to advance or promote the good of the people.

4)All acts required to be done for the ordinary orderly running of the state and all such measures as would establish or lead to the estab+ishment of the objectives mentioned in the objectives Resolution of 1954.

These judgements rendered doubtful the validity of Martial Law Regulations enforced after the ouster of Gen. I

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Moha~mad Yayha Khan b¥ the then Chief Administ~ator of I

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Martial Law who headed a civilian government since the of the Martial Law of 1969. It was for this reason that a 'f II;. ~b,-, blanket protection was given by Article 269~to all Procla- mations, President's Orde~)Martial Law Regulations and Orders and all others laws made bet-ween the 20th December, 1971 (the date when the Civilian Government came into power) and the 20th April, 1972 by declaring such Regulation and Orders as having been validly made by competent authority, notwithstanding any judgment of any court. It was further provided that those Regulation and orders etc. shall not be' called in question in any court on any ground whatsoever. Orders made, proceeding taken and acts done or purported to have been made, taken or done in pursuance of such Regulations, I

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all proclamations, President f s Orders, Martial Law Regulations:, March, 1969 and the 19th of December, 1971. It further provide!d

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in clause (2) that notwithstanding a judgment of any court thei

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law made by Parliament under clause (1) shall not be qUestione~

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By clause (1) of Article 253 the Parliament was authorised to prescribe the maximum limit as to property or any class thereof which may be owned, held, possessed or controlled by any person. Clause 2 of Article 253 is identical with article 269 of the Interim Constitntion/;~ far as it, I, I deClares~i~:lid anY_laWwhich :rmits a person to own :J:'4J.LJ

beneficially an area of land greater than that which 1 he could have lawfully owned before the commencing day. It clearly means that the Regulation being the enactment fixing a limit on ov.rnershipof land cannot be T'lB'pealed or so amended by the Parliament as to increase or abolish that limit. The purport of Article 253 "is that though the Parliament is authorised to further reduce the ceiling on ownership of the property it has no-',authority to increase or abolish the ceiling already fixed by the Regulation.

Article 8 declares void any law which is inconsistent with fundamental rights conferred by chapter 1, part II. But it also saves laws specified in the first schedule to the Constitution which includes the Regulation at serial No.17 under the heading 'Regulations'. This provision is similar to Article 7(3)(b) of the Interim Constit~tion.

Again Article 24, which deals with fundmnental rights of protection of property makes an exception in favour of certain categories of laws vide its clause (3). The laws so saved include (i) laws providing for the acquisition of any class of property for the purposes of of Article 253'. This provision is identical with the provision of Article 21(3)(4) of the Interim Constitution and protects as well as validates not only the Regulation as an existing law but also Act II of 1971 which has been Since Article 24 in its clause (2) nrovides that any law of compulsory acquisition will have to provide for compensation, clause (4) was added to provide protection !

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liThe adequacy or otherwise of" any compensation provided for by any such laY'"as is referred to in this Article or determined in pursuance thereof shall not be called in question in any court".

Tais takes away the power of the Court to declare and other laws (e.g.

existing la\£/Act II of 1974, Punjab Acquisition of Land (Housing) Act, 1973, Punjab Development of Cities Act, 1976J even if they fail to provide for any compensation for or provide for compensation which is much less than the of the Constitution to protect the Regulation and any Law to be framed by the Parliament in exercise of the special and extra ordinary power conferred upon it by Article 253.

1.The Regulation was declared valid by Article 269 and the jurisdiction of all courts to go into its vires was ousted. It cannot be called in question in court on any ground whatsoever.

2.In view of Article 26S(2) it cannot be altered, repealed or amended even by the Parliament except with the previous sanction of the President. By Article 253(2) it was declared that any law allowing a person to own or possess beneficially an area of land greater than the area which before the date of enforcement of the Constitution he could have lawfully ovrned or possessed bene.ficially will be invalid. The Constitution thus provides

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that the Regulation shall hold the field notwithstandipg the enforcement of any law passed by the Parliament to increase or abolish the ceiling fixed by it. The effect of this provision is that though the President may permit the Parliament to alter or amend or repeal other provision of the Regulation. the grant of permission by him for passing o.f an Act by the Parliament to do away with or increase the ceiling of ov~ership o.f land .fixed by the Regulation will be an exercise in futility, and this ceiling shall remain effective till it is reduced by an Act to

be passed under Article 253(1). A permanent embargo is thus placed on increase or abolition of ceiling though there can be no constituional ; objection to its reduction. :

4.Art. 8(3) protects this Regulation from being challenged on ground of its inconsistency with or repugnancy to any Fundamental Right.

5.Article 24 protects it against attack on ground of its violation of any of the right, guaranteed by that Article including right to compensation. Thus the vires of the Regulatioq cannot be challenged even on ground belng of its/silent about payment of compensation. Act. II of 1977 is firstly a law enacted and enforced by the Parliament by virtuel! of the pO\1TerSgiven to the Parliament by Art. 253 and secondly its validity is protected from any attack by Art. 24(3). The adequacy or otherwise of the compensation fixed by it cannot be questioned in any court vide Article This is a unique example of cases in which the framer~

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of the Constitution have taken ~nusual, rather extraordinary, pains to plug all th~oopholes of attack on the vires of the Regulation. lbey have gone to the extent of declaring even (~ on ownership of land fixed by the Regulation.

invalid or bad ~mich is declared valid by the Constituion? The answer to this question must be in the negative. But

others, PLD 1975 S.C. 397. It was held to be constitutionally immune from attack. It was further held that:

lIall amendments made to lYIartial1a\'l Regulation ,]15 were given protection from the Fundamental Rights, and saved from repeal being included in the first and the seventh schedule to the Interim Constitution, and such inclusion was given retrospective effect from th~csmmencing day of the Constitution". (p.422). (

held to be ' a more equitable distribution of land and avoid.ing its concentration in a few hands' (P.437) is also outside the pale of jurisdiction of this Court in view of the declaration of validity of such laws in article 24(3) of the Constitution.

Mian Fazal Hussain the learned counsel for the petitioner in S.P.No.25/1979(4) however raised three points to meet the objection about jurisdiction. He referred to Article 227 \'J"11ich provides that existing laws shall be brought in conformity with the Injunctions of Islam as laid down in the Holy Quran and Sunnah and submitted that notwithstanding the above provision in the Constitution the the measures for bninging the Regulation into conformity with the Injunctions of Islam. Secondly he placed reliance on liTheprovisions of this Chapter shall have effect notwithstanding any thing contained in the Constitutionll•

overriding jurisdiction on the Court. Thirdly he urged that assuming that the provision of the Regulation in

of land, acquisition of land for housing or other public purposes described in Article 24(3) and absence or in- in the relevant statutes adequacy of Compensation/are not within the jurisdiction of this Court.

No such objection would, however, be valid ,nor such Regulation vn1ich place restrictions on partition of joint holdings (para 22) and ~m alienation of holding (para 24) and provide for certain rights of tenants (para 25). 'fhe ~ only Constitutional provision which validates them is Article 269 but that validation is only partial and inconsequential forpur purposes. The validation is regard~ng the competence of the authority enacting the Regulation. The ouster of jurisdiction of courts in that Article is overridden by the provisions of Article 203A and this court has jurisdiction to determine the question of repugnanct of these provisions w'ith the Islamic injunctions notwithstanding anything in Art. 269. l~e other relevant provision is in Art. 268(2) which restrains the Parliament from altering, previous sanction of the President. But it does not present ".;' any difficulty since under Art. 203-D(3)(a) the President is it into conformity with the injunctions of Islam if this Court arrives at a finding of its repugnancy with the Quran

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to go into the vires of paras 22, 24 and 25 of the Regulatio~ The Peshawar High Court (Shari at Bench) has already struck down from 25(3)(d) of the Regulatiouiregarding tenants right of preemption, in Niamat Ullah ~1an, versus Government of Pakistan (PLD 1979 Peshawar 104).

lnis Court by a majority held in Mohammad Riaz versus (,HD ,4\&>11 FSG- f) Federal c..:.avernrnent and oth<:,rcases f.that the judgement:;of the Peshawar Shariat Bench are binding L~on this Court. I gave regulating the practice and procedure of the Court. Thus it is open to this Court also to make rules on the sub,ject in exercise of power under Article 20a-J. The only difference between the scope of power of the Supreme Court and this Court is that while the authority of that Court to frame rules: i on the subject is subjec-t to the Consti-Gution and the 1m, I

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the authority of this Court is not so subject in view of Article 203-fI.; which .

glves .

efflcacy t 0 t-11e prov~swn ".t:'.

O.;l cl1apt er 3_A..oJ..

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Part VII, any Constitutional provision notwithstanding. Now th' i supreme court is not bound by its own judgment.s.~.The Privy I Council vlaS also not bound by the P'revious decisions of the I Board and could dissent from them. Attorney ~neral of Ontario I

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(AIR 1946 Privy Council 88) Tooth versus Power (1891-AC.

284)Ridslade versus clifton (2PD 276) Road versus Bishop in Lincolne (1892 AC 644).

interpreting the law of the land ViaS entitled to change its opinion and take a view different from the one it had hitherto held. This view was reiterated by the Federal Court in Mirza Akbar Ali verses t1irza IftilillarAli (PLD 1956 Federal Court 50) J Federal Court in AmraI' v. Crown is material only in the sense that the Federal Courtts JUdgements were otherwise binding upon all other courts by virtue of Section 212 of the Governmen~ final arbiter on matt;ers of law. Though a Single Bench of a High Court is bound by the inter-pretation on a point of law by decision of a larger BenCh, and a smaller Bench is bound by inter~tion of a bigger bench of the same Hii:shCourt, yet a single judge of one High Court is not bound by the inter- Court in the case of Nirza Akbe.r Ali versus I'Hrza Iftikhpr case and is entirely different from re-consideration in a I of I subsequent casela question of law l?reviously decided. If this i

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Court takes a different view in another case from the one taken \ a on the same ooint of' law inLprevious case it will not 'De 111 exercL3ing any power of' reviei'lwhich no doubt has to be statuto~ilY

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reason vllly this Court should be bound by the decision given in a'

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There is a more compelling ;'eason for arriving at the !\ same conclusion. 1be Court is seised of a subject, jurisilliction of which can neither be called original nor aPDeiliatenor adVisort. It exercises a special jurisdiction Which bea~~ no analogy to

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is the principle of Rajoo (t-l/) or reconsideration. Since this i

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Court is considering the question of repugnancy of laws viith the i Ii

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in the hereafte~ not to allow their errors in matter of Shariah be perpetuated. In my vi eVI it is not only a matter of inherent DOI.'ler but of

have inherent power and jurisdiction, as held in Chief Kofei Forfei versus Barina Kwahena Seifat (PLD 1958 PC 79), to set aside its previous judgment if delivered vIithout jurj_sdiction, there is no reason Ivhy this Court, vlbose powers are othervV'ise

Although most of these petitions can be disposed of only on points of jurisdiction I will, in order to avoid the possibility of remand, also deal with the arguments on merits.

All matters in which the imposition of limitation on 0\~1ership of land, consequent forcible surrender of excess la.nd to the Government, and total vran-cor inadequacy of consideration are challenged i'J'ere arp;ued by Mian Fazal Hussain Advoccl.te. (S.P.25

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of' 1979-Lah.), Ch. Noh21mm;:)d Sadiq Advocate (S.P.I of 1980- I

Pesha.war), titr. Iftikhar Ali Sheikh advocate (S.P.4L~,54,55,56,57:

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and 58 of 1979 all of Lahore), Mr. S.1"1. Zaffar Advocate (S.P.4. :olf 1989-La11ore), Hr. MohammadAyub Bokhari, Advocate (S.P.5 of 1980-

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Lahore) Syed Rashid AhmL::.d, Advocate(S.P.36 of 1979-Karachi), I

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Nr. Nohammad',li Zaidi, Advocate (S.P.35 of 1979 Lahore), Raja I Said Al\:bar ':\.dvocate (S.P.66-19'79(Lah)Nr. Rashid rvTurtaza Gtureshi I (S.P.3-80-Lahore), Ch. r'luhammadNazir Ahmad Advocate (S.P.23 of i

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Their arguments centered round the following important ncil.its: i

(1)1nat Islllin recognizes private property as 'is evident from: i the following verses:

2:267 ••• Give in charity of the good things that you earn and of what we have brought forth for you out of the earth ••• 33 :27 And He made you hei'r to tl18ir land and their Cidvrelling' i~.l1d1heir property •••••.••• t

18:32And set forth to them a parable of two men; for one of them \'le made two ["-ardens of grape-vines ••••.•

2:188 And do not swallo'H U1J your property among;yourselves by false means neither seek to gain access thereby to the J-udges, so that you may swallow up a part of -the propertYI of men \'frongfully while ?'ou Imow. I

i 7:128 ••• Surely the land is God's; He causes such of his servantk to inherit it as He pleases............ :

(2)1bat property includes land:

And do not give mlay your property which God h2.s made for you a (means of) sUJ)port to the weak of understanding, and maintain them out of (the profits of ) 1"-1-

LJ, •••••••

Ya11ya Bin Adam is of the same opinion. He says OUJ {if (fi:gt

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(land is included in property) vide P.115, 116 of I his book Kitab-ul~raraj. !

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ty in the ownership of property 'l'hatIslcLm recognizes inequ<il.li 4:32)And do not covet that by which God has I made some of you excel others, men shall have the benefi t of l,vhatthey earn and women shall have the benefit of what they earn;

6:166 And He it is who has made you rulers in the land and raised some of you above others by (various) grades, that He might try you by what He has given you •••••. 16:71 And God has made some of you excel others in the means of subsistence ,so those IIlho are made to excel do not give away their, sU$.:tenance to 'those whom their right hands possess, so that they should be equal therein; is it then the favour of God which they deny? 17:2'1 See how we have made, some of them excel others.

(4)Usurpation of others' property is the worst violation of the sanctity of private property rights enjoined by Islam and great is its retribution. Ibn omar related from the holy prophet: 'Whoever takes possession of any part of land \,yithouthaVing a rig)1t to it, shall be as a punishment for it sunk dOivn into the earth on the d,ay of resurection, to the depth of seven earths'. e also iIamilton5 I-ledayap.533 undc::'!r the heading: fA \l/ilful-usurper is an offender'..!- It is stated:

nIt is to be observed that if any per30n knowingly and wilfully usurps the property of another, he is held in law to be an offender, and becomes responsible for compensation. If on tile contrary, I he should not have made the usurpation .knowingly and wilfully ••••• he is also liable for a compensation, because a compensation is the right

(5)None should be deprived of his property except by way of trade for which mutual consent would be necessary.

4:29110 you who believe: do not devour your property among yourselves faslely, except that it be trading bymutual consent.

(6)These principles apply equally to the State in its relationship with a citizen.

(7)~'faqf property cannot in any manner be taken over by the state.

(8)If the state usurps the property it shall have to compensa~ce the owner and pay to him compensation which s,:~tisfieshim even if the compensation demctnded exceeds the market value of the property usurped. HO\"ever the compensation should not be less than the this court. Sahibzada Akhtar r''1uneer Assistant Advocate General'l

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N\lFP, however argued at length on the merits of this problem.

He referred -[:0 verse 284 0; Chapter II:

HAnd he has made subservient to you whatsoever is in the , heavens and whatsoever is in the eanth, all from himself •• '1 •• II you a tmeans of) suroort to the "reak of un deI'standing, anclj maintain them out of (the profits of) it, and clothe them:

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and speak to them words of honest advice"

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i and referred to the commentary by Allama Abdullah Yousuf Ali .t~at though the verse relates to orphans but its language is genera~

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and aonnotes that the right of an owner of the propertyshou+~

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be exercised for the good of the community. He also referred to' the commentary of Mauiana Maudoodi regarding the use of. propertr I I ~ ~d

of an individual. He submitted. that Islam is agains t accumulation of property (see chapter 102, chapter 104 verses 2,3, & 4, chapter 47 verse 38, and verse 267 of chapter 2) and favours" equitable apportionment of all things on earth (see 4:10).

'Ihere is no doubt that though everything in the heavens and the earth is of Allah (2:284), He has made it subservient to humanity and given it under the control of men (4:5) and bestowed it upon them (24:33) so that they may eXDloit it (Distribution of Wealth in Islam by f1ufti Mahammad Shafi, P.4). There is also no doubt that Islam and allows the owner to defend it by all means available, which may ex~end to the causing of death of the person seeking to usurp it. If he is himself killed in the encounter he is a martyrp (Bokhari and Muslim) But this right in property exploited I by him by lawful means is not absolute or arbitrary or boundlessi I It carries along with it certain limitations and restrictions 'vJ'hliCh

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have been imposed by the real oltmer of w'ealth' (Distribution of i \1ealth in Islam P.4). God has also made some men excel others i

ovmershin of Health is also foreiim to Islam. It accords comole-de '. " .~ i

best use of' the gifts of physique and mental alertness endowed uoon him by Allah. 'I'he"misuse of these gifts is, however, condemned. No one is allowed to devour th~roperty of another~ Usurnation by one individual of another nerson's property is Islam does not favour curbing private initiative and howeven enterprise. It is/c;(luallyoir:osed -to a social fabric which may disintegrate by the e"Ter growing gulf betvTeen the rich and poor,11 I j I

It reco C"nises private ownership to the extent mat it is beneficial to the Society. Those upon whom riches are besto\>'led are made the trustee of their wealth and are which should be within legal me~ns. The stress on virtuous deeqs in

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a ~~slim Society tends to eradicate all chances of a Muslim I wI'1ichwould include one~ ag";randisement at the cost of to another or the addition/the wealth of a person in a manner to others (see p.52 and 59 of Islam Ka which is deteraaiJ.:;;ntal

'Thepermission to ~nd also extends only to well earned wealth. The command is HO you who believe: give in chari ty of thEi;ood things that you earn and of what Vie have brought forth folyou out of the earth and do not aim at r;ivinr2:vvhat is bad in charity while you VJould not take it yourselves unless you connive at it, and kno1ilthat God is self sufficient, praiseworthy (2:267). n1e emphasis in this what is earned by illegal means. No merit can come out of worthless spending. 'lnere are several traditions and ,juristic

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USa that this wea.lth should not bcc(Q)meconfined only to the rich amongst you" (s,g) :17:).

"Woe to every slanderer who amasses wealth and considers it a provision (against mishap) He thinks that his wealth will make him abide.Nay he shall certainly be hurled into the crushing disaster, And vihat viill make thee realize what the crushing diSaster is'? It is the fire kindled by God, Which rises above the hearts. It shall be closed upon them, in extended columns"(Quran, Chapter 104).

liThedesire of increasing riches diverts you until you come to the graves. Nay: you shall know, Nay: Nay: you shall know. Nay: if you had known with a certain knowledge you should certainly have seen the hell; then you shall see it with the eye of certainty;

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then on that day you shall be questioned about the boonsll• (Quran, Chapter10Z).

and those who hoard up gold and silver and do lI •••

not spend it in God's way, announce to them a painful chastisement.On the day when it shall be heated in I the fire of hell, then' their foreheads and their side~I and their backs shall be branded vrith it; this is what you hoarded up youselves, therefore taste what you !

hoar ded" • (~.

~uran, 0'-5)

nsay: if you controlled the treasur§!,3!oX the mercy Of

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my Lord, then, you i'JOuldhave withheld them for fear of spending ••••• " (~uran) 17:100.

In chapter 102 II the des ire of increas ing :dches Il has reference Islam is opposed to niggardliness. I

"And let not t'lOse who are niggardly in giving av{ay I

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that which God has granted them out of his grace th~nr that it is good for them; nay, it is worse for them; I they shall have that they were niggardly with theYShf'll have hung about their necks on the resurrection Dayll.,

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(Quran 3:179).

IIThose who are niggardly and bid peo:Jle to be niggardly

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and hid vrhat God has given them out of His grace; and I we have prepared for the unbelievers a disgraceful chast:LsementH (CJ.uran4:37) " ••••• and God does not love any arrogan-t boaster; those who are niggardly and en,join niggardliness on men ••.• II (G~uran 57 :23 & 24) il.

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!to children of Adam •••... eat and drink anq.ne not extravagant for he does not love the extravagant" HAnd they who, when they spend are nei ther eX'~ravagant nor parsimonious, and (keep) between these] the just mean.u(25=67).

"And do not make thy hand to be shackled to thy neck nor stretch it forth to the utmost (limit) of its stretching forth lest thou shouldst(afterwards) sit dOvin bl.a.med,stripped offll• (17:29)

And yet there are injunc:tion.sto spend as in 2:261'ibid or in 63:10 which is reproduced below:-

tr:\ndspend out of \vh8.twe have gi'cen you before death comes to one of you, so that he should say: My Lord why didst 'Ihou not respite me to a near term, so that I should have given alms and been of the doer of' good deeds~l !lByno means shall you at-tain to righteousness until you spend out of what you love and whatever thing you spend, God surely .knows itfl• (Curan 3:91) whatever thing you spend, He exceeds it in re~vard lI ••••••

•••••••• " (Quran) 34:39).

