Zaib Noor & others Vs Adjutant General Pay & Pension Branch, GHQ, Rawalpindi & others

e)

.IUDGMENT SHEET

IN I'IIE PIISHAWAII HIGH COUITT,

AI}BOTTAI}AD I}ENCH.

(Judicial Department) C.lL No. 407-Al202l

Zaib Noor & others (Petitioncrs)

vs

Adjutant (lcncral Pay and Pension Branch, GHQ Itawalpindi & othcrs. ....".........(Respondents) l)rcscnt: Mr. 'l'abaruk 'l'hakur. Advocatc lor thc pctilioncrs.

Mr. Jarnshcd Ali. Advocatc lbr rcspondcnts No. I &2.

Ms. Anccla Shchzadi, Advocatc lor rcspondcntsNo.3 &4.

l)atc of hcaring: 13.03.2023

JUDGMENT

wro AII AIIMAD, .I.- 'l'his order is directcd to dispose o{' the petition filcd by petitioners, undcr Scction I 15 of Codc of'Civil l'roccdurc, 1908

2.I)ctitioncrs in thc capacity of parents of Shahccd Captain lrazal Alam, brought two scparatc suits against rcspondcnts, claiming that being lcgal heirs ol Shahccd captain, thcy had been cntillcd to his lcgacy alicr l.ris Shahadah, in the shapc of pcr-rsion grant as wcll as housc, allottcd aL

Gulshan-e-Johar, Karachi. 'l'he suits wcrc consolidatcd by thc lcamcd civil Court. I{cspondents havc contcstcd thc suils by filing their writtcn statcmcnt. Lcarncd civil Court lramcd issues and ofl'cred opportunity to partics for producing pro and contra evidence. Upon conclusion of evidencc, learned Civil Court dismisscd both thc suits, vidc judgment dated 29.10.2020. Appeal Illed by the petitioners, challcnging judgmcnt and decree of leamed civil Courl was also dismissed by leamed Additional Dislrict Judgc-ll, Abbottabad,, vide judgment dated 28.09.2021. Irccling aggrievcd of borh the judgrncnts, pctilioncrs havc approached this Court through Civil Ilcvision in hand with the praycr:- "On thc acccptancc of inst:rnt revision pclilion, judgmenl and decrce passed by lcarned Additional District Judge II, Abbottabad datcd 28.09.2021 in civil appcal No. 67113 of 2020 and the consolidatcd judgmcnt and dccree in a civil suit No. 05/l of 2016 and 570/l of 2017 dalcd 29.10.2020 passcd by lcarncd scnior civil judgc .ludicial-I, Abbottabad nrav kindly bc sct aside and decrcc rnay kintlly bc passctl in suit No. 05/l of 2016 arrd 57011 of 2017 in favour of pclitioncr/plainlil'l' against con tcsting respondcnts/ defcndants No. 3, ,l with cost throughout."

3.I have heard arguments of leamed counscl for the partics and perused thc record.

1.Perusal ol record revealed that plaintiffs/pctitioncrs had claimed right of their inhcritancc in thc bcncfits rcccivcd by widow ol Shahccd Captain lrazal Alam. 'fhe rcliefs in thc plaint wcrc sought in rcspcct of claiming all the bcnefits reccived by the widow of Shaheed, which included certain monitory benefits as well as an apartment at Gulshan-e-lqbal Karachi. Both the Courts below have declincd thc reliel as prayed for on the ground that thc bencfits rcccived by widow ofthe Shaheed captain had not bccn lalling in thc dcfinition of Tarka (legacy).

Lcarncd appcllatc Court in this respcct has also rclicd on thc judgmcnt oll Shariah appellate Bench ol the august Supreme Court of Pakistan in the case of " l4/t(uqi I ltrkoomat-e-Ptkistun Vs, Awamunnus" rcportcd as "PLD l99l SC 73l".ln said judgmcnt, a touchstonc had bccn providcd for discerning which bcnc llts of a dcccascd cmploycc may be trealed as a grant or donation by govcrnrnent and which ol such bcncllts rnay be treatcd as 'farka (legacy) ol the dcccased. In this respcct, a broad principle has been

laid down that all thosc emoluments, which the deceascd ernployec is entitled to receive bcfore his rctiremcnt or in his liIt, including those to which hc can lay a claim in his lifc, would be treated as lcgacy or 'l'arka ol the deccased. Rest of the amounts or benefils, which the government or his employer gives him, as a grant, donation, gift or family grant, same should bc rcgulated accord ing to rules of the rcspcctive departmcnt which is granting benefit in the case.

