Mufti Iftikharuddin Vs. Federal Government

74 National Law Reporter (NL R 1992 SD) Vol.

Mufti Iftikharuddin v. Federal Government lbadat Yar Khan, J. (F.S.C)

2.At the time of final hearing of this petition on 16.6.1991 the petitioner remaine� absent but the Board was represented by Hafiz SA. Rahman and Mr. Fazal Hussain, Advocates.

3.The petitioner has actually challenged sections 8, 10, 14 and 21 but the focal point in the case is conferment of unbridled and arbitrary powers on an individual and complete and total ouster of Courts from providing any relief to any aggrieved party who may be hit by and suffer at the hands of this individual.

4.Sections 8, 14 and 21 are as follows:- Section 8.- (1) If a question arises whether an evacuee property is attached to a charitable, religious or educational trust or institution or not, it shall be decided, by Chairman whose decision shall be final and shall not be called in question in any Court.

(2)If the· decision of the Chairman uhder sub-section (1) is that an evacuee property is evacuee trust property, he shal� by notification in the official Gazette, declare such property to be evacuee trust property.

(3)If a property is declared to be evacuee trust property under sub­ section (2), the Chairman may pass an order cance_lling the allotment or alienation, as the case my he, take possession and assume administrati� contro� management and maintenance thereof:

Provided that no declaration under sut?-section (2) or under sub­ section (3) shall be made or passed in respect of any property withoU( giving the persons having lpterest in that property a reasonabl opportunity of being heard.

Section 14. Save as otherwise provided in this Act, no Civil Court shall ha jurisdiction in respect of any matter which the Federal Governme or an officer appointed under this Act is empowered under thi5 A to determine, and no injunction, process or order shall be granted issued by·any Court or other authority in respect of any action take or to be taken in exercise of any power conferred by or under t ,Act.

Section 2'1. -(1) The Federal Government or any person authorised by it, t Chairman and every officer appointed under this Act shall, for t purposes of making any enquiry or hearing any appeal or revisi under this Act, have the same powers as are vested in a civil co under the Code of Civil Procedure, 1908 when trying a suit in res of the following matters, namely:-

(a)summoning and enforcing the attendance of any ""'re"" i1nii examininlZ him on oath;.

NLR 1992 SD 7 3

Present: Mr. Justice Dr. Ta11zil-ul-Rahma11, Chief Justice. Mr. Justice lbadat Yar Kha11 Mr. Justice Dr. Fida Muhammad Kha11 Mr. Justice Abaid Ullah Kha11 [Federal Shariat Court) Shariat Petition No.5/1 of 1990 decided on 16.9.91 MUFfl IFfIKHARUDDIN---Petitioner versus FEDERAL GOVERNMENT---Respondent

Evacuee Trust Properties (Management and Disposal) Act (XIII ol' 1975) Ss. 8,9,10,14,21. Provisions contained in Ss. 8,9,10,14 and 21 are repugnant to Quran and Sunnah for reasons stated in judgment. These provisions cannot be retained and wotdd cease to have effect from 30th December; 1991. (P 75,77, 79) Nemo for the petitioner Iftikhor Hussai11 Chaudhry, and Hafiz S.A. Rahma11, Advocates.for the Federal Government Or. Fozal-i-Hussai11 Senior Legal Adviser for the Evacuee Trust Property Board. Dates of hearing: 25.3.1991 & 11.6.1991.

JUDGMENT

IBADAT YAR KHAN, J.--- This Shariat Petition was filed by Mufti Iftikharuddin on 15.3.1990. ft was presented in Court for preliminary hearing on 8th April, 1990 and although the petitioner was called absent, the petition was admitted to regular hearing with the following obscrvations:- "The petitioner is not pr�scnt. S.A. Rahman. who appeared on behalf of - the Evacuee Trust Property Board and find that the objection in respect of sections 8, 10 and 14 is prima-facie valid. We also took Suo-Motu notice of section 9. Let a notice issue to the Federal Government under Article 203-D (lA) of the Constitution. A public notice shall also issue." . A public notice was issued and notice was also issued to the Federal Government under Article 203-D of the Constitution.

76 National Law Reporter (NL R 1992 SD) Vol.

Mufti Iftikharuddin v. Fed�ral Government Ibadat Yar Khan, J. (F.S.C) right of appeal is provided against his decision. We have read the whole Act and examined it from cover to cover and noticed that not only the order passed by the Chairman have been granted complete immunity, but good care has been taken to provide them sanctity by barring the jurisdiction of the Court.

8.The Chairman is not only administrative and executive head of the Board but has been further invested with purely judicial powers. On the administrative side he is 'the Head of the Board with vast powers described in section 4 of the Act. On the judicial side he is the Original and Appellate/Revisional "Court• exercising unlimited jurisdiction. His powers under section 4 of the Act include "to supervise and control all evacuee trust property; to maintain and even dispose of .evacuee trust property; to buy new properties utilising surplus income or by taking loan after obtaining approval of the Government; t rtgage or lease any evacuee trust property with the prior approval of th � ral Government; to extinguish a trust or to wind up an institution which i pinion the object of which has wholly or partly ceased to exist; to order sealing of any evacuee trusr property in an appropriate case pending payment of the Board's dues; to undertake development programmes for increasing the productivity of agricultural land forming_ part of the Trust Pool and for enhancing to commercial value of an evacuee trust property; to invest money for social welfare of charitable purpose; to set up any industrial or commercial undertaking; to exercise official administrative control over offices attached to or under it; to appoint such staff on such terms and conditions as may be approved by the Federal Government; to prepare a scheme or schemes for promoting the objects of the Act."

