Nusrat Baig Mirza vs Government of Pakistan

IN THE FEDERAL SHARIAT COURT

( Original . Jurisdiction

PRESENT

Mr .Justice Dr.Tanzil-ur-Rahman CHIEF JUSTICE Mr. Justice Dr. Fida Muhammad Khan Mr.Justice Nazir Ahmad Bhatti SHARIAT PETITION No.1-K OF 1989 Nusrat Baig Mina Petitioner Versus

Government of Pakistan Respondents and Province of Sindh

Counsel for Vic . Nemo petitioner •

Counsel for the Hafiz S.A.Rahman, Federal Government Advocate.

Counsel for the Haflz S.A.Rahman, Government of Sindh Advocate.

Jurisconsult Dr.Abdul Malik Want, Advocate.

Date of institution 25-2-1989 Date of hearing OA VIP

Date of decision 23-4-1992

i' No oil 89

-t •it.• nil \WI: CIIIEF .111STICIRt 0,\h/triat

, • , vief:

2,... .“1989 . An miii:niletiti•Valeirtlih."-V•itii.-;;.liois..•ver, Petition Was originallyyileil on 9 ,-...1.

- .- • - .,..-.:-.., i .• ......,.

later on, filed on 21-3-1989. It iS .s.tibmitted in the '1,i(tiriori that .tjh 28th September., 1973, the - Pakistan Civil *Servants Act of ,,19fl W11$ enacted and iii Iii.' PrOVill l• of Sind the same Act was enforced on 5th10.1 December, 197:1. As such tht• Federation of Pakistan has framed Rule's in 1973•271141d111; the Act of 1973 and the Province of Studh framed such ltules :under section 28 or the Provincial Act of 1973, known as Civil Servants (Appointment, Promotion and Transfer) Rules, .1974. It is thus submitted that Rule 14 of the said Rut -s, as in force in the Federation of Pakistan and Province of Sindh which, in paramateria, tire the same, is against the Injunctions of Islam.

9 It is further submitted that the Office Memorandum No18/9/72 TRV dated 31st August. 1973, as disclosed by the Minister Incharge of the Establishment Division on a specific question put by Mr. Wasi Mazhar Nadvi on 11th June, 1987 in the National Assembly that there exists quota system based upon the said 1%1emorandum, having the force of law, is also repugnant to the Injunctions of Islam.

3.The said Rule and Office Memorandum are reproduced as under :

i)THE PAKISTAN CIVIL SERVANTS (APPOINTMENT, PROMOTION

AND TRANSFER) RULES, 1973

ii)SIND CIVIL SERVANTS (APPOINTMENT, PROMOTION AND

TRANSFER) RULES, 1974 •

"Rule 14.- Vacancies in the undermentioned posts shall h filled on Provincial basis in accordance with the merit and regional or District quota, as determined by Government from time to time;

‘-` Nit '89

..(i) All posts in basic pay scales It and.:nbove• and equiVab -wi;

(ii). Posts in ! basic pay Scales. 3 to .15 and equivalent Iii offiecs which serve the whole of Pakistan."

ESTABLISHMENT DIVISION OFFICE MEMORANDUM No.6/9/72

'IRV, DATED 31ST AUGUST, 1973

(a)The provincial quotas have been prescribed under rule 14 of Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 in pursuance of proviso to Article. 27(1) of 1973 Constitution.

.(bj The prescribed provincial quotas laid down vide Establish Division 0 .M.No. 8 / 9 /72-TRV,dated 31st August 1973 'are as under:

Merit. quota • 104 - Punjab (including Federal area of Ishimatmd) 504, Sind . (including Karachi) 194, • The share of Sind will be Rather sub-allocated in the following. ratio; • -

Urban areas namely - 19/, (,r .KarlICIII,11yderabad & Sukk 11 I'

.•Rural areas i.e. rest of Sind 604, of- excluding Karachi 19.-t, or .11yderabad & Sukkur 11.44, •

Baluchistan 3.54, Northern Areas and Federally Administrated Tribal 44, area P

Azad Kashmir 2%

(e)The 194, quota . fixed for Sind has been further distribu ed in the ratio of 40:60 for Sind (Urban) and Sind (Rural) respec lively..

(d)Sind (Urban) comprises areas of Karachi, Hyderabad a ci Sukkur. Sind (Rural) includes areas of rest of Sind excluding.

