Mr.B.Z.Kaikaus Vs. Federal Government of Pakistan

C)

IN THE FEDERAL SHARIAT COURT:

(ORIGINAL JURISDICTION)

PRESENT:

Mr.Salahuddin Ahmed, Chairman Mr.Justice Agha Ali Ryder Member Mr.Justice Zakaulla Lodhi, Member Mr.Justice Karimulla Durrani ,Member SHARIAT PETITION NO: 41 of 1979 ,(LAHORE) B.Z.Kaikaus Petitioner

Versus

Federal. Government Respondent of Pakistan

This petition has had a chequered career. It was first filed on the 28th May, 1979 before the Shariat Bench of Lahore High Court. It was heard before the Bench from time to time until on the 15th September, 1979, one of the members of the Bench was replaced on the order of the Hon'ble Chief Justice, who had originally been a member of the Bench. In course of hearing it was discovered that the laws which the petitioner sought to challenge had not been specifically mentioned. This necessi- tated the petitioner to file a fresh statement on September 17, 1979 supported by oral clarification that specific laws challenged by him were: The Houses of Parliament and Provincial Assemblies (Election) Order, 1977, (President's (Post Proclamation)Order No.5 of 1977), the whole and general effect as well as Section 10 and 11. The Representation of the People Act, 1976 (Act No.LXXXV of 1976) the whole and general effect as well as Section 2,12,14, 78 and 99 The Political Parties Act, 1962, (Act III of 1962) the whole and general effect as well as Section 3 & 4.

Earlier on the 3rd June, 1979, the petitioner had put in an application that he did not challenge the Constitution.

Fresh notices were consequently issued to the respondent and also to the learned Attorney-Genera] of Pakistan and the Learned Advocate General of the Punjab. A public notice was also issued for informatior of the people in general.

On the 9th December, 1979, the petitioner himself appeared before the Bench, and stated that in view of the observations made by the Bench particularly in regard to the want of jurisdiction of the Court to make a declaration against the Constitution, or any part of it he did not consider it necessary to continue his arguments further, because he had come to the Court to demolish the Constitution. He, therefore, concluded his arguments. The Bench then proceeded to hear other persons, who had earlier filed the petitions, and heard them. On the 10th December, 1979, the petitioner again appeared in person and moved an application for transfer of his petition to some other Bench for hearing and submitted that he would make an application before the Learned Chief Justice. The application was filed and the hearing of other persons was resumed..

On the 6th May, 1980 a notice was issued

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to the Learned Attorney General of Pakistan for his appearance before the Bench on June, 3rd, 1980. In the meantime on the 27th May, 1980, however, the Constitution (amendment) Order 1980 (President's Order I of 1980) was passed, and it came into force at once. Under Article 203H(ii) of this Order this matter alongwith others stood''

transferred to the Federal Shariat Court, and they were required to be dealt with by the Court from the stage from which they were so transferred.

Under the orders of the Federal Shariat Court due notices were sent to the petitioner and the respondents including the Advocate General of Punjab, Sind, NWFP and Baluchistan and the Attorney General Pakistan and the petition came up for hearing before the Federal Shariat Court at Lahore and the hearing began on September 27, 1980.

Before I proceed to deal with the petition it is desirable to state the jurisdiction of this Court and the limitation put on it under the Constitution (Amendment) Order, 1980 (President's Order No.lof 1980). Article 203D of the Order prescribes the powers, jurisdiction and functions of the Court. The Article' provides that the Court may on the petition of a citizen of Pakistan or the Federal or a Provincial Government, examine and decide the question whether or not any law or a provision of law is repugnant to the Injunctions of Islam as laid down in the Holy Quran and the Sunnah of the Holy Prophet, hereinafter referred to as the Injunctions of Islam.

Article 203B defines law thus: 'Law' includes "any custom or usage having the force of law but does not include the Constitution It is, therefore, manifestly clear that this Court cannot examine and decide any question

concerniniz the Constitution.

Article 203A says: "The provision of this chapter shall have effect notwithstanding anything contained in this Constitution", and this makes no difference so far as the present question of jurisdiction is concerned. The chapter referred to in this Article is chapter 3A which contains Articles 203A to 293.Lof the Constitution Amendment Order, 1980. The Chapter itself deals with "law" which does not include the Constitution.

It may also be noticed here that this Court can only act upon a petition made under Article 203D, and has no power to act suo moto.

At the very outset we brought these provisions of the Constitution to the notice of the learned petitioner, who chose to appear personally before us, to his own embarrassment as well as ours. Nevertheless the petitioner devoted •a considerable part of his address to general questions without reference to any specific law. A bare statement of . these questions is enough to show that they do not fall within the scope of the jurisdictionlof this Court. They are, inter-alia, of the following description. Sovereignty belongs to Allah. All powers belong to Him. Allah alone can makielthe law, and He has made the law, and no person whether individual or the State can make any law. The State can only pass orders in implementation of the defined law as given in the Holy Quran and the Sunnah of the Holy Prophet. The function of the State is to maintain and enforce the said law. Obedience to any order given by man brings no reward nor its disobedience is liable to any punishment. The order of 'Ulul Mr' is subject.to the

Holy Quran and Sunnah. The law of Allah is eternal for all times to come and for all purposes. Nothing remains for man to do except to obey His law. The duty of the Holy Prophet was merely to convey the message of Allah and even he could not legislate. The Holy Quran has given all the details about all important matters, and there is nothing left for man to supplement or to supply further details. The appointment of a Khalifa or an Amir is obligatory. In Islam the weight of opinion is given preference over the majority of the opinion. Khalifa/Amir is to be a natural not an artificial person. Injunctions of Islam do not contemplate existence of any party and the present system of election. Every decision of the State must be based on the consultation of all and not of a groupX of persons. The Holy Prophet has said that no person who asks for office is to be given an office, and that he is the worst oflp..?". A poor person , however, suitable cannot stand for election because heavy expenditure is required for election. There should be no election on the basis of adult franchise. No canvassing, No expenses for election are allowed in Islam.

From time to time we tried to contain the petitioner within the limits of our jurisdiction as prescribed in said President Order No.5,but in vain. I now come to the three specific laws which the petitioner has challenged before this Court. They are:-

(i)The Political Parties Act, 1962(Act III of 1962 Ig (ii) The Representation of the People Act. 1976(Act No.LXXXV of 1976).

(iii)The Houses of Parliament and Provincial . Assemblies (Elections) Order,1977

(President's (Post Proclamation) Order No. 5 of 1977).

Taking the Political Parties Act first the following objections have been levelled against the Act:- Relying on Sura 4 verse 59 of the Holy Duran it has been contended that the existence of Political Parties is taboo in Islam;

The existence of parties is also repugnant according to the commandments in the Holy Ouran regarding the Shoora;

Political Parties are formed for the purpose 9f securing power and any desire 'Hawa' (T00) or effort for power is absolutely forbidden. It leads to unnecessary extravagant expenditure;

'It createsschism and dissension in the Umma;

Party system is a great source of sin, in fact the greatest and therefore, sin in itself.

Every decision must be based on the consultation of all and not of a group or a party;

In party system nobody can tender his own honest advice to the Amir' when he calls for a Shoora.

Before I am required to consider these objections it is necessary to consider whether or not they are entertainable by this Court.

