P L D 2022 Federal Shariat Court 64 (PLP)

DR. SYED MUHAMMAD ANWER, J.

The Hon'ble Supreme Court vide its judgment dated 03.12.2020 allowed appeals against the judgment passed in Shariat Petitions Nos.29-I, 43-I, 64-I and 67-I of 1992, whereby the impugned judgment dated 07.05.2008 of Federal Shariat Court was set aside and the matter was remanded back for decision afresh strictly within the precincts of Article 203D of the Constitution.

2. In this case, the core dispute between the parties is related to a land comprising Khasra Nos.147, 148, 149 and 150 situated in Mahal Terai, Tehsil and District Peshawar, measuring 79 Kanals and 8 Marlas, which was an evacuee property. This land was allotted on temporary basis by Deputy Rehabilitation Commissioner, Peshawar to Sericulture Department on 04.11.1953 and formal order was issued by the Deputy Rehabilitation Commissioner on 18.01.1954. Out of the above land, an area of 20 Kanals and 18 Marlas comprising Khasra No.149 Min and 150 Min was allotted in the name of four displaced persons namely Mst. Murtaza Bano, Maqbool Ahmad, Maqsood Ahmad and Tasleem Ahmad on 25.08.1966. The remaining land was also allotted to some other refugees on the ground that the allotment order in the name of Sericulture Department was without jurisdiction. Against this order, the Sericulture Department filed an appeal before the Additional Settlement Commissioner, Peshawar to set aside the allotment order in favour of the refugees. The Additional Settlement Commissioner set aside the allotment in favour of refugees on 25.09.1969 and directed the Sericulture Department to move for outright sale. One Mr. Fida Muhammad Khan who had purchased 20 Kanals and 08 Marlas of land in Khasras Nos.149 and 150 Min, went to High Court in revision against the judgment of Additional Settlement Commissioner, Peshawar. Upon dismissal of his revision petition on 29.01.1970 from High Court he went in appeal to Honible Supreme Court which set aside the impugned order of the High Court and remanded the case to Chief Settlement Commissioner/Member, Board of Revenue, NWFP with the direction to decide whether the land should be sold to Sericulture Department under provision of section 12(b) or should be allotted to the refugees. The Chief Settlement Commissioner vide his judgment, dated 26.10.1983 decided to transfer the whole of the land to the refugees. Again, this decision was challenged by the department in the High Court but before any decision Martial Law Order No.425 was issued on 19.04.1984 by the Martial Law Administrator, Zone B and published in Official Gazette on 14.05.1984, whereby this land was transferred to the Sericulture Department with effect from 25.10.1983.

3. After the above-mentioned lengthy litigation between the parties, the matter kept on lingering in cross claims between the parties. In the meanwhile, the petitioners invoked the jurisdiction of Federal Shariat Court, through above Shariat Petitions with following prayers:-- This Court decided the matter vide its judgment dated 07.05.2008. The said judgment of Federal Shariat Court was challenged in the Hon'ble Shariat Appellate Bench of the Supreme Court. Resultantly, that appeal was heard and decided on 03.12.2020 by the Hon'ble Shariat Appellate Bench of the Supreme Court by virtue of which the impugned judgment was set aside and the matter was remanded back to the Federal Shariat Court with the following direction:-- "In view of the above, these appeals are allowed, impugned order so also the judgment passed in Shariat Petitions Nos.29/I, 43/I, 64/I and 67/I of 1992 are set aside and the matters are remanded to the Federal Shariat Court for decision afresh, strictly within the precincts of Article 203-D of the Constitution. Since the matter is old one, it is desirable that Federal Shariat Court will decide the matter preferably within a period of three months."

4. We have heard the parties at length and perused the record of the case thoroughly and concluded that in the light of Article 203D of the Constitution only one point of this case is relevant to be reviewed by this Court and that is "whether the Martial Law Order No.425 issued by the Martial Law Administrator, Zone-B on 19.04.1984 and published on 14.05.1984 is repugnant to injunctions of Holy Quran and Sunnah or not". The other questions related to these petitions raised by the petitioner in the Shariat Petition are not relevant to the jurisdiction of this Court; hence, they do not fall within the precincts of Article 203D of the Constitution.