_Karachi, Hyderabad and Sukkur.”

4.This Court 1y its judgment dated 14th June, 1989, held that quota system provided in rule 14 of the Sind Civil Servants (Appointment, Promotion and - Transfer) Rules, 1974 and Office Memorandum No. 8/ 9 /7'2-T lt V ,

dated 31st August, 1973, is protected by Article 27(1) of tlie Cm:slit:num of Pakistan 1973 and is thus immune from being challenged in this court in view of Article 2030(c) of the said Constitution. The provision of Article 27(:4.of the Constitution, for the sake,of convenience, is reproduced as under:-

,"Art.270.1. - No citizen otherwise qualified for appointment in the service of Pakistan st.ilros pL shall- be discriminated again

of any Such appointment on the ground only of race,religion, caste,sex,residence or place of birth:

Provided that, for 'a pe7:1_d_ not exceeding twenty years from the commencing day, : posts

may be reserved for per.,,,ns

belonging to any clast3 or area to secure their adequate representation in the service of Pakistan.

Provided further,that, in the interest of the Enid service, specified posts or services may be reserved for tathabcrs or either six if such Posts or services entail the perlimmtnci. ii duties and functions which cannot be adequately porlomm-d by members of the other sex.!'

5.An appeal was preferred against the above judgment . (vide Shariat Appeal No.18 of 1989) and the Shariat Appellate Bench f Iii Supreme Court was pleased (vide its judgment dated 20th February, Iti91) to remand the matter to this Court with the following observations:- "Even if. it is. proved . that the rules and meinorand um consideration were framed under the authority of Article 27( ) of the Constitution; they cannot be held to be the provhdons Of .the Constitution itself' and their examination in the light of the Injunctions of Islam does not amount to examining a proVision of the Constitution. We, therefore, hold that ti Federal Shariat Court has the jurisdiction to entertain [Iv .136;/vv

P.ItIo.1/680

petition of the appellant under Article . 203-D of the Consti tin kin and has the jurisdiction'to decide whether or not the impugned laws are repugnant to the Injunctions of Islam as laid down in the Holy Qur'an and ,Sunnah.."'

For the above view reference was made to the Government.of N .1V F. P.

vs. Said 'Carnal Shah (PL) 1986 SC 360) and Qazilbash vs. Chief Commissioner Punjab (PLD 1991 SC 99).

A copy of the judgment was received by the office of this court in the end of March, 1991. The above Shariat Petition was then fixed tor regular hearing on 23rd May, 1991 with notice dated 14th April, 1991. 'l lie Federal Government and the Provincial Government of .Sind were required to

(3)of Rule 12 o rib° file :Written statement, as provieled:Lundet..anb7Rule :7 Federal. Shariat CourL(Procedure) Rules,. 1981, accompanied by documents —eek before the date of on: which they ph:feed 'reliance . not..Mer-tbarrone .W hearing.

A written istatement was, however, filed on behalf of the Provincial Government of Sind on the 28th June, '1991, wherein 111

H

of 'reservation of quota was statedto be the obtainineadequate rere,otiIu in service for the people of rural areasl' The Federation has failed to file any written statement till today or produce any religious scholar in support of the said provisions of law, inspite of further notice issued to it on 10111 Mardi; 1992 and so the Province of Sind.

8.The grievance of the petitioneris that the introduction ana fixation of the above cited qaota system in general and its further

.P.No.1 /

particular has caused 'serious sub-division irk the Province of Sind

.te to most of the citizens of Pakistan by discriminating between prejtuti,.

the citizen and citizen on the ground as envisaged in the said rule and Memorandum, thereby depriving them of their rights protee cd by .the, _ Injunctions of Islam.

Before discussing the Injunctions of Islam on the subject , we would like to refer to the prbvisions of Article 27 of the Constitution, reproduced above, that no citizen otherwise, qualified for appointment in the service of Pakistan (which includes the service of a Proyinee) shall 'de discriminated in respect of any such appointment on the ground only of race, religion, paste, sex,residence or place of birth. The said Articl..t,as framed originally, however, provided that for a period not exceeding "tenS years" from the commencing day of the Constitution, post may be reserved for persons belonging to any class or area to secure their adequate representation in the service of Pakistan. It may also be noticed that the first proviso to Article 27(1) prescribing "ten years" from the commencing day for reservation of posts for persons belonging to any class or area was substituted for a period not exceeding "twenty years" by virtue of P.O.No.14 of 1985 (vide Artich 2 and Sch.i).