From what I have stated already about the jurisdiction of this Court it is quite apparent that "Constitution" has been deliberately excluded from the amendment which brought in Articles 203B and 203D of the Constitution. As long as the Political Parties Act, or for the matter of that any other law is enacted in implementation of and with a view to bring into Otration any particular provision of the Constitution;

als Court will have no jurisdiction to deal with such law. If, however, such a law contains provisions which are enacted in pursuance of a discretion given by the Legislature then any provision which is repugnant t

to the Injunctions of Islam will fall within the jurisdiction of this Court as will be noticed hereafter. Article 17 of the Constitution gives Fundamental Rights to a citizen of Pakistan to form a political party. It reads as follows:- 17.-(1) Every citizen shall have the right to form associations or unions, subject to any reasonable restrictions imposed 'by 3aw in therinterest,hof. sovereignty or integrity of Pakistan, publid order or morality. Ir

Every citizen, not being in the Service of Pakistan, shall have the right to form or be member of a political party, subject to any reasonable restrictions imposed by law in the interest •of the sovereignty or integrity of Pakistan and such law shall provide that where the Federal Government declares that any political party has been formed or is operating in a manner prejudicial to the sovereignty or integrity of Pakistan, the Federal Government shall, within fifteen days of such declaration refer the matter to the Supreme Court whose decision on such reference shall be final.

Every political party shall •account for the source of its funds in accordance with law.

The Political Parties Act 1962, has been enacted in implementation of this Article and with a view to regulate and control the existence and conduct of a political party. This is evident from Sections 3 & 4 of the Act which read as follows:-

3.Formation of certain political parties Prohibited.-(1) No political party

shall be formed with the object of propagating any opinion, or acting in a manner, prejudicial to the Islamic ideology, or the integrity or security of Pakistan.

(2)No person shall form, organize, set up or convene a foreign aided party or in any way be associated with any such party.

Lawful political activities:- Subject to the provisions of Section 3, it shall be lawful for any body of individuals or association of persons to form, organise or set up a political party;

for any person to be a member or office bearer of, or be otherwise associated with, a political party; or for any person, for the purpose of an election to be held under the constitution, to hold himself out or any other person as a member, or to have the support, of a political party, the formation, prganization or setting up of which is not prohibited by this Act.

The object of the Act is to give no unbridled liberty to a political party to run counter to the ideology of Pakistan, which may be broadly summed up as enabling the Muslims of Pakistan to order their lives in accordance with the teachings of the Holy Quran and the Sunnah.

In the first place, as the Fundamental Rights are now under suspension the right to form a political party as contemplated in Article 17 is not there, atleast for the time being.

In the second place, if the Political Parties Act be declared as null and void its consequence will not only be disastrous but also, as conceded by Mr. Kaikaus, be contrary to his own intention. Such an effect will be to cause harm rather than to confer any benefit on the country. This is obvious for although the citizens will have the right to form political party there will be nothing to check and control its activities if they turn out to be harmful or even hostile to the

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country itself. Mr. Kaikaus has frankly conceded' ttit he has not considered this aspect of the matter, and has certainly no intention of causing any further deterioration that will inevitably ensue if a vacuum be created due to the removal of the said Act from the field.

Apart from the contentions of Mr. Kaikaus the preliminary objections that occurred to the Court itself, and that has been raised by the Learned Deputy Attorney General, is that this Court has no jurisdiction to entertain the matter in as much as not only the Act has been made in implementation of Article 17 of the Constitution, but also that any interference with the said Act will inevitably have the effect of directly interfering with the provisions of the Constitution itself. This the Court is unable to do. The Political Parties Act as has been noticed already has been enacted in strict implementation of and with a view to fulfil the provisions of Article 17 of the Constitution. This Court, therefore, has no jurisdiction to declare this Act' as repugnant to the Injunctions of Islam on the ground placed before the Court.

It will not be out of place to state, however, that the history of Islam shows that political parties did exist in Islamic Polity. Mr. Mahmood Ahmed Ghazi, Research Fellow, Islamic Research Institute, Islamabad, in his opinion, which is on the record of this case, has stated: "The Ansar, under the leadership of Hazrat Abut Bakar and Hazrat Umar emerged as two distinct political groups soon after the demise of the Holy Prophet (peace be upon him) and assembled in the Conference

Hall of Bani Saidah. They held opposite political views and the leaders of both the parties presented their respective points of view to the people present there. Every group sought the concurrence of the people. A third party of Banu Hashim under Hazrat Ali was not present there and they resented afterwards that the decision was arrived at without consulting their leader. In later times the Khawarij emerged as the most organised rather militant political group. But they were never suppressed because of their distinct political ideas and separate political organisation. Hazrat Ali clearly told them that they would not be disturbed as long as they remained peaceful and did not resort to violence

"Moreover freedom of thought and freedom of expression necessitates that there should be a guarantee to practise this freedom on individual as well as collective levels

"The mere existence of a political organi- sation makes no harm as we have seen, if there can be a fool-proof, impartial and trustworthy , machinery to impose certain reasonable limits upon the political parties to streamline their activities into an Islamic direction and to ensure that the political parties contribute to the development of a true Islamic Political Process instead of causing schisms in the country then we will be able to effect a beautiful marriage between our historical traditions and modern political experiments II

Mr.GhaziT, has concluded his opinion on this rpoipt with the following quotations from

Maulana Amin Ahsan Islahi,

(I)aCtdobja, 9 0 / ,40 Lailviji,

(0 Aey, ,ffcp-c,,, 12-H V I may now proceed to briefly notice the points raised in seriatim against the Political Parties Act and I do so with the following preface. Not a single word from the Holy Quran nor a single Hadith of the Holy Prophet (peace be upon him) has been cited to show that the formation or existence of Political Parties has been forbidden.

As regards (a) S.4 Verse 59 reads as "0 ye who believe', Obey Allah, and obey the Apostle, And those charged With authority among you.

If ye differ in anything Among yourselves, refer it To Allah and His Apostle, If ye do believe in Allah And the Last Day;

That is best, and most suitable For final determination".

This verse has no authority for the proposition that Political Parties are forbidden in Islam.

As regards (b) the Verses of the Holy Quran Aj ,) regarding j^;>(Consultation among themselves) can by no means be interpreted as a prohibition of the formation of Political Parties.

As regards (c) the formation-of a Political Party need not necessarily be for the purpose of securing power or 'Hawa'. Unnecessary extravagant expenditure may be provided against by the Legislature.

As regards (d & e) these too, may be provided against by the Legislature and in fact it has been so provided by ,the Legislature. If necessary further amendments may be made in the Act itself.

As regards (f & g), similarly, any infirmity

in the Political Parties Act may be removed by

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the Legislature. None of the objections raised against the Political Parties has any reference to any particular provision of the Act. I now proceed to consider the Houses of Parliament and Provincial Assemblies (Electio& Qrder, 1977 (Order No.5 of 1977) and the Representation of People Act, 1976 (Act No.LXXXV of 1976) together. In much the same strain the petitioner has challenged the validity of these two laws generally as well as with reference to certain provisions of the laws.

(1)The general criticism against them is that they are repugnant to the Holy Quran and the Sunnah in as much as they are against the Injunctions of Islam which contemplate only a Khalifa or an Amir aided by a "Shoorei a consultative body. These laws do not provide for the appointmentia Khalifa or an Amir..

The pattern of Government envisaged is that only one person is the Head of the State and he is to consult the community. Such person must be a natural and not an artificial person. Enforcement of the laws is the function of the Head of the State and the Shoora merely advises him on this. The Parliament and Provincial Assemblies have nothing to do with the enforcement of Laws. The laws do not provide for 'Bait' (Cs) which is an essential token of obedience between the Ruler and the ruled. "vote" is no substitute for 'Bait' which is a solemn and sacred covenant. The Constitution of a Shoora is also essential.

There can be no election-on the basks of

a

mere adult franchise.

