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(ii) that judiciary can neither declare any of the provisions of the Constitution under which it is created nor the acts validly taken thereunder, as ultra vires and void, because this is not a part of the functions of the judiciary namely the function of the interpretation of laws, to strike down the very Constitution itself or acts taken thereunder. Similarly law is to be made by the relevant Legislature and not by courts whose sole duty is to decide a lb coming before it in accordance with the law with which the Constitution directed it to be decided. For changing one system or pattern of law to give place to another system or pattern the recourse only is political and not the machinery of law Courts, because Courts as already stated simply deal with and perform the function of adjudication and not of enacting or promulgating laws. (iii) in this way even if there be any limitations on the part of the framers of the Constitution those limitations are only political and not justiciable by judiciary. (iv) it was. submitted by Mr. Kaikaus that the decision of this Court in the State v. Zia-ur-Rehman being against the Divine Law, the High Court should ignore the same (and that this could be done by all and every Judicial Officer or Court at all levels). However, the High Court held that it was not permissible for them to do so -because even on the principle of "obey those who are in authority among you." (OLAI ALAMAR) as the Supreme Court was at the apex of the judicial administration, its judgments and decisions were binding on all other Courts in the country. (v) The petitioner claimed a writ of the type of qua warranto against the entire Legislature, and the executive of the country, questioning their competence to hold their respective offices and positions, on the ground that if they are of the view that the Holy Quran and the Sunnah are not in force in Pakistan in their entirety except to the extent they are enacted as laws, then they are neither true Muslims nor competent to remain in office and power inasmuch as it is a negation of the Divine Law, which the petitioners think is already in force in full in this country and any denial about its operation by the respondents would be sufficient to render them incompetent and unqualified to run the Government in the executive. or legislative spheres, etc. The High Court did not accept this plea on general plane and even otherwise help that the concerned officials and functionaries being Muslims (like and in the same way just as the petitioners were) they were fully qualified to remain in office also from the point of view contained in the objection itself ; and (vi) that the Constitution of Pakistan was not un-Islamic. In this respect the learned Judges referred to the various provisions of the Constitution in detail highlighting its various Islamic features and characteristics in support of their finding, and ultimately in para. 17 held that "it becomes evident from a perusal of these Articles that the 1973 Constitution is neither un-Islamic nor infidel. On the contrary it is the commencement of a sacred project, in which the object or the end is to be attained not through a form but through a process."

3. The petitioners have come up in a petition for special leave to appeal against the aforesaid judgment and order of the High Court dated 30-4 1976 to this Court. We have beard Mr. B. Z. Kaikaus for the petitioners, and the learned Deputy Attorney-General on behalf of the Federal Government and Mr. Akhtar Shabir, learned A. A: G., on behalf of the Province of the Punjab. Mr. B. Z. Kaikaus has reiterated the same pleas which have been mentioned (in the form of his case) in the beginning of this judgment and which find mention in para. 2 where the findings of the High Court thereon are recorded, and has prayed for the same reliefs which have been reproduced hereinbefore in extenso, laying particular emphasis on reliefs (1) and (2), the rest of the reliefs according to him being consequential and supplementary.

4. Before proceeding further we may at this stage (without trying t be exhaustive and just in brief) mention as to what are the sources of Islami Law. They are as follows : (i) The First Source The Holy Qur'an.-This is the first and the great legislative Code o Islam. To the writers on the Muslim Law, Qur'an is the first source of law in point of time no less than in point of importance. It is original, primary, basic and most fundamental source of the Islamic Shariah. It is the Last Book of His revelations for entire humanity. Hence, its teachings shall ever remain the fountain of all guidance of all times, ages and people. On points and matters where there is a direct mandate of the Holy Qur'an the same are to be decided and handled in accordance therewith. (ii) The Second Source T he Sunnah.--(i. e. the Hadis, i. e. the precepts, actions and sayings of the Holy Prophet (may peace and blessings of God be on him) are then the second source of Islamic Law. For relationship between the Holy Qur'an and the Sunnah and for its sanction in the Holy Qur'an itself see a detailed discussion in A Code of Muslim Personal Law" by Dr. Tanzil-ur-Rahman (at pages 3 to 9). The Sunnah may be three types namely(i) Sunnat-ul-Qaul i. e. -all words, counsels or precepts of the Prophet ; (ii) Sunnat-ul-fieel J71 " . i. e. his actions, works and daily practices ; and (iii) Sunnat-ul-taqrir i. e. his silence implying a tacit approbation on his part of any individual act committed by his disciples. At this plat B it may be mentioned that all the Hadia collectively can further be classified into three categories from the point of view of their inter s~ priority. The order of their priority is as follows :-- (1) Ahadfs-I-Mutwter These are those traditions which have received universal publicity and acceptance in each one of the three periods namely (a) the period of the "Companions who were more righteous and had often shared the counsel of the Holy Prophet; (b) the period of the Successors of the "Companions" known as ; and (c) the period of their successors known as TABA-E-TABEEN. (1) Ahadis-i-Mashhura). These are those traditions which through known publicly by a great majority of people, do not possess the character of universal frame. They carry conviction of genuineness but are reported by a limited number of "Companions" and thereafter in the two successive periods aforesaid. (3) Ahadis-I-Wahid. -These are those traditions which depend on isolated individuals. (iii) The Third Source': Ijma'a.

It is of three types, namely: (i) Ijmaa, i.e. consensus of the "Companions" of the Holy Prophet which is universally accepted throughout the Muslim world and is unrepealable (ii) Ijmaa of the jurists; and (iii) Ijmaa of the people, i.e. the general body of the Muslims. It is to be mentioned that in this way ljmaa cannot be confined or limited to any particular age or country. It is completed when the jurists, after due deliberation, come to a finding. It cannot then be questioned or challenged by an individual jurist. Ijmaa of any age may be reversed or modified by the Ijmaa of the same or subsequent age. (iv) The Fourth Source : Ijtehad by Qyas or analogical deductions. It is an extension of law from the original text by means of common cause or effective cause, i.e. `illat'. It is a process of deduction which is not to change the law 'of the text. It is applicable in cases not covered by the language of the text, but may fall under the reason of the text. Therefore, in importance, gyas, occupies a place next to the Holy Qur'an, Hadis and Ijmaa. (v) There are other sources also like (i) Istihsan; (ii) Istislah, (iii) Maslaih-al-Mursalah, (iv) Istidlal (v) Illat (vi) Urf and (vii). Taqlid etc, We need not go into the detailed discussion ,of all these and for our purpose it is sufficient to mention that these are all methods through which the law from the 1ioly Qur'an and the Sunnah is deduced, those two remaining the fundamental and primary sources at all times--{and often termed as the "text" or the "original text").