Doint has been elucidated more eXlllicitly in the follovlin verse:

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Iseek the other vrorld by means o:f\V"hatAllah has bestowed upon you, and do not be negligent about I

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".~ , your share in this dd. And do good as Allah has bestowed upon y(~,and do not seek to spread disorder on the earth'. (28:77) "This verse fully explains the Islamic point of view on the question of property. It places the following guidelines before us:-·

1)Whatever wealth man does possess has been received from Allah "Allah has bestowed upon yout!.

2)Man has to use it in such a way that his ultimate purpose should be the other world_"seek the other world"

3)Since wealth has been received from Allah, its exploitation by man must necessarily be subject to the commandment of Allah.

4)Now, the Divine Commandment has taken two forms:-

(a)Allah may command man to convey a specified portion of 'wealth' to another. This commandment must be obeyed, because Allah has done good by you, so He may command you to do good by another - "do good as Allah has done good by you"

(b)He may forbid you to use this "wealth" in a specified way_ He has every right to do so, because He cannot allow you to use Uwealth" in a way which is likely

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to produce collective ills or to spreadl disorder on earth_ltdo not seek to spre~d disorder on the earth If. " I i

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It will be clear that if on the one hand Islam imposes no restriction on earning of wealth, on the other hand it pro~ibits niggardliness as well as extravagancelJ] and accumulation as well waste. However wealthy a Muslim may be he is commanded to/adopt the course of moderation in spending on the satisfaction pf his own wants and to spend the surplus on the well being of 4is fel men.-This is further elucidated by various verses which woint ( that the needy are sharers in the wealth of the wealthy_;

UAnd those in whose wealth there is a fixed portion, for him who begs and for him who is denied (good)tl(70:24& 25) "And in their property was a portion due to him who begs and to him who is denied (g@ods)" : ('51 :219) j

"They will question thee concerning what they s140uld expend. Say: 'The abundance')2ti.e.

surplus'· (2:219)!

It is abundantly clear from the last quoted verse that \ whatever is left surplus after spending on one's own necessiti$s

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and after discharging his obligations should be spent on the !

needy in God's way. (Islam Ka nazarya-i-milkiyat Vol.1P.262 by Dr. Mohammad Najat UlIah Siddiqi). This is borne out by the following traditions cited on the same page and the page following in the above book.

"Shaddad related the tradition to us from Abu Amama that the holy prophet said: '0 son of Adam it is better for you to spend your surplus wealth (in the way of God) and it is evil to hoard it • It is not objectionable to spend the same on yourself to the extent of meeting your necessary requirements. You should start spending on those whom yoU) are obliged to look after. And the hand which gives is better than the hand which takes" (Muslim, chapter on Zakat and also T1rmizee).

rtAbuSaeed Khadri relates this tradition that on(()e we were travelling With the Holy prophet when a rider came and looked to his right and left. Xhe prophet said 'One Who has a spare riding animal should give it to him who has no animal to ride. Anyone who has surplus money e1kght to give it to a traveller who cannot afford. He mentioned several things in this connection from which wenad to conclude that we have no right to keep (hoard) over and above that which we require "(Muslim, Kitab.-ul-Luqta,·AbuDawood) Kitab-ul-Zakat).

According to Hazrat Ali the wealthy perso~of a community are to blame for the starvation or nakedness of all poor by Ab tJbaid P. 595) persons of that communi ty. (KitabulaRJ\'lal considered it a duty to distribute among the needy all that he could spare beiore he went to sleep in the night; i

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I have already referred to the verses of the holy Quran about the rights of the needy in other's wealth (70:24 &< 25; 51:10) There are traditions from the holy prophet about the enforceability of the right of a guest to the satisfaction , . See of his wants for a.night./Muslim, Kitab-ul-Luqta; Bokhari, Kitab-ul-adab; Abu Daud. During iztirar (exigence, emergency or pressing necessity) it is permissible for a person to eat from the property of others even without permission. Hazrat Umar for this reason suspended tha Hadd(quranic punishment) for theft during famine.

his book 'Kitab-ul-Kharaj a person was re~used water by the .owners of a pond and as a consequence died of thflst. Hazrat Omar awarded Diyat (bloodwit) to his legal heirs against the owners of the pond. There is no reason Why this analogy should not apply to a person dying of starvation as a result of the callous refusal of persons of means to give him food. It can also be inferred from this judgment of Hazrat Omar that those who fail to perform their duty of looking after their needy fellowmen can be compelled to perform it by legislative sanction. In Islam Ka nazaria-i-milkiyat by Dr. Mohammad Najat Ullah Siddiqi Vol. aP. 116 is oited the opinion of Ibn-e-Hazam from Almahilll, '01.6 P.1;6.

"It is the duty of rich persons in every oountry to maintain and support their needy. They may be compelled by the Sultan to do so in ease the income from Zakat or property set apart for such I common use is not sufficient. Arrangement will th~ be made to enable them to obtain necessary diet, : necessary clothes for summer and winter and houses i which may ensure their privacy and protect them from rain heat, and sun".

The holy prophet also stated as reported by Fatima hinte Qais that apart .fromzakat also there are rights in youT.Porperty~ See Tirmizi kitab-ul Zakat;Musnad Darmi K1tah-ul-Zakat. This is' also reported from Ibn Omar.

Islam does not approve of yoncemtration of wealth in the hands of a tew aftluent persons. This policy is revealed in Surah Al-hashr (59:7) which means;

ltWha.teverGod has restored to HiS Apostle from the people of the towns, it is for God and for the Apostle, and for the near of kia, an.dthe orphams and the meedy and the wayfarer, se that it (the riches) may not go on circulating among the rich of you".

Durin.g

the life time of the holy prophet and . HazratA'bu .. Bakar lJtJhen i~~ Muslims were either liVing in penury or were not well off some lands of the conquered territories were distributed among the Muslims. These were already cultivated lands.

The holy prophet did not distribute the lands among the rich only. He distributed all the lands of Banu Nadhir atter their expulsion from Medina, among the needy only as enjoined

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among the combatants and non combatants alike and left them in the l

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possession of the actual cultivators on condition of their paying i Kharaj. Thus all these lands were nationalised.

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It appears that notwithstanding this policy the gulf between I, the rich and the poor widenti~: by the end of Haz:r-a.t Omart s reign. May be the famine of the 18th Hijra had taken i:ts toll fro~e less affluent and that might be one of the reasons of the growing i

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economic inequality. It appears that in order to meet this problem i Hazrat Omar intended to distribute the surplus wealth of the rich I among the poor. There is a tradition from Abu Wail to this effect.r He reported that Hazrat Omar said. I

"If I had an opportunity to do What I had already I done (to continue my policies) I would have taken 1

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from the rich their surplus wealth and distributed

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it amon.g the n.eedy". (Islam ka aazaria-i-milkiyat, Vol.2.P.150 by Dr. Mohammad Hajat Ullah Siddiqi

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quoted from Tibari's History p.2774 and AlMuha+li .

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by __ ~~~n-e-Hazam, Vol.6p. ~~,~~slam mem ~~~~_ Ijtim~~t:d

by Syed Qutab Shahi4P.478)

Dr. Taba Hussain in his book Abu Bakar Aur Farooq-i-Azam has quoted a policy statement of Hazrat Omer made during the IWe shall eat as much as can be available from the bai t-liitl-mal f':f'or the commones t of Muslim, and if the bai~-ul-mal is left without any provision, we shall make it the responsibility of each household to feed the members of the other;; household so that they may share among themselves what is available'.

In this connection referen(:iemay with advantage be made to the commentary of Maulan Mahmud Ul Hassan qn the verse q~ch f\ {/ ~ (p'(f ;J I ~ !/

"EverYthing in the world appears to be in the ownership of the entirehumaatJy in view of the command "He created everything in the earth for you' which means that the divine object of creating them was to arrange for the satisfaction o~uman wants. Nothing is, therefore • in the I ownership of anyone individual. In fact e.verything'l is in the collective ownership of mankind and every human being is a sharer thereof. In order to obviate

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mutual conflidand disputes possession has been made

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a cause for ownership and fo-r so long as any person! is in absolute and permanant possession thereof no other person will have a right to interfere. However such an owner in possession should hand over to others what is surplus to his requirements since on account of the original ownership the I ri§hts of others are also involved in it. It is for: I this reason that even after the payment of Zakat it is not approved that any person should hoard property beyond his needs anQthe prophets and the pious have desisted from this course. On the other hand some of the companions of the holy prophet and their immediate successors (Tabieen) considered it unlawf*l (for a muslim) to keep with him more than what is' I sufficient to fulfil his needs. However there is no! I doubt that this cannot be approved. The reason. is I that on account of collective ownership his possession I

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shall be treated to be on behalf o.1all the owners· i It should be treated to be analogous to 'booty' . . all I

wh~ch ~s treated to be owned by/those particip~tingi

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'--~ ~ __ c •• __ • ~ • ~_

in war but everyone of them is entitled to avail of it according to his need. You should know what he is if he keeps in his possession something more than is required I by him immediately (meaning that he will be guilty of misappropriation) (Eizaulaula p. 268 quoted from Islam ka Iqtisadi Nizam by Maulana Hifzul Rehman Seoharwi, pp. 45 and 46.

of wants of individuals it is open to the Caliph to compel the rich to make up the deficiency even thOUgh they might have paid all their dues (zakat etc).tr Islam ka Iqtisadi Nizam p.77.

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These instances and opinions establish that legislative act~on can be taken by the state to make its citizens in times of deartH j I

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It appearstnat according to custom also the tribe was duty I i

bound to help its members in time of stringency. A;t;,:p. 142 of th~

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above book it is stated that when Hazrat Omar received the fatal I

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wound ~ asked for an account of his indebtedness to the balt-ulimal. Finding that he had to pay eight thousand dirhams he directed hi~

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son to pay this amount after his death from his inheritance and jrom

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his own (son's) property and if something still remained payable! he should demand its payment from his tribe i.e. Qureishtt• In my

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jUdgment Pin Mohammad Riaz. V, Federal Government and others (S.pJ ! L. r>" Po,. . oS,. Co , 132 of 1979-Lahoret'decided on 23-9-1980 pertaining to murder anq hurts I had pointed out that Diyat was payable in certain cases ~y Agila or the group to which a person belonged. It now appears tOjme that the liability to payment by Aqila is also based at least partially on the right of a person to demand payment of his debts

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ownership of wealtt the popular senselof

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the term. Its object is to develop the sense of free enterprise I

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within lawful means. It considers abominable any attempt to earnimon~ I l or acquire property by unlawful means. It would follow that therr canj be no possible objection to the confiscation of ill gotten wealtb

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by the State~ It was on this principle that half of the wealth earned by Government Servants during their tenure of office was confiscated during the period of Hazrat Omar, in case they failed to account for it.

According to Quranic injunctions,and the Sunnah of the holy prophet the right to spend from one's money and property extends to the satisfaction of his necessities in manners' neither niggardly nor extravagant and to meeting the requirement~ og his dependants. The balance should be spen~ on the poor and the needy. Islam is opposed·to hoarding or accumulation of wealtij

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and its concentration in theliands of only the rich of the \ i community. It should therefore be open to th~state to take such steps as are found necessary.to stop these vices. Similarly just!

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as the state in its capacity as supra-guardian has aright to lo,k

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after the management of property of the minor and the insane it I

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can also take~ver the management of properties of persons to who~

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"And do not give away property which God has made for you a (mean of) support to the weak of under- standing, and maintain them out of (the profits of) it and clothe them and speak to them words of honest advice". . ) The principle under which a safihl~ ) can be restained from the illegal or unethical use of his property is called Hajar (A). 'There is Ul'lanimityon Hajar amon-gthe jurists who agree on the definition of safih as a person who does not manage his property well and spends his money extravagantly, absurdly and on matters unlawful and sinful.

The idea underlying islamic injunctions concerning the acquisi~on and use of individually owned property is public good or welfare of the ummah or a community. Consequently legis- lation can be made for regulating in the public interest, such acquisition and use, no doubt giving allowance to the right an individual owner to utilise his property by all lawful

It was on thi~rincipClte of public good that the grant ot

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land made by the holy prophet to bilal bin haris was regoked ~y Hazrat Ornar since the grantee could not reclaim the land an~ fring it into cultivation. On this point Mr.S.M.Zatar argued that ~1.s narrative is given in Kitab-ul-amwal by Ab'§tUbaid. It, however, i appears from Kitab-ul-Kharaj by Qazi ABU Yousaf and book of tte same name by Yahya Bin Adam that &llal was not compelled to I surrender land but had assented to the revocationo~e grant~

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N.$thing turns on this argument •.Tfieconsent of or r~isi~

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of no objection by the grantee to the revocation cannot give ~o

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the revocation the character of an absolilltelyvoluntary SUrrejder. I It would have been such a suffender if the offer had come fromI I Bilal in the absence of any command from the Galiph •.Tne word~ attributed to Hizrat Omar by Yapya Bih Adam establish the prif,ciPl~,I,:, of validity of the forfeiture of the grant for a public purpofe '

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or for failure of the grantee to abide by the conditions of tte grant. TEe author says at p~"112 that Hizrat Ornarhad told Bil~l that if the grant had been made by him or by Hazrat Abu Bakarlhe would have dispossessed him of the land. '!hisstatement is I-

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sufficient support for the principle laid down in Abu Ubaid'si I

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book, Kitab-ul-amwal. :

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i I agree, however with the argument that this is an , I of I, I' instance of revokation of grant/- state

land and that this prinpiplej, ! r will not apply to the acqUisition of property individually owfed I

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or to placing limitation on ownership of any property. Lwoul~ I directly deal with the law of expro~riation of private p;~Jlr~'Yl inl

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Islam. . I

Tilis is an established principle that the pwer of \the

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State extends to acquisition of property for public purpose. IIn" para 1216 of the Mujelle the rule is thus stated: of uIn the time/necessity by command o:f the SuI tan, la man's mulk property can be taken for its value ••1."1 Hazrat Omar demolished the houses of those who had refused tdse11i

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them for the extension of Masjid Nabwi(Baladh~l .•Fatuhul Baldl!an 'Ii, p.58 quoted in Islam ka Nazraria-i-milkiat by Naj3tUllah,vol ,2 p.23aHaarat Usman also did the same. '!he value fixed the stilrt'f!;}

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Hazrat Omarexpelled Najran tril:«from Yeme~ to. Iraq ~con~1s- cat'~ their land and ordered first allotment of land to them in Iraq I

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in lieu of their own lands evacuated in Yemen.

These are instances of acquisition on payment of compensat~on fixed by the state and furnish sufficient answer to the argumen~

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by some learned counsel that th~ount of compensation should ] be the amount demanded by the erstwhile owners.

There is at least one instance in which no compensation i was paid for the acquired property. It is the case of expropria~ion of privately owned land by Hazrat Omar for its use as common grazing ground (Hima). The Caliph turned down the protests ti the owners who not only pleaded their ownership of the land but! I also emphasised that for generations they bad been fighting fori it before their conversion to Islam. Accordint to Shah Waliullar (see page 151 of his book Fiqh Omar, translated by Maulana Abu i I Yaya Khan, 2ad edition).

"the basis of reconciliation as is agreed upon by Imam Shafei and other jurists is, that it is unlawful for the ruler of the time to confiscate any land for his own benefit but expropriation for the cattle of Baitulmal and for reforming(or removing) the distress and afflie.ti;on. of the Muslim Ummah is lawful".

According to the translator this fact is relevant for justifying the land reforms. Xhe translator of kitabul Amwal by Abu Ubaid treats this tradition as conclusive of the justi- fication and validity of land reforms in Pa~istan. Another instance is that of advice of Imam Abu Yoysaf to the Caliph in answer to a question whether the Imam can fill up with earth and close a canal constructed by any wali or Amir if on account of lack of maintenance its banks are so littered with earth that the common pathway on it is obstructed and the nearby houses are likely to be damaged. Whereas the Imam did not favour this in the case of an old canal his answer about the new canal is based on publiQPolicy. He says in Kitab-. ul-Kharaj p.322 (urdu translation by Dr. Najat Ullah Siddiqui in the name of Islam ka Nizam-i-mahasil) tha.t if the advantages I of a new canal turn the balance in favou~f its being maintaineti

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\1:~t~J

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Dr.Najat Ullah Siddiqui s«)s that an Islamic state Elan I interfere with individual ownership with the object otelim~~tron ot injury trom the community and on political considerations o~

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public welfare (see p.240 of his book Islam ka nazaria-i-milki~at i vol :2). At p.245 he justifies the limitation of ownership of i i

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\.of

thf/eonstruction of more than three houses by an indi~idual~' Refeeence may also be made to the view in Islami Manshoor of All Pakistan,Jamiat Ul-Ulama-i-Islam at P:40:

"The Sharia has not fixed any maximum limit on the ownership of land but if individual ownership of big tracts of land becom~ a cause of mischief in the social economic set up and the social welfare programme and the religious and national interests be in jeopardy or likely to suffer it would be open to the Government to place or fix a limit on the ownership of land in the light of the prineip~es of Shariah".

This valuable opinion of the Ulemaclinches the matter. I am in full agreement with these opinions. The principle of reconciliation referred to by Shah Waliullah in the case of expropriation of land by Hazrat Ornar for purpose of Rima (graZing ground) is fplly applicable to Martial Law Regulation 115. The expropriated land is not to vest in the President or the Prime Minister nor has it been confiscated for their personal use. It vests in the Government for public purposes which includes its distribution among tenants or actual cultivators of land. Hazrat Omar limited the ownership

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of house property to three houses which proves that the Imam I (the state) can put such limitations onindi:.vidual ownership~: The objects of the statute are diminution if not complete I i elimination of the curse of feudalism, reduction of concentrayion of wealth in the hands of a few big landlords, Lessening the ' evil of absentee landlordism and giving an impetus to the newty i

created category of small landowners as well as the Gld land-I I

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owners to get the maximum output from their lands. These Objejts are the same as enjoined in Quranic verse 77 of Chapter 2a; !

~ And do good as Allah has done good by you, and do not seek to spread disorder on the earth"

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42 I,

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review of the tenures in the Indian sub-continent that all J the lands therein are State owned and not individually owne~. A resume of their fatwass is given in Islam Ka Iqtisadi

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Nizam by Maulana Rifz ul Rehman Seoharwi at pages 299 to 3J3J.

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The Ulemas named there are She Jalal, Maulana Mohammad Aala and Shah Abdul Aziz. Professor Rafi Ullah Shahab

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also reproduces ther;efatwas (verdicts) in his book Islami i i Riasat Ka Maliati Nizam, pages 72 to 74. At page 75 he I quotes the opinion of Mufti Mohammad Shafi to the same effec~

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and his conclusions that the Government of Pakistan being tht

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Mutawalli of all lands in Pa4:istan can distribute them among Ii t

the citizens of the country and can construct on them mosques, schools, and buildings for social welfare and can

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also give th~ lands to other citizens of the country for I

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this purpose.lt will be necessary to do this exercise for the proper appreciation of their point of view though in the end!

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Wile dealing with the history of tenure in the 5ub- i continent one has to start with

the Hindu perioe: thel1:1 SWi~:CJ~]{

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over to) the state organization during the MUslim ~le. TIlis ~s to be followed by the Sikh rule and ultimatily by what trans~lre41 i during the British period. It is not necessary tOequote man.y'! books since "The land Systemo~'British India "j by Baden p~,ell

is the last word on the sUbject~. The quotations on this subjdct are from that book only. I

"1!iewholecountryoccupied by the tribe or clam who I HINDU selened and conquered the locality, was first divid~d

PERIOD I

out into large territories or diVisions, and the centra+ and largest(or at any rate the best)one was assigned ~o

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the head chief called 'Raja'. , t

Round about him, other !States, graduated in,size, were occupcied by lesser chiefs, heads odr tribal groups or I, sections. ~ese would be represented by such titles II as· ''lhakur' 'Rama', 'Rao " 'Babu'. Everyone o:fthesel held his estate on certain terms of service to the· I Raja, which I will pass over wi thout more detai 1 than! to say that a .fine was paid on succession; that hom.. a...

was done; that, on summons, the chief had to attend 1 gr ,

with his force; that he was expected to aid with such contributions as were, in times of difficulty, required. In some parts the most distant of the 'estates were in hilly country; and here the chief was more independent than the rests, and was expected to keep the passes, and prevent the descent of

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heighbouring hostile tribes and robbers to harass the I dominions of the Raja and his chiefs". (Vdll.LP.250) iI

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"It will be observed that just as the Raja took this I share for his own 'Khalsa' or demesne lands, so did t~el

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separate ehli:ifsin their estates; the Raja took no I grainshare in them. Exactly in the same way, where the I I Raja made a grant (or in later days a sale) of apart ot

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his own demesne lands to a countier or a general, atc., the grantee took the share (and perhaps some of the other taxes and tolls) which would otherwise have gone to the king.