The majority of the people are Fasiq (c4) ' and there can be no rule on the basis of mere majority.

Canvassing and election campaign are not permitted in Islam. On the contrary they are regarded as corrupt and illegal practices.

Sharia permits no cost or expenses for election.

Only a person who is pious, honest and morally fit that can act as Vicegerent of Allah. But these two laws do not provide for such qualifi- cations for the Members of the Legislature or for the Head of State.

Creation ofc:2atai s tuepe; on territorial basis is destructive of the rights of the people and is unjust.

The Legislature has far more powers than they can exercise under the Injunctions of Islam. These objections of a general nature may at once be disposed of thus. The Houses of Parliament and Provincial Assemblies (Elections)Order, 1977 as well as the Representation of People Act 1976 flow as a natural consequence of the relevant provisions of the Constitution regarding the establishment of Parliament and Provincial Assemblies and Electionsof their Members. The preamable •of the first specifically stateR, "it has become necessary to make provision for the holding of elections for the two Houses of Parliament and Provincial Assemblies" Similarly, the preamable of the second law states; "it is expedient to provide for the conduct of election to the National Assembly and Provincial Assemblies

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to guard against corrupt and illegal practices and other offences/acts in connection with such election.Y Both the laws have been, made in implementation of the various provisions of the Constitution in Part III, Chapter 2 and Part IV, Chapter 2. These provisions are asttalkLie:::2.)

Article 50 provides that there shall be a Parliament consistingof1t05:Houses to be known as National Assembly and the Senate.

Article 51 provides for the number of the Members of the two Legislatures and also for the entitlement of persons to vote.

Article 55 provides for decisions to be taken by majority of the Members present and voting: Article 59 deals with the number of Members of the Senate.

Article 61 applies Article 55 and tertain provisions of Articles 53 and 54 to the Senate. Article 62 has laid down in a negative form the qualifications for the Members of the Parliament. The Article, inter-alia, has provided: " he possess such other qualification as may be prescribed by Act of Parliament". Under this a discretion is given to the Parliament to prescribe some more qualifications. Article 63 provides for disqualifications of Membership of Parliament and, inter-alia, provides: "he is so dis-qualified by Act of Parliament". Herein again a discretion is given to add some more dis- qualifications. 4 Article 106 provides inter-alia for the Conetitution of the Provincial Assemblies for the four Provinces, and also lays down the entitlement of a persofi to vote.

Article•113 negatively prescribes the qualificationsWEPMembership of Provincial Assemblies and, inter-alia, states" he possesses such other qualifications as may be prescribed by Act of Parliament". Herein again the Parliament has been given discretion to add some other qualifications.

Article 127 provides that subject to the Constitution Articles 55,63 to 67,69,77,87 and 88 and certain provisions of Articles 53 and 54 of the Constitution shall apply to and in relation to the Provincial Assemblies.

Part VIII of the Constitution deals with elections and Chapter 2 thereof deals with electoral laws and conduct of elections.

Article 222 inter-alia, provides for the delimitations of the constituencies by the Election Commission, preparation of electoral rolls, the conduct of elections and election petitions, matters relating to corrupt practices and other offences in connection with elections and other matters necessary for the due constitution of the two Houses and the Provincial Assemblies.

Article 226 provides for elections by Secret Ballot.

If we now examine the various provisions of the two laws we shall see that they are in fulfilment of the requirement5of the aforesaid provisions of the onstitution.

Paragraph 10 of the Houses of Parliament and Provincial Assemblies (Elections) Order,1977 (President's (Post Proclamation Order No.5 of 1977) hereinafter called Order No.5 deals with qualification! and disqualifications of Members of Parliament. The

provisions regarding qualifications are in implementation of Article 62 of the Constitution, while the provisions regarding disqualifications are in pursuance of Article 63 of the Constitution. . Under Article 62(d) of the Constitution the Parliament is authorised to prescribe some other qualifications in addition. Similarly under Article 63 (e) some more diaqualifications can be prescribed by the Parliament.

All that I have said about paragraph 10 equally applies to paragraph 11 regarding qualifi- cations and disqualifications of Members of Provincial Assemblies.

These two paragraphs are in direct implemen- tation of Articles 6203;and113.of thaConstitution. As regards the Representation of the People Act, 1976 (Act No.LXXXV of 1976), hereinafter called Act No.LXXXV, besides the general criticism mentioned already objections have been taken particu- larly to Sections 2,12,14,78 and 99 of the Act. Section 2 has, inter-alia defined 'Candidate' as a person proposed as a Candidate for, or seeking election as a member.

Section 12 deals with nomination by an elector of the name of a duly qualified person to be a member for a particular Constituency. Section 14 deals with scrutiny of the nomination papers and objections to them. Section 78 deals with corrupt practices in election.

Section 99 deals with disqualifications from being elected as, and from being a member of the Legislature.

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these provisions of Act No.LXXXV also, are in implementation of the Articles of the Constitution referred to already.

There is, however, another aspect of the question that requires consideration. The c- ParliamentVxibild have kept in mind its obligations and responsiblities under the Constitutionranthrthe Injunctions of Islam while exercising its discretion under Articles 62(d), 63(I)(e) and 113 of the Constitution. These provisions provided a discretion to the Parliament to add to the qualifications and disqualifications of the Members of the Legislature. While enacting the Houses of Parliament and Provincial Assemblies (Elections) Order, 1973 and the Representation of the People Act, 1976, the Parliament failed to remember the aforesaid obligations and responsibilities under the Constitution and the Injunctions of Islam as will be seen presently. The function of the National Assembly or Senate is to legislate. The Constitution provides the Principles of Policy. Under Article 29 of the Constitution it is the responsibility of each organ and authority of the State, and of each person performing functions on behalf of an organ or authority of the State, to act in accordance with those Principles in so far as they relate to the functions of the organ or authority. Again under Article 30 it is the responsibility of an organ or of a person performing functions on behalf of an organ to decide whether any action by either complies with the Principles of Policy. Article 31 provides that steps shall be taken to enable the Muslims of Pakistan, individually and collectively to order their lives in accordance with the

fundamental principles and basic concepts of Islam and to provide facilities whereby they may be enabled to understand the meaning of life according to the Holy Ouran and Sunnah. Article 227, inter-alia, provides that'Q:jno law shall be enacted which is repugnant to "the Injunctions of Islam". How can all these Constitutional obligations be discharged unless the members of the Legislature possess the necessary qualifications to be able to discharge them. It is, therefore, reasonable to eildhssYthat c the Legislature itself should provide for certain minimum qualifications for the members. ' It is obvious that an illOerate person, a person who does not bear the reputation of righteousness cannot be expected to discharge the aforesaid responsibilities.

Let us now ponder over the following verses of the Holy Ouran:-

"Lo'lgi3 (Allah) have revealedathee (0 Mohammad) the Scripture with truth, that thoU mightest judge between mankind by that (law) which Allah hath shown (hath revealed unto) Thee"

(IV: 105)

"We (Allah) sent aforetime Our Messengers with Clear Signs and sent down with them The Book and the Balance that humanbeings may conduct themselves with equity" (LVII.:25).

"And whatever the Messenger (Muhammad) gives you, accept it, and from whatever he forbids you, keep back" LIX:7)

"If any do fail to judge and Command by (the light of ) What Allah hath revealed, they are Unbelievers." (V:47).

"(They are) those Who, if We establish them

in the land, establish regular prayer and give regular Charity, enjoin the right and forbid wrong" (X)çII:41).

How is it possible to obey the directions of Allah and to act ea them unless a person is not only r _o but, also able to read and understand the Holy Quran and the Sunnah.