5. Keeping in view the above-mentioned broad aspects and characteristics of the Islamic Law and its sources, it is true that the basic and primary source of all Muslim law is the Holy Qur'an and the Sunnah and the rest are the methods of understanding their meaning, spirit, purpose, guidelines and policy. To say therefore that the law of the Muslims is the Divine Law and that it constitutes that only and sole criterion by which should be judged the public and the private life of all rulers and ruled alike is quite in accord with the spirit of that Law. However, to understand what is the Divine Law on any particular subject or matter, the processes above mentioned have to be resorted to. First you have to look to the original text of the relevant portion of the Holy Qur'an applicable to any precise matter involved in a case. If the matter is covered by t Holy Qur'an, you have to apply the same; failing that you have to look towards Hadis; then to Ijmaa, then resort to Qyas and other methods above mentioned.

6. We may here mention that the purpose of our referring to the sources of Islamic Laws was to show (as the varied nature of those sources themselves indicates) that Islam (or as we may say Islamic Law) in its very nature is not a rigid system of law; and no Muslim can believe that it is an outworn creed incapable of meeting the challenge of the evolutionary forces. Its basic principles of justice and equity; its urge for universal knowledge, its acceptance of life in all its aspects, its world-view, its view of human relations and human destiny, and its demand for an all round and harmonious development stand firmly like a rock in the tempestuous sea of life. Islam is not a priest-dominated theocracy. Its principles are neither hidden nor complicated or involved, and nor impracticable. It is a law which has within it the capacity or capability of being practised, enforced and applied, and adopted at all time and at all places, only if it i D understood and interpreted in a true and a proper manner and in its tru spirit, keeping in view the environments and the circumstances of the situation at the relevant time.

7. It is well known that Pakistan like India, remained under a foreign rule namely British Rule from the eighteenth century to 1947. In their early days the British for sometime carried on the administration of Muslim and Hindu Laws with the help of the Indian Officers who were called "Advisers to Courts" (original and appellate, civil and criminal) who advise E on questions of law. The Muslim officers were known as learned Maulvis, Muftis and Ulemas and the Hindus were known as learned "Pandits". However, it may be mentioned that criminal proceedings in particular were ordered to be governed by the Shariah irrespective of the religion of the offender unless and until the "East India Company's Government" thought it fit to order otherwise. Being strangers in this field, the British Government, therefore, adopted a policy of compiling or getting compiled English Codes of Muslim Laws as for example Hamilton's Hedaya (1791); translations of Al-Sirajiyah and commentary thereon called the Sharifiyah, Baillie's Digest of Muhammadan Law (being translation of Fatawa Alamgiri); Tagor Law Lectures (1891-92) the translation of Mishkat-ul-Masabih, (extracts from Fatawas by Kazee Khan). Muhammadan Jurisprudence (1911) by Abdur Rabim, Principles and Precedents of Muhammadan Law by Macnaghten, etc. With the development of the judicial system following .the British pattern through systematized transformation of the educational structure, when lawyers made their appearance this practice had to be abandoned with a further change that in the course of time the Islamic Laws relating to crime, punishments, revenues, land tenancy, proceedings, evidence and partly transfer of property were gradually replaced by enactment s of the Legislature. Certain aspects like marriage, dower, divorce, maintenance and guardianship, succession/inheritance, gifts, wills and wakfs, and family matters were still governed by Islamic Law with certain modifications here and there. Customary law was allowed in some places such as a woman could not inherit agricultural land. However, if a particular sect of Muslims had its own rule generally it was followed with respect to that sect, as stated in Raja Deedar Hussain v. Ranee Zahoor-oon-Nova (1841)2M IA441). At this place it may be mentioned that, as stated by Sir Abdur Rahim in his Muhammadan Jurisprudence at page 38 whatever may have been the demerits of the condemned system, it should, in fairness, be admitted that the fatwas of the Maulvis so far as they can be found in the pages of the old law reports, are a faithful exposition of the Muhammadan Law on the points covered by them." As the store of information accessible to English readers increased, the Judges, both of the Supreme Court and of the "Company's" Courts, began to fall less absolutely dependent on native assistance; and at last, after the extinction of the "Company", and the fusion of the two sets of Appeal Courts in the new High Courts, it was considered that the time had come for dispensing with the latter altogether, at least in the form of Maulvis regularly attached to the Court, and whom the Court was bound to consult (see Act XI of 1864). The study of Muhammadan Law was not less important and remunerative than before, but in a different way; henceforth it became the business of the Bar to instruct Bench, and the later reports are increasingly full of learned arguments. in which untranslated Arabic authorities are freely cited by advocates who combine with this special learning a general legal knowledge to which the Court Maulvis made no pretension. Moreover, the Bench, in its turn, gradually became better qualified to instruct the Bar. All the High Courts have had learned Muslims among their Judges since 1908. Some of the judgments delivered by Mahmood, J., at Allahabad (1887-1893), and by Ameer Ali, J., at Calcutta (1890-1904), are, in fact, exhaustive monographs on difficult points of Muhammadan Law.

8. During the British regime there used to be promulgated laws for this country by means of what are in legal terminology called Charters, Letters Patents, Despatches, Acts, Ordinances, Orders, Regulations, Rules, Bye-laws and other legal instruments of similar nature and description. When Pakistan was created the Indian Independence Act, and other Acts and Orders, etc. issued at that time, authorised all the existing laws to continue till they were altered or repealed, etc. Same was the theme of the 1956 constitution, 1962 Constitution, and the 1973 Constitution. Since the country was brought into being to enable its Muslim population to order their lives in individual and collective spheres in accordance with the teachings and requirements of Islam, as set out in the Holy Quran and the Sunnah, therefore, obviously, a process had to be resorted to, as it has often been said, for "Islamisation of Laws" because the laws made by the British did not properly or fully (and some comment that in no manner) reflect the Islamic spirit therein and were unsuited to the life and the genius of the people. It is thus clear that it was a legislative measure which had to be adopted, for this purpose, and the task aforesaid was obviously of the concerned Legislature, or the Government of the day to finalize that process, and not for the law Courts to enact laws by granting declarations of the kind prayed for in the writ petition from which this petition has arisen and nor could the law Courts of their own forthwith start adjudicating matters in accordance with Islamic Laws or consider the existing legal system as having been repealed and replaced by the Islamic Laws overnight.