9.With the powers stated above and with the involvement and dedication which an individual in this position is expected to employ in performance of these duties how can it be expected that this single individual would be able to keep his balance in disposing of disputes between the third parties and the Board. Can such an individual be expected to have a detached view while scrutinising highly sensitive and disputed questions of law and fact. May be that this individual is a super man and he can control and contain his zeal but that is 1101 enough. Justice should not only be done, but appear to have been done. Mere adjudication of a dispute is not enough. The litigant should, while entering the Court premises, hav feeling that his case is being appraised by a person, who enjoys the title of "shado of God on earth" and once the case is concluded both the parties should come oul wilh a feeling that justice has been done. In the present case the very fact that the Chairman would sit on the woolsa'ck and the adversary in the docks is enough l shake and shatter the confidence of the adversary in his impartiality. The Qurani Injunction is clear on the point that whenever there is a dispute between t parties and they fail to resolve it mutually, they should refer the dispute f adjudication to the Qazi/Judge.

Mufti Iftikharuddin v. Federal Government lbadat Yar Khan, J (F.S.C)

(b)requiring the discovery and production of any documents;

(c)requisitioning any public record from any court or office;

(d)issuing commissions for examination of witnesses;

(e)appointing guardians or next friends of persons who are minor or unsound mind;

(f)adding legal representative of deceased • applicants or claimants, as parties;

(g)restoration �f cases dismissed for default;

(h)substituting the names of l�e rightful claimants;

(i)consolidation of cases;

(i)any other matter which may be prescribed by rules under this Act.

(2)The Chairman and every officer appointed under this Act shall be deemed to be a court for the purposes of sections 480 and 482 of the Code _of Criminal Procedure, 1898 and any proceedings before the Chairman or any such officer shall be deemed to be a judicial proceeding within the meaning of sections 193 and 228 of the Pakistan Penal Code and for the purpose� of sections 196, 199 and 200 thereof."

5.The objections may be elaborated thus:-

(i)That no one should be a judge in his own cause;

(ii)That whenever a right is conferred on any authority whether judicial or quasi-judicial, at least one right of appeal should be provided against the order of that authority;

(iii)That in no case doors of the Courts should be closed by barring the jurisdiction of Courts.

6.These requirements go to the root of any judicial or quasi-judici;il proceedings in any system and have been completely ignored in the present case.

7.The Chairman of the Board, who sits at the appex of the triangle in the set Up of the Board, has been invested with arbitrary and extensive powers and no

78 NationalLaw Reporter (NL R 1992 SD) Mufti Iftikharuddin v. Federal Government Ibadal Yar Khan, /. (F.S.C)

12.Section 9 has also been noticed as un-hlamic in the suo-motu notice. section is in the following terms:- "No evacuee trust property shall be liable to be proceeded against for claim in any manner whatsoever in execution of any decree or order any other process of Court or other authority."

13.If the owner of the property had incurred any liability and a coll\p Court has decreed the claim, the claim must be satisfied by execution of decree. To defeat the claim and nullify the decree against the real owner of property would be nothing else but usurpation of rights of the decree holder. ,.:1.1��L.JIJIJel�li._,; l�I.J ,.�I""' � ljl..;_h,IA,a4J4 ��IJe l 1.fbt (\AA:f ,�1)" �J.J,.;

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14.It is difficult to imagine h'ow decrees of creditors can be defeated their execution rendered null and void. Surely the property exposed to execution of a decree neither belongs to the Government nor to the Board. competent court has, after examining the claim of the plaintiff, passed a de the decree must be honoured and executed, Section 9 takes away the powers f court and on the face of it, it cannot be sustained.

15.Sections 8,14, 21 and 9 have been discussed above. Section 10 has been challenged, which is in the following terms:- "10.-(1) An immovable evacuee trust property,- (a)if situated in a rural area and utilised bona fide under any prior to June, 1964, for allotment against the satisfaction verified claims; and (b)if situated in an urban area and utilised bona fide under any for transfer against the satisfaction of verified claims in res of which Permanent Transfer Deeds were issued prior to J shall be deemed to have been validly transfened by sale to the Settlement Commissioner, and the sale proceeds thereof shall be imbursed lo the Board and shall form part of the Trust Pool.

(2)If a question :;.rises whether a transaction referred to in section (1) is bona fide or not, it shall be decided by the Chairman w

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10.Clothed with all the civil and criminal powers this high functionary has t,een authorised to play dual role of party as well as of a Judge. Whether the property is an Evacuee Trust Property or not is a complex question. Its determination would depend on careful interpretation of Trust Deeds and other documents of title and the law applicable to these transactions.

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11.The Chairman, with one stroke of his pen would be cancelling an allotment or annulling the transfer of the property acquired through purchase or otherwise, thus depriving people of their vested rights acquired through proper sale transaction or even by allotment in their favour passed by the competent authority under laws of land. There can nothing be more offensive to the concept of clean justice· than to confer such powers on an individual and then gra.nting immunity to such orders. Not only that the aggrieved party has no right of appeal against this order even remedy by way of a suit has been taken away from him �section 21). The normal courts have been barred from granting any injunctions or ISSuing any process or to examine the validity of the order when a rightful owner with secure title fully protected either by an instrument of sale or an allotment Order in his favour is being hounded out by the Chowkidars of the Chairman.