The Holy Quran further says: "verily Allah doth command you to make over Trusts (i.e position of responsiblity) to those to whom they are due ( or to those who are worthy of them"(IV:58) The concept of 'trusts' covers the principle that offices should go only to the really deserving" vide Rubel Maanli, vol, V.p.64. This is quoped from page 357 footnote volume II pf the Quranic Foundations and structure of Muslim Society by Dr.Mohammad Fazalur-Rahman Ansari.

Maulana Syed Mohammad Mateen Hashmi, Research Advisor, Diyal Singh Library, Lahore in his booklet 'Maghrabi Jamhooriyat ka Islami Nezam-e-Hakumat' p 17 has quoted the following Statements of Hazrat Ali from Allama Alusi's 'Ruhul Mani"-

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. L:22rd .‘• • / , y z 3 /- CAPJ 11;li,-1,-1.4H3 L,%)fleiti eLeagie4-1:A4e (06,)

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Maulana Syed Abul A'la Maududi in his book 'The Islamic Law and Constitution' while speaking about the functions of the Legislature in an Islamic State, inter-alia, evs7z) "(ii) where the directives of the Quran and the Sunnah are capable of more than one interpretation, the Legislature would decide which of these interpretations should be -

placed on the Statute Book. To this end, it is indispensable that the Legislature should consist of a bOdy of such learned men who have the ability I and the capacity. to interpret Ouranic,Ibjunctigns and who in giving decisions would not take 1 liberties with the spirit or the letter of the Shariah "(p.221 Function of the Legislature) From the foregoing the functions duties and responsibilities of the members of the Legislature have been made clear both under the Islamic Injunctions and the Constitution. The inference is, therefore, manifest and logical that the members of the legislature must possess the requisite ability and capacity to discharge their functions and duties as enjoined by the Injunctions of Islam and the Constitution. The minimum that can thus be required of a member of the Legislature is that he must be able to read and understand the Ouran and Sunnah and be pious by reputation. The observations I have made about the qualifications of a member of the Legislature, obviously, apply to a Muslim member only. Maulana Abul Ala Maududi proceeds to observe in his aforesaid book: "Upon the shoulders of the Muslim citizens of an Islamic State devolves the main burden of running it in accordance with Islam:;_ best traditions, as they alone are supposed to believe in it implicitly. On them alone it enforces its laws as a whole and enjoins them to carry out all its religious, moral, cultural and political directives. It invests them with all its obligations and demands from them every sacrifice for the defence of its realm "(p.246)

I)

It thus appears that in the aforesaid two laws the Parliament has failed to make the necessary provisions about the qualifications and dis- qualifications as required by the Constitution and the Injunctions of Islam.

For the reasons stated above and with the observations made about the Houses of Parliament and Provincial Assemblies (Elections) Order, 1973 and the Representation of People Act, 1976, the petition is dismissed.

It may be mentioned that a large number of books of living as well as dead 'authors have been placed before us in support of the form and functions of an Islamic State. I have not thought it necessary to burden my decision with them. Before I part with the case I think it is our duty to place on record our appreciation of the assistance rendered to this Court by Mr. S.M. Zafar, Advocate, at our request.

(Salahuddin Ahmed) Chairman

JUDGEMENT

- MR- JUSTICE AGRA ALF RYDER, MEMBER

I have gone through the judgement,

proposed to be delivered by the'learne Chairman, and I am afraid, I can not agree with certain observa1ions made by him therein. It has been held by him that this Court cannot decide any question pencerning the Constitution". However he has found some blemishes in Articles 10 and 11 of the Houses of Parliament and Provincial Assemblies (Electien) Order 1977, and Section 99 of the Representifion of the People Act 1976, as these failed to prescribe that A candidate for these elections should have the qualification of righteousness and the capacity to read, understand and interpret the Holy Quran, sO in the absence Ohereof he can not be expected to discharge the responsibilities entrusted to him. Support for the same has been found from Articles 29, 31 and 227 of the Constitution and some verses from the Holy Quran. It will be in the fitness of things to refer to the relevant provisions of law, before offering any comments.

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ARTICLE 29:-(1) The Principles set out in this Chapter shall be known aã the Principles of Policy, and it is the responsibility of each organ and authority of the State, and of each person performing functions on behalf of . an organ or authority Of the State, to act in accordance with those Principles in so far as they relate to the functions of the organ or authority.

(2)In so far as the observance of any particular Principle of Policy may be dependent upon resources being available for the purpose, the Principle shall be regarded as being subject to the availability of resources._ (3) In respect of each year, the President in relation to the affairs of the Federation, and the Governor of each Province in relation to the affairs of his Province, shall cause to be prepared and laid before the National Assembly or, as the case may be, the Provincial Assembly, a report on the observanee and implementation of the Principles of Policy, and provision shall be made in the rules of procedure of the National Assembly or, as the case may, be, the Provincial Assembly, for discussion on such report. ARTICLE 31.- , (1) Steps shall be taken to enable the Muslims of Pakistan, indiVidually and collectively, to order their lives in accordance with the fundamental principles and basic conceptsof Islam and to provide facilities whereby they may be enabled to ,understand the meaning of life according to the Holy Quran and Sunnah.

(2)The State shall endeavour, as respects the Muslims of Pakistan,-

(a)to make the teaching of the Holy Quran and Islamiat compulsory, to encourage and facilitate the learnig of Arabic .

language and to 'secure correct and exact printing and publishing of the Holy Quran;

(b)to promote unity and the observance of the Islamic moral standards; and

(c)to secure the proper organisation of Xakat, auqaf and mosques.

ARTICLE 227.-(1) All ..existing laws shall be brought in conformity With the Injunctions of Islam as laid down in the Holy Quran and Sunnah, in this Part referred to as the Ihjunetions of Islam, and no law shall be enacted which is repugnant to such Injunctions..

Effect shall be given to the provisions of clause (1) only in the manner provided in this Part., Nothing in this Part shall affect the personal lama of non-Muslim citizens or their status as citizens.

The qualification, for a member of the Parliament are to be found in Article 62 and the disqualification in Article 63 of the Constitution. Article 1131 deals with the question of the qualification-of the members, of the Provincial Assemblies, albeit in a negative form. These' Articles .read as under:

ARTICLE 62.- A person shall not be qualified to be elected or chosen as a member of Parliament unless--

(a)he is a citizen of Pakistan;

he is, in the case of National Assembly, not less than twenty-five years of age and is enrolled as a voter many electoral roll for election to that Assembly;

he is, in the case of the Senate, not less than thirty years of age and is enrolled as a voter in any area in a Province or, as the case may be the Federal Capital Or the Federally Administered Tribal Areas, from where he seeks membership; and he possesses such other qualifications as may be prescribed by Act of Parliament. , ARTICLE 63.-(1) A person shall be disqualified from being elected or chosen as, and from being, a member of Parliament, if -- he is of unsound mind and has been so declared by a competent court; or he is an undischarged insolvent; or he ceases to be a citizen of Pakistan, or acquires the citizenship of a foreign State; or he holds any office of profit in the service of Pakistan other than an office declared by law not to disqualify its holder; or he is so disqualified by Act of Parliament.

(2)If any question arises whether.a member of Parliament has become disqualified from being a member, the Speaker or, as the case may be, the Chairman shall refer the question to the Chief Election Commissioner and, if the Chief Election Commissioner is of the opinion that the member has become disqualified, he shall cease to be a member and his seat shall become vacant.