9. We may here make a mention of an unreported case of the Lahore High Court, being Criminal Revision No. 65 of 1952, Crown through Muhammad Nawaz v. Mitha and others, decided by the then Chief Justice of that Court, Muhammad Munir on 12-5-1952. A learned Magistrate in that case on 30-11-1950, passed the following orders:-. "Prosecution story is this. On 6-10-1949 the above-named having formed an unlawful assembly forcibly entered upon the land belonging to Manak and gave Manak and his.companion Muhammad Niwaz lathi blows. The Investigating Officer sent up for trial accused Nos. 1 to

6. The remaining accused were found to be innocent by the Police and not sent up. They were, however, summoned by the Court. At the last stage when the accused were to lead defence they made an appealing urge that they were innocent. It was agreed that they took oath for the innocence the , other side would have no objection to their acquittal. The accused were asked to say on oath before a large gathering present in the Court that they were innocent. All except Bashim and Mehra complied with this. Bashim and Mehra pleaded guilty stating that as they were guilty they were not prepared to take oath as they feared the wrath of God. This act won sweet applauses from the audience. I acquit all the accused except Bashim and Mehra. For this fear of God which is a thing of the past amongst us now I feel inclined to visit the offence committed by them with leniency. .I therefore convict them under section 325, P. P. C., and sentence them each to pay a fine of Rs. 25 or in default to undergo one month's imprisonment. I am quite alive to the fact that the procedure adopted by me is wholly unwarranted. I however feel that it is high- time we ceased to sit merely as Courts of law. For the sake of equity and justice we should have no hesitation in brushing aside the formal restrictions imposed by the British made law. The God law which we Pakistanis must and shall eventually follow demands vehemently that justice and equity should be our sole and only aim, and in achieving this Godmade law knows no procedural restrictions and formalities. In this part of the country there is an undesirable practice of throwing the net too wide in order to rope in the innocent with the guilty. Courts feel that all they can do is to acquit or convict all the accused. I feel that mere sifting enquiry to weed out the innocent is essential for the ends of justice no matter if such a course causes infringement of precribed procedure. In making this decision I was guided by these considerations. Judgment announced:"

10. The High Court was moved by the learned District Magistrate, Gujrat, in Revision because the learned Magistrate did not deliver the copy of his judgment in time with the result that period for filing appeal against acquittal had lapsed. The learned District Magistrate had submitted that the procedure adopted by the learned Magistrate was wholly unwarranted according to the prevalent law of the land. The case was brought to the notice of the then Chief Justice who on 23-1-1952, observed that " I shall hear this reported revision myself. As the Magistrate does not see anything wrong in his following a "wholly unwarranted procedure" in the trial of criminal cases and feels "no hesitation in brushing aside formal restrictions" imposed by the current law, he is a complete misfit in the judicial system and a menace to the administration of criminal justice. It will be dangerous in the extreme to entrust him with any criminal case for trial under the law in force. Later by order dated 12-5-1958, the learned Chief justice quashed the order of the learned Magistrate and ordered a retrial; his aforesaid order reads as follows:- "For the reasons given by the learned District Magistrate, I set aside the acquittal of Mitha, Gahm, Bakhsha, Mammun, Chawa and Nura, and the conviction and sentence of Bashim and Rehm respondents, and order them to be retried by a Magistrate to be nominated by the District Magistrate. The last two had been convicted under section 325 of the Penal Code on a plea of guilty, but the learned Magistrate neither convicted nor acquitted them on the other charges. For this reason and also because the plea of guilty was under the influence of an illegal oath, the proper order in their case too is that of retrial. The learned Magistrate prepared no record of the agreement to take, and of the actual administration of, the oath; but from his reference to the fear of "wrath of God" it appears that the oath, which the respondents were required to take, was a special oath having reference to God. If that be correct, then the learned Magistrate must needs be told, that unwittingly he has been responsible for the descretion of that oath because the two convicted and some of the acquitted respondents certainly forswore themselves. The two complainants had received as many as sixteen injuries, which could not have been caused by only two men. Therefore when the respondents asserted on oath that the injuries were caused only by the two convicted respondents and that all the other acquitted respondents were innocent. the assertion was definitely false and the proceedings permitted by the Magistate were directly responsible for this public forswearing. There was accordingly not only no occasion for "sweet applause from the audience" on such result but the proceedings taken amounted to a public violation of the sanctity of a religious oath. It amounted to no more than saying to an accused person "If you swear by God you are innocent, I will acquit you". On this promise how many criminals will not be willing to profane a religious oath ? And what opinion will the wronged party have about law and justice, administration of which is the sole function of the Courts. I hope the learned Magistrate will take a warning from this and in future conduct his proceedings according to law and not according to his own whims. I withdraw my order, dated 25th January, 1952, by which the District Magistrate, Campbellpore, was directed not to send any criminal cases to the Court of this Magistrate. A copy of this order may be sent to Government."

11. We have referred to this case (as it was in the knowledge of one of us, Karam Elahee Chauhan, J. who at that time had appeared as a counsel for the accused) simply to show that any change in existing laws is to be made by legislation and not by Courts rn, a zeal and wish of their own, to decide it (for instance) by any other system which may appear to them to be ludicrous for their personal reasons. If in the instant case the declarations of the kind prayed for by the petitioners are given the results would be the some as in the precodemt above-mentioned, viz. replacing the existing laws without their repeal by the relevant Legislature by an altogether different legal system and pattern. Reference for the same purpose may also be made to Moonda and others v. The State ((1) P L D 1958 S C (Pak.) 275) where again when a learned Sessions Judge, decided a case holding some accused as innocent because to a Court question the Investigating Officer could not swear about their guilt, this Court deprecated this practice which was based on violation of procedure of trial as laid down in the Code of Criminal Procedure (Act V of 1898).

12. Attention is further invited to a recent (full Court) judgment of this Court in Zulfikar Alt Bhutto v. State (1) P L D 1979 S C 741. (in review), where a plea was raised for applying (certain) Shariat Laws to the case of the accused, as per para. 21, ground No. XXIX, of the report where it was submitted that with the introduction of the Islamic Laws in the country with effect from the 12th of Rabi-ul-Awwal, 1399-H (i.e. the 10th of February, 1979), it would be anomalous to impose death penalty for an unintentional murder, especially when the Shariat laws do not recognise an approver, and the witnesses have to fulfil strict qualifications as to integrity and character before their testimony can be acted upon." The plea was rejected in para. 195 of the report in the following terms:- "Now, as to the submission made by Mr. Yahya Bakhtiar with reference to the application of certain Shariat laws in Pakistan with effect from the 10th of February, 1979, it needs to be stated that the case of the petitioner was tried under the ordinary law of the land obtaining prior the 10th of February, 1979; that the appeal. was also heard under the ordinary law, namely, Pakistan Penal Code read with the relevant provisions of the Constitution of 1973; and even the judgment under review had been announced before the 10th of February, 1979 and that in the Shariat laws promulgated on the 10th of February, 1979, the offence of murder has not been covered. Further, in the Constitution Amendment Order, 1979 (President's Order No. 3 of 1979) Article 203-D clearly stipulates that pending proceedings shall continue, and the point in issue therein shall be decided, in accordance with the law for the time being in force. In the circumstances, it is not permissible for us to embark upon a review of the question of sentence in this case with reference to certain provisions of the Shariat law, as those provisions were not invoked or applied at any stage of the trial in the High Court, or of the appeal proceedings in this Court and have not been made applicable to pending proceedings."