Itclevant cxccrpts of said judgment are also rcproduccd hcrc under for rcady reference;

7y"!7{or,11t at tJ'* G Li shl Jv L Lr' Lt d" It z 0 rlcUt6 lt r tUa vt 4 { tt r.:s' z 7 e, x )tqt [ { 4r! 6 ; ttftlr 6 rdA (t : 155o rt,$tuttr *u I t,c : ( a, * d A *{ 6 t-u L7'i t L7 g J l.fi , 6./ )v 4,* tJ :tt ut [r :8J"4.1, 7ol 3 tl :t)VrL)rr i Lcr, v -rt V{,d,* A z i ltt ri,16./ )v {vi 6 I Lr1 t,t Sbr ttt,{; L &r J, P o,',1' b,.d' * ,*W(s Y JP {r 4*,t -f 7 au TJn t ol t - t,

1:rt Lt: L.lifit,v )tL c)t,"t2tt Lb LV nb * (d tt eilLL G b Llt,Ldal4 Lqn A:t tt { :t }r t)1 l:$ { 6: tf tlvr'r,V ri,tr v i 11y'7 o* LSi r$, JQ-Unrf d,,/ {tl 1 LgP Lu d tt 2t a/r.t rt.:;tl$:r st

;' -fW, ? / dtJ',')V { L(t L.t o',, fiF. dv. y J r,r, 7d *d -{ c c,.ty,.i {6:t b 4, av nd -16r Lt r or r,

u,lt v'i -o /fis gt e* 1u /A3 /1:tt pnr 6 grt 1

A,t d 1 L z- : Si, - F / g/! { utyct :L -(. srt "rv Pdt?{gtf +""rr",ttl'${1i,9,nt,61fi5r./r-l

*u & Jv t&t l,>-6,! 1: t {-,.f -f 7c,, d a - o} | r u

&o1.,r tP. z.a-u {t c-fr :4{r o i., *d 3 Jr It -7;vy,/$ ( t,1, g1 * eP' t:r / 1;tL ,l',f ,f +Jv.nd$tf &)LrG)EutJ?*oz &t * t! i,J, O,tnrt v{,.1 J;t:tr lSi, {b -og -t, +t{ liftlt,,qt t!: }, tl: ue : {. r{-r,/ t{+ t /,{, L,9 +lw U/,# {,*,,.q:i,i td: 4 ..fi t) 1: 7.r,e;lr <- 4 { lr,4 L ;f tf ,r a t! u *, +9 t

-" -.f ,,r* LOu ! sgt,tt:10 L,,1t".lau!

'l hcrc arc also 5 othcr judgmcnts o1'this

Court as wcll as othcr honourable High Courts but thc basic principle has bcen laid down in above cited judgrrcnt, which havc never been authorilativcly deparlcd lrom. Courts below had also rcliccl r-rpon saicl .jLrclgrncnt bLrt had no1 lurther vcnturcd to cxplorc whcther any of the benefits rcccived by widow of dcceased had been falling in 'l'arka? So far as monitory bencfits, received by the lady are conccrned, same could not be shown to have been cntitlemcnt of Shaheed Captain Fazal Alarn in his lili time. Nonc of thosc amounts could bc cstablishcd to bc lalling in the definition o1 'l'arka and vicw ol thc lcarned two coufis below in this rcspcct have bccn based upon proper apprcciation ol' cvidcncc

6.One aspcct of the case, howcvcr,

required interference of this Court and that was lclatcd 1o cntitlcrnent of pctitioncrs in the apartmcnt rcccivcd by thc widow oll Shahced Captain. It is imporlant to bc notcd that for allotment of said housc/apartrncnt, rcgular dcductions uscd to be cflcclcd liom salaries o1' thc Shaheed Captain, whcn hc had been scrving thc nation in his lormcr capacity as an army officer. Before embracing Shahaclat, a total sum ol Ils. 156,000/- has bccn deductcd lrorn salary of thc dcceased, as discloscd by Muharnmad Itiaz, Scnior Clcrk, ACM, GIIQ Ilousing l)ircctorate, whilc dcposing as DW-1. IJe was cntitlcd to lay a claim thereon in his life timc.