"This fact is at the bottom of a great deal connected ,

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both with land-tenures, and the land-revenue~ And we hclve I already seen how, from the Raja's grants and from the r

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break-up of the territories, village landlord communiti~s have arisen"., (Vol:1, P.251)~:

','Inthis case, the Raja! grain-share passed on to the conqueror, or succeeding power~ If the Raja had been l' killed in battle, or had fled, there was no one to shar, or diminish it; it was simply collected by the state . i machinery of the conquering king or emperor; if the Raj, survived under the conquerer as a subordinate noble, he i was probably installed by royal grant as a 'Zamindar' o~ 'Taluqdar'; and continued to collect the grain-share as i before, but had now to pass on a portion-perhaps the gr~ater portion---- to the treasury of the conqueror; and he made his own wealth by other privileges which in th~end left Ihim richer than before; he was allowed to cultivate the was~e, and take the profits for himself; he was gradually allo~ed

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to bargain with the State for a fixed revenue payment arid

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keep the difference between that contract sum and whatjhe

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could collect from the traiyats '; Then it waS that the i idea of the right of reassessing the revenue-share from I time to time, ill-defined as that practice was,invvita~ly occured to him; and when, under our own rules, the titl~ in the land was secured to theZamindars, the power of r~i~ing the assessment soon developed into the ,I Landlord' , and I his right o:f'enhancing' the 'rents',wh1chproved such a source of burning discussion for after years". (Vol 1 P)252).

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II. ~../

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Vl.iji"~·'

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"I must remind the reader that all this was matter of I custom---- that curious and often 'undefinable feeling th~t things ought to be in a certain way because they always I have been so. The Custom, however, has always to give way before the necessities of the ruler; and that is why, \in- spite of all that can be quoted from law-books, we find ! that, in modern times, all native States claimed, and stitl claim to be de facto owners of ever V acre of soiLin theit States, and have taken as much land-revenue as they cou+di get without seriously star~ng the peoplert• (Vol:1 P,246) \ "The (Muslim) theory was that the inhabitants of a cou~try

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Muslim might be regarded as 'milli' or peaceful, 'zimmi', or I Period subdued infidels; and 'harbi' those in arms against the Muslim; and the treatment of a conquered country may be \ i briefly described in the words of an author quoted in i Colonel Galloway's Law and Constitution of India:--- When [the

I

Imam (leader of the faithful) conquers the country by for~e of arms, if he permits the inhabitants to remain, he impo~es the Khiraj on their lands and he adds that the land then I remains the property of the conquered. I 1$ i

"Some authors cons idered Khira' be of different kinds

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--the term in itself meant the whole of the surplus pro- ,

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duce after deducting the cost of production, I "But there was also the more lenient form of 'Khiraj : mukasima, or division of produce, by which the sovereign I. took one-fifth or so, This was of course, the exact count~r part of the old Hindu grain-share. I

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"The tax converted into money was called 'Khiraj-muwa- ' zifa.' or simply 'wazifa; and this was (originally) regul~ted by the ability of the cultivator to pay. . i "On such general principles, it is not surprising that [the i .

Muhammadan rulers exercised considerable latitude in I

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assessing their revenue; and that no particle of evidence I J can be adduced for the proposition that by 'Law and constlitu- tion!cLof.,;Im.d1la,Akbar'sSettlement, or any other, consti tufted

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a standard to which everyone could appeal, and beyond whiph

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he could ndlt lawfully be enhanced. As a matter of fact, , in the best days of MUghal rule, moderation and control over collecting officers were duly observed; but no I ruler ever dreamt that he might not from time to time as t

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he chose--(there was no other principle) revise the assessl.. ment. Good rulers did so by a formal measurement and I moderate additions. Indifferent rulers did so by the easier expedient of merely adding on 'cesses' (known in revenue language as 'hubub' and 'abwab'). Bad··rulers simply . bargained:ith farmers for fixed sums, thus both compellinrl.. and encouyging the farmer to raise the assessment on the

cultivators, or, in amher words, delegating to the farmer the proper functions of the State Officer in revising assessments" (Vol:1 ;PP.267, 268).

,p";";

"Whether th~jifM'tihammadan Government consciously imitated the Hindyf'system of appo!ntingcertain chiet's to manage sp~~territories---especially frontier and mountain-- . 't';acts-Icannot determine ; but at a very early sta~ they adopted the plan of granting to court-favourites, to ministers of state, and to military officers, the right to collect· the revenue of a eertainarea of country, and to take the amount collected, either to support their state and dignity, or1'---- in the case of military chiefs---- to equip a body of troops, to be available for the royal service.

"The Mughal empire recognized a defini~portion of its dominions as that which was directly managed by the emperor's officers, and another area as that available for the assignment of the revenue spoken of. And when certain offices or titles were conferred, a fixed grant went with them as an appangge. Such grants were called tJagirt~jThey were at first always for lif'e,andresumable with the offiee.Nearly all later governments have adopted the 'Jagir' but chiefly to support troops, or to reward a service of some kind. They are still granted by our.own Government, but as a reward for services in the past, and n$t with the obligation of military service. In time it was thought below the dignity of the ruler to resume, and so th~ grant became permanent and hereditary. Possibly this stage I was hastened by the fact that the governments-both Hindu and MUhammadan--- had always been accustomed to grant I ' smaller holdings of land, free of revenue, to pious person$, I to support temples, mosques, schools, or bridges and tankS,! and these were calledtinam~ or 'maafi', and were usually !

hermditary and permanent {as long as the object was f'ulf'ill~dh As the inam was permanent, so the jagir grew to be in many II cases. Possibly, also, it was the decline of power which i caused jagirs to be irregularly granted, and thus to become I permanent. When a disorganized government desires to rewardi a worthy servant (or an unworthy), it generally has its treasury empty, and the easiest plan (though true policy wollald suggest a cash pension for life or lives) would be to give'!I a man a grant by way of assignment; and allow him to collect

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what reverlUe lle could off the area. .

ttAgreat number of assignments of revenue in this way grew into landlord-tenures, very much as the 'Zamindar'

estates did. This was much facilitated b¥ the fact that the grantee was allowed, and indeed expected, in many cases. to conduct the revenue- administration in his own way, andoof course he had (or assumed) the full right to all unoccupied or waste land in the 'Jagir', and had many opportunities of ousting re~raetory land-holders- buying up their lands, taking them as security for arrears of revenue, and so forth. 'Jagirs' were sometimes granted with the express object of the grantee settling the waste and then, naturally, he would be looked on as the landlord of the who 1e If:;~(Vol:1 P .189,190 h Sikh Period "Looking at land-tenures from the joint of view in the PUn,jabf o th..

e revenue re 1at'1.ons Wl'th.. -1-',",ue " St . a t·e, th.e Pu··.

.... b nJa·· might almost be called the land par excellence, of muafidars and of Jagirdars. It is true, here also, that many of their interests are more matters of money assignment than of any direct connection with land; but still, in other cases, they are SUfficiently territorial to be dealt with as tenures.

"A number oftJagirdarst have beernhanded on to our GOvernment from the sikh rule •.!it was the pelicy of that: State to dealL direct with the villages, and th;ey therefore checked the growth of all such tribal chiefs and others as would, in other places, have absorbed all subordinate rightt il and become great and absolute land~ords. But they could ] not entirely ignore either the local chiefs, or those belOnging to their own confederation •.nley adopted the plan of making I revenue-assignment"or allowances, and calling the grantees tJagirdarst, generally requiring some military ser~ice,i.e. that they should be ready to take the field with a body of foot and horse-Which constitutes the real meaning of a 'Jagir'. Thienagain a large number of Jagirs have beenl handed down to our own Government not as created by the Sikh rulers,bfut as representing the remains of the chief- ships and dignities of that Government(see p.606,an~) "Sc:>that, what with religious and charitab.t1;efree-grants and with all the historical jagirs of past tim~s, the proper+ "!::ion of Panjab land-revenae assigned is very large., Many !

'Jiiigirs'have been granted as rewards, or simply fOr thet support of members of old and honourable families, or the spiritual heads of sects, like the Sikh tBedi' class or the Mtissalman Saiyad and Makhdum.' (viI 2 pages 698,699) British " There can be no doubt thatdn in the latter part of the Period eighteenth century, When Britishadministation began, the different native rulers who preceded us, haciasserted rights as the universal landowners. That being the case, our Government susceeded, legally, to the same claim and

title.

fllfit were determined that 'Government might be justfly regarded as owner of the land,then of co\lrsewhat it ':

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took from the actual cultivayorm1ght be regarded as. I , rent; and GOvernment was fUrtberentitled to take the ~hole of the remaining produce of land, after alloWing the \ cultivator the costs of cultivation and the profits off

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his capital. If not, it was rather a question of words I whether the Government revenue was a rent or a tax." ' (vol 1, p.217) I

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"The Zamindars, who had gradually, since the beginnin-g i of the eighteenth century, been allowed to contract fOf the revenue o~arge areas of country, were the only re~lly well established revenUe machinery Which remained in I existence- A centt!l:ny~s,:,grQllth had given them such a hotd, that they had not only become vi!.'tuallylandlords, so i that to ignore them would have been unjust from the I point of view of private interest in the estate but frJor the ~evenue p~,int of view, their aid was indispensab~e I ('0'01.1 p.283).' I,

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"The British system recognized that the revenue must I be collected by means of local men of influence and I

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wealth, who took charge of considerable estates,larget or smaller, according to circumstances; and that, in ' I order to give these persons confidence, they must be ! endowed formally with such an interest as made them legally and in name, what most of them were de facto, proprietors' or t landlords! The king's subjects or l> I 'raiyats: then became the tenants of the new landlordsJ (vol:1 P.285)~ II

These are the main~aturE5 of the history of tenyl e in the sub-centinent. It is unnecessary to go into the i details of tenures which very from place to place but I it would be necessary to add that though the rulers i whether Hindu, Muslim or Sikhs asserted rights as oWl1e~l¢,t2 of land the B~i~iSh Gpvernments granted big tracts of ~and as revenue free Jagirs and revenue paying zamindaristq

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a large number of person as a reward for their treache~ Tor , to the cause of the sub-continent and /loyalty to ai foreign government. The Jagirshaving been abolished b~ Martial Law Regulation 64 of 1959, most of the present day zamindaris are either of decendant~ or remnants of one time revenue or rent collectors who became self styled zamindars during disturbances or who were grantees from the British Government. Th~resent day i

Zamindari system,however, came into vogue during the British period when the middle man was recognized as an owner of the land. Yet there afe a large number of persons who became owner of lands reclaimed by them under:c the conditions of grants made by the Government before indep@ndence as well as after independence. Even under Shariah these eeclaimers would be entitled to proprietary rights. A large number of landowners are those who have pu~chased in good faith lands from their previous owners.

From this history it is not possible to make a uniform declaration of validity or invalidity about the ownership !

of land. Each. case'will have to be decided on its own meritst It is not therefore possible to justify or invalidate reform simply on historicity of the issue. Moreover onee the right of the ruler to confer right of ownership of land on others (which is a well established principle in shariah as regards state lands or lands not owned by any

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person) is conceded the conferment or recognition of ownersh~p rights on the middleman by the British Government would ! be unexceptionable. In any case the continuance of laws recognising that ownership in post independenceperlod bY, the Government of Pakistan would amount to validating that ownership which is recognized even by the Regulationn and other laws of expropriatory nature. It is therefore now too late to rely upon the doetrine evolved by Imam Abu Yousaf against the introduction of a middle man between the state and the cultivator of the land for the collection of Kharaj. (Islam ka nizam-i-mahasil by Dr. Mohammad Najat UllahSiddiqi P.346). The argument would therefore be of

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ihednstitution of big landlords or of absentee landlord~sm

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has always been a source of oppression against the cultivatbr~

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It was tgerefore'one of the blessings of the conquest of \ Hazrat-Omar that, as stated in Alfaruq by,Maulana Shibli Nomant., P.257, "he abolished the oppressive system of Zamindari and ownership of land ". The reduction of ownership of individual holding being thus a step towrds elimination of an oppresive system isuno'bjectionable in Shariah. It cannot be laid down as a rule that waqf properties can in no circumstances be acquired. Will it not be open to the Government to acquire Waq~ property for construction of a dam if it is the only site appropriate for the purpose! May be the waq£ is for the benefit of the public but it cannot be doubted that the construction of the dam would be generally much more beneficial. Apart from the principle

i.•.•..

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of Masaleh Mursala of Snariah the principle of interpretation, I "Necessities (Zarurat) make forbidden things canonically f harmless" (vide rule 21 at p.6 of the MUjelle) will be applicable to such acquisition. I

The principle of Gnasb on which reliance was placed by the learned counsel for the ~etitioner is not applicable to acquisi tiom: of property by the State for public purpose as distinguished from confiscation by the Imam for personal use. This distinction has already been pointed out on the authority of Shah Waliullah from Eiqh Omar with regard to the expropriatipn by Hazrat Omar of land owned by Muslims for use as grazing i ground without payment of any compensation. This brhngs me to the question whether acquisition should always be subject to payment of full compensation. No hard and fast rule can be laid down. The above quoted instance of Hazrat Omar acquiring land of Muslims owners for use as a grazing ground without payment of any compensation justifies in extra ordinary circumstances non-payment of

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compensation for acquired land. Such circumstances may includel

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the financial stringency of the state. The acquisition for ' analogous reason may be justifiable on pa)~ent of nominal compensation. Another circumstance may be the policy of the Government to repel damage or f~_d in the body politic by reducing the impact of concentration of wealth in the hands of a few who do not discharge the Quranic obligation of spending for the good of the humanity. ObViously payment of compensation in such a case frustrates the objects of acquisition and substitutes in the hands of a few one kind of wealth for the other. But apart from cases of such dire necessity the payment of full compensation which should be equal to the market value of the land, should be the rule. It is not therefore possible to strike down any law as being bad for either absence of provision of any compensation or for prOViding for payment of only a nominal value. The next question which was raised in S~P.5 of 1980- Peshawar is of the val'idity of Paragraphs 22 , 24 and 25 of the Regulation. This matter was argued by Mr. Nabi Gul Advocate and Maulana Ghulam-ul-Rehman.

Para 22 places a permanent embargo on partition of a joint holding with an area equ~l to or less than ~."..that of subsistence holding or with an area equal to an economic holding. Subsistance holding is defined as meaning an area ofthi i

two acres of land in the province of Baluchistan, sixteen acres of land in the province of Sind and half a square or half a rectangle or twelve and half acres of land whichever is more, elsewhere. In order to attract the provisions of para 22 and 24 such holding must be within one estate or mauza or deh. Economic holding is defined as comprising within an estate or mauza or'deh an area of sixty four acres of land in the Provinces of ~ind and Baluchistan and an area of two squares or two rectahgles or fifty acres (whichever 1s more) Para 22 also probibits the partition of an area larger than a ~ubsistence holding but smaller than an economic holding or an area larger than an economic holding so as to reduce any plot along with the area already held or possessed by an owner to less than a subsistence holding or an economic holding as the case may be.

The, learned Counsel argued that Islam makes an owner of property the sole jUdge of its use. In ~avour of the unrestricted and absolute right of an owner to partition joint property he placed reliance upon verses 7 and e of chapter 4 as also verse 32 of the same chapter. Verses 7 and 8 pertain

I I

to inheri tence of •men' t 'Women' and rela tives to a portion ••.. of the property left by the deceased owner. The word 'portion' or 'division' only relates to the concept of resolving the nominal share in immovable property to which an heir would be entitled under Shar1ah. VeB&e 32 1s against covetousness and declares that "men shall have the benefit of what they earn and women shall have the benefit of what they earn". These verses are not relevant to the question. His quotations from Hadis were as much off the point.

Now there can be no doubt that the right to partition goes along with the right of ownership of immovable property but for the reasons already noted the State does have the authority to restrict the right in the larger interest of the

Ummah.Thes~ restrictions have been placed to put a stQp to further fragmentation of holding and to retain them as viable units for cultivation. It cannot be doubted that such order to further the interest of the joint owners provision has been made in para 23 for management of impartible joint holding as a single unit. It provides that in the event of a dispute regarding the management the cosharers may select one of them as manager by drawing of lots or may get a manager • appointed through the collector of district. This para thus introduces the idea of cooperative farming which is necessary for stepping up the programme of improvement in agricultural Paragraph 24 puts a ban on sale, mortgage or gift of any portion of land which may reduce the holding of an owner to less than a subsistence holding or'an economic holding, as the case may be, but it allows an owner to sell his entire holding. The object of this paragraph is also similar to the object underlying Paragraph 22 and as such the paragraph cannot be declared repugnant to Islamic Injunctions.

Maulana Ghulam ul-Rehman was on para 25 which prohibits the ejectment of the tenant except for (1) default in the payment of rent,(2) sub-letting the holding, (3) user of the property in a manner which renders it unfit for the purpose for which he holds XNM. it and (4) his failure to cultivate or arrange for the cultivation of the land in accordance with the terms of the tenancy or otherwise 1n accordance with the customary manner in the locality. These grounds are to a large extent identical with the grounds of ejectment of an occupafY tenant in S. 39 of the Puhjab Tenancy Act, 1978, with the difference that firstly 1n the case of the latter it was necessary for the landlord to obtain a decree for arrea3 of rent and the ejectment for default of such tenant was dependent upon that decree remaining unsatisfied and secondly the occupancy tenant

subject to any written contract between him and the landlord had the right to sublet his holding for a period not exceeding Para 25 further provides for the payment of land revenue, taxes, cesses,surcharge and other levies on land by the owner of the land and also makes him liable for payment of water rate and for providing seed for cultivation of the holding. It further provides for sharing of the cost of fertilizers and pesticide required for the holding, equally by the owner and the tenant. It also restrains the owner or person in possession of the holding from levying any cess on or taking any free labour from his tenant. Clause (d) of its sub para 3 confers the first right of preemption on the tenant in respect of the land comprised in the tenancy.

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based their argumen~s on those traditio~s

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owner, rather his obligation, to let out land to a tenant for a specified period. He submitted that in case no period is specified the tenancy will be presumed to be for a crop only. In support of this he placed reliance on Fatawa Alamgiri and Hedaya.

1.By the terms of the treaty the holy prophet agreed to let the lands of Khyber remain in pessession of the inhabitants thereof on condition of their paying half of the produce.

2.The holy prophet prohibited such tenancies in which the tenant agreed to give to the owner the whole produce of any fixed portion of the holding and to

bring the produce of the rest of the holding to his exclusive use.

3)The holy prophet discouraged some persons from carrying on cultivation on account of their preoccupation with Jihad (Misfukat pUblished by mohammad S~eed & Sons, Vol.2 P.40 Hadis

2847J

orders by Hazrat Omar from Nizam ul alam wal Umam by Tantawi pages Voi2 pages 183, 184,at rb 244 and 245 of his book Islam ka Iqtisadi Nizam.

"When, during the reign of Hazrat Omar (the state) abounded in wealth and allowance was fixed~r (maintenance of) all people and registers began to be maintained, the salane,,:> of Government Officers! and Qazis were fixed, hoarding of wealth was prohihi ted, Zamindari was forbidden and the vocationj of agricul turelS,and tenancy was banned. It was I

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(I;lr['ntapli:ty.~.') for the reason that allowances of the j people, of their children and even of their slaves had been fixed. The object was that all the Mussalmans should be prepared to be mobilized with' the Army for waran~tiemay be res i;~i.n:ed by the exigencies of the vocation of agriculture or by their sloth created by a luxurious and ostentations living. This order was extended even to Zammis. If anyone of them was converted to Islam, all his property was distributed among other Zimmis who would become liable for the payment of its kharaj. The muslim convert was allowed to retain only his movableplr1operty and cattle. His allowance was fixed from the Baitul Mal. Omar Bin Abdul Aziz r@new@d this system during his reign since he used to follow Hazrat Omar in each matter".

Maulana Seoharwi has also cited at p. 245 two traditmons. 6ne is from Abdulla Son of Hubaira that "Hazrat Omar S/O Khattab

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that since the allowances of all Muslims and their children had I

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been fixed, no Muslim should carryon the vocation of cultivatio, or agriculture~IThe second case is of shauikwho started cultivat+on of land on the pretext that his allowance was insuffiqient for I hJ.s s. 'n rece~p t 0 f a repor t fOb· nee dO· rom ~n u 1 j~S, mar ", \ ";-<,<:C"e'.-C, i, ",I, .

L~ -._--~~~..,...--~. -".."."*'\j;,~j,~

Hazrat Omar 5unrra~edhim and threatened him with exemplary punishment, and pardoned him after .j3.. repented.

4)He prohibited Mukhabra or crop sharing.

5)He discouraged letting out of land.

6)He encouraged Self cultivation.