13. It cannot be denied, as the above precedents show, that enforcement of laws

(and we may say so even under Islamic .is the function of the State,! which firstly makes known the relevant law to the people by publishing or publicising it so that they may regulate their lives, dealings and conduct, accordingly, and then takes legal steps or actions for its violation. (In fact most of the reliefs contained in the petition are aimed at issuing directions to the State to. promulgate and enforce various types of laws mentioned therein) ; if the, Legislature of a country makes no provision for punishing the violation of its laws or does not provide machinery for stopping their violation, obviously the Courts cannot take over that job of enacting laws or prosecuting people at, their own will and pass orders in vacuum. That Islamic Law can be introduced by the State and that it is competent to do so or to enforce or declare its/ enforcement, is clear from the constitutions of the various Islamic countries. As for example in the Syrian Constitution it is laid down in Article 3 (2) that the "Muslim Law is the principal source of legislation". Similarly in the earlier Constitution of Iran it was provided in Article 1 (S C) that the official religion of Iran is Islam. It was further provided in Article 2 that "No act of the National Assembly can be at variance with the sacred principles of Islam". We have no intention to be exhaustive in these illustrations and the purpose of making all these references is that even in Islamic countries, it was the State which had to provide, that law in force there shall be Islam, so that, the people become aware of it. This will all the more be necessary where even non-Muslims in any matter are also to be treated in accordance with Islamic Law wherever so provided by that law itself (e.g. criminal matters). In our country also where there is a written constitution obviously any. provision for making Shariah as the basic or principal source of all law shall have to be provided for by the declaration of the appropriate, Legislature, ie. the state, and not by a Court-declaration, because, as already above mentioned, Courts cannot enact laws.

14. Another thing to be taken note of is that in the matter of doing Ijtehad, i.e. applying legal process for the construction and interpretation of Islamic Laws (or if we can say even for Islarnisation of laws) there are two well-known schools of lawyers (if we can use this term in general). One is the school of what has been termed by jurists as "traditionalists (or orthodox schools) and the other is school of "modernists". The traditionalist school denies the right of Ijtehad to later generations. A good deal of energy was devoted to this controversy, but it appears that it died out in Near East, or majority of Middle East countries--(as put by Schascht, Chapter 15, at page 102)--where many Islamic Schools of traditional background "without necessarily sharing all the opinions of the Modernists, recognize that effort as legitimate and act, in a way as their advisers ; the uncompromising demand of taqlid the unquestioning acceptance of the traditional doctrine of one school of law, in particular, have lost much ground and legislation of Islamic Laws by enactments became in vogue in many Islamic countries like Turkey, Syria, Egypt, Iran, Jordan, Libya, Morocco, Algeria, and Sudan, etc. most of which have the written constitutions and various written and codified laws. (At the moment there are 47 Islamic States in the world). It may, however, be mentioned that the interest and importance of the orthodox/ traditional Islamic Law, which has existed for more than a thousand years and is still eagerly studied all over the Islamic world, is not affected by these changes. It still casts its spell over the laws of contemporary Islamic States in the States of traditional orientation, such as Saudi Arabia, as the law of the land and in the States of modernists' orientation as an ideal, in influencing and even inspiring their secular legislation. Now which school of thought is to be followed in and by Pakistan and to what extent and in which matter in the process of "Islamisation of Laws" is the job of the concerned legislature to decide, though it may be pointed out that according to the trend of the case law, so far developed in Pakistan, opinions have been expressed that it is not necessary to stick to the views of the traditionalists, if the context of the Holy Qur'an and the Sunnah is clearly to the contrary on any particular point.

15. Reference here may be made to Mst. Balqis Fattma v. Najm-u1-Ikram Qureshi (P L D 1959 Lah. 566) (judgment by B. Z. Kaikaus, J., as then he was) where at page 584 in para. 27, he held that "the third reply is that we are really dealing with the interpretation of the Holy Qur'an and on a question of interpretation irrespective of what has been stated by jurists, "Atiullah-wa-Ati-ul-Rasul" is the duty cast on the Muslims and it will not be obedience to God or to the Prophet if in a case where our mind is clear as to the order of the Almighty or the Prophet we fail to decide in accordance with it. We are concerned here with the interpretation of the verse relating to Khula' and as I have already stated its interpretation must be that the Court or the State has authority to direct a Auld. Similar considerations apply to the interpretation of the traditions of the Prophet."

16. In Mat. Khurshid Jan v. Fazal Dad (P L D 1964 Lab. 558) (five Judges) (Muhammad Yaqub Ali, Anwarul Haq, as then his Lordship was, Muhammad Daud Khan, Wahiduddin Ahmad and Inamullah Khan, JJ.) attended to the same subject again. After explaining the sources of Islamic Law, Muhammad Yaqub Ali, J. (with whom Muhammad Daud Khan. Inamullah Khan, JJ., concurred) at page 566 referred to a case of the Privy Council reported as Agha Mahmood Jaffer Bindanim v. Koolsoom Beebee (1 L R 25 Cal. 9) where at page 18 it had been held that "But it would be wrong for the Courts on a point of this kind to attempt to put their own construction on the Qur'an in opposition to the express ruling of commentators of such great antiquity and high authority (as the Hedaya and the Fatawa Alamgiri)". However, Muhammad Yaqub Ali, J., on page 567 held after earlier making a lengthy discussion that "the dictum in Agha Mahmood Jaffer Bindanim v. Koolsoom Beebee had, therefore, considerably, lessened the burden on the Courts to determine the rule of law applicable to both Sunni and Shia Muslims, but with the coming into being of Pakistan, the situation has considerably changed." Further at page 600 in para. 48 he then concluded and held that "the answer to the third question may be summed up thus : There can be no disagreement in matters which are provided for in the Quranic and Traditional Text. Similarly, lima' is binding upon all, until changed or modified by another Ijma'. There is, thus, no room for a Court to disagree with it for, according to the tradition relied upon by Imam Shafi'i, "whatever the community of Islam may agree upon at any time is of "God". In the case of juristic analogy (QIAS) and Istidlal it is open to Courts to adopt any one of the conflicting views of the earlier A'imma and Faqihs, subject of course to the qualification that they possess the requisite knowledge. Lastly, Ijma and 1jtlhad in the form of law made by the competent legislative bodies, as envisaged by the modern reformist Jurists, will be binding on Courts and it is not permissible for them to differ from those laws on the ground that they conflict with the views of the earlier A'imma and Faqihs."