ARTICLE 113.- A person shall not be qualified to be elected a member of a Provincial Assembly unless -- he is a citizen of Pakistan;

he is not less than twenty-five years of age; he is enrolled as a voter in any electoral roll for election to the Assembly; and he possesses such other qualifications as may be prescribed by Act of Parliament.

The Houses of Parliament and Provincial Assemblies (Election) Order 1977, being President's (Post-Proclamation) Order No.5 of 1977, dated the 1977 came to replace the Representation of the People's Act 1976, (Act No.LXXXV of 1976) and has been amended from tithe to time. The relevant Articles are 10 and 11:

ARTICLE 10.- Qualification and disqualifications for membership of Parliament.-(1) A person shall not be qualified to be elected or chosen as member of Parliament unless, as provided in Article 62 of the Constitution,— he is a citizen of Pakistan;

he is, in the case of National Assembly, not less than twenty-five years of age and is enrolled as a voter in any electoral roll for election to a Muslim seat or a non-Muslim seat, as the case may be, in that Assembly; and

(0)he is, in the case of the Senate, not less than thirty years of age and is enrolled as a voter in any area is a Province or, as the case may be the. Federal Capital or the Federally Administered Tribal.Areas, from where he seeks membership;

and has made oath as provided for in Article 7.

(2)A person shall be disqualified from being elsOdd or chosen as; and from being, a member, of Parliament,—

(a)if, as provided in Article 63 of the Constitution,-- he is of unsound mind and has been so . declared by a competent court; or he is an undischarged insolvent; or he ceases to be a citizen of Pakistan, or acquires the citizenship of a foreign

....p/6

State; or

(4)he holds an office of profit in the service of Pakistan other than an office declared by law not to disqualify its holder; or

(aa)if he is in the service of any statutory body or any body which is owned or controlled by the Government or in which the Government has a controlling share or interest oil (aaa) if he is propagating any opinion, or acting in any manner, prejudicil to the Ideology of Pakistan, or the sovereignty, integrity or security of Pakistan, or morality, or the maintenance of public order, or the integrity or independence of the judiciary of Pakistan, or whichsleftaill-e-Sor brings into ridicule the judiciary or the Armed Forces of Pakistan; oil (b) if-- he has been, on conviction for any offence which in the opinion of the Commissioner involves moral turpitude, sentenced to imprisonment for a term of not less than two years, unless a period of five years has elapsed since his release; or he has been dismissed from the service of Pakistan on the ground of misconduct, unless a period of five years has elapsed since his dismissed; or he has been removed or compulsorily retired from the service of Pakistan on the ground of misconduct, unless a period of three years has elapsed since his removal or compulsory retirement; or he has been in the service of Pakistan or any statutory body or any body which is owned or con- trolled by the Government or.in which the Government has a controlling share or interest, unless a period of two years has elapse ince he ceased to be in such service; or he is found guilty of a corrupt or illegal practice under any other law for the time being in force, unless a period of five years has elapsed from the date on which that order takes effect; or he has, a4/any time on or after the twentieth day of December, 1971, been an office-bearer of a political party dissolved under sub-section(2) of section 6 of the Political Parties Act, 1962(111 of 1962), and has not, before a declaration in respect of such party is made under sub-section(1) of that section, resigned, or publicly announced his dissociation, from such party, Unless a period of five years has elapsed from the date of such dissolution; or he has been convicted under section 7 of the Political Parties Act, 1962(111 of 1962), unless a period of five years has elapsed from the date of such convictioni or (7a) he is a member of4olitical party which has not been registered, or the registration of which has been cancelled, under the Political Parties Act, 1962(111 of 1962); or (7b) he is for the time being disqualified from being elected or chosen as a member of Parliament or of a Provincial Assembly, under any law for the time being in force; of/

(8)if he, whether by himself or by any person or - body of persons in trust for him .or for his benefit or on his account or as a member of a Hindu undivided family, has any share or interest in a contract, not being a contract between a cooperative society and Government, for the supply of goods to, or for the execution of any contract or the Performance of any service undertaken by, Government:

Provided that the disqualification under this paragraph shall not apply to a person--

(1)where the share or interest in the contract devolves on him by inheritance or succession or as a legatee, executor or administrator, until the expiration of six months after it has,so developed on him or such longer period as the President may, in any particular case allow; •or where the contract has been entered into by or on behalf of a public company as defined in the Companies Act, 1913(VII of 1913), of which he is a shareholder but is neither a director holding an office or profit under the company nor a managing agent; or where he is a meMber of a Hindu undivided family and the contract has been entered into by any other member of that family in the course of carrying on a separate business in which he has no share or interest; or (9) he holds any office of profit in the service of Pakistan other than the following offices t namely:- an office which is not whole time office remunerated either by salary or by fee; the office of Lumbardar, whether called by this or any other title;

the Qaumi Razakars;

any4 office the holder whereof, by virtue of holding such office, is liable to be called up for military training or military service under any law providing for the constitution or raising of a force.

EXPLANATION I.- In sub-paragraph 4 of paragraph(a) and sub-paragraph (9) of paragraph (b) "service of Pakistan" has the same meaning as in Article ?60. of. the Constitution.

EXPLANATION II.-In sub-paragraph (6) of paragraph (b), "office-bearer of a political party" means an office-bearer at the National or Provincial set up of the party otherwise than as a mere member of the Working Central Provincial or other Committee of party.

EXPLANATION III.-In sub-paragraph (8) of para- graph(b),"goods" does not include agricultural pro- duce or commodity grown or produced by him or such goods as he is, under any directive of Government or any law for the time being in force, under a duty or obligation to supply.

(3)If a person, having been elected to a House or a Provincial Assembly as a candidate or nominee of a political party, withdraws himself from that party, he shall, from the date of such withdrawal, be disqualified from being a member of the House or the Assembly for the unexpired period of his term unless he has been re-elected at a bye-election held after his disqualification.

ARTICLE 11.-Qualifications and disqualifications for membership ofProvincial Assembly.-(1) A person shall not be qualified to be elected as member of a Provincial Assembly unless, as Provided in Article 113 of the Constitution,- he is a citizen of Pakistan;

he is not less than twenty-five years of age; he is enrolled as a voter in any electoral roll for election to a Muslim seat or a non-Muslim seat, as the case may be, in that Assembly17 and has made oath as provided fur in Article 7.

(2)A person shall be disqualified from being elected as, and from being, a member of a Provincial Assembly if he is subject to any of the disqualifications specified in clause (2) of Article 10.

ARTICLE 7.- Oath of candidates and persons elected.-(1) Every person who is a candidate for election to a House or a Provincial Assembly, and every person who is declared thavgbeen elected as a member of a House or a Provincial Assembly, shall make before such person as may be appointed by the Commission for the purpose/oath in the .form set out in the First Schedule or, as the case may be, the Second Schedule.

No nomination paper of a candidate shall be accepted unless it contains the oath referred to in clause (1) duly made by the candidate as required by/that clause.

A person elected to a House or a Provincial Assembly shall not sit or vote until he has made before the person referred to in clause (1) oath in the form set out in the Second Schedule.

THE FIRST SCHEDULE

(Article 7) ,having been nominated as a candidate to fill a seat in the National Assembly/Senate/Provincial Assembly of in accordance with the Proclamation of the fifth day of July, 1977, read with the Laws(Continuance in Force)Order,1977 (CMLA Order No.1 of 1977), and the Houses of Parliament and Provincial Assemblies(Elections)Order, 1977, do solemnly swear that I will be faithful to the declaration made by the Founder of Pakistan, Quaid-i-Azam Mohammad Ali Jinnah, that Pakistan would ...p/9

be a democratic State- based on Islamic principles of social justice.

That I will bear true faith and allegiance to Pakistan and uphold the sovereignty of Pakistan.