10.Now,adverting to the InjunctiOns of Islam as laid down in the 11)1'y Qur'an and Sunnah of the Holy Prophet ( 1,) we may first refer to a number of verses of the Holy Qur'an which pertiiiii

CP.No

to the question before us. The Holy Qur'an says:.

"LJI LsJ I LA-. 31 I j'asiz, I rS &LI I I"

(Allah doth command you to render back your trusts to those to whom they are. (Al-Nisa 4:58).

(Ye that believe! Betray not trust of Allah and Apostle, nor miappropriate knowingly things entrusted to you) (Al-Arifal

The following verse of the Holy Qur'an is 'cry much apt to the issue before us that there is no difference between the individuak -s of mankind on the basis of race, colour and teritory. All human beihg quintessenee are' equal in the eyes of Allah as lie created man from a .

of clay. The Holy Qur'an says:

.9-CL /Lit? 3

" est_ic..1 a_y J.:it es.,,,st It

(0! mankind! We created You from a single (pair of aade and a female, and made 'you into nations and tribes that ye may know each other (Not ye May despise each other).

'Verily the most honoured of you in the sight of Allah is (he) who is the most righteous of you (Al-Flujrat..49:

By this verse the entire humanity is addressed i.c,all mankind :vitnout any distinctfon as to caste 'creed and colour, and the territo,-v

.P.No.1/K/ origir i)r place of . tesidenCe. Let us here note this fundamental too Eyinge iir that all humanity belongs to one human family, without any inherent super;”iliy of one over the other. Consequently all racial, national or tribal prejticlieeii stand condemned. The Prophet said: "Behold, Allah has removed frtan you the arroganbe of pagan ignorance (jahiliyyah)with its boast of ancestral is but a Allah-conscieua believer or an unfortunate sinner. .All people.

children of Adam; and Adam was created out of dust." (Fragment of quoted by Tirmidhl and Abu Druid, on the authority of Abil Ilurayrali.).

Holy Qur'an further says:

y • ii!.z4.1

(Give not unto the foolish your wealth which Allah has given you) (Al-Nisa 4:5). ,

13.Islam has given the principle of equality (Musawat) to the worbi in which the class and group-conflicts reigned supreme. This principle of equality before law has very vividly been eleborated in a large number of Ahadith; out of which, a few are reproduced below:

It is narrated from Ayisha that:

J—;44 if 1)- 5.$1 "CI kr:1 ,1/4:14-1-11 01-, tin J,;--i.rl e

13-J

u J L1 (1-3 L)-- ti t J yjlad 10 ,t 0-

(The Holy Prophet ( 4.1s. 41.11 cyl..o) ordered the people of the tribe Of Bani Hayadha that they give in marriage a woman from amongst them, to Abu Hind. They replied to the Holy Prophet ( 44C 4.11 ) that it would be an embarieising situation for them to marry their daughters to their slaves. Then (Allah revealed this verse: I.We created you from a sitir,le (pair)of a male and a female arid: made you into nations and tribes that ye may know each other'. (Al-Qurtubi: Al- Ahkan al-Qur'an: Cairo, 1'967 vol: 16 p.341) (Al-Sinti: .1)ur al-N1::nthur:isierni VI p.98). -IL

al-Niihnivivall 111 Al-I3aihaqui narrated in his book, 'namely, Dalai'

14. ' I

that Ibn Abi Mulaikah -s.aid that:

cai.11 ci is

L.5_li L 1 ,i esar-7, Jp.9 1..4SJI ).2o;

"11,411/..51-L-4->ss,S.3 cra-e-cuaisui

nn lh000f of the (When Makkah was conquerred, Bilal mounted

Holy Kabah and called people for prayer. At this occasion SUMO people said, in a tone of amazement that this black slave was the top of •Kahn, for prayer, while, calling the people, from.

the others said, that Perhaps, Allah did not 'like any person except him.. At this juncture the verse of the Holy Qur'an revealed: 0! peoplei. We created you from a single (pair) a a.

male and female

Narrated from Abu Hurairah that the Holy Prophet said:

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j.tlj.3 “rat jaz.y.# j aakric. cnab

I :c).op"( oa rS1-1;•1_:, I

. - es

I3

f.S.4 .3S1 , 0 1.