17. S. Anwarul Haq, J. on pages 607, 608 and 609 (paras. 5, 6, 7 and 8) held that :-- "the answer to the second part of the second question. namely, as to the competence of Courts to differ from the views of earlier A'imma and Faqiha on the grounds of public policy, justice, equity and good conscience, is clearly not free from difficulty and controversy. Moreover, there are several aspects to it. In the first place, the question is whether the Courts can put their own interpretation on the Qur'an. There is no doubt that in the case of Agha Mahmood Jaffer Bindanim v. Koolsoom Beebee the Judicial Committee of the Privy Council did observe that "it would be wrong for the Courts on a point of this kind to attempt to put their own construction on the Qur'an in opposition to the exprrss ruling of commentators of such great antiquity and high authority (as the Hedaya and the Fatawa-i-Alamgiri)" yet this view has not been followed by this Court in recent years. In Mat. Balqis Fatima v. Najm-ul-Ikram Quresh4 Kaikaus, J. who delivered the judgment of the Full Bench, observed as follows in paragraph 27 of the judgment on page 584 of the report . . . . . . " (the relevant passage has already been quoted by us earlier).

6. This question was also discussed at some length by Muhammad Shafi, J. in Mst. Rashida Begum v. Shahab Din and others (PLD 1960 LAH. 1142). On page 1153 of the report the learned Judge has expressed himself as under : Thus it is quite clear that reading and understanding the Qur'an is not the privilege or the right of one individual or two. It is revealed in easy and understandable language so that all Muslims if they try may be able to understand and act upon it. It is thus a privilege granted to every Muslim which cannot be taken away from him by anybody. however, highly placed or learned he may be, to read and interpret Qur'an. In understanding the Qur'an one can derive valuable assistance from the commentaries written by different learned people of yore, but then that is all. Those commentaries cannot be said to be the last word on the subject. Reading and understanding the Qur'an implies the interpretation of it and the interpretation in its turn includes the application of it which must be in the light of the existing circumstances and the changing needs of the world . . . . If the interpretation of the Holy Qur'an by the commentators who lived thirteen or twelve hundred years ago is considered as the last word on the subject, then the whole Islamic society will be shut up in an iron cage and not allowed to develop along with the time. It will then cease to be a universal religion and will remain a religion confined to the time and place when and where it was revealed . . . . . . .

7. It may be stated that, on this view of the matter, Muhammad Shafi, J. proceeded to examine the various verses of the Qur'an on the question of the guardianship of minors and came to the conclusion that "there is no provision in the Holy Qur'an that a woman should be bereft of the child if she marries a man not related to the minor within the prohibited degrees.

8. With great humility I venture to submit that it would not be correc to lay it down as a positive rule of law that the present-day Court i this country should have no power .or authority to interpret the Qur'a in a way different from that adopted by the earlier jurists and Imams. The adoption of such a view is likely to endanger the dynamic an universal character of the religion and law of Islam. At the same rim it is clear that the views of the earlier Imams and Jurists are entitled to the utmost respect, and no Court or Commentator would differ from them except for very compelling and sound reasons. I would also like to make it clear at this stage that this difference of interpretation does not, and cannot, mean a departure from a clear injunction of law as contained in the Qur'an or Sunnah, or even 1jma', on any grounds of equity, good conscience or public policy."

18. Waheeduddin Ahmad, J. however, stuck to the view expressed in Agha Mahmood Jaffer Bindanim v. Koolsoom Beebee. And here we may mention (just to complete the survey of the matter) that though the Privy Council reiterated the same principle again in Baker Ali Khan v. Anjuman Ara Begum and another (P L D 1960 Lah. 1142) but in the words of Asaf A. A. Fyzee (outlines of Muhammadan Law) (fourth edition) page 82 "it is a matter of some interest, however, that in Abel Fata Mahmomed Ishak and others v. Russomoy Dhur Chowdry and others ((1894) 22 1 A 76) by holding that family wakfs were void the here with the interpretation of the verse relating to Khula' and as I have already stated its interpretation must be that the Court or the State has authority to direct a Auld. Similar considerations apply to the interpretation of the traditions of the Prophet."

16. In Mat. Khurshid Jan v. Fazal Dad (1) (five Judges) (Muhammad Yaqub Ali, Anwarul Haq, as then his Lordship was, Muhammad Daud Khan, Wahiduddin Ahmad and Inamullah Khan, JJ.) attended to the same subject again. After explaining the sources of Islamic Law, Muhammad Yaqub Ali, J. (with whom Muhammad Daud Khan. Inamullah Khan, JJ., concurred) at page 566 referred to a case of the Privy Council reported as Agha Mahmood Jaffer Bindanim v. Koolsoom Beebee (2) where at page 18 it had been held that "But it would be wrong for the Courts on a point of this kind to attempt to put their own construction on the Qur'an in opposition to the express ruling of commentators of such great antiquity and high authority (as the Hedaya and the Fatawa Alamgiri)". However, Muhammad Yaqub Ali, J., on page 567 held after earlier making a lengthy discussion that "the dictum in Agha Mahmood Jaffer Bindanim v. Koolsoom Beebee had, therefore, considerably, lessened the burden on the Courts to determine the rule of law applicable to both Sunni and Shia Muslims, but with the coming into being of Pakistan, the situation has considerably changed." Further at page 600 in para. 48 he then concluded and held that "the answer to the third question may be summed up thus : There can be no disagreement in matters which are provided for in the Quranic and Traditional Text. Similarly, lima' is binding upon all, until changed or modified by another Ijma'. There is, thus, no room for a Court to disagree with it for, according to the tradition relied upon by Imam Shafi'i, "whatever the community of Islam may agree upon at any time is of "God". In the case of juristic analogy t) and Istidlal it is open to Courts to adopt any one of the conflicting views of the earlier A'imma and Faqihs, subject of course to the qualification that they possess the requisite knowledge. Lastly, Ijma and 1jtlhad in the form of law made by the competent legislative bodies, as envisaged by the modern reformist Jurists, will be binding on Courts and it is not permissible for them to differ from those laws on the ground that they conflict with the views of the earlier A'imma and Faqihs." (1) P L D 1964 Lab. 558 (2) 1 L R 25 Cal. 9