IIad he not embraced Shahadat, he would have got this apartrncnt; might be bclore his retirement. I Iis right to claim this apaflmcnt or a similar one, was vcly rnuch availablc to him during his servicc. Such a bcncfit givcn to a Shahccd cannot be oustcd lrom thc dclinition o1' 'l'arka. l{ationale of judgmcnt of IA/$fuqi llukoomat supra rnay squarely be applied hcrc.

1 Anothcr qucstion or dclcnse thal has bccn raised by the defcndants, was that the policy or rules of thc de partment have not been allowing such distribution in thc lcgal hcirs. In this respecl, statcmcnt ol-Muhar.nmad R.iaz, Scnior Clerk, ACM/GIIQ I Iousing I)ircctoratc, Askari-I, Narrian Road, Abbottabad rccorded as DW-1, may be reproduced hcrcundcu

/ L rq ;p ctt l -, i. 7 z, td,.t I a{ og-t I tT / tt

Army -<- IIxDW-t I t ! t -gx t./ Ut* rk -k O, ->Q, :t c-- i $ :0 r) t I 41b, Llutcs ,>., P. i <- : t) tt o i

? tr, 4 s! S t,r -b Lbcnc t1rs;r t 7 ) 1) L ;r e,S t I *:q r Cl )tt ii c,, f I L x : : t):t t:t oi $:O f orA rrt L gx tJ r: et c,., r,! L * : ) )t -> 12 ) t t L x i 6 :V - L :c t b t) o t

/- /1rt; 7,, 4i,, L x, r.p A s o r o t f { 4 ) t,.,,r,r3- so / t.,W -{ t ,t:/: c- e,bt7 ,.8, o4 st ,>-ts" d-t i f 1)r: Lv g: .- +V { /T * t!t; tl /rocpartmcnt Coro ,,N,.l -a-Y,/allotmct J.lbt Lnomination form -/Cn.o nr<i..-.- j ltl:ejtgc.-t.,st c.-tb6.,/ , {oroer 1 { li -c- co,fapprrru".-,,f 7 15,t, i .-c l.q }i i-rf Norr incc Fornltot -f <-Ytrf,US rlV lcgal

Lvg: c.-;t",,1->Qcaptain4t ft !-,1j4 /ncrs -7 J v t).0.;9 :;v or: t! t i /,,tNomination Formdt; r

*i 1-tlx Dw-t 12 ! t ttn ?/ r.b I iu, t! ,.1 Sc*icc (r,/ri'r)compulsory group insurance /i olNoK:78.- j.) t! fi t ttotr,"nt I gfl I lBcncrt ,! f I O.A X tr,rl cs,,r rpol icy 6,r L -9 z--.d - 7 iq tL'

szlAllotmcntgi e dU< /NOI<L| : Lb { : 7N c-*-l " -?dVO tt,/ J. -7tltansfcr 1fi :t plot 8 'l'oday, lcarncd counsel representing Adjutanl, Pcnsion Ilranch, GIIQ also produced copy oli their policy in this regard which bcars caption as "llcrcaved Iiamilies Scheme". It has also Iaid down the following policy parameters;

a, Ilouse is altd tcs the widow and children of the deceased offr. Accordingly name of the widow and children is mentioned in the Almt Ltr.

b. Permission for sale/tfr is given, after the children ofthe deceased offr attain the age of 2I vrs.

c. NOKs of suicide cases are not entitled for almt of house under "BFS" however conlribution rtf deceased offr will be reJunded to NOKs.

d. Dispule cases are decided by Dispute Commitlee and share in the house is distr after oblaining gr facls through DASB and

MI.''