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(0! people,Allah has removed from you, the pride of ignorance and boasting, of that time, with fore-fathers. Men are kinds: righteous, pious and respectable in the -sight of A!lall and the other is one who is profligate, miserable and negIi i cible in the sight of Allah. All people are descendants of Ashaa and Adam was ciei3ted from clay'. Allah said: 0 mankind! We created you from a single (pair) of male and female and made' you into nations and tribes, that ye may know each other (Not that ye may despise each other). Verily the most honoured

S.P.No. -10-

of you in the sight of Allah is (he who is) the' most righteotia of you. (Al-Jame li-Al-Tirmidhi: vol.5, p.180).

The Holy Prophet --.44,311,61.e&IJ1,5-14.) said in his address d the the last Hajj, peformed by him, thzd:

"0! people, hear me, your Lord is one and Your father is on NO Arab has any speriority over a non-Arab, nor any non u nit'. tint' Arab, over an Arab nor any: white man over a black a black man over a white man, save in respect of piety and fear of Allah,"

Abu Dharr narrated that: he: asked the llolY Prophet j sat,- r=s1 0,-c60 0-Is

LA:aro Lib agd.. 0.6 biLi ,s

Li JI

(Will you not appoint me to a public office? He stroked my shoulder with his hand and. said: Abu Dharr thou art Amid( and authority is a trust, and on the day of judgment it is a cause of htimiliation and repentance except for ,one who fulfils its oblicjation and properly discharges the duties attendant thereupon. .(Sahih,Muslim (Kitub al-Imarah) vol.3 1.1457, Bierut ed. Eng. Translation by Abdul Hanley! Siddiqui vol.11 p.1015 pub. Sh.Mhd.Ashraf Lahore).

18.Hazrat Abu Bahr narrated that the Holy Prophet said:

LacJ it J.41j. Li J ., 11 J.01 c,

Illazi131_1).0- ja,e/3

(Every person who has been .given .some authority of the 1, Iffidile coMmunity. ay,.! he 'appoints someone out of favour, h..: w:h

cursed by Allah and all of his good actions shall be turm (I down nn-accepted). (Musnad, al-Imam Ahmad bin Ilambal vu1.1, .p.6).

19.Lastly, the following Iladith of the Holy Prophet( 1.1_1 is narrated:

I JI JU JU s.U$ JkJU iLiIc....s.? I

(13 c2J, r c ai lst.J1 aslei Js1 jri oil

:When honestlyis lost, I then.:wait for the Hour( (dooms' day),Ile :Isked: 'How will that be lost,- The Prophet said: 'when the 'power or authority comes in the hands of unfit persons', then wait -for the Hour (dooms' day).

Admittedly,' a post or an office is a billet in the hands of the appointing authority as is enshrined in the_Objectivee-liesolution which has now been made subf,taktive part of the Constitution'wher_ein it has been, inter-alia, prOvicied that "Sovereignty over the entire Universe belongs to Almighty Allah ,alone,-:and the authority to be eicerdreed- liy The people of Pakistan within the limits prescribed by Hini is a 'saered trust."

Political power i& held in trust (amanah) from the Almighty Allah and "those from amongst you." whOc have been entrusted with authority ( 041) must exercise their authority or power (a sacred trust) as manifested in His various COmmandments and Ordinances.

21.It appears from the' study of the. Holy Qur'an and S.unnah of the Holy Prophet ( dela JJ 01..0 that Islam .abhOrs against discrimination or preference between man and man, except for their piety, ability and capability, mentally as well as phyaically.

.Ho.1/K/89 0 The Holy Qur'an has fixed- a parameter of the selection of eligible person for getting appointments. The Holy Qur'an says:- (Truly the best of . meri.lOi. thee to employ is the man who is 'strong and trustworthy): :(Al-Qaaas .28:36).