17. S. Anwarul Haq, J. on pages 607, 608 and 609 (paras. 5, 6, 7 and 8) held that :-- "the answer to the second part of the second question. namely, as to the competence of Courts to differ from the views of earlier A'imma and Faqiha on the grounds of public policy, justice, equity and good conscience, is clearly not free from difficulty and controversy. Moreover, there are several aspects to it. In the first place, the question is whether the Courts can put their own interpretation on the Qur'an. There is no doubt that in the case of Agha Mahmood Jaffer Bindanim v. Koolsoom Beebee the Judicial Committee of the Privy Council did observe that "it would be wrong for the Courts on a point of this kind to attempt to put their own construction on the Qur'an in opposition to the exprrss ruling of commentators of such great antiquity and high authority (as the Hedaya and the Fatawa-i-Alamgiri)" yet this view has not been followed by this Court in recent years. In Mat. Balqis Fatima v. Najm-ul-Ikram Quresh4 Kaikaus, J. who delivered the judgment of the Full Bench, observed as follows in paragraph 27 of the judgment on page 584 of the report . . . . . . " (the relevant passage has already been quoted by us earlier).

6. This question was also discussed at some length by Muhammad Shafi, J. in Mst. Rashida Begum v. Shahab Din and others (P L D 1960 Lah. 1142). On page 1153 of the report the learned Judge has expressed himself as under : Thus it is quite clear that reading and understanding the Qur'an is not the privilege or the right of one individual or two. It is revealed in easy and understandable language so that all Muslims if they try may be able to understand and act upon it. It is thus a privilege granted to every Muslim which cannot be taken away from him by anybody. however, highly placed or learned he may be, to read and interpret Qur'an. In understanding the Qur'an one can derive valuable assistance from the commentaries written by different learned people of yore, but then that is all. Those commentaries cannot be said to be the last word on the subject. Reading and understanding the Qur'an implies the interpretation of it and the interpretation in its turn includes the application of it which must be in the light of the existing circumstances and the changing needs of the world . . . . If the interpretation of the Holy Qur'an by the commentators who lived thirteen or twelve hundred years ago is considered as the last word on the subject, then the whole Islamic society will be shut up in an iron cage and not allowed to develop along with the time. It will then cease to be a universal religion and will remain a religion confined to the time and place when and where it was revealed . . . . . . .

7. It may be stated that, on this view of the matter, Muhammad Shafi, J. proceeded to examine the various verses of the Qur'an on the question of the guardianship of minors and came to the conclusion that "there is no provision in the Holy Qur'an that a woman should be bereft of the child if she marries a man not related to the minor within the prohibited degrees.

8. With great humility I venture to submit that it would not be correct to lay it down as a positive rule of law that the present-day Court i this country should have no power .or authority to interpret the Qur'a in a way different from that adopted by the earlier jurists and Imams. The adoption of such a view is likely to endanger the dynamic an universal character of the religion and law of Islam. At the same rim it is clear that the views of the earlier Imams and Jurists are entitled to the utmost respect, and no Court or Commentator would differ from them except for very compelling and sound reasons. I would also like to make it clear at this stage that this difference of interpretation does not, and cannot, mean a departure from a clear injunction of law as contained in the Qur'an or Sunnah, or even 1jma', on any grounds of equity, good conscience or public policy."

18. Waheeduddin Ahmad, J. however, stuck to the view expressed in Agha Mahmood Jaffer Bindanim v. Koolsoom Beebee. And here we may mention (just to complete the survey of the matter) that though the Privy Council reiterated the same principle again in Baker Ali Khan v. Anjuman Ara Begum and another ((1903) 301 A 94) but in the words of Asaf A. A. Fyzee (outlines of Muhammadan Law) (fourth edition) page 82 "it is a matter of some interest, however, that in Abel Fata Mahmomed Ishak and others v. Russomoy Dhur Chowdry and others ((1894) 22 1 A 76) by holding that family wakfs were void the committee depaad from the principles of the Muhammadan Law of walff, misapplied a rule of English Law to the Muslim institution of wakf and overruled a long line of Muslim jurists, both modern like Mr. Justice Ameer Ali, and ancient too numerous to mention. Poetic justice was, however, done when they themselves were overruled by an Act of the Indian Legislature (Musslaman Wakf Validating Act VI of 1913). Sir Abdur Rahim in his Muhammadan Jurisprudence (1976 Edition) page 45 comments that "It was apparently not brought to the notice of the Committee that the verse of the Qur'an which was relied on had been repealed by another verse".

19. The matter came up for examination before this Court as well in Mst. Khurshid BIN v. Baboo Muhammad Amin (PLD 1967SC97) (S. A. Rahman, Fazle Akbar, Hamoodur Rahman, Muhammad Yaqub Ali, and S. A. Mahmood, JJ). On page 113, S. A. Rahman, J. who wrote the leading judgment for the Court, held that "the fundamental laws of Islam are contained in the Qur'an and this is, by common consent, the primary source of law for Muslims. Hanfi Muslim jurisprudence also recognises haditb, Ijtehad and bma' as the three other secondary sources of law. The last two really fall under a single category of subsidiary reasoning, ljtehad being by individual scholars and tjma being the concensus of scholars who have resorted to ijtehad in any one age. That this is the order of priority, in their importance, is clear from the well-known hadith, relating to Muadh-lbneJabal who was sent by the Prophet as Governor and Qazi of Yemen The Prophet asked him how he would adjudicate cases; "By the Book of God", he replied. "But if you find nothing in the Book of God, how?" Then by the precedent of the Prophet". "But if there be no precedent"? "Then I will diligently try to form my own judgment, "On this, the Prophet is reported to have said, "Praise be to God Who hath fulfilled in the messenger sent forth by His apostle that which is well pleasing to the apostle of Allah." The four orthodox schools of Sunni Fiqh were headed by Imam Abu Hanifa, Imam Malik, Imam Shafe'i and Imam Ahmad-bin-Hanbil. The learned Imams never claimed finality for their opinions, but due to various historical causes, their followers in subsequent ages, invented the doctrine of taqlid, under which a Sunni Muslim must follow the opinions of only one of their Imams, exclusively, irrespective of whether reason be in favour of another opinion. There is no -warrant for this doctrinaire fossilization, in the Qur'an or authentic Ahadith. In the Almital-wan-Nihal (page 39), it is stated that the great Abu Hanifa used to say "This is my opinion and I consider it to be the best. If someone regards another person's opinion to be better, he is welcome to it for him is his opinion and for us ours".