It is agreed that the lands o~ Khyber were left with their previous occupants subject to payment by them of half share of the produce. It is also agreed that the agreement in category (2) was prohibited. There is however difference of ppinion on the right of the owner to let out his land to tenants. Those who are opposed to it distinguish the Khyber pre~edent (category I) as being a case of treaty with a con~ered people.who agreed to pay Kharaj in the form of share of produce. Tawoos and Hasan Basri are altogether opposed to it though it appears to be true c1thata number of the companions of the holy prophet including Hazrat Ali used to cultivate lano.sf of others on condition of sharing the produce. Imam Shafei, Imam Abu Hanifa and many other Jurists including Imam Mall~ do not consider it illegal to let out land on fixed rent basis whether payable in terms of cash or silver or payable in the form of a fixed qua~ty of grain, cloth or any other commadity but they are opposed to mukhabra i.e. sharing of produce in any form. Rabeea is of the view that fixed rent cannot be obtained in the form of grain or produce of the land.

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(Commen~y by Imam Nawawi in Sahih Muslim, pUblished by She i Ghulam Ali and Sons, Vol. 2 p. 950. Se~ also Mowatta Im~m Mohamma~

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p.378 for the view.of Imam Abu Ranifa). The view of Imam Abu II Hanifa, Imam Malik, Imam Shafei and' others is not shared by Imam Abu Yousuf, Imam Al;lmadand Ishaq. It appears from Kitab ul Kharaj translated by Dr. Mohammad Najat Ull~ Siddiqi in th-e name of Islam Ka Nizame Mahasil,Page 312,that Imam Abu Yousuf preferred the opinion of Ebn Abi Lailaon this point and 1 conSidered crop sharing syste~ to be valid. Since the traditions of the holy prophet on this point are conflicting Imam Abu Yousuf \ ~;;jf;)

considered those traditions to be preferable which suppGrted his view. The submission of Maulana Ghulam ul Rehman that Imam Abu Yousuf validated crop sharing tenure on account of change in the circumstances, is not correct.

I may; however refer to some traditions in which self- cultivation is preferred. It is repprted in Sahih Muslim from Jabir that "the prophet (PBH) directed that an owner of land should either cultivate it himself or give' it to his brother for this purpose but he should not charge any compensation (for its use)~ According to Imam Nawawi it is not lawful for a person to charge rent for land which is surplus to his own use. He should ~ive it to the needy who can utilise it.

There is another tradition from the same source that "we used to let out land on basis ofmukhabra (sharing of produce). The Prophet (PBH) said that "a person who has land should either cultivate it himself or give it for cultivation to his brother or let it lie fallowlJ;~:

There are similar traditions no 2176 and 2177 at page 810 of Vol. I of Sahih Bokhari published by Mohammad Saeed and Sons in which the stress is on self cultivation of land.

At.P~26 of Islam sur Nizam-i-Jagirdari "fa zamindari by Maulana Manazir Ahsan Gilani is reported a tradition that when four persons combined to cultivate land the prophet (PEH) did not award any share to the owner whose investment in the cultivation was in th~ form of land only; Mr. S.M. Zafar read from Kitab Ul Kharajby Yahya bin Adam p P. 95 and 96 in which the author has on the authority of Abu Daud denied the authenticity of this tradition.

The principle of this tradition appears to be fUlly in conformity with the traditions about the merits of self cultivation. So far as the criticism in Yayah Bin Adam's book is concerned, I may point out that Abu Daud the famous

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compiler of Hadis was born in the year 200 Hijra and he was only three years of age when Yahya bin Adam died.

It appears to me that there is no conflict in either of these traditons. The general order to the owner was to

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cuI ti vate the land himself and to give the surplus land g~atls:' for utilisation to his-brother Muslim. The traditions prohibiting the letting out of land have to be viewed in the light of this general order. But there were a number of owners of land who were either required to participate in Jihad or had no means to cultivate their lands. TheBe were also minors and may be cripples and invalid persons.As seen above some mUjahioowere discouraged from following the vocation of agriculture. The i

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permission to let out the land might have been granted to such \

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persons and the Hadis from Ibn Abbas about the legality or permiss$ve I nature of Mukhabra might have relation to some such person. This finds support from Afzal-ur-Rehmants Economic Doctri~es of Islam itAstudy of the history of the early caliphate shows that most of the people~ who ~ave their lands for cultivation on crop-sharing basis, were engaged in the defence of the country or in other public utility or social welfare work. They let their land for cultivation to the tenants because, owing to their pre-occupation in the service of the community, they could not themselves cultivate it".

Similar is the inference drawn at p.174. I

also But in the Hadis of Ibn AbbasLwhich is relied upon in sup~ott of of the system, giving/land toa brogherMuslim for cultivation is :i more meritorious than letting it out on Mukhabra basis. Letting out of the land was thus allowed in certain cases but the emphasis This exactly was the policy of Hazrat Omar who eliminated the middle men from the conquered lands and after nationalising them let them remain in possession of the actual cultivators.

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There is one other pr~cedent also in which Hazrat Ornar insisted upon self cuI tivation. Hazrat Gmar expelled a tribe from Yemen and rehabilitated them in Ir~q. All the Amirs of Syria and Iraq were directed to help them in setU[ng on lands with direction that "whatever land is brought by them under self cultivation should be treated as given to them in lieu of land abfindoned by them (~.274, 275 of ISLAM KA NIZA1'l-I-MAHSIL by Mohammad Najat Ullah Siddiqui)~ 'The order makes self cultivation acondi tion for this allotment. In fact the doctrin~ that mawat (dead or unreclaimed)land will vest in the person who reclaims it is also based on the same principle, of self cultivation, since if mawat state land is given for reclamation to tenants the tenant would be able to claim the ()wnership in preference to and to the exclusion of the person who brought him on the land.

Another principle that emanates from these traditions is that with the change in the circumstances of the community the policy of land tenure may also change. Just as the command of the prophet (PBH) changed with the circumstances of any member of the community on the question Whether he should cultivate the land himself or let it out on fixed rent or on payment of a share of the produce, the ruler or the State also can adopt any sy¥tem suitable to the community. This finds i support from Kitabul Kharaj of Imam Abu Y()usuf who validated the departure from th~recedents set up bJ' the Hazrat Ornar in respect of Kharaji lands (see chapter II, Article (fasal) 3 of Islam Ka Nizam-i-Mahasil by Mohammad Najatullah Siddiqi).

Mawardi is of the view that flaIl land vests in God. It is under the supervision and administration of the Caliphate (state) and the possessiohof tenants and owners is as trustee". (see Chapter 17 of Ehkam-i-Sultania t.404). He states that once Hazrat Omer said, It all the lands are ours"

of the state ~-'.

)'1 LJ b: tJ

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He further states on the author! ty of Hazt'atc Ali that he told a new convert to Islam, "Indeed your land is ours (of the state)f1 . ---; u.

(~...-JJP-,I l)

Mawardi quotes from Abu Bakar lassas :

"The state has plenary authority to administer land which it is diffi-cult for the people to r reclaim to the det)rmment of the interest of the society" (Alehkamul Quran, Vol.3 P.533).

Allam Eini once said:

ULand is within the scope of the authority of the Statell (Eini Vol.I P.29J Mawardi describes the difference of opinions and their source about the right of a stranger to cuI tivate without permission of the owner, lands which after reclamation had again become barren and uncultivable. (see. p.411 of Ehkam-ul Sultania). Imam Shafei's view is that such a person does not become owner of the land whether the name of the owner be known or unknown. According to Imam Malik the ownership of land after fresh reclamation will in either case vest in the stranger. But Imam Abu Ranifa was of the view that the stranger will be treated an owner only if the erstwhile owner About \tlaqfland Mawardi' s opinion is that "land. being the concern of the Caliph and the Baitulmal (state), the Caliph (state) can change conditions of a waqf also in the in~erest of welfare of the Caliphatell (p.40a). The insistence is en bringing all the land tlnder cultivation and on getting the optimum benefit ouiof it. Thus Omar bin Abd.l Aziz directed his Governors not to leave any land uncultivated,Uslam our

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Nizam Jagirdari Zamindari P ~6a )or~no land in their territory should be left uncultivated. ~~~dl p.69.

These wighty quotations establish the predominance of the State's authority over land. The State can change the conditions of a waqf for reasons of state or public policy. According to the opinion of Imam Malik which appears to be more in consonance Wi.th! public policy , lan,d once reclaimed by the owner can be granted by the State to others for fresh reclamation if it turns

cultivable. Abu Bakarllassas also appears to hold the salle view. It would therefore follow that the state can impose restrictions on the ejectment ofa tenant,.which would not only encourage self cultivation as ordained by the Prophet (PBH), and thus discourage absentee landlerdisim but also give an incentive to the actual cultivator to derive the maximum benefit from the land under his tenancy and thus

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assist in the fulfilment of the States goal of achieving self-sufficiency in the production of the jbod grain.

mhe conditions of further investment by the landlord in the form of seed, fertiliser and water are not new. Int· fact lands were given to tenants on condition of such further investment during the period of the prophet (PBR) i

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there couldI be no objection to this system if expenses of cultivation. This was According to him all the expeases of cultivation should be borne by the owner of the land (Islam aur Nizame Jagirdari wa Zamlndar by Maulana Marf1r Ahsan G11an1 pages 57 and 58, i also see Ain ul Hedaya Vol. IV P .110 above its justification I .

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i Forced labour is notpermi tted by Islam;' '!heprophet ;e

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(PBH) enjoined that the Waaes of a labou~for the work done by him shiliuldbe paid before the s~eat of his body is i arg~with three kinds of people on the Day of judgment •••••• !

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and the one who engaged a labourer and got his work completedI but did not pay his just Wa~es (from Bokhari Vol. I P.501 No.2095 quoted at P.126 of Vol.2 of Economic Doctrines of Islam by Afzal ul Rehma~Dr. Afzal ul Rehman also cites the i

"HafiZ Ibn Hajar Asqalani and Badr ud Din Aini commenti~g , paying his remuneration is a ,rave sin because it shows that

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he has made a free man his slave. And to make a free man slave is obviously a grave sin. They have argued like this: To take service and work from some one without paying his due remuneration is like selling a free man for one's livelihood. This is because he gets his own work done without any remuneration which is like making living out of the sale of that person. And also because if one does not pay wages to anyone for his work it means that he regards ~im his slave •" Ibn Hazam clearly states that'lt is illegal to receive any service from the cultivator other than mentioned in the rent contract,~.g. to ask him to help in the building of a house, or cleaning a house, or doing its repair, or to build the walls of a garden and similar other jobs; even the inclusion of any of these things in the conditions of the contract, renders it null and void. Al MahalIa Vol VIII P.234.

of the Holy Prophet that there is only one obligation on the cultivator and that is this that he should plough and cultivate the cq~~ractual land wit~ his labour or capital to obtain its

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prodade ibid~ Maulana Maudoodi justifies impositions of restrictions on i

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ejectment of tenant. (Maashiyat-i-Islam, 220 &221).1'he oPinion! I : i~ in Islami Mansoor of All Pakistan Jamiat Ulema-i-Islam is as follov/~:-r

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permitted the letting out of land on the basis of sharing of crops. If itmay not be possible to reform the system of agriculture in the country in the light of the aaggestions made above, the State would !

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be justified in prohibit~ng such tenancies in accordafce with the views olImali Abu Hahifa, Imam Malik and i

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either to cultivate t~eir lands themselves or giveit~

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• i on fixed term lease on payment of rent(other than reni;

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in the from of share of produceHi.e.ijara)." i The same is the view of Abdul Rahman Al ja~ir1 C:1tedLj;}y

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Maulana H1fz-ul-Rahman in his beok ~ Islam ka Iqtisadi Nizam and by Afzal-ur-Rahman in iconomic Doctrines of Islam vol II p~.

It In view of the existing conditions of the time, it is possible for us to co-ordinate the two opinions and select the one which is more beneficial and useful te the people •••• ni, i

In the~opinion is the recognition of the validity of i changing the tenure for welfare of the Ummah. The reform of th~ • i agrarian structure by the Regulation has net only affected thel

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cultivation of land. ~is is of utmost importance in a countrYI

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which has to import large qua~ntities of foodgrain to meet the! dietary requireme~ts of its people. The objectef agrarain reform is not sought to be achieved only by expropriation of large states and redistribution of land or by prevention of eviction of the tenant or by reducing his cost of production; the Government has alse taken steps to give the cultivators i

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special credit facilities for purchase of agricultureal machin~ry, installation of tube wells, purchase of fertilisers and seed. TlHeGovernment imports seeds of improved. quality with the object of securing the maximum produce from each acre of land. It has set up its own fal?Jns:

:f0r~experim~nting in the productio~ i of better seed and better quality crops •.It appoints staff for II

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tendering better advice to cultivators in methods of cUltivati~n • I

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It constructs big dams to ensure regular supply of water for !

irrigation as well as reclamation of waste lands. The forced contribution by the landlords in the t~d of agrarian reforiml

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and in the vanguishment of poverty and in the bolstering up ofl

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rural eo-onomy of the country is thus very small. '!hatcontribution is only at the grass-rooti-'level and was necessary to grab fori

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activating the heretofore static agrarian system •.1he protect;iq>n against eviQti~nL and the facility of more investment by the landlord in the form of seed, fertiliser and pesticide and

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payment of water rates and the restraint on tenants being 'treated

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as serts in para 25 of the Regulation are/not repugnant to the Holy Quran and the Sunnah of the Holy Prophet. In the last category are the rest of the cases in which the provisions of different pre-emption laws are • i challenged •.The N.W.F.P.pre-emptmon Act has been challeng1d only in one petition Peer Qutab Shah Vs.the State,S.P.27 10f 1979-Peshawar firstly on the ground of its being applicab~e

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to non-Muslims also and secondly for the reason that the I period of limitation of one year is too long. !

i In the majority of cases belonging to this categor~ challenge is to the validity of para 25(3) (d) of Ma.r~ial Law Regulation 115 which confers upon a tenant 'the first right of pre-emption in respect of the land comprised in 1iS tenancy. :

In some cases the provisions of the Punjab Pre-emp~ion i Act e.g. its sections 5,8,15,19,20,30 and provisions of I Articles 10 and 120 o! the Limitation Act have also been I challenged. I

These cases ~ere argued by Mr.H8.ssan Ahmad Khan .~~«r Mr.Riaz Anwar, Mr.Mushtaq Raj, Mr.Muh,ammaclAnwar Bhuttar I

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Mr.Najmuddin, Raja Aziz-ud-Din, fJIr.AhmadSaeed Sh~, Kh\ll~ja

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Mushtaq Ahmad and ChaUdhary Muhammad Afzal Wahla Advocates. I i The Peshawar case was argued by Peer Outab Shah petitione~.

The opposite point of view was placed before the Court by iSyed I!tikhar Ahmad Deputy Attorney General, Mr.Enayat Elahi ~an Advocate General~.W.F.P and Sahibzada Xkhtar Munir Assis~ant i ~dvocate General N.W.F.P.

Before dealing with the question whether it is permissible to ext~ndor limit the categories of persons I having right of pre-emption I would like to dispose of th~ points raised in the Peshawar petition No.2? of 1979:~In support of his argument against the conferment of right of:

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pre-emption o~ Non-Muslim in respect of sale or purchase of

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property by Muslims,Peer Qutab Shah petitioner placed rel~ance

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on Quranic verses, 4~141;22:~1j21;104~105,and some direct i

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The Quranic verses have no bearing on the questioRD of Shufa. The traditions which make no reference to shufa are also not material.As regards the direct traditions wht~h! i

i christian or for a heretic it will be SUfficient to say thatl the some of/jurists do not treat them as authentic. The Hanafi' I F[qh puts Muslims and Zimmis(non-Muslims in a Muslim State) I

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on the same footing in matter of pre-emption • MUslim Law ofl Pre-emption by Mohammad Ullah ibn S.Jung p.~igest of Mbhammkden I Law by Baillie, p.477. The relevant paragraph in Baillie is I as follows:

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"Islam on the part of the pre-emptor is not a 'i

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condition.So that Zimmees are entitled to exerc~se the right of pre-emption as between themselves o~

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against Muslim ••••" i i

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The Hanafi view is also reproduced in Mohamrnadan jurispruden~e by Abdul Rahim p.275 and Islamu Law in Theory and Practice b¥ Aziz Ahmad, p.466.This view is more in accord with reasorn'afd tends to support the need for applicability of one public law to Muslim and non-Muslim citizens of a State alike. Decision seen in Akhbar-ul-Qazat by Qazi Waqi.Vol II p.389. 1 agree with the learned Advocate General, N.W.F.P th~t the law of limitation whether in the Limitation Act, Punjab I Pre-emption Act, or the N.W~F.P. Pre-emption Act is a branch of law of procedure of a court and is excepted from the jurisdiction of this court •.This view was also taken by the Shariat Bench of the Peshawar High COl.lrtin Molvi B·ilal Huss~in .::~:)::~~::~:n~ :::::r::.:: :::~:t:~~

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which I respectf~ly agree. \ Even on merits this point has no force., The MUslim jurists classify the claim of pre-emption into theee demands.

(1)Talab-i-~owasibat which is a claim made by the pre-empto~

is based upon the saying of the prophet (pbh)'Tge right of Shufa is established to him who prefers the claim without delay, (2) Talab t:aknmr wa Ishhadi.e. claim by affirmation before witnesses and (3) Talab-i~Khas90mat or institution of litigation. The period of limitation with which this court is conf~onted in the above petition pertains to this last claim.

There is a difference of opinion about the amount of delay permissible in the institution of the suit. I may, however explain that all jurists agree, in view of the tradition of the prophet(pbh), that if the pre-emptor is absent, the period does not start till his return. The difference arises only in a case where a person is not absent. This.difference of opinion is is also the op~nion of Ziffer and it is related as an opinion of Aboo Yousaf, that the right of the Shafee becomes null if he delay the litigation after the Kazee has held one court, for,

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if he wi llingly, and without alleging any excuse, omit to co~encel the litigation at the first held by tileKazee, it is presumptive proof of his having declined it. The reCisoning on which Mohammad founds his opinion in this particular is, that if the right of the Shafee was never to be invalidated by his delaying the litigation, it would be very vexatious to the buyer; for he would be prevented from enjoying his property, in the apprehension of it by the claim of the Shafee, uI have therefore (says Mohammad) limited the delay that may be admitted to one month, as being the longest alloweq. term of procrastinationtt• In support of the opinion of Haneefa, it is urged that the right of the Shafee being firmly established by the taking of evidence, it cannot

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be extitiguished but b1 his own rejea:tion, 0,en1y dec1ared ••• ~11 It would be noticed that the opinion of Imam Mohammad is only a I ed \ juristic opinion not supportLby Quran or Sunnah of the prophet ~P*H). On the other hand the concensus is on the point that delay is not \ I perse fatal to the suit •.This opinion is also juristic •.NOw if thJ

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jurists can fix a period of limitation, as was doae by Imam Moha~ad of I whofwai>pinion that an end should be put without any long delay toll

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the vexation>th.a;i~ likel! to be caused to the purchaser of the I propert~~" it is difficult toounderstand why th~ State or Sultan cannot fix a period of limitation for the sUit.,A~~ all the enactments dealing with limitatioQ have strangely enough f}xed generally a period of one year which is in conformity with theoPi~ion of Imam Malik., I am also in full agreement With the view:,rthatif t~e St~te has the right toappoi~t a jUdge ora. <:lazeewhich it undoubt~(ny has, it must follow that it also has the right to prescribe the . \

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categbry of cases Which. the judge or the Kaze~ will have a right t~

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hear and con~equently can fix the period of limitation SUbject to I which the judge or the Qazi may hear cases of any particular categolry.

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For all these reasons the period of limitation is not repugnant to \ the Quran or the Sunnah.This settles the question of validity of thr limitation period in other enactments also.

On the question of pre-emption the argument of the learned \ counsel for the petitioners were focussed exclusively on the three catagories of pre~emptors recognised by Hanafi jurisprbld1ll\oe."It W1 argued that in shariah the right of pre-emption is limited to (1) i a partne:t', in the property of the land sold, (II) a partner in the \ immunities and appendages of the land (such as the rights to water ,11' and to roads): and (II!) to a neighb0ur. ~e important question theee- i fore, is whethef!'the state is bound to limit the right only to these!:

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three categories or it has the authority to add to them or further I:

them ,

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curcumscribe£ This will inbolve consideration of the pivotal questio~ i of the authority of the state to, and the limits within Which it canl legislate. I i

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Tbere are ~ive categories of actions in Islamic Law: obligatory!

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(wajib) recommended(mustahab), indifferent (maban), reprehensible

(makruh) and forbidden (mamnu or haram). The strict principle is tha~ what is notforbiaden orobligatory!s pardonable (afw) The 'obligatory' cannot be shunned while the 'forbidden' cannot be acted upon. The 'recommended' vests a discretion in a momin but that action being divanely approved its negation should be I avoided and keeping in view the conditions in a particular soci~ty

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the state has the authority to legislate to make the nation follow the recommended course since it cannot be but for its possible •. It is witbin the seope of •indifferent' (mabah)or. I pardonable (afw) that the State has full authority to legislate! I as the fi'Emdtherein is absolutely unoccupied •.The basic duty I which I.have to perform is to find out whether the fil.ld in mat~ers of pre-emption is totally occupied by what is obligatory(wajib) I I

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(haram) or is even reprehensible (makruh).