Imam Ibn Taimiyyah in his well known work

(Urdu Tr.)Karachi, pp 83-84 has stated that

3.3.1, 4.5 u 71 I ‘0.1.

jj1, 0-1.,...,

ji l la! 3.:.4 4./0 L#.11,S

aa.J1.0J31,! A.Ja I I

to ;render back the trusts to llioac The Holy Qur'an commands 'us.

whoni they are due. It further commands that when you judge between man - and man it is to be-judged-With justice There .-.- is a'bonsensus among the

commentators of the Holy Qur'an that the word ' c...;LI ' (trust) used in verse 58. of Surah Al-Nisa is not Ito he given a restricted meaning and Although the said verse was any sort of trust comes under its perview. —

revealed in connection with giving back the keys of Ka'ba to Bani lathe lint " in the verse, this commandment for the generality of the word "

applies to all the trust ' and . all persons for giving theni to whom they are due. It is so stated in Tafsir Mazhari by Sinaullah Panipati Vol:II page 148.

25.Tafseer Abi Sa'ud Vol:I, Beirut, page 193 also states that - Here the rulers have been commanded to give the rights that they possess i.e. any charge or post to its deserving. The same thing is stated in

.P.No.1/Kise

Tafsir Al-kabir by Imam Razi vol:IX page 138:

1.1“:5S 1 ...011 I J.z.c. `) I -Ls Lb);

ty tear sci j_i- 1.0.111 .11:1/4

(Although this verse was revealed in Connection with the :d)tm:

mentioned story but you must know that this commandment (.811 of not specifically be connected with this story but all sorth trusts come under its purview.

Tafsir. id-Qur'an al-Azim by Ismail bin Kathir Damishqi, Beirut vel : I,. page 516. states , that - •

t1ii ) %Li): cs:IS • ell 3 oicJj. VI Isaai NJ)

dir"... 10 00 s Lrl cx J u der 6.)% .;ۥ 4.0

JU — J-1)

a 3-0 01 n1 _IS.: • -Mt;

Cr

- ‘7...S

Lr co, ( lin) I '5.1 V

. • in connection with that story.%Vhat eve r (This verse'was revealed .• ,be, every body has been enjoined in general the case may

(to give the' trust to whom it is due). According to Ibn Abbas, Muhammad Ibn All Hanfia, all pious and sinners have been ordained in general while according to Muhammad bin Kt81) 1 :l.ah1 bin . Aslam and Shahr Ibn Hushab, the high-ups and rulers of the nation have been specifically commanded to give the trust to its deserVing).

27.Allams Rashid Raza in his Tafsir Al-Manar, vo1:111 page 138 states that -

ri ivan tt.i. Is K.,- cr j L jrAC CaNstie re

L

oil::V _126.1 I -- ra t V 3 •

lo.1/K/89• -14-

(Irrespective of the genuinnous or otherwise of the story of keys of Ka'ba, the subject matter and the generality of this commandment remain in place any specific reason does not nullify the generality of the commandment).

28.Explaining the word ' r•-&-st: (he doth command YOu) Zamkhashari in his commentary Tafsir • Al-Kitshhaf An Ghawards al-Tanzil, vol:I page 535, writes that -

c-1.:1;11 •I J ; sit J diA

(Only the rulers and state high-ups have been addressed to give the trust to its deserving and to decide the case between the people justly).

and lastly Allama Qurtubi in his Tafseer Al-ahkam al-Qur'an, vol:V page 256 writes that - ,

"1/4; Cie % IrtrOf Ant r1-*- 1 afj t:yls Cfr

3 01,.:-)111 &vial sal ea; 1.2U- Us se; JU saran; ty.i. fat .1.51 -LAS- us: .1,- j u; tr cs cs t

LL

ti.,LJI

(According to Ali, Zaid bin Aslam, Shahar bin Hushab mid Ibn Zaid, in this verse, the rulers specifically Muslim rulers, the Holy Prophet ( 1.1-1 4° Ali LPL' )his wives and who come after them have been enjoined to give the trust to its deserving.

According to Ibn Jurij, this, verse was revealed only in connection with the keys of Katbrivhile according to Ibn Abbas although the Muslims rulers have been specifically addressed, the generality of the commandment is also manifestly clear from the verse).