20. Now that we have quoted the view of Lax-Chief Justice of Pakistan S. A. Rahman, in the above case, we may refer to his book on "Punishment of Apostasy in Islam", where he has shown by making ljtehad that the punishment of an apostate by stoning him to death is not justified in Islam except where apostacy amounts to a treason against the State. A similar ljtehad was made by Sir Abdur Rashid, the first Chief Justice of Pakistan, in certain spheres of Muslim family laws while heading a commission on that subject. Another example can be cited of the Dissolution of Muslim Marriages Act VIII of 1939 which was promulgated after obtaining views or Fatwas of a large number of "Ulemas" of the undivided India, and was based on the principle that if any matter is hot provided for in any school but is provided for in another school or schools, then the view of the schools where it is so provided can be followed and adopted as a law. See Gazette of India (1936)part 5, page 154.

21. This is now the proper place to attend to the plea of Mr. B. Z. Kaikaus that Islamic Law does not need "legislation" or that "legislation's in Islam is not permissible in the modern sense of that term for law is alread contained in the text (viz. the Holy Qur'an and the Sunnah). This is qui true, but all it means is that according to Islamic Law no sucklaw can made which overrides that law inasmuch as Islamic Law is comprehensiv by itself, permanent and applicable at all time and place. Again this is onl one aspect of the matter, because, existence of law is one thing and it enforcement by legislatives steps and extension by means of ljtehad is anothe thing. For that purpose there are again two methods (and without tryin to be exhaustive there may be more) ; One is as suggested by Mr. Kaikau just to declare (the declaration is of course to be made by an enactment b the State) that. in all matters pertaining to the Muslim population of this country the law shall be as contained in the Holy Qur'an and the Sunna and stop at that, leaving the people to find out for themselves, as to what that law is on any and every matter with which they may have to deal a any particular time or in general, and regulate their individual and publi life accordingly. Similarly and in the same way leave the Courts also a that, so that, wherever any matter comes before them they may find out the law for themselves and should be free to make a research or PJitehad o their own with the help of the lawyers and the commentaries, codes, an other legal material now in abundance in Pakistan. The other method is t codify the laws on various subjects by enactment& etc. for easy understanding and consumption. This method, in order to adopt and mould the existin laws in confirmity with the "Primary text", may include the process of doing Utehad on various subjects and in various fields within the framework and the limits permissible under the "sources off Islamic Laws". Th advantages of codification will be (a) cognoscibility of law ; (b) to remOV uncertainty of law ; (c) check the introduction of the technical rules of th English Law, e. g. the western concept of the maxim of justice, equity an good conscience ; (d) to avoid, as they are sometimes called by some as evils of judicial legislation ; (e) to preserve the customs suited to the peop of the country; and (f )unifying the influence of Codes. However, objectio against this method generally advanced are (1) inherent incompleteness of codes, though its remedy would be time to time Revision and ljtehad, etc. (2) steriotyping of law by codification and judge-made law (3) alleged inadapt ability of Islamic Law to codification ; (4) alleged failure of existing codes ; (5) the difficulty to satisfy members of each community who may insist that their own personal law be applied to them ; and (6) the belief that it will amount to encroachment upon religion whereunder God alone is the legislator in Islam-an objection shared by Mr. Kaikaus herein.

22. The High Court in Mst. Khurshld Jan v. Fazal Dad (P L D 1964 Lah. 558) also made some suggestions for Islamisation of Laws which may be noted by any reader interested in the subject.

23. Mr. A. K. Brohi in his inaugural speech on 10-4-1976 before the participants of a Conference on "Islamisation of Laws" at Karachi (contained at pages 193 to 211 of his book "Islam in the Modern World") (1975 Edition) advocates the method of codified legislation, observing in his usual analytical style that "it is precisely in this sense that the Qur'an is a universal book of Man's guidance : its universality lies in its being a never failing source of basic law for the Moslems down the ages. But, then, basic law itself hands over to the Moslem community the authority to frame, what may be considered, appropriate bye-laws for regulating the conduct of the members of the community. It is in this sense that Qur'an is to be regarded as a Book of guidance which is valid for all times. It is basic law and also a charter for the Moslem community to make laws within the limits prescribed therein. Guidance is to be contradistinguished from the concept of religious law which prescribes, as does for example the law of Moses, the ten commandments. In pre-Islamic religions, religious law was no more than an unconditional imperative. In those days the law was in the form of a command, if only, because the condition of human evolution was such that law could be useful only if it was confined within the narrow precincts of the imperative theory of law, that is to say, as representing a command. With Islam, the primary concept of law is that it is a system of guidance, the law-Giver who was Quaidr has primarily become a Hadi, a Guide. The Quran therefore provides, a sort of normative jurisprudence and within the framework of the limits imposed by the basic law gives freedom to the Moslem community to frame bye-laws for organising their institutions, be they economic, political, social, etc. with a view to carrying into effect the specific purposes incidental to and in confirmity with the Qur'an, which is also for that reason termed Furquan ; that is to say, it shows how man is to discriminate between good and evil". Dr. Tanzilur Rahman in this respect in his book "A Code of Muslim Personal Law" at page 9 opines under the head "In Pakistan Constitution" that "The Qur'an and Sunnah are the two pillars of the Islamic Shariah which hove been recognized as such in all the Constitutions of Pakistan. It has been guaranteed in our Constitution that no law shall be made repugnant to the injunctions of Islam as enshrined in the Qur'an and the Sunnah. What we require today is to derive norms from the Hadith and Sunnah literature for the purpose of re-statement and codification of Islamic laws, to infuse the corpus juris of Pakistan with them, to keep the living and organic relationship between the two as an active force for our socio-religious fabric of spiritual and worldly life, to provide the general direction for authentic practice and ultimately to develop into a formal discipline to impart stability and consistency to our reorientation and social reorganisation on purely Islamic pattern." Similar is the suggestion by Fyzee in his book above mentioned.