In the Hedaya (Hamilton) the origin of the three rights is as follow$;--- liTheright of Shaffa holds in a partner is founded on the precept of the Prpphet,who has said, 'The right of Shaffa holds in a partner who has not divided off and taken separately his sharet-The establiShmen.t.Of.. it.in a 'J i neighbour isa1so founded ona saying of the Prophet. 'The ~eighour i of a house has a superior right to that house, and the neighbou~ of the lands has a superior right t,othose lands. and if.he be !

absent the seller must wait his return provided, however, that both participate in the same road; and also, 'A/neighbour has ai right, ~uperior to that of a stranger in the lands adjacent to 1 his own·- Shafei is of the opinion that a neighbour is not a 1 shafee; because the prophet has said, Shaffa ~elates to a thing [ in joint property, and Which has not been divided of:f.II

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All schools of thought except the Hanafi agree that the I right of pre-emption vests o!11Y in the partners in the property 4 I They rely' only on the preceih:tof the prophet (.PBH). .• I..........•....••....•...

-.._.\~j<'4 "The prophet has ordered pre-emption in case of every .••..•••

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property as ha.d not been divided, but when the property is divided and boundaries marked out, there is no preemption".

In MQwatta of Imam Malik this precept is reported from Saeed bin-ul-MusayYab and Abdul Rehman. Two other traditions reported in Mewatta are:

(I)"A question was put to Saeed bin-ul-M&tssayyab in regard to the command about preemption. He said'preemption isln land and house and the right of preemption acct'ltesto the partner only".

(II)"Hazrat Osman said 1there is no preemption when boundaries are fixed in the land, nor is there right of preemption in wells and date trees 11~' Mohammad with slight variation in form or the names of the reporters. These traditions exclude the other two categories of preemptors,...participator in appendages and immunities of roads, and beighbours. The participators in appendages and immunities are also excl~ded from the right by another tradition reported in Adalat-i-Nabi Ki Faisle, p. 229. 3ccording to Abu Ubaida "the Prophet (PBR) decided that there is no right of preemption in the site in £ront of a house, in. the passage between two houses and in the place on one side of the house used for flOWing the water'!.

The words there is no preemption "when the boundaries are marked out" in one precept or the words: "When boundaries and passages have been marked out"in the other are definitely words of prohibition which could have been interpreted as forbidding any addition to the categories of preemptors provided there had been no tradition recognising right of preemption of a neighbour. In view, however, of other traditions about a neighbour sharing a common road or simply a neighbour, the above mentioned words can only be interpreted have to mean as tbe]y:I,been interpreted by Hanafi Jurists, that as'

partnership ceases after the property is partitioned and boundaries are marked. In the absence of traditions recognising the right of neighbours, I would have found no difficulty in agreeing with the arguments of the learned counsel about the limitation on the state's.authority to legislate any further in the field of preemption: But that limi tation is removed in view of my agreement that the i participators in immunities and appendages and other neighbo~sl are also recognised by the Sunnahofthe Holy prophet as havingl the right of preemption. And there are no.words of limitation in those traditions forbidding addition of another right.

The Hanafi jurists also have not limited the right to what was decided by the prophet (PBH). The precept from which the category of Shufi Khalit (participator in immunities and appendages) has been discovered by the juristo~' Hana~i i view is about neighbours "who participate in the same road". ~nd

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yet by use of analogy the right has been extended by the~~fsfF to neighbours who participate in other immunities e.g. water, i based visualises the ownership of the neighbours on the common road but the jurists have extended it to persons having no share in the road but haVing only a right to use the road. The follOWing examples will establish the point:

A person has an inn in which there is a masjid, and the owner of the Inn has separated it from the inn and he permits the people to offer their praFers in it. The people have acted accordingly, and it is thereby transformed into a public masjid. Thereafter the owner of the inn sells all the apartments to different persons so that now it becomes a darb, (lane or track). Subsequently one of its apartment is sold. Accoraing to Imam Mohammad, the owners of other apartments are entitled to preempt it. This is according to FatawaQazi Khan. (The Muslim Law of Preemption by Mohammad Ullah Ibo. S. Jung p.96). Obviously this is not a case of co-ownership in the darb, and yet the principle of Shafee Khalat has been applied to it.

2)The case of ziqaq (lane) on the back of which there is a wadi (valley) has two aspects: (a) if the site of the valley is insomebody's ownership, and the people had turned it into a ¥ladi (valley), then as regards the law of preemption the case of such a I valleyandthemasjid built at the extreme ~~-- ~ t/the land are the same. {as in illustration (I) (b) r I ••••• It (ibid p.'96 & 97).1'his is also a case in which Wadi was owned by oniperson only.

It is mentioned by Imam Sheikh Abdul Wahid Shalbani I that 1f"of the houses of'Ziqaqs of Bokhara, at the back of which there is a valley is sold, then all the peopl~ of ziqaq9 are its preemptors and it will nb~ be i considered as a public place.(ibi~ p.97). ibis is also;

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a case ~ike the cases cited above. The principle of I

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these precedents was correctly summed up as followS:-- \

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lilt is not necessary ••••• that the person claiming I

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the right of preemption should be a partner in the : I substance of the thing. For this reason enjoyment of I

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pathway or road or watercourse 'gives the right". II an MOhammad/Law by Amir Ali Vol.I. p.737) (see also Tyabji tis MohammadahLc'.La~ppI.i710whereit is· said that Khali t is' I not necessarily owner of heritage, dominant or serv1en~ to land). I Obviously this is an extension of the right to persons I only enjoying the facility of a Pathway owned by others; though the tradition of the holy prophet is limited I to cases where the pathway is jointly owned.

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Imam Mohammad appears to extend the right even to persors who do not own any existing property but enjoy only a • right to construct over the property of others. The principle is that if one person owns the first storey of a house which would include land and the other person owns the second storey, on the sale of one floor the owner of the other will have a right of preemption on ground of vicinage. If the m$Wer storey is sold and before the owner of the/upper storey exer,- cises his right of preemption theppper storey falls down , he can according to Imam Mohammad still exercise his right of preemption, though according to Imam Aboo Yousuf the right lapses. Similarly if the I house contiguous to the two storeyed house is sold I ; and the two stor~yed house falJl3 the right of preempti:~l,) ~.= __ or,-=~ _ .I~ -~ - ~- -I - --~ r- ,--------- ---- -, ~- ----

will accrue according to Imam Mohammad to the owner of either storey though according to the opinion of Imam Aboo Yousuf it shall accrue only to the owner of the lower storey who still remains owner of the land and the owner of the second storey shall be excluded since he does not own any eXisting property. The· view of Imam Mohammad in either case is based on the ground that the right of preemption accrues not on ground of actual ownership of the existing property but on ground of an existing right to construct it. (Fatawa Alamgiri printed by Nowal Kishore press, Vol. 4 p. 9). 'The actual words in Fatawa Alamgiri are: . :..-..... .-/'./"} (IJI ./ "," .1 uP \....-l • ?- AI" ,.-:..u' ~ ~ ~ ~.:;.vG--~/tJ'/~J ~ 'C -.)/' _l- v-- . . ,. d- ~/u

These instances establish extension in the right of preemption by resort to qiyas or analogical reasoning which is nothing else but a form of Ijtihad. T;nere is no reason to tie down the hands of the state in a field in

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taken to qiyas in order to make the right more extensive sinc~

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it violates the right of private contract which involves I .j mutuality and assent of the parties. He, however does not :

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rest this assertion on the ground of shufee shareek (partner !

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in the property) being the only category of preemptor recog~i,ed by Sunnah to the complete exclusion of any other category. I Thus according to Imam Shafei also there is no bar to the ext~n-

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sion of the right to other categories except on the ground given by him. Such juristic opinions which are not based on any text (Nas) of the Quran or Sunnah are not binding on the

its citizens. Moreover I have already demonstrated that the Ranafi jurists did exercise their right of Qiyas or Ijtihad in this field.

It was argued on the basis of juristic opinions that a pre-empt(!)t" mus t be an owner of property in order to be able to claim a right of pre-emption. This principle does originate from the traditions; and is unexcepti~nable to the extent that the tpaditions of the prophet (PBH) go. But 'if once right is conceded to the State to ada to these categories in the interest of public welfare the ownership of property cannot be considered to be a basic requirement o~ the right of pre-emption. It has already been noticed that according to Imam MOhammad also the right of pre-emption does not accrue to a person wwning only the upper storey of the house,which along with the building under it is demolished, accrues on account of ownership in the property but/only on account of a right to construct his building over the first storey if ever constructed by another person on his own land. This building does not amount to ownership of any property but at most amounts to a right on or in another person's property. The rule on which reliance is placed is not a static rule. On the other hand on the analogy of the above mentioned view of Imam Mohammad a tenant having an interest in the property can be held to be a partner in the property and would fall in the first category.

It is also incorrect that this was a right granted for the first time by Shariah. The right already existed among the Arabs as a customary right. It was only maintained by the prophet (PBH). In support of this proposition, Mr. Mohammad Anwar Bhuttar cited from a dictionary named Aqrabul Mawarid and another book Sharh Mowatta (commentary of Mowatta by Imam Malik) by Muntaqi. In the Dictionary against the

(, word 'shufa'it is stated on the authority of Utbi that if any person intended to sell his house during jaailyat he would make an offer to him for (exercise of) his right of preemption. According to the above mentioned commentary on Mowatta he would offer it to the neighbour or cosharer. The word cr» whidl in the above context would mean decision alaa poin~ou~to the fact that the prophet might have referred to the right of preemption in reply to queries made by interested parties who knew the Jahily~ custom and might have been uncertain about its validity It is not therefore correct to say that this is a purely Islamic institution. In the Indo-pak subcontinent the emphasis on its Islamic character is laid on account of its introduction during the Mughal reign and on account of its adoption by the British Judges on the principle of justice, equity and good conscience. Mr. A.A. Qadri in his book Islamic jurisprudence (published by Tripathi Ltd) has disagreed with the notion that the law of preemption is peculiar to the Islamic System. He has discussed this point at pp 250 and 251:

"The law of preemption is not only peculiar to the Islamic system. It was also recognised in the Roman law and other systems. In the Roman law, it sanctioned a compulsory relation between the vendor and a person determined, binding the vendor to sell to that person if he offered as good condition as the intended vendee.lt arose from agreement and from the sanction of written law, but was protected solely by a personal action and gave no right of action against the vendee to whom the property has been passed. The Hindu system of the Ancient India recognised the law of preemption and permitted it to be exercised upon the sale of in favour of full brothers, s~pindas, samanodkas, sagotras, neighbours, creditors and one's CO-Villagers in a respective order. The Hindu system vested the I.

right among members of one Village in a text, which declared the assent of townsmen, of kinsmen, etc. as requisite of transfer of a landed property. The German law also recognises the right of preemption

as a form of obligation attached by written or customary law to a particular status which binds the purchaser from the obliged to hand over the subject matter to the other party to the obligation on receiving the price paid with his expense. TIleoption was exercisable the moment at which the property

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was handed over to the purchaser. Tlie law was called restractrecht (jus retractus) and the right as eX-jur,ViCinitatis in the German law •••••••••••• " "In India, the law was introduced largely by the Moghul Empire, and still now separate customary law of pre-emption are pretalent in different places, whichl

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in paragraphs 115to 23.1 may reproduce only paragraphs 16 and I 1~bout the source of this law in the Punjab: 16" The origin of preemption is clearly explained in 'Tribal Law of the Punjab'\' 'It has been usual to regard this as a village not as a Tribal custom, and as orgginating in.the Mohammadan Law. I" think that this is quite an erroneous view, and that pre-emption !

is merely a corollary of the general principle regardid~ the succession to, and the power of disposal of land. I

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In these matters the holder of the. estate for the time I being is SUbject, generally speaking to the control i of the group of agnateswhb would naturally succeed him ••• Tliey can, aa a general rule, altogether prevent aliena-I . tion by adoption or gift, or by sale for the holder's !

benefi t: it would be only a natural rule that When I

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a proprietor was compelled by necessity to sell, these i qr,nates would be offered the opportunity of advam.ng I the money reqUired, and thus saving what is realItY their own p,cropertyU(Tribal Law in the Pun~ib by Roe and Rattigan pp. 82 and 83)

18."The customs governing preemption were also recorded in village administration papers drawn up at settlements made before the passing of the Punjab Laws Act IV of 1872.

"In nearly all the old Wajib-ul-arz we find a provision securing this right either to the next heirs, or to the agnates generally and after them to all members of the village community to the exclusion of stranger" (Tribal Law of the Punjab ibid p. 88).

Preemption in the Indo-Pak sub-continent is thus partly Islamic and partly customary which means that it emanates partly from Arab Customs and partly from local Customs. The same position obtains in the Punjab in that S. 16 of the Punjab Preemption Act, 1913, which deals with the right of preemption in Urban immovable property is based on the Islamic Law of preemption while S. 15 which deals with that right in agricultural land and village immovable property was founded on the agnatic theory of village customs, till its amendment in 1954.

The affinity between the Islamic Law and the Punjab customary law Cannot be lost sight of. The institution of pre-emption in both the laws is the growth of tribal custom. The prophet (PBH) maintained the right of cosharers in the property and the neighbours thereof as prevalent in Arabian society during the period of ignorance (Jahilya). T.ne tribal custom of giving preference to the next heirs or to the agnates even though they did not own any land generally was introduced in S.15 of the Punjab Pre-emption Act.

Now it is an established principle of interpretation of Islamic Law that Fatwa (order) changes with the change in Urf (custom) and Adah (usages) whether the change be the result of passage of time or alteration of place. (Elam-ul-Muwaqqieen by Ibn Qayyam Vol. 2 P.843). The following principles about the validity of custom are laid down at

pages 7 and 8 of the Mujelle'.

36 Custom is of force.

37 The use of men 1s evidence according to which it is necessary to act.

38.A thing impossible by custom is as tfuough it were in truth impossible.

39.It cannot be denied that with'a change of time, the requirement of law change.

40.Under the guidance of custom the true meaning is abandoned.

41.CUstom is only given effect to, when it is continuous or preponderant.

4~. That is esteemed preponderant which is commonly known and not that which rarely happens.

43.A\thing known by common usage is like a stipulation

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What is directed by custom is as though directed by ~aw.

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and importance of custom and rule 39 depicts at least one aspect of the change of custom by passage of time •.The princip~e that the requirements of law change with the change of times I

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In a recent publication Maulana Mohammad Taqi Ameeni has considered the importance of custom as a virtual source of law in Islam. At p. 274 of his book 'Fiqh Islami Ka Tareekhi Pas Manzar' he reproduces the following opinions of the jurists:

1.The proof of anything by usage is like its being proved by Nas (text of the Quran or Sunnah).

2.What is provable by usage will be treated in Sharia to have been proved by sharia reasoning. At P.275 is stated the rule that 'order should be passed according to the usage of time even though it be against the opinions of jurists of the early ages' (cited from

nOrders based on custom shall change with the change in custom because they could last or endure with the cus tom II •

Another question which arises is whether the Ummah is bound by Arabian customs even though its members have their' own customs which maY be different but are nmt repugnant with the Quran and the Sunnah. This is answered by Maulana Mohammad Taqi Amini on the authority of Raddul Mukhtar Vol.4:

Maulana Mohammad Taqi Amini concludes from the opinion that it is not necessary for member of a country to adopt the customs of people belonging to other countries and for them commands may differ in view of their changed customs and The other customs based on agnatic theory were abolished in respect of inheritance and alienation by the West Punjab Muslim Personal Law (Shariat) application Act,1948 and I ultimately by the West Pakistan Muslim Personal Law (Shariat)! Application Act, 1962. The distinction between agriculturists I

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and non-agriculturists created by the Punjab Alienation of

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Land Act, 1901 in order to keep rural property in the ownershi~ i of classes recognized as agriculturists, became a dead letter i by a notification issued in 1950 notifying all the residents of Punjab as agriculturists. This policy should have been i

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amended sect~on 1 15 by the Punjab preemption (Amendment)~Act, 1954 giving the

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succession who but for such sale would be entitled, on the death of the Vendor to inherit the land or property sold". The custom based on agnatic theory having been abolished there was no justification for maintaining these provisio~ in favour of the anticipated heir.

~t.J- k!9W~Ytt'Vjf' once the right of th:e.!state to add to the categories is conceded it would nottpossible for this Court to deelare invalid the above provisions or the other provisions of Section 15 which have been challenged before this Court. However the Government should consider whether it would be in the interest It has already been noticed that the State can compulsorilt acquire property of individuals generally on payment of compen- I sation, and in exceptional cases even Without payment of [

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cannot confer for the advancement of national welfare, right of preemption on the tenants.

While dealing with the right of preemption Allama rbn Qayyam stated that the right could not be given to a lessee of property. The only reason which he gives for this proposition is that the right of a lessee is not a permanent right and as such there is nothing cgmmon between it and an ownership right. This ground is no longer re1evant as the tenants have now been granted permanent right of enjoyment of property which cannot be taken away except when he fails to abide by the conditions of his tenancy as prOVided in para 25 of the Regulation. Now the tenants have been granted right of perpetual possession over and enjoyment of the land under their tenancies and such rights are also heritable.

The landlord has no right to force his opinion or will on the tenant in regard to the manner of cultivation of the land except when it 1s contrary to the terms and conditions already settled, or if not so settled, contrary to the manner of cultivation customary in the locality. The present day tenant has therefore been given an interest in the land. The only disability to keep him from claiming ownership of any character is that he has no power of alienation. But it does not derogate from his interest in the land which correspondingly reduces the interest of the owner since land in possession of a tenant cannot fetch that value in the market which land in ~e actual po~ession of an owner can fetch. The tenant is now no more merely a partner in

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the produce; in a way he becomes a partner in the interest of i

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the land itself. The right of preemption has been conferred I upon him so that he may acquire the landlord whicJ

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Virtually consistsJof the right to alienate the land, and a Ii share in the produce. Reference has already been made to the , of pre-emption' I

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which is entirely!

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demolished though he was not owner of any land or even the I

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roof on which the second storey was constructed. He based the I right of pre-emption not on ground of actual ownership of any i property but only on the right to construct the second storey

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over the property of another. This analogy will apply to a I

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tenant also who can be given right on account of his permanent!

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The right of the State cannot be curtailed for anothet

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reason also. There is unanimity on the point that the object I

cities. Similarly the zarar of absentee landlordism which, as already seen, hardly fits in with the concept of land tenure I

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ways and means of its elimination. Cannot the state in the first case suspend the right of p~e-emption of a neighbour at least in such localities or suspend on the same reasoning the right of absentee joint owners? Similarly cannot the state

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confer right of pre-emption on the person actually in possession in preference to the absentee, if the zarar can be removed by such suspension or grant rather than by following the OLd rules of pre-emptioni The answer should obviously be in favour of such suspension or fresh grant. If the intention is to repel i[

time. In any case where the exigencies of the state so require i

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and the harm to the interest of the public may be minimised onli by not caring for the harm to the interest of indiViduals, i i

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"26. To repel a public damage (zarar) a private : damage is preferred. The prohibition of an unskil~uI

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doctor is a branch from this ruletl• I

There is thus no doubt that in the larger interest of the public the State can not only grant the right of pre-emption to new categories or classes but can also withdraw the concession or suspend the right.for repelling or minimising public zarar. This will be justifiable on another principle too. -While dealing with the question of the validity of other clauses of para 25 of the Regulation I had peferred to the opinion of the Ulema as contained in the Manshur All Pakistan Jamiat al Ulama-i-Islam. There was a difference of opinion on the validityl

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of tenancy on condition of sharing of crops. Imam Abu Hanifa, i etc held it to be invalid while Abu Yousaf found the same to be I . valid. There are d:mdl tions in favour of each po~t~_~>n .the M<J.~~c",~

Now the opinions differ on the scope of right of Shu!a, the majority view being in favour of such right accnuing to a cosharer in the property and only the Hana!i view widening the scope not only on th~asis of precepts of the prophet (PBR) but also by resort ,to Cayas. It can be said on the same analogy that the Government if need be, may limit the right of pre-emption to cosharers only. This will be an additional reason for shomming its scope.

It has already been noticed that Hazrat Omar had imposed the limitation on ownership of more than three houses by one individual. It follows that a person who was owner of three houses could not claim right of pre-emption in regard to a fourth house.' This furnishes an instance of indirectly denying to such persons a right of pre-emption.

