Mrs. Noor Aisha vs. Federation of Pakistan through Secretary, Cabinet Division and another .

IN THE FEDERAL SHARIAT COURT

(ORIGINAL JURISDICTION)

PRESENT

MR JUSTICE IQBAL HAMEEDUR RAHMAN, CHIEF JUSTICE

MR. JUSTICE KHADIM HUSSAIN M. SHAIKH

MR JUSTICE DR SYED MUHAMMAD ANWER

SHARIAT PETITION NO. 06/1 OF 2023

Mrs. Noor Aisha widow of late Ghulam Qadir Khan, Resident of Village Pind Sultani, Tehsil Jand, District Attock.

Mrs. Nusrat Qadir wife of Ghulam Abbas, presently resident of House No.4/6-C, Street No.24, Sector G-7/2, Islamabad.

PETITIONERS

VERSUS

Federation of Pakistan through its Secretary, Resident of Federal Secretariat Cabinet Division, Islamabad.

Ministry of Aviation through its Focal Person Pension, resident of Metrological Department, MET Headquarters, Sector 11-8/2, Islamabad.

RESPONDENTS

Counsel for Petitioners: Mr. Taj Muhammad Khan, Advocate. Date of Institution: 04.05.2023 Date of Hearing: 11.09.2023 Date of Judgment: 12.09.2023

JUDGMENT

DR. SYED MUHAMMAD ANWER. I: Through the instant Shariat Petition, Petitioner No.1 namely Mrs. Noor Aisha widow of late Ghulam Qadir Khan, prays that she is entitled to receive her share from pensionary funds as Tar/ca of her deceased son i.e. late Dr. Azmat Hayat Khan, who was a civil servant in the Government of Pakistan and died during the tenure of his service as Chief Meteorologist / Director in the department of Respondent No.2.

2.In support of her prayer, Petitioner No.1 has relied up the judgment passed Jgait- by the Supreme Court Shariat Appellate Bench in the case titled "1/1

Petition No.06/1 of 2023 Page-2

e-Pakistan v. Awamunnas" [PLD 1991 Sc (Shariat Appellate Bench) 731].

Furthermore, the petitioners are also seeking direction from this Court against the respondent departments to ensure implementation of policy in regard to calculation of pension and other emoluments of deceased person in order to entitle the parents of a deceased person, if they are alive, to get their due share automatically.

The Court heard the preliminary arguments advanced by the learned counsel for the petitioners and confronted him on specific point, which has already been decided by this Court in numerous judgments, that the pension of a person does not fall within the definition of "Tarka" as it is governed by the departmental Pensionary Rules of that department. This question recently has also been reiterated by this Court in the case titled "Zartashi Nadia and others it Federation of Pakistan and others" (Shariat Petition No.09/I of 2021) based on the view of the Supreme Court Shariat Appellate Bench opined in a case reported as "Federation of Pakistan v. Public at Large" (PLD 1991 SC 731), which is the same case upon which the petitioner has relied upon solely. For ready reference, the relevant portion of our judgment passed in Shariat Petition No.09/I of 2021 supra is reproduced as under:

"5. pensionary benefits do not fall within the definition of Tarka nor can be treated as 'Tarka'. The law stands settled that for the purpose of entitlement of pensionary benefits, the Employer is at liberty to define the family. Similarly, the question of entitlement to gratuity has also been decided by the Hon'ble Shariat Appellate Bench of Supreme Court of Pakistan in the case titled "uUi Iç?eila jti45 0111.3" (PLD 1991 SC 731j"

Similar matters have also been decided categorically in a number of judgments passed by the superior courts of the country, including the Supreme Court of Pakistan in case titled "Ameeran Khatoon vs. Mst Shamim

Shariat Petition No.06/I of 2023 Page-3

Akhtar" (2005 SCMR 512) as well as by the Islamabad High Court in a recent case titled "Farhat Nigar v. The Auditor General of Islamic Republic of Pakistan etc." (2018 CLC 392 Islamabad) and Peshawar High Court in cases titled "Mst. Riffat Yasmeen v. Hassan Din & another" (2014 CLC 126 Peshawar) and "Mst. Mehmooda Begum v. Zuhair Ahmad, etc." (2013 CLC 1834 Peshawar).

In addition to above, the petitioners have failed to identify any law or rule to be against the injunctions of Islam as laid down in the Holy Quran and Sunnah, which is the constitutional requirement to invoke the jurisdiction of this Court through a Shariat Petition under Article 203-D of the Constitution of Islamic Republic of Pakistan, 1973. Therefore, a Shariat Petition without mentioning any law or Rule, which is considered as against the Holy Quran and Sunnah by the petitioner, is not maintainable before this Court. In addition, from the contents of the instant Shariat Petition as well as from its prayer, it is very much clear that the petitioners are seeking a relief in personam, which is all together out of this Court's jurisdiction.

In view of the above, the instant Shariat Petition being not maintainable was dismissed in limine vide short order announced in open Court on 11.09.2023 and these are the detailed reasons for the same.

(JUSTICt DR. SYED MUHAMMAD ANWER)

JUDGE

(JUSTICE IQBAL HAMEED R RAHMAN)

CHIEF JUSTI

(JUSTICE KHADIM HUS AIN M. SHAIKH)

JUDGE

Khania/4