Sajwara Vs. Federal Government of Pakistan.

IN THE FEDERAL SHARIAT .COURT

s=n447

( ORIGINAL JURISDICTION)

PRESENT 90

MR.JUSTICE GUL:MUHAMMAD KHAN, CHISFjJuSTICE

MR.JUSTICE MUFTAKHIRUDDIN

MR.JUSTICE IBADAT YAR KHAN

MR.JUSTICE ALLAMA FIDA MUHAMMAD KHAN

SHARIAT PETITION NO.14/L OF 1988

Sajwara etc. Petitioner

versus Federal Govt. of Pakistan... Respondent Counsel'fOt the • Ch.Abdul Rahman, petitioner: Advocate

Date of Institution:... 26-10-1988

SHARIAT PETITION NO.27L OF 1989

Allah Wasaya-and others --- Petitioner versus

Federal Govt. of Pakistan etc.Respondent Counsel for the Sh.Abdul Nasir, petitioner: • Advocate

For Federal Government:... Nemo For the Govt. of the Punjab: Sved Iftikhar Hussain Shah, Asstt.Advocate General, Punjab Date of Institution: 12-1-1989 Date of hearing: 18-6-1989

Date of decision: g• pr.

471 >sat-14n^

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S.P.No.14/L of 1989 S.P.No.2/L of 1989

JUDGEMENT

GUL MUHAMMAD KHAN-, CHIEF JUSTICE.- The petitioners Sajwara etc. (S.P.No.14/L of 1988) and Allah Wasaya and others ( S.P.No.2/L of 1989 ) had challenged para 24 of the Land Reform Regulationtaty that the bar contained therein against sale of property by an owner in the situation mentioned there- in is against Quran and Sunnah of the Holy Prophet. This order shall dispose of both the cases.

It was contended on the basis of verses 7, 29 and 32 of Surat Al-Nisa that Allah Subhana Hoo confers property right on the heirs and also what they earn whether they are men or women and protects and preserves the same property by directing ' do not eat up the property among yourselves in vanities' i.e. in the prohibited manner and that let there be transactions in trade by mutual consent and good will as laid down in verse 188 of Al-Bacirah. Reliance was also placed on traditions of the Holy Prophet (PBUH) as given in'Sahih Bokhary'-- (Taisaral Bari Vol.III pages 678-679 that the owner has the right to sell his property and no person can compel an owner to sell his property. See Sanan Abi Daud No.3382, narrated by Hazrat Ali). The learned counsel also referred to judgment of the Supreme Court (P.L.D.1986 S.C.360/418).

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This judgment gives the above and many other references in support of the rights of ownership.

a.P.N0.14/L Of 1988 S.P.Np,2/L Of 1989

It is to be noted that all persons are entitled to ear, in valid and lawful manner and own property. Quran also permits an owner to deal with his property in his life time in any manner he likes though it places restriction only in the case of will.

That is, however, after ones death in as much as that no Muslim can will in favour of any of his heirs and a will in favour of others cannot be more than 1/3 of his property. Another restriction is in the field of pre-emption ( ) but it is not against his right to sell. It is rather directed against him if he opts to prefer a purchaser as against whom another has - a- better right to purchase. So Allah Subhana-Hoo, as already stated above does not restrict his right to sell in any other manner and as observed by the Supreme Court in the case rbferred to in para 3 above, no third party (even though it was a government) can place any restriction on that right to sell.

We may reproduce here para 24 so as to show clearly as to why and for what reasons restriction is being placed.

"24. Restrictions on alienation of holding._ owning more than the area of an economic .(1) No person- holding shall be allowed to alienate by eale, mortgage, gift or otherwise' nny pbrtibn bf this holding Which May' 'redtbb the. 'size bf.hie hbIding to an area below the liMit --an eCblibtib holding.

Provided that such a person may alienate his entire holding,

S:P,No.2/L of 1989

No person owning an economic holding should be allowed to alienate by sale, mortgage gift or otherwise ehy portion of his holding Provided that such a person may alienate his entire holding.

No person owning more than the area of a subsistence holding be less than an economic holding shall be allowed to alienate by sale, mortgage; gift or otherwise any portien Of his holding which may reduce the size of his holding to an 'area less than the area of Subsistence holding;

Provided that such a person may alienate his entire holding.

No person owning an area equal to or less than a subsistence holding shall be allowed to alienate by sale, mortgage, gift or otherwise any part of his holding; .

Provided that he may alienate his

entire holding or, in the case of a holding which is lese than a subsistence holding sell any part of his holding to other owners of the same village, Deh or Mauza.

Any alienation made in contravention of the provisiens ,of this paragraph shall be void.

(6)Nothing in this paragraph shall apply to land, whether cultivated or other, which is bonafide required by the owner for the purpose of building thereon, and any tenant in possession of such land who refuses to quit after notice may be evicted under the orders of the Deputy Commissioner".

(The under lining supplied)

6.It will be seen that restriction is

S.P.Nor 2/L of 1989

directed in order to keep intact the economic and subsistence holdings so that there may not be fragmentation of such holdings in smaller pieces which are hot economical to be developed and cultivated. Less production from a holding is of course loss to an owner but it certainly, affects the other members of the Ummah whose suStenance is also dependent on •the produce of land. The question raised, however, is whether para' 24 preventc the fragmentation on mere induction of more sharers and co-sharers.

7.It may, however, be considered that the same effect of division is spelt out by operation of the law of inheritance but rightly no such restriction has been placed on it. It would also be seen that keeping intact a holding is different from prohibiting induction of more sharers and 'co-sharers. Here we may refer to para 22 of the same Land Reform Reljulation and find another restriction. It is about the partition Of the property into separate holdings. Pata 24 places restriction on sale while para 22 .on the partition. The restriction on Partition does bring out the result which the law desires but if sale restricted under para 24 is allowed 'Anti the para remains operative the holdings shall remain, as they are. We may also refer to para 23 which devolves S method of manage- ment of holdings which cannot be partitioned- and whose sharers or:do-Sharers do not agree among themselves on its. mnhagement.

8.The damage of the mischief of.the provisions objected tb can be seen that. if an owner

S.P.No.14/L of 1988 ." S.P.No.2/L of 1989

has a dire need, say marriage of his children, payment of debt On education of hiá children which can be met by the sale •of one acre, the law requires him to sell the entire holding,if the same is an economic on subsistence holding. It means that in that event the law is not only denying or restrict- ing the power to sell but in certain situations it r compels the owner to sell the enti e, if he needs the proceeds of a portion to meet his needs. This provision thus instead of doing any good is cia4 unAslamic for it prohibits what Quran2.Sunnah permits.

None of the counsel appearing on behalf of the Governments seriously resisted the plea raised. In this view of the matter we hold that para 24 is repugnant to the Injunctions of the Holy guran and Sunnah of the Holy Prophet (RBUH) and same need be amended ih the light of the discussion made abOVe.

It is, therefore, desired that the President of Pakistan shall take steps to get the same amended before the 1st January, 1990, failing which •para 24 of Land Reform Regulation 1972 shall cease to have effect.

GUL MUHAMMAD KHAN, C.J.

MUFTAKHIRUDDIN,J

KH

thamabad, the

4 /04AAC

.-FIDA MUHAMMAD KHAN,J

Nazir Ahmad Zia