Abdul Majeed Mirza Vs. Government of Pakistan.

IN THE FEDERAL SHARIAT COURT

( O r i ginal J u r i s d i c t i o n )

PRESENT:

Mr Justice Gul M o h ammad Khan Chief Justice Mr Justice Dr. Syed Shujaat Ali Qadri Mr Justice Ibadat Yar Khan Mr Justice Al.laraa Dr. Fida itohammad.

SHARIAT P E T I T I O N N O . 12/1 OF 1988.

Abdul Ma j e e d Mirza Petitioner Versus

G o v e r n m e n t of ........ Respondent Pakistan

Counsel for the Mr. Iftikhar Hussain Federal G o vernment Chaudhry, A d v o c a t e .

For the Government Syed Sajjad Huss ain Shah, of Punj a b . A .A .G , Punj a b .

For the Government Mr. Muhammad Bashir Kiyan i of Baluchistan. Advocate.

Juris-consults: Dr. M u h ammad Tu f a i 1. D r . Muhammad Tufail Hashmi

Dates of hearing 18.4.1989 and 19.4.1989.

Date of decision:

JUDGMENT:

GUL M O H A M M A D KHAN, CHIEF JUS T I C E . - The petitioner c hallenges through this petition, the section 15 of the Payment of Wages Act (IV) of 1936 and The Payment of W a g e s {Federal Railways) Rules, 1938.

The sections reads as follows:-

(2)W h e r e c o n trary to the p r o v i s i o n s of this Act any ded u c t i o n has been m a d e from the w ages of an e m p l o y e d person, or any payment of w ages or of any dues r e l ating to provident fund or g r a t u i t y p a y a b l e u nder any law has been delayed, such pe r s o n himself or any legal p r a c titioner, or any official of a r e g i s t e r e d trade union a u t h o r i s e d in writing to act on his behalf, or any Inspector under this Act, or of any h eirs of an employed pe r s o n w h o has died or any other person acting with the p e r m i s s i o n of the authority a p p o i n t e d u nder s u b - s ection (1), ma y apply to such aut h o r i t y for direction under s u b - s ection (3).

P r o vided that every such applic a t i o n shall be p r e s e n t e d w i t h three years from the date on w h i c h the de d u c t i o n from the wages was m a d e or from the date on w hich the payment of the w ages was due to be made, as the case ma y be:

P r o v i d e d further that any applic a t i o n ma y be admit t e d a fter the said pe r i o d of three years when the ap p l i c a n t satisfies the a u t h o r i t y that he had s u fficient cause for not m a k i n g the a p p l i c a t i o n wi t h i n such period.

The import of p a r a g r a p h 8 of Form IV of above Rules is to the same effect.

2.The o b j e c t i o n taken is that the w ages of a wo r k e r is a right w h i c h the legislature cannot deny and m e r e lapse of time will not e x t i n g u i s h it.Reliance is pl a c e d on a Tra d i t i o n of the Holy Prophet that the wages of a labou r e r shall be paid be f o r e his sweat dries.

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(Sunnan Ibne Maja, Vol.II, p.76 Deeni Kutab Khana, Lahore) It is urged that as a ded u c t i o n is made by the employer he cannot b e n e f i t for his own lapses just for the reason that the labourer did not press for it in some specified time. No v erse of the Holy Quran and no Tradition of the Holy P r o p h e t (PBUH) o ther than the one quoted above have been cited in support of the proposition.

3.It is to be n oted that the r e l evant law in its section 7 provides certain d e d u c t i o n s that may be made. Sections 8-13 explain the condit ions under w hich they are permitted. None of these sections have been challenged. Thus the d e ductions shall be deemed to be v a l i d l y and l a w fully m a d e un l e s s their g e n u i n e ­ ness and correc t n e s s is challenged. It is here that time l i mitation comes in. It is thus not a denial of payment of w ages but the question w h e t h e r the deduction was justified or not. Thus the e x t i n g u i s h m e n t of a right will be claimed only after the ded u c t i o n is found illegal.