9 When askcd, lcarncd counscl reprcsenting the Adjutant (ieneral,, replied that it was a policy devised lor regulating claims ol the bcrcaved lamilics. We noted that said policy was

not having a lorce ofstatute or rules lramed under a statutc. It was neither primary nor secondary law.

On thc othcr hand, law of Shariah is supreme law of the land undcr the constitutional command Articlc 2-A of the constitution has been promulgated, making objective resolutions as substantivc part of thc constitution, which provide that;

"2A. the objectiztes Resohttiort to form part ,f substantiae prcaisions.-TLLc principles and prouisions set out in the Obiectittes Resolufion reproduce.d in the Annex are herahy mnde substLtntizte port oJ tlrc Constitutiort nntl slmll luae effect accu'dirtgly."

Ob jcctivcs I{esolution had also

plovidcd following two guidclines inter-alia, for futurc guidance ol constituent Assembly of the newly crcatcd statc;

"Whcrcas sovereignly over the entire universe belongs to God Almighty alone ctnd lhe aulhorily which IIe has delegated to the State of Pakistan through its people .for being exercises

within the limits prescribed by Him is a sacred trust;

IVhereas The Muslims shall be enabled kt order their lives in the individual and colleclive spheres in accord with lhe lectchings and requiremenls of Is lam as set oul in the Iloly Quran and the Sunna;"

Sirnilarly, articlc 31 of thc Constitution ol' Islamic ILcpublic of Pakistan provides;

3 l. Islamic way of ltfe.-(l) Steps shall be laken to enable the Muslim.s of Pakistan, individually and collectively, to order lheir lives in accordance with the fundamental principles and bas ic concepls o/ Islam and to provide facilities whereby they may be enabled to understand the meaning of life according to the ltoly Quran and Sunnah.

(2)The State shall endeavor, as respects the Muslints of Pakistan,-

(a)to make the teaching oJ the I loly Quran and Islamial compulsory, to encourage and facilitate the learning of tlrabic language and to secure correct and exacl prinling and publishing of the Iktly Quran,

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

(c)to secure the proper organization of Zakat, ushr, auqa;f and mosques.

Articlc 227 of the Constitution of Islamic Itepublic of Pakistan, 1973 has mandated all statc authoritics particularly legislative authority (be it primary or subordinate legislative authority) to bring all laws in conlormity with the injunctions o[ lslam, as laid down in IIolly Quran and Sunnah.

Said article is reproduccd hereunder for rcady rcfcrcncc;

" 227 . Provisions relating to the Holy Qulan and Sum-rah.-(1) A11 existing laws sl.rall be brought in conformity rvith the Injunctious of Islam as laid clown in the Holy Qurau and Sunnah, in this Palt referred to as the Injunctions of Islam, and no 1aw shall be enacted wl-rich is rePugl"lant to such injunctions.

Explanation.-In the application of this clause to the personal law of anY Muslirn sect, the expression "Quran and Sunnah" sha1l mean the Quran and Sumrah as irrterpreted by that sect.

(2)Effect shall be given to the provisions of clause (1) only in the manner provided in this Part.

(3)Nothing in this Part shall affect the personal laws of non-Muslim citizens or their status as citizens."

10.Section 02 of Shariah Application Act, 1962 also provides that in the matter of inheritance of a deceased Muslim, the governing law shall be the Shariah. I Ion'ble Supreme Court of Pakistan, while giving its judgment in the case of "Muhammad Saleem Ullah snd others Vs.

Additional District Judge, Gujranwala and others" rcported as "PLD 2005 SC 511", has also hcld that law of Shariah bcing suprcmc law, was not subordinate to any othcr 1aw or judgment of any court and any such law or judgment, if found in conflict or not in consonance with the law of shariah, would not create any bar in the way of making a decision in accordance with principle of Shariah. 'l'hcrc thus rcmains no doubt that il some benetlt is lound 1o be 'l'arka of the deceased, then all thc lcgal hcirs of dcccased would be entitled thcrcto, as ordaincd in Shariah. Petitioners have also cxamincd Mufti Saced ur Rchman (PW-3) who

had also produccd a Iiatwa showing that any.thing the deceased had been entitled to during his 1ife1ime, (particularly, for which deduction has been madc during his lifc timc), same would fall in dcfinition of 'I'arka and parents of thc deceased would bc entitled lor thc samc. IIe was also cross- cxarnincd but it could not be cstablished that view of thc Mufti was in contradiction to Islamic injunctions in this regard.