The prophet (PBR) also exempted certain categories

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of property from the exercise of any right of pre-emption fori

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example, the site in front of a house, a passage between two I houses, place on one side of the house used for flOWing the i obvious. There could not be any Zarar (harm) in transactions:

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regarding such properties. Similarly in view of the proVisionl

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of the regulation and Act II of 1977 which placed limitation;

on the right of person to own ,land beyond the specified limi~,

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to be valid it would not be possible I

a right of pre-emption in respect qf I his property SQ as to make it !

right of pre-emption justify the imposition of restriction on this right in cases where no Zarar (harm or damage)

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:::~:S~~S_e:_O_e:_c_:_.:_~_v_~~~e~_t_~_:_e_:_:_n_:_:_t~_~_.~

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\~be denied the authority to exempt properties from the exercise of right of pre-emption either by legislation or by subordinate legislation.

Now section 5 of the Punjab Pre-emption Act exempts commercial properties like shop, Sarai or Katra from the operation of the Act. There is no specific tradition of the prophet (PBR) conft.rring right of pre-emption on BUch properties. The specific right of pre-emption has been held to accrue on sale of house, garden, or land only. For this reason the

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provision is not repugnant ~~~ft Sunnah of the prophet. Even otherwise no Zarar is caused by the sale of such properties to strangers. The legislatur~s authority on this point cannot be questioned.

immovable property subject to the existence of a custom in the Urban area concerned. Section 8 authorizes the Board of Revenue to exempt properties from the operation of the Act'~' In view of the findings in favour of the authority of the Government of the State to limit the right of pre-emption no fault can be found with these prOVisions. The reference to custom in S.7 is also justifiable because such custom was the rule in homogeneous societies in all areas and introduction of strangers in such localities was lik~ly to introduce an element of heterogeniety in the society. But this principle will not be applicable to new settlements in which even the It was argued alternatively that at least the three categories of pre-emptors reco,nised by the Ranafi law should be given prefer~nce over tenants. But this argument is without any legal basis. If it be open to the State to increase or decrease the classes of pre-emptmrs it will also be valid if the state gives preference to a newly created category. The question of preference

to a newly created class will depend

on the respective amount of Zarar (damage). If for example, it

"\ it be considered absenteeism expedient to repel public zarar of it would be of no avail to prefer an by an owner about his intention to sell his property for a specified amount of money and offering -- to sell it to the preemptors. The arguments on the vires of these "On the authority of Ibn Jurayj that, Ibn Zubayr informed him that he heard Jabir, son of Abdullah saying:

"The Prophet of Allah has ordained pre-emption regarding every joint property (be it) a land or a house or a garden, and that it is not proper that one should sell it without haVing offered it to his cosharer who may take it or leave it, but if he refuse$,then he may be taken to have permitted sale of it" (tradition No.VI at Page 427 of the Nuslim Law of Preemption by Nohammad Ullah Ibn S. Jung.

G

I have perused carefully and with interest the scholarly judgment of Aftab Hussain J and I agree with the order passed by him.

I also fully agree with his view that this Court is not bound by the judgment of the Peshawar High Court reported in P.L.D. 1979 Peshawar 104. The i

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II

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prescribed by its own rules framed under Article 203J I of the Constitution. Article 203E(2) provides that the I Court shall have power to conduct its proceedings and I regulate its procedure in all respects as it deems fit i Article 203D defines the power, jurisdiction and r

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functions of the Court. Article 203F provides an appea~ to the Supreme Court from a final decision of the I Federal Shariat Court under Article 203D. It will thus I I

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~f:

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'l

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reported in P.L.D. 1966 S.C.854, where a full, I Bench of the High Court of East Pakistan I consisting of 5 judges sought to ove~rule a I decision of the same Court given by a special I Bench of 3 judges, the Supreme Court held that \in accordance with the rules of the Court and in i keeping with the tradition and practice it shoJld not have interfered with the decision of the I Special Bench. The Supreme Court was, inter-all',a of the view that High Court functioned as one Court. The observations made by the Supreme C01rt, therefore, have no application to the Federal ,1 Shariat vis-a-vis an earlier decision 6f a Hig Court.

The Federal Shariat Court has neithe~ made any rules on the line of the High Court I nor has had time develop any convention or I tradition yet.

Besides under Article 189 of the I

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Constitution it is only the decision of the Sup~eme

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Court on a question of law or based upon or i enunciating a principle of law that may be sai4 to be binding on the Federal Shariat Court. I

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A question has arisen as to what is tre consequence of a law or any part of it having bl en Court to be repugnant to the Injunctions of Isl in view of Article 203D(3)(b) of the Constituti which says: "such law or provision shall, to thF extent to which it is held to be so repugnant, cease to have effect on the day on which the decison 6f the Court takes effect. Under Article 203D(3)(a~ it has been provided that the President or thet.1 Governor as the case may be, shall take steps, r

'cr/l

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prOVis~n,

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into conformity with the Injunctions of Isla~.

In the case of P.L.D Peshawar 104 Cla~se (d) of paragraph 25 of M.L.R.ll5 was held to ~e

II

repugnant to the Injunctions of Islam with i immediate effect, that is, 2nd July, 1979. In!

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the first place reading Article 203D as a whFle it appears clear that a reasonable time shoul~ have been allowed by the Court to the pres~deht or the Governor to make the necessary Change.!

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This the Court did not do. As a matter of fact no time at all was given to make the change, lor the order of the High Court was directed to trke effect immediately. This order prima-facie

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In the second place only the said clarse (d) may be regarded as having ceased to have i effect. With this exception the rest of the lkw

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vis MLR.115 remained good. I' In the third place the Constitution dres not contemplate a vacuum as is evident from tfe following relevant extracts of Article 268:- I (1) Except as provided by this Artic1r' all existing laws shall, subject to the const~- tution, continue in force, so far as applicable and with the necessary adaptation, until alteked,

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repealed or amended by the appropriate LegiSlriture!

(2)The laws specified in the Sixth I

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Schedule shall not be altered, repealed or I amended without the previous sanction of the I

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(3)In this Article, "existing Laws" !

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means all laws (including Ordinance, order-.int Council, Orders, rules, bye-laws, regulations t'~

and Letters Patent constituting a High Court, and I

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any notifications and other legal instruments havin$

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the force of law) in force in Pakistan or any part , thereof, or having extra-territorial validity,

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Therefore, until the law in question ik

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with the necessary adaptation, if any. II The Federal Shariat Court is bound to I·

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determine whether it has jurisdiction to deal with I MLR 115, and the Court is entiled to come to its I owndecision about it irrespective of the decision i

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of a High Court. I

I fully agree with Aftab Hussain J tha~

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the High Court had no jurisdiction to interfere with MLR 115, and he is supported by PLD 1975 S.C. 397.1 and until a decision is given by the Supreme Court the Federal Shariat Court was at liberty to cons:Ld1r the questions. a.nd arrive at its own decision. :

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I have also perused the observations dfI

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the two learned members, Agha Ali Hyder and Zakaul]ah Lodhi J.J. For the reasons stated herein, with due I def!erence to them, I am unable to agree with them.1 i

chdl~

I have perused the Judgement proposed to be delivered by my learned brother Aftab Hussain J and agree with him, that all the petitions be dismissed. However I would like to add a few words in regard to certain observations made by my brother, while dealing with the merits of Shariat Petitiqns concerning grant of pre-emption rights to the tenants which are in conflic with the decision of the Shari at Bench of the Peshawar High Cou t in Niamatullah Khan vs Government of Pakistan reported in PLD 1979 104. I might as well mention that there is already an ear~ier

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Judgement of this Court, wherein it was held as per majority, tpat the Judgements of ~ Shar~at Bench of the various High Courts bi~d us. My learned brother has indicated, that it is still open tol us to change our view. To my mind it is not possible. It has to be remembered that our decisions in Shariat cases are subject tb appeal before the Shariat Bench of the Supreme Court. The prop~r course for him would have been to express doubts about our earl~er decision and leave the matter to be raised before the Supreme c~urt as indicated in the Province

PLD 1963 S.C. 296.

of East Pakistan vs Dr. Azizul The Supreme Court did not approve even a fu 1 Bench of a High Court (consisting of 5 Judges) overruling pronou.ncement of a specia.l Bench (COnsisting. of 3 Judges) ~~,j;h PrGvinceofpEast Pakistan vs Sirajul Haq Patwari PLD 1966 S.C. 54 tb~ I ISlt'm

observing " .....being charged with the high function of interprfting and pronouncing upon the validity of laws, and being thus itself a source of law, the High Court should avoid giving a decision directly inconsistent with that given by itself earlier, and th s t speaking with two voices on a point of law, where no question arose of resolving inconsistency between two or more earlier ,J decisions" ..... ; as it "functioned as One Court". However no prejudice is involved as in view of the earlier judgement, the petitions do not lie.

As to the first set of petitions questioning the fixation of ceilin@~ of land, and raising of compensation; I find myself in full agreement as with him in sO far/~A~ exposition of constitutional of paragraph 25 of Martial Law Regulation 115. I with him ,as agree/~ far as the findings on merits of the In an earlier case (S.P. NO.15/1980 and other connected petiti?ns) I was of the view that this Court being the successor of the Shariat by anyone of the Shariat Bencbi~. As I still

.J~~-~ •.~-

maintain that view'itne only course open to a is court of parallel jurisdiction /QODC~ to express

~r-

leave the question of the reconciliation of two views open to the final court which

A.

in our case is Shari at Bench of Supreme Court.

(See PLD 1963 S.C. 308 and PLD 1966 S.c~) • .therefore These petitions are/dismissed as not maintainable With regard to other questions raised and othe,r petitions in these petitioni, I agree with my learned brother in entir£ty.

?w

( ZAKAULLAH LODI

Member-III.

fro

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S.P.NO.2j79(Lahore) and 66 other Petitions.

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Karirnullah Durrani,J[Member: I have read!

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with great interest the masterly exposition of th~ ,

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concept of holding of property and wealth in Isla~ i by my learned brother Sh.Aftab Hussain, M. in hiSI painstaking Judgment. While I am in full agreement with the views expressed by my learned brother onl i this topic, I have, with profound respect, my

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(a)The jurisdiction of this Court in regard I to impugned laws. I

(b)The right of pre-emption conferred on th~ tenants under clause (d) of sub para (3) I ~i,5P~~al~~2~f the Martial Law Regulationl

(c)The competency of the State to exempt an property or a sale from the exercise of right of pre..,.emption.

(d)Repugnancy or otherwise of certain provi lions in the Punjab Pre-emption Act,1913 to th: Injunctions of Islam. I

(e)The competency of the State for the I acquisition of Waqaf Property. I

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(f)~~~t~~~~:t:~c~o~;t t~:l~~:~: ~~dt?;;_~.L~iL~~ive an individual of right to sell his Ptope~ty.

(g)The competency of the state to makeLegi~latior where rule of law has been laid down by Holy Quran and/or the Sunnah of the Holy propl,et (Peace be upon Him), and

(h)effect of the declaration of repugnancy l'f certain laws by the erstwhile Shariat Be ch of the High Court of a Province.

2.I would therefore, like to add a few lin s to elaborate the above mentioned points of differe~c~ with the leading Judgment proposed to be delivered. II 3. As the last mentioned subject also gover s the questions mentioned at (b),(c) and (d) above, I w~ll

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r~t

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connected petitions" decided by this Court on 23.9.11980 ~ i

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(P.L.D 1980 Federal Shariat Court page 1) this Count has I

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held by the majority view that a declaration made ~y the Shariat Bench of a High Court in the exercise of j jurisdiction conferred upon it by Article 203A of ~he

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Constitution of 1973 vide President's Order No.3 o~ 1979

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I was of the view, as already explained i~ the

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above quoted Judgment, that the affect of the declaratioI I of law by thel

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Shariat Bench of a High Court results in rendering[the repugnant law ineffective from the date the said II declaration is specified by the Bench to take it~

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effect. In this view of the matter Clause (d) of I Sub Para (3) of Para 25 of the Martial Law RegUlation, 115 of 1972 has ceased to be effective from the dale specified in "Ha;ji Naniat Ullah Khan Versus the Gov~rnmen' of NWFP",decided on 2.7.1979 by the Shariat Bench hf the Peshawar High Court (P.L.D 1979, Peshawar,104). Th~ jurisdiction conferred on the Federal Shariat cour~ vide President's Order No.1 of 1980, under Article 203-r of the Constitution is to examine a law or a provisior' of law as it exists at the time of said examination.Ar objection has been taken to the validity of the de~ision in Haji Namat Ullah Khan's case on the ground thatl as the Court was required to specify a date for the dt'cisio to take effect therefrom, so that the relevant aut ori- l ties may bring in the consequential lagislation a4d as the Bench had ordered the decision to take immedi~te

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effect i.e. from the date of pronouncement of the i Judgment, the declaration by the Bench was withou~

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jurisdiction. I fail to understand the logic of t~is argument as by striking down clause (d) of Para 2cl (3) Contd ....P 13.

f

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----·~-----i

of Martial Law Regulation, 115 the Bench merely deC~~t~'~~ valid law in view of the above mentioned Judgment, ,the i petitions challenging the same would therefore, not be competent. The petitions having been filed after tte date of the said decision of the Peshawar High court are, therefore, held incompetent while those prefe red prior to that have become redundant. All the petit~ons challenging Para 25(3~dJf Martial Law Regulation, ~15 are, therefore, to be consigned to the record. l 6. Similarly, the provisions of Section 5 an 7

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of the NWFP, Pre-emption Act, 1950 came under conskdera- Hon of the Shariat Bench of the Peshawar High coJt on which I also sat as a Member. These petitions werel

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"Malik Said Kamal Versus the Government of NWFP" ,nd "Syed Masood Shah Versus the Government of NWFP" I

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respectively and were decided on 1.10.1979. The sdid

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by the Holy Quran and Sunnah of the Holy Prophet( be upon Him). Section 5 of N.W.F.P. Pre-emption

I (qi~ under:- i

5."Property exempted from pre-emption.---bo right of pre-emption shall exist in reslpect of the sale of, or the fore closure of" a right to redeem:- I

(a)a shop, serai, katra or club; I

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(b)a dharamsala, mosque, church or other similar charitable inst~tutiOD or buildings; I

(c)agricultural land or village immovable property, consistin~ of an area measuring not more Ithan two kanals purchased by a res~dent of the village in which such ]and is situated, where he neither lowns a house nor a vacant site mea~uring more than one kanal, for cons~ruc- ting a house for his own occu ation;

(d)agricultural land or urban ~~ovabIE property, consisting of an ar!a measuring not more than ten m rlas purchased by a resident of th town in which such land or property is situated, where he neither owns a house nor a vacant site meal'uring more than five marlas or cons ruc- ting a house for his own occu ation' i The next Section under reference, No.7 ibtd,

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is as follows:- I

"Power of Government to exempt transactio~s from pre-emption:- i

(1)Notwithstanding anything contained i~ this Act, a right of pre-emption shall nOf exis in respect of any sale made by or to the Government or by or to any local aut ority or to any company under the provisio s of the Land Acquisition Act, 1894, or i respect of any sale sanctioned by th Deputy Commissioner under section'3( ) of the Punjab Alienation of Land Act,1900; r

(2)The Provincial Gove.rnment may declaJre by' notification that in any local area or with respect to any land or propert~ or class of land or property or with r spect to any sales no right of pre-emptio shall exist". ,

8.Sections 5 and 8 of the Punjab pre-empti1n Act, 1913 are similar in substance to the above re-produced

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two Sections of the NWFP Act. These Sectlons are, I

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therefore, for the same reasons held repugnant toithe Injunctions of Islam. I

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Cpm Contd .•• P/sl

t{1q);:

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9."In Islam the law preceded the state, both II 4: logically and in terms of time. The State existed for:the ¥ ""c

' purposes of enforcing the laW"SaysDr.8.M.Haider in ate of his recently pUblished articles on implementation of fiqh and Shariah and while enforcing law whether the Statel can legislate on the subjects which are governed by divin6 law or can it lay down a rule of law expanding or res~ric- I ting the existing law. The answer, to my mind, is in khe

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negative. In this regard yet another pessage from th1 same article of~the above named Scholar may also be quoted with xx c"' advantage: -

"The source of Islamic law is the will of i God. Islamic law is an ethical or moral sys~em of rules. There has always been close connedtion between Islamic law and theology. Islam is a religion of both belief and action. Islamic!law derives its source from the Divine Revelati~n through the Holy Prophet.Being Divine, thesi' sources are believed to be sacred, final, enternal and hence immutable. Nothing can be qualified as good or bad except in relationlto Allah's will". I recognised sources of law in Islam are (1) The H~lY Quran, (2) Sunnah of the Holy Prophet Muhammad(Peace be upon Him), (3) Qiyas and (4) Ijma. The latter two c~n only come into the field when the former are comPlet~.lY silent on the subject. When a rule has been laid d01n by the former two or either of these neither Qiyas ~ill (S-tc 33:~q be permissible nor the question of Ijma would aris~. The legislative function of a State in the field of ( )nass has nowhere been recognised by the Muslim Jurists. he·

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Imam or for the matter of that State as a matter Of~right enforces only that which is diviQely ordained. It.do S not hav~7iuthority to lay down a rule of law on a sibject which is already covered by the Holy Quran and sunn~h. Th State or Imam can only enforce their will as a rUl, of law, where no provision is available in "Nass". It ior he cannot suplement Shariat. The total sum of the com~etenc} 'r-

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of a Muslim State or Imam on the subjects covered ~y • r

(CJ"I) is confined to the8_~~-~:::~:~_~~~I;;~;:'~U ! ~7·+<o,"",.-",:

other words, it or he may frame rules for the ~" rc implementation of law. For an example, a rule may I

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legitimately be framed for the mode of execution of

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a ~ttrderer by way of Qisas, but the State would have

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no authority to deviate from the principle of Qis~s by

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legislation. :

The concept of State, in Islam is entire1y

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different from all other concepts of State prevaifing

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in the World. Here a State, an Imam or a LegiSI~ttre of any kind does not enjoy authority to convert (jPi,to d~ or vice-versa. Nor can it take away any right conferred

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11.The following passage from Abdul Malik I

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Ar:f atr,i',~ book (u::~tS~ U"A-~~ p .117) may bel

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,I ./ ,J'" ).,/

c:l'J~4~£ W! /Jf# ~'Y-')~) <.;{~';LJ~_<t-!.r ~dt!pj/-~JJ;U/#"U(~I~:/t.t,j-# .

,~ ?.... t--'

-::.{ f)

"\!it f

p .•

./__ I. _ \~1I~-

~ I,..lJ" ~ ~.J ~ t.~1 c. <.5.Jr u-J.! t-f cJu U'JJ.-.I

./ / I

~h.s~/..1'-t' ~ ~ ~.c:==:? 1~v,/da' aA:J J~ ~ - u.C~> 0'/y

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!tHere a brief expose of the origin OflrW according to Muslim Jurists may pro,fita ly be added. They say that man must always do what is good, and abstain from what is viI, and take scrupulous care of the interme~iary grades of plausible, permissible and' r _ disliked( ~/!Jui'''; "'u-rJrf,!J"/~~?,,~C'l'~" ). It is, however, not easy to Qistinguish betwe good and eVil, especially when the matt r concerns the subtleties of a complex cil ilise life beyond the pale of ordinary co~nont'place things. Practical needs would have requ·red the possession of the power to legiSlat~(or lay down definitely grades of good and viI of each and every matter)in the hands 0 Man, either individual, as jurisconsult, or I collectively organised, i.e.a State.YetLmere reason, regarded as the touchstone of go~d and evil, is not without grave difficulffiies. For it is possible, and also a matter 0 fact so argue Muslim jurists - that differen persons opine differently regarding the things. The belief in Messengers of God useful even from the point of view of jurisprudence, in so far as the awe and, respect due to their persons lead to th acceptance of certain fundamentals with ut further dispute, wherefrom other and fu ther details may be elaborated. For this r,ea on the certain chosen human Guides to help them in the conduct of life. These selected nd chosen ones pointed out what God cornman ed, God the real Sovereign and Lawgiver, ~ regarding good and evil. Muhammad has b en acknOWledged by the Muslims as the Mess nger of God; and whatever he gave them in his lifetime, commands as well as injUncti~s, in the name of his Sender, God, was acc pted by the Muslims as undisputably final a most reasonable. These Divine Commands, knowh as the Quran and the Hadith-as we shall se~ later in detail-served practically all ~he needs of the Muslim community of that t~me. But humml needs multiplied later in such a manner that no express provision seemed to be available for some of the new matters in either the word or the deed of the Messenger, who himself had passed away, disconnecting the link whereby Man coul receive Commands from his Lord.The cons quent result would have been fatal and the fa ric of Fiqh would soon have collapsed under the strain, had'not there been express prov·sion in the law itself for further elaborati n. Credit must also not fail to be given tp the Muslim jurists, after the death of the ; Prophet, who not only discerned this .