4.The law of l i mitation of time w h e rever applied does not always m e a n to e x t i n g u i s h a right.

It rather o p e rates on the p r i n c i p l e that if a claimant does not press his claim in the time specified by law t h r o u g h an aut h o r i t y app o i n t e d for the p u r p o s e by law, it will be p r e s u m e d that either the claimant waived his right or was not serious and rather indolent.

The concept is only this that the aut h o r i t y created or app o i n t e d for helping a claimant in such a situation will not help if the c l a imant knowing the p o s ition of law did not ask for it wit h i n the p r e s c r i b e d period.

5.The arguments raised bef o r e us by Dr. M u h ammad Tufail and Dr. M u h a m m a d Tufail Hashmi, the Juris-c o n s u l t s on the basis of general wisdom, are that Islam does not permit any per s o n and m o r e p a r t i c u l a r l y a State to deny

a wor k e r or labourer his wages or make any illegal or u ndue deduction the r e f r o m and then rely on lapse of time to a void payment. They also rely on the general p r i n c i p l e that a r ight w i l l not be allowed to be e x t i n g u i s h e d . ( M o h a m m a d Abdul Jawad: A l - H a y a z a t e e wat Taqadum, p.50 1977). Consequently, it is stated that as no claim of a person can be denied or d e f eated the present p r o v i s i o n s which spell out such a result are against the Holy Quran and Sunnah of the Holy Prophet.

6.The above learned j u r i sconsults also referred to certain "Ahadith" which go to show that limitation had been p l a c e d by the Holy Prophet in respect of certain matters. One is cited as fol’lowss- " A thing w hich r e m ained in the p o s s e s s i o n of a pe r s o n for ten years shall be c o m e the p r o p e r t y of that p e r s o n ." (Al-Mudawannah;-.lil Imam Malik, Vol.V, page 192, Print Al-Saadah, 1323 Hijra). An e x p l a n a t i o n of this T r a d i t i o n has been given by a n o t h e r Jurist of Maliki school and quoted by Rabia in the same b o o k to say that if a pe r s o n holds immovable p r o p e r t y of another, adv e r s e l y to his knowledge and the true owner does not lodge his claim for ten years, the p o s s e s s o r will be c o m e the owner.

The only exception appears to be of an a b s entee owner w hich also confirms that loss is due to the conduct of the c l a imant himself. The same v i e w has the support of Imam M alik himself. More d iscussion is available at p ages 173, 186, 187, 191 and 192 of the above book.

7.The same Tra d i t i o n has been r e p orted in Kanzul Ummal as follows:

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"A thing w h i c h r e m ained in p o s s e s s i o n of a person clailfiing adv e r s e l y to the claimant for ten years, th e right of the p o s s e s s o r shall be s u p erior to that of his c l a imant o p p onent."

(Kanzul Ummal, Vol.III, page 898, Hadith N o . 9088, Print Beruit).

(See also (Ho® F sJulj )

8.Imam Abu Yusuf, the learned jurist of Hanafi Fiqh, has n a r r a t e d the following hadith:- U , u l-ej ll_*>l ^>a-S »lf-.1 i j * fO J J— j-LJj *-J-Jo® ' iSJ^ — > Jp- jjxli.XoJ J *J

"Old and bar r e n land is a p r o p e r t y of . the State and then of yours. Anyone who c ultivates a piece of barren land he will b e c o m e its owner. But a person who takes in p o s s e s s i o n a piece of barren land by p u t t i n g corner stones and did not cul t i v a t e the land for three years shall cease his right. " ( A b u Yusuf, Kitabul Kharaj, page 70).

9.It is quite clear from all that said above that in cases of a d v e r s e p o s s e s s i o n of land even own e r s h i p could be e x t i n g u i s h e d and the adverse pos s e s s o r can be given the same right and also preference, over the p r e v i o u s owner. Similarly, if a person takes p o s s e s s i o n of certain 1M a w a t 1land but does not d e v e l o p e it wi t h i n three years he loses his right of possession.