And that I will strive to preserve the Islamicrtney which is the basis for the creation of Pakisfali

Articles 29 and 31, fall in Chapter II of the Constitution, and pertain to the principles of policy. These directives will find a responsive chord in the hearts of any Muslim, and can easily be looked after by every Muslim member of the House and the Assemblies. Article 227 further ensured that all the existing laws shall be brought in conformity with the Injunctions of Islam, and that no law shall hereafter be enacted, which was repugnant to such Injunctions. To achieve this objective, an Islamic Council was to be formed which was to submit an interim annual report and the final report within seven years of its appointment. The Council was to be represen- tative of the various schools of thought, with at least two sitting or retired Judges of the Superior Court. It is not necessary to go into the mechanism and the working of the Islamic Council, but it was constituted with the sole purpose that the existing laws of the country and those to be framed hereafter, whether in the central or the provincial fields, were not to be repugnant to the Injunctions of Islam. All traces of laws, in conflict with the Islamic concept were therefore, to be obliterated. It is to be seen that

even future threats were totally eliminated.

Further, the President's Order No.V, referred to earlier, had taken due care, that the candidates contesting for the seats, in the House and the Assemblies were free from all taints and traits unbecoming of the legislators of the land. Men with an unsavoury past,, had to wait and mark time for a considerably long period to purge themselves of those scarry blemishes. The possibility of some undesirable elements, capturing these august bodies, were,therefore, effectively removed. Inspite of thtsslif any law enacted by the House or the Assemblies, smacked of some thing un-Islamic, the Islamic Council was there, at the beck and call of the President, the Governors and even the members of the House and the Assemblies, to make amends and retrieve the situation in time.

The Lear6ed Chairman is, however, of the opinion that the doors of the House and the Assemblies should be open only to people with the reputation of righteoUsness and who can read and understand Quran. If a candidate, aspiring for a seat is not so qualified, he should be out of contest.

The question therefore, arises as to who are these righteous people and who will determine their claim or profession of righteousnesS? Righteous, according to the concise Oxford Dictionary means morally right, just, upright, virtuous, law-abiding. Put in its proper perspective, the word p/10

for our purpose

will be the most compOtensive term% Patently it will rule out mere outward appearance..Uo it is not a look, or the attire of a man to conclude, that you are meeting a righteousiman..Nor even the dutiful performance. of • ordained obligations like prayer and fasts. There were hypocrites even during the days of the Holy Prophet, who were practising Muslims. The Holy Prophet had their mosque razed to the ground. Zakat is now being collected by the Government. The call for Jehad has not come for a very long time. Their true picture is to be had frot the following verses arthe Holy Quran, which I will reproduce from the translation- by Allama Abdullah Yousuf Ali.

It-is - not righteousness That ye turn your fades Towards East or West;

But-it is righteousness To believ-e in Allah And the Last- Day, And the Angels, And the Book, And the Messengers; -- To'spend of your substance, Out of love for Him, For your kin, For orphans, For the needy, For the wayfarer, For those who ask, And for the ransom of slaves;

To be Steadfast in prayer, And practise regular charity;

To fulfil the contracts Which ye have made;

And to be firm and patient, In pain (or suffering) And adversity, And throughout - All periods of panic.

Such are the people Of truth, the God-fearing.

5.II:155. .

BO sure We shall test you With something of fear And hunger, sOme loss In goods or lives or the fruits (Of your toil), but give Glad tidings to those Who patiently persevere,

P/15

8.11±156 Who say, when afflicted . With calamity: "To Allah We belong, and to Him Is our return"

' S.11:157 They are those on whom (Descend) blessings from Allah, And Mercy, And they are the ones That receive Guidance.

There will be some people, who fulfil these qualifications, substantially if not in full measure But they need not necessarily be men holding certain degrees and diplomas, or associated with certain Sajjadas or Khanqahs. But certainly they will be in short supply, and may not be available, in all the nooks and corners of the country, or to be more specific in every constituency. And people given to God, and the ways of God, may elect to keep to themselves, doing their own rounds of duties. Accoring to Hazrat Ahmad Masrooq, as to be found in Hafiz Qazi Fayuzur Rahman's CLAA9(14(6441.441/ page 73.

z /s 0 ri“

True that Islam has never stood for monastic life. But pious and conscientious Muslims, throughout the ages have been reluctant to accept even the job of Chief Qazis. The Holy Prophet is On the record by his saying, that the holding of a public office is akin to being slaughtered with a blunt knife. Assuming that you do succeed in having a list of these righteous people.

What happens, if there is a challenge to some of them, at the time of election? Can these preliminaries be settled in time?

p/12

The other qualification stressed _ by the learned Chairman is that the members should have the attributes of reading and understanding the Quran.

So far as the reading part of it is concerned, almost every Muslim in the country, who has been given even elementary education, will fulfil this condition. Even if he misses a formal induction in Quran from a pre- ceptor, the alphabets and the script of Arabic and Urdu being to a great extent similar, it poses no problem to read the Holy Book, with fluency. Understanding the Quran, from the original text is a different matter. I doubt, if throughout the length and the breadth of the country, you can count them in thousands. But there are translations in Snglish, Urdu and even in some of the regional languages. The basic contents of the Islamic Injunctions - the various obligations as to what is lawful and what is un- lawful are also handy to most of us. But understanding it, and being equipped to discharge the responsibilities, in question, calts for much more and herein lies the rub. There have been exegesis and commentaries of the Quran for centuries by now, throughout the Muslim world. There are also 'Tafasir Bir-Rai, Where points of view, appealing to the exegesist have been given a free rein. There have been all sorts of interpretations, leading to so much of schisms and cleavages of opinion. There is the orthodox school, which has refused to look beyond the opinions and principles laid down by the Asharites. There is also the progressive view point. Of late, there was a three-day International Symposium on Islam and Science. Citing evidence from the Holy Quran, supplemented from Ahadith, one of the eminent scholars tried to establish that Heaven moves at a speed of 185,999 miles per second and hence the clocks in the Heaven run 350,000 times slower than the clocks on the earth. Another scholar maintained ....p/13

-13- 3L1

that the Heaven and the Hell are Black Holes i.e. very heavy stars, out of which nothing can escape. Theories were advanced that, jinns were a source of energy; atom had memory. Even theories of relativity, quantum mechanics evolution, cosmology, chemical kinetics were traced in some verses of the Holy Quran. Whether there is any analytical data, or particulars are there or not, is not the point. :The point I am making is that there are different approaches and attitudes, and there have always been different approaches. What is gospel truth to a section of the believers may be totally un-acceptable to another. The Returning Officer or any other authority concerned, may not be convinced by your grasp or under- standing of every aspect from the physical realities of the world, to any other subject under the sun. I shudder to think-what happens, if a party were to make a grievance of the fact, that its candidates have been deliberately debarred, with an ulterior motive?

The cumulative effect of the recommendations made by the learned Chairman - and with due respect I will say, that it is not our function to make any recommendation or suggestion - would be, that the persons most eligible for contest in the elections of the House and the Assemblies Will be the Ulemas and the Mashaikhs. There is no gain-saying the fact that there is a con- siderable section of people, who are of the view that this class had signally failed to give a proper lead to the Ummah, once the Xhilafat-i-Rashida came to an end. They nurse poignant memories of their role during the bitter struggle for . the creation of Pakistan. Dr. Ishtiaq Husain Qureshi, inZ:his book "Ulemas in Politics", writes;

"The main carrot to persuade the Jamiatul-Ulema-i- Hind was that the Muslim personal law would be administered by Qazis and they would be appointed from the Ulemas".