. it can

29.In veiw of the -above commentaries of the verse (IV:58) easily be concluded that although the verse has been revealed on the oeezmi•nt

"e'

lo.1/K/89

of the handing over of the keys of Ka'ba to the• Holy Prophet (d—rirls•till after the conquest of Makkah, but all the Muslims, particularly,' the rulers, have been ordained through this verse; to give the truststo those persons who are worthy of trust. The reference-th a particular situation as to a circumstance or event must never be taken to obstruct the underlying intent and purpose of -that, verse and its- mesdage.

a.

r-frc ' and ' c-...L1.1 ' all the

30.By the use of the wordb. “

,'..t

Muslim rulers and officials; th"their various capacities, are commanded to return back the trust to the deserving.which-fifcludes to appoint deserving person to a post and assignment. The term ' c..JLI ' denotes anything one has been entrusted with, be it In the physical or moral sense. "By this divine commandment a trust is sacred to be passed on to those who are entitled thereto. The above does not preclude the ordinance from having a wider scope as well, that is, from its being applied to any material object or moral responsibility which may have been entrusted to a believer and, in particular, to the exercise of worldly power and political sovereignty by the 'Muslim community or a Muslim state, to which the next verse refers."

("The Measage of the Qur'an";. by Allama Muhammad Asad, Dar Al-Andalus Gibraltar, 1980, page 115). Expediency whether it be political or otherwise should be subservient to the divine commandment of Allah and not that the 'divine commandment is made subordinate to the expediency.

31.The following traditions of the Holy Prophet ( (L. .1J1 0,L0) will further illustrate the point:-

.P.No.1/K/• Hazrat'Abu Dharr narrated from the Holy Prophet

I) •

L, ) that he requested

J .; ill Ju st• els' Ju

(): Istj Is.;1 5 jj.i.

ce t tcit lAri otio S.il I I 3 Lai.% La 1..;.1

(will you not appoint me to a public office? He stroked my shoulder with his hand and said : Abu Dharr, thou art weak and authority is a trust, and on the Day of Judgment it is a cause). (Sahib Muslim, vol.!!!, P.1015).

It is narrated from Dm Abbas that the Holy Prophet ii)

a)s, crl.0 ) !aid

411i • 4,4°)--"A Cie 1, %—r tab CO let) ‘34-A-1-0 Cr or:. j.11 4_11... &LH 0 U. Ili

(one who appointed a person on a public post from among a , _group of people and there is a_person who is more nearer to the pleasure of Allah he definitely betrayed the trust of Allah His Prophet and the believers) (Al-Mustadrak. Vol. IV, p.93).

iii)Hazrat Abu Bakr narrated that the Holy Prophet h.) tt i ls. trj I 010 ) said:

; l eels _Ai Ur: cei.....11 _e l 0. Lb Cr

" SU. Jg OLP.

ea.

tàa al%

(one who has been given an authority of Muslims and he appointed someone on public post out of favour, there is upon him the curse of Allah and Allah will not accept from him either obligatory acts or the superarrogatory acts and he will be sent in Hell) ( Al-Mustadralc, Vol.IV, P.93). •

No.1/1.089 •

iv)Allama Ibne Taimiyah discussing the Verse of the Holy Qur'an (Al-Nisa - 58) and relevant Ahadit said:

(It is a duty of the ruler to appoint on public posts such persons who are more competent for that) (Al-Siyasat Al- Shara'iyyah, p.10, Beirut).

We may also refer to an Article published in the monthly journal 1-1-11 ' Karachi, vol.III, issues NO:1 and 2 for January and February, 1992, appearing at pages 39-40 in which under the caption ' - ire" GS tei"! csr-nz 13.04 it has been,inter-alia, stated that:

L1tlea ct.e ja eSajtejSup 11-.4

4S0344044-7."

t.L 01 3 “L..' y; kA crS.,J J

JS ra, I ji 11;"

La aS-Le s 3-14, ctoL,. j1 4: 153 is I 2 Laic' bri 3-5k)c-A5a, 1 ti."