24. As regards the 1973 Constitution, as pointed out by the lea counsel for the respondents, it also contains a scheme and procedure for islamisation of the laws and lays down the guiding principles and the method to be adopted in that respect. Reference may be made to the Preamble of the Constitution and Articles 1 to 5, 8 to 40 and 227 to 230.1 In pursuance of these; provisions the State has promulgated Offence of Zina (Enforcement of Hadood) Ordinance VII of 1979 ; Offence of "Qazf" (Enforcement of Hadd) Ordinance VIII of 1979 ; and Zakat and Usher (Organization) Ordinance XXIX of 1979. It has set up a Shariat Bench in each High Court of a Province and an Appellate Shariat Bench in the Supreme Court giving them power to strike down any relevant law which may be in conflict with or against the Sharia. See Articles 203-A to 203-E of the Constitution as added by the President's Order No. 3 of 1979 which should be read with the relevant rules which authorise the superior Courts to avail of the services, suggestions, and the views of "the learned" in the Islamic Law, on any relevant point coming up before them By the time this judgment has been completed, the pattern '-as further been change) ; now there will be a Federal Shariat Court instead of a Sbariat Bench in each High Court. Similarly the Islamic Ideology Council has been directed to finalize their recommendations for Islamisation of laws as quickly as possible. The said Council in its own turn has availed of the services of the foreign Islamic experts for guidance and advice, and this way the work is gradually proceeding ahead. Mr. B. Z. Kaikaus submitted that this was not enough and that something more and quickly should be done in this respect and that it was due to the slow speed of the concerned authorities that the petitioners were constrained to file this petition. On his part he was of the view that this was not a difficult task and could be done overnight by just issuing a simple declaration of the kind contained in his relief No. (1). Be that as it may, the point which we want to emphasize is that the job above-mentioned in its very nature, is of a legislative and political character to be performed by the State by enacting the necessary laws for Islamisation of the existing laws or even to promulgate new laws on that pattern but within the hemisphere of the Holy Qur'an and the Sunnah. (1) (2) (3) (4) (5) (6)

25. Before parting with this case, we may here state something about judicial and legislative functions. Basu in his commentary on the Constitution of India (4th Edn.) (Vol. 2) at page 331 states that "the distinction between a judicial and a legislative act is well-defined. The one determines what the law is, and what rights the parties have with reference to transactions already had : the other prescribes what the law shall be in future cases arising under it" (Field, J. in Sinking Fund Cases ((1878) 92 U S 700). "A judicial enquiry investigates, declares and enforces liabilities as they stand on present or past facts and under laws supposed already to exist. That is its purpose and end. Legislation, on the other hand, looks to the future, and changes existing conditions by making a new rule to be applied thereafter to all or some part of those subject to its power." (Prentis v. Atlantic Coast Co. ((1908) 211 U S 210). "To declare what the law Is or has been is a judicial power ; to declare what the law shall be is legislative." (Ogden v. Blackledge (2 Cr. 276) ; Dash v. Van Kleeck ((1811) 7 Johns. 498). "It is not for the Judges to alter the law, even though they have reasons to doubt the wisdom or justice of any provision or to find that the Legislature has made a mistake or was even deceived Labrador v. The Queen (1893 ac 104). The same Jurist in his commentary under Article 122 states boat a writ would not lie against a Legislature to prevent it from passing a Bill on the ground that the Bill, if passed, would contravene some Fundamental Right". (Chhoteylal v. The State of U. P. (A I R 1951 ALL. 228). "The Court would have jurisdiction to declare the Act void after it is passed and a proper proceeding is brought by a person who is affected by the Act. (Mason's Manual of Legislative Procedure (1953) p. 35)." Similar view is expressed by A. K. Brohi in his "Fundamental Law of Pakistan" at pages 160/333 and

469. He states with reference to 1956 Constitution that "Article 4 also prohibits the State from enacting any law, "which takes away or abridges rights conferred by this part", and declares that "any law in contravention of this clause shall, to the extent of such contravention, be void". (See Article 4, clause (2) ). Despite the fact that the Constitution contains an express prohibition directed against the legislative organs thereby preventing them from making any law which takes away or abridges the rights conferred by this Part, there is no known method whereby the Legislature can be prevented from enacting laws, which are inconsistent with the fundamental rights guaranteed under the Constitution. No mandamus can lie to compel the Legislature to do or refrain from doing any act. (For an unsuccessful attempt to obtain prohibition against a legislative body see Rex v. Legislative Committee of the Church Assembly Ex parte Haynes Smith (1). Besides, when the Bill is introduced in the House it does not become an Act of the Legislature until it has actually been taken through the various stages of law-making and has received the assent of the Governor, if it is a Provincial law, and of the President, if it is a Federal law. It is thus only the completed act of the Legislature which can be prohibited, and when the Act is actually passed it is no use prohibiting it as it can be declared void by Courts. Thus it is not the mere projected adventure by the Legislative Assembly which is calculated to result in the consummation of a law which purports to take away fundamental rights of the citizens that can be prohibited by courts. Every Bill that is moved in the State Legislature can be opposed by any one of is members, and even if its principle is accepted it can be amended and drastically modified. It would thus be worse than useless for any Court, assuming it had the jurisdiction to issue mandamup to legislative bodies, to interfere with legislative process when the act of the Legislature is not complete. If the Act, as "finally emerges is in conflict with the fundamental rights, it would ipso facto be void and can be declared as such by our Courts." See also Narainder Chand v. U. T. H. P. (2) it was observed that "no Court can issue a mandate to a Legislature to enact a particular law. Similarly no Court can direct a subordinate legislative body to enact or not to enact. The relief as framed by the appellant in his writ petition does not bring out the real issue calling for determination. In reality he wants this Court to direct the Government to delete the entry in question from Schedule A and include the same in Schedule B. "See also Umayal Achi v. Lakshml Achi (3) for the same view.

26. Examining the reliefs claimed by the present petitioners in their writ petition, as reproduced above, and as reiterated before us, it will be noticed, that though drafted very strategically in the form of claiming declarations as to what the law of this country is, in pith and substance, they purport to achieve and are aimed at getting declarations as to what the law should be in general or with regard to various specific matters mentioned there in particular. The frame of the writ petition and its potentials clearly indicate that the petitioners were desiring an overhauling or Islamisation of the entire legal frame work of this country.

27. The High Court in the circumstances was justified to dismiss the writ petition for want of jurisdiction to grant the reliefs claimed therein. The view of the High Court in this respect is not open to any exception and) none was successfully pointed out to us, particularly when it was in confirmity with the law already declared by this Court in The State v. Zia-ur-Rahman and others (4) which still holds the field and extracts and passages whereof were correctly relied upon by the High Court.

28. The result is that the petitioners have made out no case for interference in the High Court judgment. The petition is consequently dismissed. s. A, R. Petition dismissed. (1) (1928) 1 K B 411 (2) A I R 1971 S C 2399 (3) AIR 1945 FC25 (4) P L D 1973 S C 49