P L D 1989 Federal Shariat Court 8 (PLP)

KAMAL MUSTAFA BOKHARY J.‑‑This Court in Suo Moto exercise of its powers for examination of Taws considered Section 3 of the Members of the National Assembly (Exemption from Preventive Detention and Personal Appearance) Ordinance (IX of 1963), and vide its order, dated 6‑7‑1983 passed in S.S.M.No.196/83 found that protection from personal appearance before Civil or Revenue Court may be given and if evidence of the Member is required it can be recorded on commission Section 4 of the Ordinance was ordered to be omitted. The Shariat Appellate Bench of the Supreme Court allowed appeal against it on account of omission by this Court to support reasons by making references to the Holy Quran and Sunnah and their principles. The case was remanded to this Court for fresh decision in accordance with law.

2. After remand we have heard learned counsel for the Federal Government and for the Provincial Governments as well as the Juris‑consults. Hafiz S. A. Rehman appearing for the Federal Government submitted that provisions of exemption from appearance and stay of proceedings before the Civil and Revenue Court in Sections 3 and 4 of the Ordinance are not contrary to the Holy Quran and Sunnah of the Holy Prophet (p.b.u.h.). The learned Assistant Advocate‑General, N.W.F.P. contended that only personal appearance be exempted and the Member can appear through Agent and the Court can proceed with the matter. Dr. Muhammad Tufail Hashmi of the Allama Iqbal Open University, Islamabad, and Dr. Illahi Bakhsh Jarullah of Islamia University, Bahawalpur, have argued that in an Islamic State all citizens are equal in law and the Islamic justice demands that no citizen be given a concession of which the other citizen feels deprivation.

3. Section 3 of the Ordinance provides that no Member shall be required to appear in person in any Civil or Revenue Court during a Session and for a period of 14 days before and 14 days after the Session. Section 4 thereof says that no Civil or Revenue Court shall proceed, during a Session and for a period of 14 days before and 14 days after the Session, with any matter before it in which a Member is a party unless exemption is waived on application to the Court by the Member concerned.

4. The concept of equality between human beings is the corner stone of Islam. The Holy Quran made the concept very clear and left no ambiguity that all human beings are equal in the eye of law and there is no difference between them except for their piety. Al-Hujurat 49: 13, Al-Nisa 4: 1, Younus 10: 19 refer. The Holy Prophet (PBUH) elaborated the idea of equality of human beings in many traditions, one of which is that all mankind is equal like teeth of the comb. There is no preference for an Arab over a non‑Arab except for his piety. Kindly see Musnadul‑Imam Ahmad Bin Hambal Vol. V P.111. On another occasion the Holy Prophet (PBUH) said that Allah had abolished by Islam the arrogance and pride of Jahalia and had finished their attitude of taking pride in their fore‑fathers because human beings are off‑spring of Adam and Adam was created by earth, verily the noblest of you before Allah is the most God‑fearing of you. (Islam Ka Faujdari Qanoon by Abdul Qadir Ooda, Vol. I, page 27). When the Holy Prophet (PBUH) deputed Hazrat Ali to Yamen he was instructed to give preference to a commoner over a respectable and to a weak person over a strong one (Sunan Kubra by Bahaky 10:134) and that while rendering justice treat your near and dear alike with strangers (Kanzul‑Amaal 13:174). The Holy Prophet (PBUH) on many occasions offered himself to be avenged. Sunan Al‑Nisae Al Quesamat Vo1.8 page 32 refers. As such no person can get preferential treatment in Islam.

5. In the matter of administration of justice, Surah Al‑Nisa, Verse 135 requires that justice be rendered regardless of the status of the parties before the Court. Similar provision is made in the same Surah, Verses 42 and

58. In Surah Al-Baqra Verse 282 it is provided that witnesses cannot refuse to appear in Court whenever they are called upon to do so. There are Ahadith in support of it. In a Hadith stated by Hazrat Sumra, the Holy Prophet (PBUH) commanded that whenever dispute between the parties is brought before the Court, the party who refuses to appear be deprived of its rights (Al‑Haisami Majma‑ul‑Zawaid, Vol. IV page 198). Hazrat Umar, Hazrat Usman, Hazrat Ali when Caliphs personally appeared in Court in their civil disputes. (Kanzul Amaal Vol. V page 838, Ibne Kasir Al‑Bidaya Walnihaya, Vol.VIII page 4, Al‑Bahaky‑ Al‑Sunan‑ul‑Kubra, Vol. X page 136). Therefore, we are of the view that no preference can be given to a party before the Civil or Revenue Court.

6. In Islam a person can be forgiven for his failure to perform Huqul‑Ullah but with respect to Huquq‑ul‑Ibad a person must either perform it or obtain permission of the person whom he owes the rights so much so that even prayers can be interrupted for attending to Huquq‑ul‑Ibad. If a person is busy saying his prayers and his parents need his help he is required to attend to it first. In the same manner if a person wants his help as a result of fall from the roof of his house or fire taking place he has to leave his prayers and rescue the person in trouble. If somebody commits the theft of more than one dirham at a time when he is saying his prayers, Islam allows him to leave his prayers and search for the thief. If a woman is busy in saying prayers and feels smell of the burning of her food, she can discontinue her prayers. If a non‑Muslim makes an offer to embrace Islam the person is required to discontinue his prayers. (Al‑Fatawa‑al‑Hindia, Vol. I, page 109, Fatawa Alamgiri, Vol. I, page 174). The attendance and presence of a Member of the National Assembly on every day of the meeting is not compulsory. Under Article 64(2) of the Constitution of the Islamic Republic of Pakistan, 1973 a House may declare the seat of a Member vacant if, without leave of the house, he remains absent for forty consecutive days of its sittings. We often hear of insufficiency of the quorum in the meetings apparently for the absence of Members for some reason other than attendance of Court. The purpose in granting exemption from personal appearance before a Civil or Revenue Court and provision for stay of proceedings against a Member of the National Assembly is to allow him to sit in the proceedings without interruption. The personal appearance of a litigant before such a Court is not always necessary. A litigant can appear through an agent and evidence can be recorded on commission in the absence of a Member from the Civil or Revenue Courts. In view of the above, we hold that the provisions in Sections 3 and 4 of the Members of the National Assembly (Exemption from Preventive Detention and Personal Appearance) Ordinance IX of 1963 as amended up‑to‑date to the extent of personal appearance of the Member and stay of proceedings during a Session and before and after 14 days of any Session if the Member is a party is repugnant to the injunctions, of Islam. Therefore, we order that Section 4 of the Ordinance be omitted and section 3 be amended to allow exemption on application of the Member before Civil or Revenue Court subject to the discretion of the Court. The amendments in Ordinance IX of 1963 as directed shall be made by the 10th day of April, 1989 and on the expiry of said date the above objectionable provisions shall cease to operate as law. No objection can be taken to any other provision of said Ordinance. A.A. /438/FSC Order accordingly.