....p/14

Be that as it may, the monoply of power in the hands of a single class, is bound to create a sense of deprivation among the other ranks of the people. That, the majority of the people, should be smarting with ',ilia— satisfaction on such a bUlhing issue cannot be contemplated with equanimity.

Assuming that the contest was to be confined within the limits as proposed by the learned Chairman, how are the righteous and the truly guided people to be ttitted against each P other? There would be only one slogan, one manifesto; it wduld be just Hobson's choice before the voters, restricted to the preference of personalities. And will such an assemblage of pious men be in a position to cope up with the disciples of Chankya and Machiaevelli the world over? After all, we are living in a world, which thanks to the advances of Science and technology has shrunk in size. .Further, what , if God forbid they falter and fail to deliver the goods? The question for prescribing a standard for the minoriflis still remains. The President's Order, referred to earlier, does not bar the doors of the House and the Assemblies to the righteous and pious ben even today. They can offer their candidature, if they are so minded, as before. There is no reason why everything else being the same, they should be rejected as a class by the electorate. But to say, that the contest throughout the country should be confined only to this class is a different story. Creating such an invidious and flagrant distinction will be opening a pandora box of troubles. Islam does not believe in such distinctions and God knoweth best, the worth and the

Y'

merit of each believer, asAthe rest of the world. Nor was such a situation contemplated in the scheme of the Constitution.

....p/15

Our job is not to legislate, or to make suggestions but only deblare and strike down a law if it is repugnant to Islamic Injunctions, Can it be said that the law as it stands today, has anything un-Islamic in it? To insist on the qualification proposed would also carry the suggestion that Islamic countries which are not headed, run, or counselled by righteous and pious men are tin-. Islamic.

Further, by this addition, the institution of Islamic Council will' become a superfluity; the House and the Assemblies will not be representative of all the

I.

shades of public opiniongLand there will be no opposition worth the name to the Treasury Benches, on the floors of the various Houses. "All this will be destructive of the very spirit and the fabric of the Constitution, which has its own cloak of ih immunity as the law stands. The learned Chairman also agrees, that the Constitution is inviolate.

In the result the petition stand! dismissed. I further holdoulaiT that the election laws in question do not require any amendmentZas proposed.

FEDERAL SHARIAT COURT 3)

S.P. No.41 of 179 . Mr. B.Z. Kaikaus.

.JUDGEMENT

.ZAKAULLAH LODI, J/MEMBER:- I had the advantage of going through the Judgement proposed to be delivered by the learned Chairman and also the dissenting note of learned Member Mr. Justice Agha Ali Hyder. I find myself in agreement with the proposed result of the petition as/am also of the view that the questions raised therein directly involve the Constitution to which our jurisdiction does not extend. However I res- pectfully differ with his suggestion that only the "righteous persons", with certain qualifications laid down by him, should be eligible to contest the elections and retain seats in the Parliament. On this point my views are same as that of Mr. Justice Agha Ali Ryder in his proposed JUdgement. Let it not be forgotten that our jurisdiction extends only to the existing laws which we can hold valid or otherwise in the light of the Injunctions of Islam. The making of suggestions or recommendations as to what should happen in a particular field of activity in the country and what kind of laws r- /should govern it is absolutely outside the realm of our powers and functions. No doubt that these suggestions are obiter dicta and have no binding effect, what-soever, but certainly these are capable of creating confusion as they do not represent the realities.-tcrZE,77: -- when More so,/they offend the scheme of the Constitution itself, which the legislators has categorically saved from our reach. There is thus no occasion to interfere with it even indirectly. The suggestions that the laws It framed to implement the Constitution should have adopted a particular form amounts to touching a prohibited -; sUbject. Of course, if the laws made to implement a ‘c

constitutional programme ran counter to its scheme and also displayed inconsistency with the Injunctions of Islam , we would have been well within the limits to give our verdit. Here the position is different as the laws sought to be assailed are in complete conformity with the Constitution. Accordingly the suggestions made are uncalled for.

On the point of "righteousness" or otherwise of a person I may beneficially add that the Constitution does not accommodate any such scheme and any insertions of the kind would be offensive to the 'Objectras Resolution' incorporated in the Cbnstitution; and the importance of this re .a- et: is obvious in the context of this country. The suggestions, if accepted and

A

implemented would further result into creating a class of citizens to be called "righteous or pious persons" whether they were "Ulemas" or others and with no standards and no competent forum or agency to hold them so.; as neither the Constitution has catered for such a thing nor any suggestion is to be found in any authentic source as to law or conventions. On the other hand it would amount to depriving the entire populace except that class from representing the people and it would offend the fundamental rights as well which enable every citizen 'qualifying necessary constitutional conditions to contest elections. Fundamental rights are in the state of hibernation formed and not extint. The assemblies to be/Ening on the proposed basis would rather be Research Councils; . and a council is no answer to a Parliament. Then we do have the Council and this court to perform the expertise functioni, of examining the existing laws and the laws. to be implemented,with a view to check their repugnancy with Islamic Injunctions. The importance of the council should also not be overlooked/

U•11,

in view of the constitutional provisions. This is another good reason why there should be no confusion and functional interminglingsand overlapping4between the two t insiitutions.

One can also easily guess irreconcilable and unending controversies which are bound to spread like epidemic both at the stage of selection and then between the selected ones when they were pitted opposite each other in elections. Other complications that must flow from this step apart. To our misfortune, we live in a religion-wise disintegrated society; divided and sub- divided into sects and factions,, refusing even to offer prayers in a common gathering; believing each other - such like with conviction to be "Kafire and showering/"FATAWAS" abundantly, We can hardly imagine of uniformity of opinion on "righteousness" or otherwise of any one in the country. Such has been our history of over a thousand and years. I have regard/respects for the fervour of genuine and honest religiousness of the learned Chairman, but Z would submit that the stage for such amends is not yet ripe.

I am thus of the opinion that the existing election laws do not need any amendment of the kind recommended in the leading Judgement. The petitions are thus dismissed.

7v\-A cx"'t

MEMBER-III

FEDERAL SHARIAT COURT

SHARIAT PETITION NO. 41 OF 1979 (LAHO RE).

B.Z. Kaikaus Petitioner Versus Federation of Respondent Pakistan

ORDER OF THE COURT

The petition is dismissed.

Chairman.

Member I.

Member III.

IP

Member IV.

Islamabad, the 13th December, 1980.

(APPROVED FOR REPORTING)

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SUPREME COURT OF PAKISTAN CSHARIAT APPELLATE DENCH),LAHORE

SHAHIAT APPEAL NO.11/81

C B.Z. KAIKAUS VS: FEDERAL GOVERNMENT

OF PAKISTAN AND OTHERS )

'PRESENT:

Hon'ble Chairman,Mr;Bustice Hon'ble Member-I0ArBustice DrHasim Hasan Shah Honlble MembenZI,Mr:Justice Shafi-ur-Rehman 5-6-1982: A) In person 9-1) Syed Iftikhar Ahmed, Deputy Attorney-General for Pakistan 9-2) Syed Hiazul Hassan Gilani,ASC :Standing Counsel 9-9) Mr:Anwar Ahmed Qadri,AOA,S.C. Standing Counsel

Jurisconsults and Ulma Or'AMrsA Sadia Khawar Khan Chisti Dr ISrar Ahhad Amicus Curiae MrSM ZaferiSrA.',S"Xt

6-6-1 982 : ibid Jurisconsults and Ulma Dr:IMrs.1 Sedia Khawar Khan Chisti Amicus Curiae Mr:19:44:' ZafariSrA S;;C:

7-6-1982: ibid - Jurisconsults and Ulma OrCMrs:') Sadie Khawar Khan Chisti gazi Professor Mujibur Rahman- Amicus Curiae None:'

9-6-1982: A] - ibid - H) Syed,Iftikhar Ahmed, Deputy Attorney- General for Pakistan:4 Sysd Riazul Hassan Gilani. Jurisconsults and Ulma ibid - Amicus Curiae None 12-6-1982: A] - ibid - R) Syed Iftikhar Ahmad, Deputy Attorney- General for Pakistani' Syed Riezul Hassan Gilani. Mr:Anwar Ahmed Qadri':- Jurisconsults and Ulma Dr:AMrs';Badie Khawar khan Chisti:' Amicus Curiae None:4

nit ureim :Itee::ettan t sIC.ourt of Pafkis,

SHARIAT APPEALdqo.11.8:12a1

(B.Z. KAIKAUS.VS. FEDERAL GOVERNMENT

OF PAKISTAN AND OTHERS)

1J-6-1c81 A3 In person R-1 Sycd Iftikhar Ahmed, Deputy Attorney General for Pakistan instructed by Mr.Anwar Ahmad Qadri, A-0-R.

Syed Riazul Hassan Gilani, ASC instructed by Mr. Inayat Hussain

A-O-R.

R-2) Mr.RashidIAziz, Addl. Advocate- General, Punjab.

(Mr.Shujauddin Qureshi, Advocate, with him).

Jurisconsultsandf-UiMaI Dr. (Mrs),. Sadie Khawar Khan Chisti.

Qazi Professor Mujibur Rehman.

AthiCus Curiae

ORDER

4 This order will dispose of Shariat Appeal Nos. 11 & 12 of 1981. These appeals are directed against the judtpnents of the Federal Shariat Court dated 13.12.1930 byI-separate Bbnches respectively. In appeal No.11 the challenge to the laws concerning the political parties, elections and related matters while in appeal No.12 questions relating to compulsory acqUisition of property and compensation

I!

therefor under Punjab Acquisition of Land (Housing) Act, 1973 are raised.

The hearing on these appeals commenced on 5th June, 1982. On 12.6.1982 when the appellant was, at the concluding stage of his arguments and had only to address argupents on the validity of the Representation of the People Act,1976 and P.O. V of 1977 (the House of Parliament and Provincial Assemblies (Elections) ° Order, 1977), requested that he may be allowed to address remaining arguments on two election laws after Mr.S.M. Zafar has argued on these laws. He was, therefore, permitted to commence'argumentson his other

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Shi Men dent upreT' ourt of Pokistan

LAMASAD .

appeal No.12 of 1981, on 13.6.1982.

A

However, at the commencement of proceedings today (13.6.1982) the appellant presented two separate applications on the subject of these appeals. Herein, he has submitted :

(1)That the Judges of the Federal Shariat Court (who rendered the judgment,under appeal) were not Muslims.

That on account of the said fact there is no judgment of the "Federal Shariat Court". That the decision being by non-Muslim Judges. is null and void.

After having dealt with the position of the Federal Shariat Court and its Judges and the judgment under appeal in the first paragraph of the applications, he has proceeded to make follOwing points with regard to this Court and the appeal proceedings :

That this Court has no power or jurisdiction under any law including the Constitution to hear these 'appeals.

That the present proceedings and hearing are null and void.

That the appeals have to be heard by Muslim Judges implying thereby that the Judges of this ,Court are not Muslims and can be considered to be Muslims only if they declare to his satisfaction that they are hearing the appeals as representatives of Allah, uncontrolled by any law or Constitution.

That unless such a declaration is forthcoming from the Judges of this Court, he would not pursue the appeals.

Notice of these applications was given to the learned Deputy Advocate-General and to learned Additional was Advocate-General and the matter/adjourned for a few hours to enable them to examine their implications. Alt

S. fritendent"i pram• .munofPnistail— • •

LAMABAD

During the hearing on these applications the appellant was told that we have time and again declared that we would be bound! by the injunctions of the Holy Quran and Sunnah in deciding these matters but he said that the Court had also been referring to constitutional reouireMents which does not satisfy him. In this behalf he also“ pointed out that on a previous hearing it was observed that while he as a Judge of the Supreme Court has beerrenforcing the constitutional mandate, how this Court could be so oblivious of it now. We may add here that yesterday when rising, it was observed ( for the jurisconsults) that prima, facie some points raised in the second appeal, namely, No.12 of 1981, which was to commence next day, seemed to be in conflict with the pleas taken in the first appeal namely No.11 of 1961; and that, they should come prepared on this aspect also. It iS in these _circumstances. that today, before we could commence the proceedings in routine, the appellant, as his very• first step submitted the two applications. He did so first in the appeal No.12 which was to commence today and then in appeal No.11, the hearing in which continued till yesterday.

The learned Deputy Attorney-General referred to Rules 4 and 8 of the Shariat Benches of Superior Courts Rules 1979 and contended that the applicationS amounted to, as he put it, refusal of the appellant to pursue the appeals; which amounts to abandonment and withdrawal.

The learned Additional Advocate-General took the same position with the submission that the appellant cannot impose his own conditions on the satisfaction of which only, he would pursue the appeals.

The case in hand is not covered by Rule 4 of the 1979 Rules; which deals with the absence or death of an appellant. Rule 8, however, by reference makes Sti tntendent upre Court of Prikistv

SLAWIABAD

Supreme Court Rules 1980, applicable to these proceedings, in all matters other than those provided in the Rules of 1979. Withdrawal as also non-prosecution of appeals, amongst ' other similar subjects, is provided in Order XV of the Supreme Court Rules of 1930.

After carefully considering the position taken by the appellant in thee applications, together with his oral explanation in that behalf, we are convinced that he has abandoned the appeals. This also amounts to refusal to pursue the same and withdrawal thereof.

It needs to be observed that after his averment that the Judges who rendered the two judgments under these appeals ( in two separate Benches of 4 and 5 Judges), were not Muslims;andtherefuee;che said judgments are not existent, he ha, himself taken a position wherein he could not pursue the. appeals any further. It may be clarified here that we did not accept his assertion about the faith of the learned Judges of the Federal Sheveiat Court. It is also necessary to point out that the condition sought to be imposed by him on this Court, to say the least, is out of place, unwarranted and extra-ordinary. We are surprised - till yesterday the proceedings were considered to be, and indeed were, before the Muslim Judges of the Supreme Court of Pakistan. Today all of a sudden, the appellant submitted these applications, at a stage when the proceedings in his second appeal, relating to the protection of certain property rights, were to commence. It was a surpriSe to us; also because, as promised yesterday, the appellant was to submit his manuscript of what he said would be a book in English containing some chapters which would highlight the points taken in appeal No.11 of 1961; and we had decided to get its relevant parts copied, at state 'expense, for the benefit of all who were to address the Court. Instead of advancing the hearing of the matter further he has, as noted earlier, taken a step for wh

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1Supe Pitendent.

upreme ourAofP8kis*

AMABAO

he alone is responsible.: As an appellant he has a right to abandon the appeals and/or not to pursue them. We cannot prevent it. This in law also amounts to withdrawal thereof. It is not necessary to go into the motive as to why he has done so..

Accordingly these appeals are dismissed as abandoned and withdrawn: Considering the health and age of the appellant ( about 82 ) we do not consider it n 'aft 'êS " y to burden him .with the costs of these appeals.

W ,

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11411 v - True C'p cedmed

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Lahore, dated the 13th June, 1982.

NeT APPROVED FOR REPORTTNG.

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