11.Onc ol the grounds due to which,

lcarncd two courts bclow havc non suited the plainti liflpctitioner was that of bar contained in law ol' limitation. According to thc two coufts bclow, thc suit had bccn barrcd by law of limitation. While giving said findings, the two coufls below have lailed to realize that claim of the petitioners in Courts bclow had bcen in respect of amount ofrcnt coming liom thc apaflment at Karachi which was a rccurring causc. It is a different question that a pcrson cvcn in casc of recurring cause, like receipt of rent, would only bc able to ask lor rent of three ycars, according to Article 1 10 of Limitation Act, 1908. 1'o the permissible extenl, prayer of the

petitioncrs may be considered. Besides, plea of limitation simpliciter cannot be invoked in cases of inheritancc and that also against co-owners, who may claim scparation of thcir shares in the devolvcd prcmises any time and seeking of said scparation of respectivc share would also be recurring causc of action.

12.Defendants have not raised objection of jurisdiction at any point oltime during the entire litigation, but this court has before it a partial claim ol' petitioners/plaintills in respect of an apadment which was situatcd outsidc jurisdiction of the Civil Coufl, from whosc judgrnent the instant petition is arising. Partics might not have contested jurisdiction of the civil courl because contesting delbndanls No. 3 and 4 have been residing in the jurisdiction ol civil Court at Abbottabad. 'I'hc mattcr in issuc had also bccn not exclusively related to apartmcnt situatcd at Gulshan-c-Johar Karachi, bu1 a parl of thc claim is also raised in respect of part of rent flowing therefrom besides the other monitorv benefits rcccivcd bv the dcfendants No. 3 and 4. Section 16 ol Civil Procedure Code, 1908

- l5-

has providcd for regulating territorial jurisdiction.

Said Section being relevant, 1S reproduced hereunder for ready reference;

"I 6. Suits to be instituted where subject-matter situate. Subject to the pecuniary or other limitations prescribed by any law, suits: - (") for the recovery of immovable property with or w ithout rent or profits ,' (b) for the partition of immovable property ;

@ fo, foreclosure, sale or redemption in the case of a mortgage of or charge upon im.movable property ;

(d)for the determination of anY other right to or interest in immovable property ,'

(e)for compensation for wrong to im.movable property ;

(/) .fo, the recovery of movable property actually under distraint or attachment:

shall be instituted in the Court within the local limits of whose jurisdiction the property is situate t[or, in the case of suits referred to in clause (C), at the place t,,here the cause of action has wholly or parrly arisenJ .

Provided that a suit to obtain relief respecting, or compensation for wrong

to, immovable property held by or on behal/'of the defenclant may where the relief sottght can be entirely obtained through his personal obedience, be instituted either in the Court within the local limits of who,se jurisdiction the property is situate , rtr, in case of suits re/brred to in clause (C), at the place where cause of action has wholly or partly arisenl, rsr in the Court within the local limits of whose .jurisdiction the defendant actually and vol.untarily resides, or carries on business, or personally works for gain. "

Suit in rcspcct ol relief prayed for in rcspcct of imrnovable propcrty, should no doubt bc institutcd at the placc whcrc subject mattcr is siluatcd but thc proviso has also bcen carving two cxccptions. Whcrc thc suit is brought for obtaining a rclicf rcspccting immovable prope(y or compensation for wrong to such prope(y, held by or on bchalf of a dcfcndant, it may be institutcd in thc ltrllowing colrr1s;-

l. The court within local limils of wltose jurisdiclion lhe properly is situaled, l]. In case the suil referred lo in clause (c) to Section 16, the courl where lhe cause rt/ oction is wholly or parlly ar6en, or

-tt-

C. Courl witltin local limils rtf whose jurisdictbn, lhe deJbndant aclually or voluntarily resides or personally works for gain, provided the relief may be claimed as a resull oJ personal obedience of the defendant.