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b Contd •••• /9•

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~k-,._.-

elasticity of the Divine Law, but also utilised it to its fullest extent. In time there emerged a complete system of law which served all the purposes of the Imperial Muslims, even at the height of t eir widest expansion from the Atlantic to the Pacific Oceans". (pp 5-6).

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13.It is only in the field not covered by ~)and

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c~ ::~:::::::~yo:h~j::r:o~: ::t:::i:~.r:gur::~:: reference to the above quoted Book of •. --..•Dr.lVIuhJmad

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Harnidullah from its page 74 would be of advantage .1- "When even the branches of law, like our II own subject, International Law, acquired the status of independent and fUll-fledg~d sciences, they still retained their ethical values; their provisions had to have the sanction from the Quran or the Sunnah or ('the Orthodox Practice".

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14.Ijtihad can only be permissible in that ield where no rule or injunction from 'Nass' is availa Even in such a condition Ijtihad takes guidance b anQlogy from the Holy Book, Sunnah or practice of the 'E9mpanions of the Holy Prophet. State in Islam is subservient to divine law. The converse is not al owed. The State as an entity, which is usually suscepti Ie to every sort of political pressure, does not posJess necessary pre-requisites or qualifications of a lVIJjtahid

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The right of Ijtihad can only be exercised by the I consensus of duly qualified persons of learning W~ll versed with Divine Law. Whether such a body can b~ made available through the constitutionally proviJed \

institutions like Assemblies of chosen represen~a'ives, Boards of Ulema, Ideology Councils or Research I Institutes is a question, the ':inip'6"rtanee of which I

"C..L ;

cannot be denied but at the saIDeiit is not for us ~o

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answer herein wi thin the limited scope of the matt!er i under discussion, as it is not for this Court to supply

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r (q1

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legislation of a certain body in the given circums}ances

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relative to the law impugned before it. But the c:anperency of the framer of the Martial Law Regulation, 115 t$ enter into legislation in a field already covered }y the person as that did, certainly, not possess those qualifications and insight in matters pertaining tp Deen which would make him a substitute to that bod of towards the evolution of Islamic law carry with it or him the rest of Uma in Ijma therspu. Similarly, the mere signing of a GOYLstitution by al limited number of Ulema guided by the6political w ms ilnp,a:t:"t that and controlled by _ t1;).~}r7?a~tiescoulci'nQt.. as -- sacrosanctity to the Constitution'fo accord it the status of Ijma-e-Uma.

15.If an unlimited right of Ijtihad is conceded to an institution like state or a body of persons not duly qualified for the purpose, then it will amou~t to i opening of the flood gates of religious anarchy i the field of law of Islam.

16.Now I will proceed to examine the impugn d provisions of the Punjab Pre-emption Act, 1913 in the correctly traced the history of rule of pre-empti prevailing in the ancient nations as well as in, abia Holy Prophet Mohammad (Peace be upon Him) had not I retained this custom as a whole. Two Ahadis availfble

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on this branch of law are found one each in the I compilations of Imams Bukhari and Muslim, from Jatar

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(God be pleased with him) are to the effect that tight

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of pre-emption is between the co-owners till the i i

,:J(

Contd •••• th

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i ({oe

pro perty is p¢it!9'le4 and the ways are separated an1 when this happens there is no pre-emption. Yet anot~er il·

Hadis from the same source as quoted by Ahmed, Tir:1Zi Abu Dawud, Ibn Majah and Darmi is toth~effect that Ith: most preferential right of pre-emption vests in the ,next door neighbour and if he be absent he should be awajted for, but this right will be available only when bot~ of them share a common way. There also appears in Sah,h Bukhari a saying of the Holy Prophet(Peace be upon 1im) narrated by Abu Rafi while offering the sale of his 'bait' to Sa'd Ibn Mii. Waqqas in whose 'Dar' it was situate "that the neighbour has the greatest right on Hanafi school of thought has recognised the right of pre-emption in co_sharesoa contiguous owner and al participant in th~ emanaties and.'appendages such~~rfn/f way or to discharge water ~ as against th leaders of the other three Sunni schools of thought who have ascertained from some of the Ahadis this right I 1 vesting only in co-sharers. Similar is the view of 1aw in Fiqh Jaffaria. The trend of all Muslim schools 01 thought with the solitary exception of Pa11.afi s~ct i~ towards confining the pre-emption right to the most I restricted rather a • single, class of persons. The I expansion of the categories of pre-emtors in the~.f:ia:faifi Fiqh is based only on the interpretation of differe1t Ahadis and by accepting all these Ahadis as authent~c whereby this right has been recognised as vesting i1 the neighbour and the participa.tor in the appendages e~c.

I

as well as tn the co-sharers. It was neither Qiyas ~or Ijma of any sort WhiChttonc~li~~~ the right of pre-emption t.0',. the

former two categories besides the' Ii Contd •••• F112.

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Hazrat Umar (May God be pleased with Him) to his' Judge/Qazi Shuraih for allowing a contiguous owner the right of pre-emption in the same manner as he as recognising this right in a co-sharers. It was not ithe promulgation of a regulation of his own by Umar bU~ was done on the basis of the Ahadis referred to above or the

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right of pre-emption of a contiguous owner and whic Ahadis might not have reached the earl of the Qazi. It is also clear that throughout the long period amic

I

historY no Jurist or a Ruler has attempted to enlarge the scope of pre-emption to the sale of a property.1 Rather the emphasis had all along been on the restr~ction of this right. This restriction would be found t~ hkve wisdom behind it. Islam attaches great sanctity to he contracts entered into and made between the two Translated into English:-

It is not J+~li~@iis,~jgo$ that you ••••• but it ist:]:~e~b~&.S$to believe

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Now a sale is a contract between the seller and the I i buyer which is freely and willingly entered into. TIhs contract must be performed by both the parties. In ~e

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same manner the right to sell and the right to acqu~re

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property is also an il!laJl~r{a1::>ie right of an indi vid al.

r \(~.~."

I .",

-:13:- . I

Pre-emption is a sort of curb on the exercise of this ri It by \~ (-\ of sale. ~ a stranger to the contractJ This interference with the i exercise of free will and personal rights can only be all~wed i, forestall a greater evil. The right of pre-emption is therefore (harm) very correctly described by Jurists as a means to avoid/r~arer~ As otherwise it would .not be premissi ble to debar~· two~artie f~om performing their obligations under a contract" I am,1 therefore, of the view that the right of pre-emption cannot be so enlarged as to bring a new category of its beneficiar~ies I in those classes of persons who have been conferred this ri4-t by Sunnah of the Holy Prophet(Peace be upon Him)~

17.In petition No.64 of 1979, sub-clause thirdly of clause (c) of Section 15 of the Punjab Pre-emption Act, 1913 ha been assailed on the ground that according to the Shariat, th right of pre-emption vests in (1) co-sharers (2) participants appendages, and (3) contiguous owners. Asiigainst these categories, a new category of the owners in the estate h s beer. . . ds> created aspre-emp~ by the impugned provisions of la1. A similar question has been raised in S.P!..Nb.16 of 1979 ~d a humber of other petitions .•In petition No.14 of 1980, (Lfore), Sectlons ' '. • • .'

3,5,6,7,8,9,11,15,16,18,19,20 and 30 of the II .

Punjab Pre-emption Act, 1913 and also Article 10 and 120 of th~ ed therein. In S.P. No.t8 of 1980, sub-clause secondly 0 clause (c) of Section 15 of the said Act has also been challenged along With the above mentioned sub clause thi of Section 15 of the Punjab Pre-emption Act. This clause confers the right of pre-emption on the owners of the "pJttiU i

::i:~:~:U:r d::::::y O:s t: t::::~e T::t:JI:: ~::::~f Jf the

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Punjab Pre-emption Act 1913(herein-after called the Act) Assailed in S.P No.14 of 1980"are to the following effec • Section 3 of the Act defines, "agricultural land" and se other expressions used in the tnactment. I element of repugancy to the Injunctions of Islam in the

I((O~

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i i l

sec1ion

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whereby meanings are given to the right of pre-emption aid the application thereof in the context of the Act. ThiSj Section is also not repugnant to the Injunctions of Isl • Section 5 of the Act exempts a Shop, Saria, Katara, Dar Sala, Mosque and other similar buildings from the right of pre emptic These properties are also exempted from the exercise of right of pre-emption alongwith same other properties by of Section 5 of NWFP Pre~emption Act. As stated above, t corresponding Section; in the Sister Legislation already declared repugnant to Quran and Sunnah by the Shariat Be of Peshawar High Court in the cases of "Malik Said Kamal an~ Syed Masood ShaIT~ Similarly, Section 6 of the Act would be repugnant to the Injunctions of Islam to the extent that right of pre-emption has been subjected to the provisions limitations of the Act. Section 7 of the Act is also repu to the Injunctions of Islam because it takes in -i:;ovm or sub cl.ivisionwhere at the time of the commencett of the Act, right of pre-emption did not exist under the Ct1.S~61i11~1. This subjection of the right of pre-emption to the preval nt custom is certainly foreign to the rules govering the law of Pre-emption in Islam. Sectihn 8 of the Act is akin to See ion 7 declared repugnant to the Injunctions Bench of Peshawar High Court. For the same reasons, the impugned Sections in these petitions would also be repu Validi ty of Sections 59 and 11 of the Act qua Injunctions, 0

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behalf of the petitioners for declaring these Sections repUgnant

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are not very conVincing. The State in Islam is fully compe~ent

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to acquire any private property for the public good and I rave

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not come across any provision in "'Fifh" o;f any school of

I\:,O{(

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to the Government. Section 11 of the

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.I.

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tion of this Court. Section 16 and 18 of the Actha~e been challenged on the same ground as of the invali~itY

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of the above mentioned impugned c.lauses of Section ~ of the Act .·1

18.As will be seen from the foregoing discussjon, I am of the opinion, that the state or for the matt r j

of that a legislature is not competent to enlarge tie scope of pre-emption law or to confer the right of I pre-emption on an additional category of persons apJrt l from those in whom this right has been recognised b different Ahadith of the Holy Prophet(Peace be upon,Hih).

I would, therefore, have no hesitation in declaringlthe impugned clauses of Section 15 of the Act along w~ t· to the.eKtent.ofthe Section 16 and 18 ibid/repugnant said clauses to the Injunctionsiof

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Islam. The provisions of Sectio~19 and 20 of the I

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~ Act have also been challenged bYlthe petiti~ner which relate to the notice of the sale bt

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the intending seller to the pre-emptor. It has been[ conceded on the part of the petitioner that so far ~s j the provision of notice is concerned, it is rather Tn

I

conformity with the rules of Fiqh. Their objection ts to the mode of service of notice which according tofihfm is un-Islamic. I do not find any force in this conttntion.

Moreover, the method or manner of service of noticel i

I

is a procedural matter. These Sections are therefori' not repugnant to the Injunctions of Islam. I Now, coming to Section 3-0 of c the Act read with

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Articles 10 and 120 of the Limitation Act, I do finf.

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myself in complete agreement with my learned brother,

I

Sh.Aftab Hussain,J, in that these provisions of law!

I

fix the period of Limitation for irtst.itUting a SUit-~()r Contd ...

pre-emption which is not foreign to'Muslim Fiqh' on , .. these pre-emption and.alsoo 'that [ relate to the procedure oJ a i Court and are, therefore, excluded from the jurisdiction of

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As regards the ouster of jurisdiction of thisi Court qua the laws protected by the Constitution, suc~ as Martial Law Regulation No.115 etc; by virtue of thJ definition placed on the expression 'Law' for the pur*oses

I

of Chapter 3-A of the Constitution vide President's 1:

Order No.1 of 1980, I, once again, with profound resp.ct,

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I

do not find myself in agreement with my learned brothrr, Sh. Aftab Hussain, Member. The reasons prevailing wit~ me

I

in coming to the conclusions contrary to his are that I the exclusion of Constitution from the expression 'Law'

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in defining clause attached to Article 203~B of Chaptir 3A of the Constitution would not be read in isolation of Ithe other provisions of the said Chapter. This Chapter begins

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!'The provisions -6£" :thisGhapter shall I h:;we ef~®Gt" nGu#:i~$"Bi!jlG1ing, anything I contained. in -the C<:)llstitutiori!'.

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Constitution i::

other Statue. "The Constitution being essentially in I t the nature of a statute, the general rule governing t~e Clauses Acts (3rd Edn Pages 612-13). He, on the authority of Prigg V Pennsy-Ivania (16 Pet(U.S.)539)

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contd ...P/1V.

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• • ]JI

"It is undoubtedly true that a constltutl0na r provision is frequently better understood by i a knowledge of the evil which led to its adoBtion. It is settled by high authority that in plac~ng a construction on a Constitution or a Clause or 'i part thereof, a Court should look to the hist\'Ory of the times and examine the state of things existing when the Constitution was framed an~ adopted, in order to ascertain the prior law,: the mischief, and the remedy". 1

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r

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legitimate to look into the history of the incorporati~n of Chapter 3A in to the Constitution and the preval13n~ I i conditions in the country at the time as also to the I

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compelling forces behind the changed outlook of the po~ers

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to be vis-a-vis the laws of tbe country. I wonld not Prefer to go into the detailed discussion on the past constitptiona:

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history. Suffice it to say that to adopt ourselves to ~he Islamic way of life had all along been the avowed goall of

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the various Governments who from time to time had sway' over

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the destiny of the Nation. Every effort in framing thei Constitution in the begining was thwarted by the inten~ity

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I

of the controversy raging between the secular minded cfass and the so-called theocrats of the country. The first ~asic i Principles Report of the 1st Constituent Assembly foun~ered on this rock. The Second Report of the same Assembly wts, in 1954, not allowed to see the day of its becoming bafis of a Canst itution. The lats i'Bniiirit.¢d Prime Minist er of the time, Chaudhri Mohammad All', at last succeded .. in 1956, , io I

get a workable Constitution (later on abroga,t~d) adoPt~d on

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the cost of parity against the majority of erstwhile El}st

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Pakistan and of the merger of the Provinces in the Wes~ Pakistan. The desire of the people of Pakistan to intrtduce by law Islamic way of life for themselves found expression in the said Constitution by making provisions for the I

i)as to the measures for bringing the existing law into conformity with the Injunctions of Is]am,and

ii)as to the stages by which such measures should be brought into effect.

This Commission was also to compile in a suitable form, for ~

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the guidance of the National Assembly and the provinci~l Assemblies, such Injunctions of Islam as could be givenl

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legislative effect. Under its Article 198, it was thec4~ty

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of the National Assembly to enact laws in respect of thle

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Injunctions so compiled. The Commission was replaced by] the

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Advisory Council of Islamic Ideology and the Islamic I Reasearch Institute in the Constitution of 1962. "In tht'e desire to.introduce Islamic ways of life, the distincti n

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those that are not, has throughout been overlooked, thel emphasis having always been on non-Constitutional ISla~ic i Laws, with the result that nobody can claim that the I Consti tution at any stage was or is an Islamic Consti tuition

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in the senSe of its being an instrument laying down an I Islamic mode of Government". (Monir' s COIf':'.entary on the;

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Constitution of Islamic Republic of Pakistan(1962) P 52]9).

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Almost similar provisions as of the Consti tutlion of 1962 were retained in the Constitution given to the i

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country by its first ever directly elected Assembly in 11973.

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But in spite of the continuation of the Reaserch Instittute and the Ideology Council and of the retention of provis!ions according to the demands of their Religion (Art 31 etc.)

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as a Principle of State Policy, no practical step was t!aken

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to ensure compliance of the Constitutional Obligation ajS

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enjoined upon the State under Article 2·27 to bring all. i existing laws of the country in conformity with the Injunctions of Islam as laid down in the Holy Quran an~

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Then there developed a tendency in the process of

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working of all different law Commissions set up for th1

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Con td.....~I1~.::.t

_____ ...__..._-_._-:-.- ..._--- I·· ··....."'01'.0:;;;.

r~~·

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\( purpose of simplification of legal process in Pakis~an r

to consider sacrosanct all procedural law including!I the Civil and Criminal Codes, as it was thought that ;

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interference in the law relating to procedure of COF1rts would help bring in chaos and would result in bringing the hornet's nest about the.€ourts'" ears. The r1usl,iins of Pa.kistan got so fed up with the lethargy of the ~en

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in power from Islamisation of laws and with their 1 ere lip service to the cause of Islam during all those long

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years of the rule of the framers of the Constituti1n, that it compelled them to express their will to have an Islamic legal order in the country in no less l~uder voice than mass agitation in the streets which res1,hted

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in the collapse of the Government of the day. It was

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this will and desire of the people of Pakistan, wh~ch

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although had remained dormant during the next two iears,

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was very much alive in the heart of the cornman man I that received at last expression in the Presiden-ts ordeJ

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No.3 of 1979, and brought into being, on 10.2.1979fe=-r~,l...~ Shariat Benches of the Superior Courts which were I ~ empowered to strike down law or a provision of law [ found repugnant to the Injunctions of Islam. This brder

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was replaced, on 26.5,1980, by the President's ordtr No.1 of 1980, whereunder this Court was set up fori the whole of the country in place of four Shari at Benc~es of the High Courts of the Provinces. I

24.The above was "the history of the times" 1nd

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the "state of things ll which are to be looked into and

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examined in order to ascertain the purpose and thei

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intent of the '"'coustitution~l:'chanp.:eunder cons ideration

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and to grasp the wisdom behind the existance of the Non-Obstante Clause in the very beginning of the

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exceptifn of the I

Contd •••• PIo,

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~ in this light, it wou11 not

Ie """'

.+C ,

be difficult to find the real intention behind the def~nition in question as to not to permit the Constitution, the

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procedural law relating to Courts and Tribunals and th~

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fiscal laws etc; mentioned therein to undergo the scru~iny

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by this Court as to thetr, validity vis-a-vis the Shari~t.

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25.The definition class is, therefore, to be read with

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the other provisions of the Constitution in the light ~f the

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Non-Obstante Clause. Bindra in his above quoted book h~s a

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passage on the tlonstruGci;1ol1 of different provisions of ~

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Constitution, which is: I

liTheConstitution must be considered as a whole, and so as to give effect, 'as far as possible, to all its provisions. It is an established cannon of constitutional construction that no one provisions of the Constitution is to be separated from all the others, to be considered alone, but 1khat all the provisions bearing upon a particular subject are to be brought into view and to be : so interpreted as to effectuate the great II purposes of the instrument. An elementry rule of construction is that, if possible, effect ( should be given to every part and every word 91f a Constitution and that unless there is some I clear reason to the contrary, no portion of t1te Fundamental Law should be treated as superflu(jus. If the plain meaning of the uncontradicted constitutional provision is to be diregarded, it must be one in which the absurdity and . ' injustice of applying the provision to the ca~e would be so monstrous that all mankind would II without hasitation unite in rejecting the applicationlt.(p 616). i

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26.Keeping in view the complete background of th~

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constitutional history of Pakistan and the universal W~ll of its people to arrange their lives in accordance \'/i tllthe i

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Principles of Islam one cannot but come to the irr~isifible

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i Islamisation of Laws. As the intent of the framers of ~very Constitution, past as well as of the present one, had ~ll along been to exclude constitutional and fiscal laws fJom the pale of Islamisation of laws, it is not very diffiJUlt to find that the intent was to exclude these laws from I

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change, Hence this exception from the term 'Law' as USid ~._.. co::-.~.ptLd,~ I

I Cjto

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, I th'18 lni I

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Interpretation (Page 614); based on Lake County V Rotllins

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(130 US 662) and a number of other cases from American

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jurisdiction: I

liThe fundamental principle of consti tutionall construction is to give effect to the intenij of the organic law and the people adopting ~t~

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If the basic legislative intent is to promote or adya1ce

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the people's standards of ,justice and prop¢riety, therj.it is surely proper for the courts to be concerned with ~UCh

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intent. All laws should, as a result, be construed Wi-~h

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reference to this intent. On this basis, the applicatfon of the doctrine of equitable construction, be it know1 by that name or some other, may be sustainedl~(Statutory i Construction by Crawford, page 299). i This definition clause, therefore, is an exception toltile general meaning and import of the terms 'law' for the I purpose of exercise of jurisdiction by this Court. Th~ definition in question being an exception it has to b~ treated as SUCh, regardless of this being relevant .tolthe consti -tution or to any other branch of law, as mentiohed

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therein, and would have to be given its meaning and s~epe confined within the limits permissible to an excePtio~.

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liAswe have hitherto stated, the appropriate! and natural office of the exception -is to elxempt~ something trom the scope of the g(~nera1 wo~c.rs-----'S- of a statu~, which would otherwise be withiJn the scope and meaning of such general wordsl. Consequently, the existence of an exceptiotl in a statute clarifies the intent that the statute should apply in all cases not excepted~ I This exception in question has, therefore, to be kep~

27.Now, if the term consiitution used in the

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exception in question is so construed as,to bring ~l~

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protections provided by the constitution to certain +a\'1s

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and those enabling powers as it confers upon the leg+slat~ ure to ena9ct those laws which in the absence of thofe. A ••••• Page/22.il.>_ ....