10.It has been n a r r a t e d by Abu Musa A s h a ’ri that M u ’aviyya bin Abu Sufian told that do you know that the Holy Prophet (PBUH) fixed the date for hearing when the parties came before him with their l i tigation and one of them came on the fixed date and the other did not come, the Holy Prophet d e c i d e d the case in favour of the pe r s o n w h o came and against the pe r s o n who did not c o m e ."

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^ J_LI »_• h (J J I i_Ll I ' o l—i j»Jj a»I j Ia j (Mahmood A hmad Ghazi, Ad a b u l Qazi, page 258, Print Islamic University, Islamabad).

11.The dicta given above was also f o l lowed by the C ompanions after the Holy Prophet. Hazrat Umar had d i r ected Abu Musa Asha'ri in the time of his Caliphate that he should fix a date for hearing of the case. The Qadhi should also a llow an o p p o r t u n i t y to the party who w ants to p r o d u c e e v i dence in support of his plea but if he does not p r o d u c e the same wi t h i n the specified period, the case should be decided against h i m . ( A d a b - u l - Qadhi - Urdu - I s lamic R e s earch Institute, pp 128, 248, 258, 352). Similar is she v i e w given in A l - A h k a m u s Sult- aniyya, Urdu Translation, page 128, Print Lahore. Even M a j a l l a h contains a Chapter on l i mitation ^1-ojJI ^ section 1660 to 1675 s u pporting the p r i n c i p l e of limitation in v a r i o u s cases.

12.Ibne Hajar A s c a l a n i , in his b o o k "al-Diraya- F i - T a k h r e e j e - A h a d i t h - i l - H i d a y a , Vol.II, p .244 quotes Hazrat Umar as saying that if a g r a n t e e of a land does not cul t i v a t e it for three years and another enters upon t hereafter to do so; the latter gets a b e t t e r title to it than the earlier grantee. The same v i e w is by Yahya Ibne Adam in his b o o k 'Kitabul K h i r a j , page 103.

13.The p r e c e d e n t s g iven above clearly establish the p r i n c i p l e that a time limit can be pl a c e d b o t h in respect of e x t i n g u i s h m e n t of right and for the purpose of proving a claim. In fact it w i l l be seen that Islam does not pe r m i t u s u r p a t i o n of one's right and ra ther protects and preserve. However, Islam also recognises that an o wner or a ho l d e r of a right has the au t h o r i t y and d i s c r e t i o n ei t h e r to trans f e r the same by sale, gift etc or ac q u i e s c e and ignore if someone takes that away w i t h o u t his express au t h o r i t y or consent.

Thus if the facts of a case show that the owner or the holder ha v i n g kn o w l e d g e of the fact of time limit did not claim or challenge, it will be p r e s u m e d that he wa i v e d his right.

14.Thus empha s i s in respect of such a mat t e r is on the conduct of the person who seeks to press his claim. If the facts show that he knew the situation and he n e g l e c t e d or chose not to press it wit h i n the p r e s c r i b e d period, the m a c h i n e r y of law will refuse to help him. In fact he had already been forewarned by law that if he does not press his claim wi t h i n the p r e s c r i b e d time he has to b lame himself as the m a c h i n e r y of State is p r o h i b i t e d from helping him. The Islamic j u r i s p r u d e n c e also embodies the p r i n c i p l e known as "Tamadi".

15.The p r o v i s i o n c h a l l e n g e d be f o r e us also contains no more than w h a t is permissible. We, there­ fore, are of the v i e w that fixing a time limit in p r e s e n t a t i o n or proving a p a r t i c u l a r claim is not repugnant to the Injunctions of Islam. No exception, therefore, can be taken against it. This is the

view taken also in M u h a m m a d A m i n - V s - I s l a m i c Republic of Pakistan (P L D - 1 9 8 l - F S C - 2 3 (75).

We find no m e r i t in the p e t i t i o n and so it is dismissed.

Gul M o h a m m a d Khan, C.J.

Shujaat Ali Qadri, J. , J.

Fida M o h ammad Khan, J.

Approved for reporting.

I s l a m a b a d , the y) /r v M . Kh alii.