t3. In othcr words, if a person seeks somc rclicf in respect o[ some immovable property, whcrc rclicf is ol such a naturc that it rnay bc obtaincd as a rcsult of pcrsonal obcdicncc of dclbndant, thcn plaintilT has bccn given a choicc cithcr to institutc sr.rch suit in thc courl whcrc the movablc propcrly is situated or thc Court where dcfcndant actually or volunlarily resides or carrics on br-rsincss or pcrsonally works lor gain. I)clcndanls No. .l and 4 havc not raised any spccific objcction to tcrrilorial jurisdiction of thc Civil Court but thcy havc raiscd a prcliminary objcction ln para-7 lhal thc court has not been having jurisdiclion, without spccifying that they havc bccn raising objcction rcgarding territorial jurisdiction of thc court.'l'hcy havc not fi1ed any application undcr Ordcr-VII l{ulc-10 CI'C. Itclicl'praycd in suit in hand, has bccn in rcspect of propoltionatc lcnt rcccivcd by dclcndants No.3 and 4 who rcsides rvitl.rin tcrritorial jurisdiction of civil Court at

Abbottabad. 'l'o said extcnt, the relicf may be obtaincd lrom Civil Court at Abbottabad. but il'the plaintill or pctitioncrs dcsirc to separate their share by actual partition or aiming to obtain a similar rclic[, thcn plaintiff would havc to seek said relief lorm cornpctent court in whose jurisdiction the irnmovablc propc(y is situated.

t4 So lar as making of nccessary corrcctions in rccord ol defondants No. 1 and 2 is conccrncd, it is also apparent from reading their writtcn statement, that said defendants have not raised any objcction to tcmitorial jurisdiction of the Civil Court at Abbotlabad. Ilvcn otherwisc, thcy arc supposcd to dclivcr monitory bcncfits of Shuhada at thcir houscs. l)clcndants, having received all the bencllts a1 Abboilabad, alter withdrawing it fron.r National Ilank Ilalakot llranch, Mansehra. Same havc bccn withdrawn by dcfendants No. 3 and 4, who havc bccn living at Abbottabad. 'Ihe civil Court at Abbottabad cor.rld not thcrclorc, bc dccrncd divcstcd of jurisdiction to hcar this case. Ilvcn otl'rcrwisc, objcction as to jurisdiction is supposcd to bc raiscd at thc earliest and when it is no1 so

raised, thcn it would be dcemed to havc bccn waivcd, according to Section 2l of CpC which rcads as;

2 1. Objections to jurisdiction. No objection as to the place of suing shall be allowed by any appellate or revisional Court unless such objection was taken in the Court o-f first instance at the earliest possible opportunity and in all cases where issues are settled at or before such settlement, and unless there has been a consequent failure of justice.

15.In light of what has been discussed above, thc instanl CI{ is allowcd to the effcct that plaint of plaintifls shall stand parlially decreed to thc cxtcnt o1' grant of preliminary dccrec Ibr rccovcry of rcnt according to their proporlionate sharc, rcccivcd by rcspondcnts No. 3 and 4 for the pcriod starting lrom threc years prior to institution of suit, till the tirne the aparln.renl remains joint, at a ratc lo bc dctcrmincd by thc civil Court in the proccedings lor grant of final dccrcc. I{cgarding othcr rclicls, praycd lor in rcspcct of thc iu.r movablc propcrty, likc scparation of their sharc

!t _)n_

by way of partition or salc, the pctitioners would bc al libcrty 1o approach competent civil court in whosc tcritorial j urisdiction, the apaflme nt 1S situatcd, which may of-course decide thc matter in accordancc with law. Similarly, petitioners/ plaintills arc also hcld cntitlcd to the decrcc lor dcclaration to thc cl'fcct that respondcnts No. 1 and 2 havc wrongly cxcludcd them lrom thcir due share in inl.rerilance whilc allotting apartment to widow and daughlcr of Shahccd Captain Fazal Alam, cxclr-rsivcly. I{cspondcnts No. I and 2 are thcrclorc bound to make ncccssary corrcctions in thcir rccold.

Heurd u,td Annqunced on Dt: 13.03.2023 I'repared und signed on

JUDGE