-6.).3-1I J-ev he+ se LP" 1,1'

IS. 0.1):, usra.e 0 1 .t.t.).:, 0,S 01.z3 jIa

eelati• 4) I 3-5 ta:Y>,1sJ kifc Liarjj-Li 4_1S .L' ,--1-1. 1 ).3 1 •4,1463 .J.9 1 tstl:01 S..? I Itt aS cra tstise jut j sLc.t1 teL«. 4s5c.,-161 jil L1/2...4.3 C Ly 1 3.5 4 42.,14. .n.

e jya ..ls.a .:01.• Le J 1,4:"-e

The said Article further states that -

0S 0.3.gi "'az Lot:m.1 IS is-1.w ILIJS eis _c I. j Lq. Les csatke eija CS ,..s.SQ.1 — j.sa COLL; L. is e ut.±.1...s

J 6 yb is 1-79 1: 1;:frj.75.; IS 1;1 1:Ue."•° .Ja I Ls-5 04.e J e Lin"- 4 U t-tn,W 6: Le Ls-t 4-5 C,I .rdiI J ,I 03-S)5 0.14-1,11. oil

*a •

Nci.1/K/89

• j SaS es. I di ye go fraLis is;3.1 I

16rebirkil el-1 )-5,3dt 4•'"I i 4SIC5 inegal j

The Article also states that -

itr.""" L50.1-bs, :AS eth•sCii-rojL:L4 I Le ' tal bei JAL,' aeS al 3-4 uye..1 IS 31-1.•.• ":".6?

Lz 1.1.• jj I .1.;1-41..Sittz, ).11.‘0.)-ii-5)1-cal‘1•214-5 -ila u.tz e".)4 e-I•cv1-1 yeti

It is true, as submitted by Dr.lrfani, that the standard of education in rural areas Is much below as compared to the standard in urban areas and so the quota system has been introduced, but it is equally true that the standard of education in different urban areas also suffers from inequalities; it differs from institution-to-institution. In fact, there are two systems of education_which are running parallel: one is available to effluent people where the medium of irlstruction, generally speaking, is Englith whereas the other system of education is available for lower middlc . and pocr classes where •Urdu mediutn-is in. Practice.- This double system 61* education has been responsible in creating polarization in our society which Is poisonous for the growth-and development of the society on Islamic lines.

If we look to the past history of Muslim rule-in the sub-continent or for that matter in other Muslim countries, we find one and the same system of education meant for all classes of people whether poor or rich, or in rural areas or the urban ones. The education used to be free, and the son of a king or a caliph used to go and attend classes in the same 'madrasa',(scheol) where the children of poor people also used to receive instruction. So, the cure Hos in bringing in informity in the system of education and making it free, and not the quota system.

34.Now, it seems pertinent to make a referfice to Article 3 of the Shari'ah Act, 1992, which declares with certain exceptions, with whieh

lo.1/K/82 • are not presently concerned, that the Shari'ah, that is, the Injunctions of Islam as laid dean in- the Holy Qur'an and Sunnah of 'the Holy Prophet ( 4°3 11-#2e LU I 0J.o ) shall be the supreme law of Pakistan.

S.

In the end,we would likefrto refer to the statement of the Prime Minister of Pakistan,Mr.Muhammad Nawaz Sharif,as reported iir the Press(DailyMuslim,Islamabad,April 17,1992), Who appears to have stated his government's determination to bring about such structural changes in the

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country that would institutionalise mint and fair play. "We are here to correct the lapses of the past and to eliminate nepotism and favouritism and political eiipediency* will never influence our course," he stated.

The Holy Qur'an and Sunnali should form the basis of all our directions for all our spiritual as well as wordly endeavours as they provide us a guidance not only towards the good in the Hereafter but also to attain a good life in this world. -Quota system in disregard of merit makes the . woven aril place ot domicile as the criteria and this has, unfortunately', been sa institutior.alised in our socio-political fabric that unless we return to the original message of the Holy Qur'an, we will be further away from the righteous and straight path ( si ).

I(

For the aforesaid reasons, Rule 14 of the Pakistan Civil Servants (Appointment, Promotion _and- Transfer)- Rules,- 1973 and the Sind Civil Servants (Appointment, Promotion and Transfer) Rules, 1974 in s6 far as they pertain to quota system,' and the Establishment Division Office Memorandum No.8/9/72-TRY, dated 31st August, 1973 are dec.Vieed repugnant to the Injunctions of Islam and they

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shall cease to have effect on the expiry of six months from the ,date of this judgment unless amended and brought, in conformity with the Injunctions of Islam ,as—diseussed..abo.ve.

(Dr.Tanzil-ur -Rahman) Chief Justice

(Dr.rda Muhammad Khan) Judge

(Nazir.Ahmad _ Bhatti) Judge -

Islamabad, the 23rd April, 1992.

ABDUL RAHMAN /*****

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