---'-~-'"I"'"~---' .~~;,+,..:~.,:.~

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Wtt I

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i

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i provisions of the constitution, these provisions woul~

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come in an irreconcilable conflict with the Non-Obst1nte clause provided for the application of the newly brou9ht in Chapter in the constitution. In this position, the I exception would become ineffective and void. A saving I clause"if it is in irreconcilable conflict with the b9dy

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of the statute ofvJhich it is a part, it is ineffective,

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The Constitution under Article.268 accords

IAN?

protection to all~ eXisting ~ at the time of its enforcement in that the whole of the Statute Boole is the preserved and is allowed to hol~field untill it is I

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repealed or amended by due process of LEl.gislaturrN:l. A ~lear

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departure has been made under Article 203-D from thati manner which is recognised by the rest of the constit~tion in that a body foreign to the £·ield of 1agislation, I namely this Court has been empowered to strike down'l4w

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or a provision of law out of D0-];001y those which werJ . preserved and recognised as validY-.xX""by the Cons titution

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but also from that corpus juris which has to come inti being after the enforcement i of the Cons ti tution • Then thoe Constitution has yet another set of provisions whereu1der

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certain laws are made immune of change or repeal evenlby

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the I...e.gislature in the normal course of its working umless

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Regulation 115 and the Muslim Family Laws Ordinance, fall under this category. Yet a third set of specie~ laws has been envisaged by the Constitution Whereby, stated above, that has been made lawful for the Lagislature, which otllerwise would have fallen under the mischief of Article 227 or would have been in confli with the Chapter on Fundamental Rights and Principles _1i·gy..·Of the The various Articles of the Contd.

have been enumerated and their impo-rt has fully been explained by the learned Member, Sh.Aftab Hussain,J. in his Judgement.

I

3-A of the Constitution to keep intact thelrlhole scheme qf the Constitution vis-a-vis the laws of the country from the pervie'VI of Article 203-D, they could have certainly incorporated ,some other words in the Chapter in question instead of merely' creating exception of Constitution from the definition of law

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Injunctions of Is!h.amunder Article 203-D, this jurisdiction

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Cons-titution in that all laws get their preservation and i i

protection from the Constitution and that machinery or thie

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method for any repeal or amendment is provided therein., A~ such machinery or method has to be bypassed, the exclusion of Constitution from the term law would only be constru~d ~o

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mean the Constitution minus the manner or the machinery created by it for such repeal or amendment. It may be contended that a mere declaration of repugnancy by this Court is not tenta~ount to striking off a law which has to be done by some other ~uthor. ity. The effect of such declaration provided under Article 203-D (3) (b) is a complete answer to this contention. Thls such law or provision shall, to the extent to which it is held to be so repugnant, cease to have effect on the day on which the decision of the Court takes effect~ This virtually is the repeal without the intervention of any Lagislati ve body or person. By the same tol,;:en, all other protections and safeguards imparted to Imvs such as the above I

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stated two pieces of ~gislation do not come in the way o~ the exercise of jurisdiction u,nder Article 203-D.

the word 'Law' with the exception of Consti tution _ould 1tend

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to bring the newly incorporated part of the Constitutioni in conflict with its other provisions, the L&gislator by way of abundant caution deemed it fit to insert a Non-Obstante

31.Now what could be the effect of this clause __ifithe term 'law' as defined is to be taken to mean law excludipg i

Constitution with all its effects on the existing laws, !

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safeguards and protections provided by it to certain lawf and with all meu10ds prescribed by it for the repeal or amen~ment i

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of a law~except that it will be rendered redundant. Bpt! can

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any provision of law or a Constitution xx-be allowed tolbe i

32.It b.as earlier been discussed that for the purposes i

of l~Qnstrtiction of diverse or different provisions of i Constitution the principles could not be different than those applied in case of other Statutes. Organic law does not differ with any other branch of law in this respect.

i In __ K_O_R_O Vs. The S-t.ak (P.L.D 1963 Karachi 2$64;

" ..••that the LegiSlature does not use the words redundantly without any meaning".

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Similarly in HIvIunicipalCommittee Vs. Gul Baran" (PLD 1972 Quetta 891Page 94), a learned Judge of Baluchistan High:

"The cardinal principles in interpretation of laws are that an effort has first to be . made to reconcile the various provisions of law and to find out if all the provisions can stand effectively by themselves. The other principle is that if there is a provision appearing to be redundant in the ligh~ of the remaining provisions, the law to that extent must yield to the controlling provisions~' Maxwell on Interpretation of Statutes (11th Edition Page:,12) "It is but a corollary to the general rule of literal construction that nothing is to be added to or to be taken from a Statute, unless there are similar adequate grounds to justify the inference that the Legislature intended i something which it omitted to express. It is a[ strong thing to read into an Act of Parliament! words which are not there, and, in the absence! of clear necessity, it is a wrong thing to do. iNel are not entitled to read words into an Act of i Parliament unless clear reason for it is to bel found within the four corners of the Act itselr~ !

33.The effect of Non-Obstante Clause has been

I ,

explained by B#indra at page 720 of his book in the foll~oing!

I

lilt should first be ascertained what the enactirg \ part of the section provides on a fair construptionl of words used according to their natural and I ordinary meaning and the non-obstante clause is to ! be understood as operating to set aside as no longe~ valid anything contained in relevant existing law VThich is inconsistant with the ne'l'l enactment. The enacting part of a statute must, where it is cRear, be taking to control the non-obstante clause both cant1"6t;-15e~'read harmoniously, for, even apart from such clause a later law abrogates earlier lawsi clearly inconsistant with i~ I

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A Non-Obstante Clause in the similar words as of Articlel

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203-A, whichf6urrd"':its place in an Indian ~gislati0n,' n$.mely

I

r·1oneylender's Act, came under consideration of the Galc~tta and Punjab High Courts of India in Nawab Bahadur Va. cal Rameshv.rarlal (A.LR 19491323) and Sarup Sing Vs. Bhagwan Dass (A.I.R 1952 Punjab 21). It was held that: "The form of the words used may be regarded men~ly as a convenient method of repealing inconsistatilt provisions of such statutes as in the InterestiAct or the Contract Aci:;without making any express reference theret&f~

"Similarly, the use of these words ••••• may be reasonably regarded as modifying or amplifYlhPgfor the benefit of borrowers (subject to the limitations contained in the ·Section) any statute of general application relating to procedure, such as the Code of Civi Procedure, which would not otherwise give borrowers the measure of relief contemplated by pengal I'loneyLenders Act~

34.I am, therefore, of the view that the incorporatlon of Article ~G:f..A.;' in the relevant Chapter confers jurisdiction effect thereof has not been made amendable to the examination command of the Constitution or framed for giving effect tq the

I

directives contained therein. T'neRepresentation of Peop14s

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Act is one of those enactments which was enacted for brtn,ing

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into being the Parliament required by the Constitution toibe

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framed in compliance with the requirements of the Constitution or those which are promulgated to give effect to its necessary and expressed intendments are excluded from -:he expression

I

protected law. Hence the jurisdiction of tfttlEsCCourtagainst

incidently been applied in the contrary manner in the lead~l1g JUdgement. This maxim was interpreted in a case from Engli$h jurisdiction (King's Bench) in the following vwrds: "The Rule is xx: that Lf the provisions of a later Act are so inconsistant with or repugnant to those of an earlier Act that the U10 cannot stand Together, the earlier stands impliedly repealed by the later~ (Hall Vs. Arnold (1950) 2. K.B.543)

38.Keeping in view the above interpretation of the ~~xim, t . .'

there could be no escape from the conclusion that the fram~r of i

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Chapter 3-:-Ain the Consti -Cution intended by including this i, f

Chapter in the Constitution to bring in such a change in t~e

, I

scheme of Constitution as would render conflicting;

h:tovision'sof

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the Constitution enforced prior in time to the introductiO~Of this Chapter, on 26.5.1980 as ineffective and in case the ~o

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cannot stand together thi~ Chapter \'Iillhave to be60"p~If'tt~~···· ::c::::: t::O::u::O:S::~ :i:: ::P:::::m::S o;a:i::tj~kij~ i

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Having held the jurisdiction of the Court not barrbd

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qua lVlartialLa\'lRegulation 115, I would now, turn to deal with i S.P No.25 of 1979(Lahore), wherein the petitioner; Qizalbash![Waqf,

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Lahore has challenged the definition of "person" given in p~ra I i •••• Page/~8.

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includes a religious, educ8.tional i

2.(7) "persdD'?1tt or cha:ritable inst1 tut1dm, every trust, I whether public or private, a Hindu undiviq.ed fam:lj,1y, a company or association or bodydlf individuals, and co-operative or other sodiety, but does not include a Local authority, aJuniveiO risty established by law, a body incorporjted by a Central or Provincial law, or an .J .. educational insti tutionif(a livestock farm i10ra co-operati ve farming society);,exemI;ltedbY.l . Federal Government from the 0perat~on of un~s Regulation~ I

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A similar definition has been appended to the Lard Reforms Act 1977 under its Section 2(7).

41.By virtue of the above definitions every trust, I whether public or private, has been included in the definfti0n. i

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of person and thereby made subject to the mischief of the!

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42.It has been contended that the petitioner is a W~qf i created by late Nawab Nasir Ali Khan Qizilbash, the grandr father of the present "Mutwalitl, Nawab Muzaffar Ali Khan i Qizilbash for arranging mourning and takmng out processio*s in ,1./ """ ••j.iY I '.. I memory of/If f'oI!'''-7" according to ~rites and also fori other religious and educational needs of "~ft,:fcommunitY. It II consisted of 40 squares or 1,020 Acrees of irrigated land II situate in Lahore and in its subrubs plus some urban prOP~rty in Lahore, etc;. Because of the definition in question,tltis MLRllS and the i waqf also became an effectee of the~Land Reforms Act, 197~.

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area equal to 830 Acrees was resumed from the waqf Withou~ . u, compensation under the former r·· , \'1hilean,' addi tional area df

80 Acrees was taken away under the later Act. It has been i contended on behalf of the petitioner that a vraqf having bl,een I

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dedicated to God does not fall under any category of personal property of an individual land owner and as its ownership: I

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vests in God Almighi§y, its acquisition by the Governmentubder any pretext, Law or Regulation for any purpose whatsoever ttas

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i i

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43.Mr.Fazal Hussain Advocate, on behalf of the petFt~oner

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has relied upon Verses 178 to 181 of Chapter II of the Holr Quran and also on a number of ~)l9-, of the Holy Prophet i

! ~{(j'~

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(Peace be upon Him) from the compilations of Imam Bokhari and Imam }fulik etc; as well as on a number of Holy Prophet(Peace by upon Him) and <:.r~dJfrom W of the ~~ftif

of

the Shia sect.

, 44. Verses 177 to 179 of ~l~:f"dO not seem to be the said Chapter rendered into english by Alama Abdullah ~usuf Aliare as follows :

180."It is prescribed, When death approaches Any of you, if he leave Any goods, that he make a bequest;

To parents and next of kin, According to reasonable usage;

This is due From the God-fearing~ "If anyone changes the bequest ,After hearing it, The guilt shall be on those Who make the change.

For Allah hears and knows All things~

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Although, the learned counsel has not relied on VerseNO.182 :;iJr. This Verse is also reLevant to the abovje of the same

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quoted Verses. Rendered into english by the Same translator

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ItBut if anyone fears Partiality or wrong doing On the part of the testator, And makes peace between (The parties concerned).

There is no wrong in him:

For Allah is Oft-Forgiving, i Nos t Ivlerciful'!- !

bequest made by a Muslim has been I fully c;iescribed . in the above quoted verses and to bring aoout

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i a change in the bequest after having knowledge of the inte~tion of the maker has been termed as guilt. Verse 182 allows Ch~nge

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in the beques t for making peace between the effected partiels if

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any partiality or wrong doing is found on the part of the \ testator. These Verses clearly relate." to the wills made 'inll

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favour of a stranger ora relation. Apart from the above, Verses do not lay down a rule in regard to the creatmon The law on the creation, utilization and other related

~/ waqfs is almost one a~d same in every Sbhool of Muslim ThbughM, i

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(Peace be upon Him) and from the practice of his Compeniops and 1>ej9~~ed "t1ith'~' I.wrols.:,;0~)G6f;1.~ h:n;' fIad ith No.4 3 in Chapt e 1"j' No• 37 relating to waqf in.Sahih 30kha:r'5::'twittr ardu~translatton1¥b#isfied

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by Muhammad Saeed and Sons, Karachi Vol:2, page 54), rela~es to i a piece of land situate in "Khaybe1"" , which was acquired! by

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Hazrat Umar(May God be pleased with him). Hazrat Umar aft~r

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this acquisition came to the Holy Prophet(Peace be upon H~m) apl i asked for instructions in relation thereto saying that hel i

acquired a piece of land a better of which has neverbeenl possessed by him. The Holy Prophet(Peace be upon Him), told hiIn , that if he so wishes, he can retain the trees and give f~it in' e Alms. Hazrat Umar, thereafter, bequeathed

:::d::~::a:c:::r:: ::::::i::::~rB:: :::df~:tg::~;d~t~2 this land on the i

utilized for consumption of the poors and othersmentionef therein and also that the ~1utwali Can only eat out of it r I according to his needs or let a friend of him eat. the sam¥, if' thereby he h~S no desire to collect money. The same Hadit, with a slightvtnation from the same narrator finds its place in the {"

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From the above quoted Ahadi th" the principle of.la

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waqf being not capable of sale, gift or inheritance was ctJrived.

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""'-J.. i by the Juris ts. The second princ iple is ~ ..• 1\LYJI in other \ words, the waqf is not owned by any person as the ownersh~p of

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47.The same Hadi th is included by Alhaj Ma~ana Fa~alKa:r'itr in his translation of Mishkat, namely "AI Hadith' (page32q).i.l1t: i., .,c,:'

as Hadith No.DBO at FagE;'!.

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1'here are also a number of Alhadith in Sahah,:""i-Ar:'b~cof"

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it is enjoined that a waq~ can

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only be utilized in accordance with the oQ3ect,ofti1e waqf Jci":';:'~',d,

iff; ~!!';~

.• c.•' ,"',' ,',- i --'.~,

- :31 : - I::

i';",;"

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and that purpose 01' a waqf, after it has been executed. ' and appropriated canno~ be changed. Abdul Qasim Khooi'in VbL. II' of~j;:ut,Ta1ebin lays down as ~aselas-No. 1153 and I 1154 that a waqf by a 3hia wakif can only be utilisedifor ,f').

the b~U~fit, of the poor and needy ofShia Community.

49.Hanafi view on the ownership of vmqf as per 'Hedaya' page 231 is as follows:

"According to the tvlO disciples (Qazi Abu Yusuf and Imam Mohammad) Waqf signifies the appropriation of a particular article, in such a manner as subject it to the rules of Divine property, whence the approperiator's right in it is extinguished, and it becomes a property of Godby the adventage of it resulting to his creatures. The i two disciples, therefore,hold appropriatiop. to bl absolute; and, consequently, that it cannot be resumed, or:t\;bstwsedof by gift or sale; and that inlieritance also does not obtain with respect to it~

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50.3hia law of Wakoof as compiled by Baillie, i~

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his Digest of fvTo#hummudanLaw (Vol II page 215) interi alia

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" A wukf for musalih, or works of general utility, such as bridges and musjids, or places of worship, is quite valid; for such a wukf'is, in truth, a settlement on all fvIussulmans, I though some only can participate in i their advantages~ II

On how a \vakf in the way of God is to beappllied,> j ,

the same compilation states as under:- HWhen a person has made an appropriation HIn the way of God~' itis applied to whatever is productive of reward in future state, such as religious war;fare-,' i the greater and lesser pilgrimages, and i the erection of I'1usji.-d;:;orplaces of worsh~p., and bridges. So., also, if he should' say i "In the way of God, ,and way of rew,p,rd"_ I and way of 'good~ the purposes-are ,all I considered as One or. the same, and there I is no necessity for dividing the proceed I of the l,vu.kf into three different parts ~I !

a The wakf property does not cease to beLvrakf even aft~r its i dt6truetion'.n¢~.thet'~'can it be sold even after its, derJ?o].itiC There is only one exception in Fiqh Jafariya when a~akf i can be utilised for any other purpose than that dfsc:rfihed

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i by the wakif and that is!; the case ofp~rishable goods when"t~e'i. i vlakf property is liable to waste by its pirishable nature, before i the object of the wakf can be achieved. In such a case as this it would be utilised in a manner vv'hiehis similar or akin to th$t it was dedicated for. For an example when a wakif makes an in utter disregard of the object of

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convert dt-vine property into personal

recognised in the State righ~ to resume even wakf property' ir case i of dire need, but in such a case the State has to keep alivel the

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t> object of wakf by providing alternate means to ){eep the wakfi in perpet~y •.l'he right to acquire wakf property !~lithouteompehsatiOJ . ..,i or on payinent of compensation has nO'bbeen conceded to the ;:)jtate~ The wakf belongs to God Almighty. Then who is to recei~e ,'~~tePt i the success-or waqI, compensation on His behalf. A wakf in Iklam is a perpetual endmvment and has to be utilised in strict acborct

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with the object of wakf declared by the wakif. The Islamic ll3.won

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wakoof if so stringent that when some water is dedicated for!

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drinking purposes and no water is available besides it.fori ablution) no one is allowed to use thewakf water in ablutionr for, ~ I "f

saying prayers. Such person must say his prayers after performing

53.The definition of person in the impugned provision ofl! . law t, the extent of including therein a Muslim trust; whether PUbl~c or i private' is for the reasons stated above, repugnant to the Ipjunc- tions of Islam as laid down in the Holy Quran and the Sunna.~nyoth

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provision in the impugned laws empowering the acquisi tio1inof l"Iuslimwakf for the purpose of setetJing the wakf property] upon

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i a person or a class of persons would also be repugnant t~ the power of the State under Martial Law Regulation 115 in placing restriction on partition of joint holdings (See and restriction on alienation of holdings. (See 24);gtl_ ground e.f "the~.e· b.eing repugriaiIb::tcg: the'. Inj1.ln.ct;j,on~, c;'IJ.g num1;):~il of verses of the Holy Quran from Chapter IV and, Islam are by:

a) earning, b) inheritance, and c) gift.

ltAcquisition of property by the individual, whether male or female, is recognized by Islam as one of the basic laws regulating human society:

ltHen shall have the benefit of what they earn" (4 : 32). Both sexes have a.lso an equal righ~ to inheritance of property; "!'1enshall have a portion of·what the parents and the near relatives leave and women shall have a portion of "That the parents and the near relatives leave" (4 : 7). No limitation is placed upon the property or wealth which an individual may acquire or give away. The Holy Qur'an speaks even of heaps of gold being in the possession of a man which he may give away to a woman as her dowry ltAnd if you have given one of them a heap of gold, take not from it anything"(4 : 20).

Islam is thus opposed to Bolshevism, which recognize no individual right of property;· but it is at the same time socialistic in its tendencies, inasmuch as it tries to bring about a more Or' less equal distribution of wealth~ (liThe Religion of Islam" by r-1aulana MUhammad Ali, 1950 Edition, page 690).

inalienable right to sell, bequeath or othetwise part from it. He cannot even disinherit hiJ i presumpti veheirs ,as everyone of the heirls, on the demise of the last full owner, acquites hh i

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share by operation of law. He certainly wou+d i have a right to get his share apportioned a~d

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separated from the property of others. Simii-arly,

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he has been &lvested with the right to sellihis i property. This does not need an elaborate I~' discussion as these rules of Islamic law ~r~

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elementary. Any ~mbargo on these rights would

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interference in the domain of private rightl and

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The State or a lagislativebody of! , i citizens, in Islam, cannot by legislation t~e

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away or place curbs on a right conferred oni

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conceded to an undividualby the devine law~

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According to Sharia, no person or institutipn is

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cornpete,m,t~.

to convert what is permissibl~ irto thatwhic;h is forbidden. To take exclusive ~I

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i poss ess iol1,i'(l~m:~~i;pl'operties or to partwit~'it>,.

by sale or gift, etc; is a recognised rightl o~ an individual which can I not'~be'ta.kefiJa.w~ybY lagislation. The impugned provisions of iawi therefore, clearly repugnant to Injunctions! j

of Islam. I would therefore, have no hesita~ion iI

Martial Law Regulation 115 (Para 22 and 24)1 to the extent these take ai-laythe rights under, i discussion repugnant to Injunctions of ISlime

of opinion on the ouster of jurisdiction Court with my Member, I fully conc~r with him on their on the conclusiofisdrawn by him on the Sharia on amassing wealth and property by individuals. All those petitions which Land Reforms Act 1977 to the extent of of private holdings of land for the purpose of

III)1/-A

IV~~

Islamabad the 13th December, 1980

(APPROVED FOR REPORTING)

-l;,~.

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