Mian Khalid Abdur Raoof, Versus President of Pakistan

IN THE FEDER&SISHARIAT COURT

X APPtLLATE JURISDICTION )

PRESENT

Mr.Justice Aftab Hussain Member Mr.Justice Zahoorul Haq Member Mr.Justice Karimullah Durrani Member Mr.Justice Ch.Mohammad Siddiq Member Mr.Justice Malik Ghulam All Member

SHARIAT PETITION NO.4/I OF 1981

Mian Khalid Abdur Raoof, Petitioner Vs

President of Pakistan & another Respondent For the Petitioner Mr.Ghulam Mustafa Awan, Advocate.

Date of hearing 3.10.1981

....P/2.

JUDGMENT

AFTAB HUSSAIN, CHAIRMAN: The Zakat and Ushr Ordinance 18 of 1980 was promulgated on the 20th of June, 1980 for collection of Zakat on the items stated in its first schedule on the rate stated in the same. This law was applied to Muslim Citizens of Pakistan and a company, or other association of persons, or body of individuals, whether incC.

OZporated or not, majoi.ity of the shares of which is owned, or the beneficial ownership of which is held, by such citizens.

2.As a sequel to •the protest of Muslims belonging to certain fiqh which did not allow Zakat to be paid from the items stated in schedule 1 of the Act an Amendment Ordinance known as Zakat and Ushr (Amendment) Ordinance LII of 1980 was enforced. It provides for refund of Zakat deducted at source to a person who made a declaration. It is as follows:- "Provided that riot_ Zakat or Ushr shall be charged or collected on compulsory basis in respect of the assets or the produce of a person who, within the period of three months preceding the Valuation Date, files with the Deducting Agency, or with the Local Committee in the case of Ushr, a declaration in the prescribed form sworn by him before a magistrate, an Oath Commissioner, a notary public or any other person authorised to administer oath, in the presence of two witnesses who /adentify him, to the effect that he is a Muslim and a follower of one of the recognized fiqhs, which he shall specify in the declaration, and that his faith and the said fiqh do not oblige him to pay the whole or any part of Zakat or Ushr in the manner laid down in this Ordinance:

Cont'd P/3

Provided further that, where for anA reason Zakat or Ushr is collected on compulsory basis from such a person and he does not wish to leave it in the Zakat Fund as sadaqah or Khairat in the name of Allah as a manifestation of the unity of the Ummah and claims refund, on the basis of a declaration as aforesaid filed by him within the period specified in the, first proviso or within such further period as may be prescribed the amount so collected shall be refunded to him in the prescribed manner".and

"(3-A). The Federal Shariat Court may, on the application of any person, decide the question whether a declaration such as is referred to in the first or second proviso to sub-section (3) made by any person is valid according to the fiqh he professes to follow; and, if the Federal Shariat Court decides that the declaration is not valid, such person shall, without prejudice to any other action that may be taken against him under any other law, be liable to pay Zakat or Ushr, as the case may be, in the manner laid down in this Ordinance."

This provision of the Amendment Ordinance has been challenged before this Court on ground of its repugnance to the Quran and the Sunnah.

We have heard Mr. Gbulam Mustafa, advocate at length on the question of jurisdiction as well as merits. Article 203(c) of the Constitution authorises zSthis court to decide a question whether any law .or providon of law challenged before it is repugnant to the Holy Quran and the Sunnah. The term law is de- fined in Article 203(b). but it excludes from its ambit the Muslime'Personal Law (4.11Cligetlpeheity4) of three years any Fiscal Law or any Law relating to the levy and collection - Of taxes etc.

The question that has arisen inithisIJ case on the point of jurisdiction is whether Cont'd 4/4

the provisions of Zakat and Ushr Ordinance are included within the category of MusliT Personal Law as well as Fiscal Law.

5.The first question has been answered in the judgment of the Supreme Court of Pakistan in "Federation of Pakistan Versus Mst.Farishta" P.L.D.1981 Supreme Court 120. The Supreme Court was confronted with the question whether the provisions of Muslimp Family Law Ordinance could be deemed to be the provisions of Muslim Personal Law. This question was answered in the affirmative on the ground that Muslim Personal Law in Article 203(b)0

"means such codified or legislated law which is being applied to Muslim Citizens of Pakistan as or with the denomination muslim to muslim which governs their person as such and as distinct from General Law of the Land which applies to every body."

6.Since the Zakat and Ushr Ordinance 1980 applies exclusively to Muslim Citizens of Pakistan as well as bodies corporate or incorporate having such citizens, it must fall within the definition of Muslims Personal Law under Article 203(b) and should be treated to be immune from challenge before this Court.

7.This Law is also Fiscal 1394 as will be clear from the dictionary meanings of that expression in Black's Law Dictionary;

"In general having to do with financial matter; i.e.money, texesripUblic:or,private revenues, etc. Belonging to the fisc. or public treasury. Relating to accounts or the management of revenue. Or per- taining to the public finances of a government or private finances of business".

Cont'd P/5

S

In the Oxford English Dictionary also similar meanings are given:

"of or pertaining to financial matters in general."

8.Faced with this the learned counsel argued that Zakat and Ushr Ordinance is a peice of legis- lation promulgated to enforce a pillar of Islam and as such it is only an "ibadat". However he had to concede that in that case Zakat could be called by the name of "fiscal ibadat" or "mali ibadat". Yousuf Qarzavi an eminent writer, in his book "Fiqh ul Zakat" Vol.I P.28 calls if "Daribat-ul- Mugarrara" or compulsary tax though he distinguishes it in certain respects from taxes imposed under the Roman Law (see P.995 of Vol.II of the same book)/

9.Irfan Mahmood Rana in his book "Under Umar The Great" at P.54 denominates it as a "most important tax". In "Ahkam ul Sultania" by Maawardi and "Kitab ul Amwal" by Abu Obaid it is taken as a source of income for the Bait-ul-Mal or Muslim Government exchequer. There can therefore be no doubt that Zakat and Ushr Ordinance which deals with finances payable by those who are "Sahib-e-Nisab" and expendible on intereratla. the indigent and needy is a fiscal measure. For this reason too, the said Ordinance including the Amendment Ordinance LII are immune from attack before the Shariat Court. It is not necessary to go into the merits. The Petition'is therefore, dismissed.

CHAIRMAN

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