5. The impugned MLO No.425 is reproduced below for ready reference:-- "MARTIAL LAW ORDER NO.425 Notwithstanding anything contained in any Judgment decree or order of any court, including the Supreme Court or a High Court or any tribunal body or Authority whatsoever, the land measuring 79 Kanals and 8 Marlas and bearing Khasra Nos.147, 148, 149 and 150, situated in Mahal Terai, Tehsil and District Peshawar, shall stand transferred to Sericulture Department, N.-W.F.P. and shall be deemed to have been so transferred with effect from 25th October, 1983, without being subject to any encumbrance or liability. LIEUTENANT GENERAL FAZLE HAQ. Martial Law Administrator Zone "B" Peshawar Cantt. Dated: 19th April, 1984."

6. The Martial Law Order No.425 dated 19.04.1984 published in the Official Gazette dated 14.05.1984 has the force of law; therefore, Federal Shariat Court has the jurisdiction under the Constitution to decide whether it is repugnant to the injunctions of Islam as laid down in Holy Quran and Sunnah or not. It is also argued by the respondent that MLO No.425 was subsequently, i.e., after notification, validated as such by Article 270 of the Constitution. The issue whether the Martial Regulations and Martial Law Orders are protected by the Constitution after validation has been discussed by the Apex Court in many cases. It was fully discussed by this Court in the case of Hafiz Muhammad Ameen and others v. Islamic Republic of Pakistan and others PLD 1981 FSC 23 at page

47. Relevant portion is reproduced bellow:-- "

The validation is regarding the competence of the authority enacting the Regulation. The ouster of jurisdiction of Courts in that Article is overridden by the provisions of Article 203-A and this Court has jurisdiction to determine the question of repugnancy of these provisions with the Islamic Injunctions notwithstanding anything in Article

269. The other relevant provision is in Article 268(2) which restrains the Parliament from altering, amending and even repealing these provisions except with the previous sanction of the President. But it does not present any difficulty since under Article 203-D(3) (a) the President is bound to take steps to amend the Regulation so as to bring it into conformity with the Injunctions of Islam if this Court arrives at a finding of its repugnancy with the Qur'an and Sunnah of the Holy Prophet. The Court's jurisdiction to go into the vires of paras, 22, 24, and 25 of the Regulation is not ousted." In Qazalbash Waqf v. Chief Land Commissioner, the Shariat appellate bench of the Supreme Court discussed this issue in much detail. The State cannot take any piece of land of any citizen without due compensation. Any such action by the State of taking land of anybody without due compensation is completely un-Islamic and forbidden under the Islamic law. This question was discussed at length in Qazalbash case (PLD 1990 SC 99). The relevant verses of the Quran and some of the Ahadis which were discussed in Qazalbash case are reproduced herein below for ready reference, which are mentioned in the referred judgment:-

7. The matter of validation of such Martial Law Order was discussed at length and decided by the Hon'ble Supreme Court in C.As. Nos.838 of 1984 and 839 of 1984 titled Pakistan through Secretary Cabinet Division, etc. v. Nawabzada Muhammad Umar Khan and others. In these appeals, legal effect of validation upon a Martial Law Order No.47 dated 01.02.1972 was thoroughly discussed and dilated upon by the Hon'ble Apex Court and it concluded that: "The validation by the Constitution (Article 269) covers legislative measures of all types, proclamations, Presidential Orders etc., but what could neither be a legislative measure nor a Martial Law Order or Regulation does not stand validated. For that reason, such an instrument as happens to be Martial Law Order No.47, it does not stand constitutionally validated." Hence, on the same analogy impugned MLO 425 cannot be considered as ever validated by any provision of the Constitution.

8. The wording of MLO 425 openly flouts the "Order, judgment and the status of the Apex Court when it says:-- "Notwithstanding anything contained in any judgment, decree or order of any court including the Supreme Court." Despite having knowledge that there exists a judgment of the Hon'ble Supreme Court related to the matter in issue, this act of the Martial Law Administration was not only amounting to contemptuous act but was clearly a mala fide on his part. The Martial Law Administrator clearly flouted the judgment of the Hon'ble Supreme Court whereby the case was remanded to the Chief Settlement Commissioner, N.W.F.P., who decided the matter and gave a judgment upon it on 26.10.1983. In addition to that, it is also in clear violation of Article 25 of the Constitution of Pakistan, whereby all citizens are not only equal before law but they are entitled to equal protection of law.

9. While the litigation between the parties was going in an appeal before the Hon'ble Supreme Court and the Hon'ble Supreme Court set aside the impugned order of the High Court and remanded the case back to the Chief Settlement Commissioner/Member, Board of Revenue NWFP on 17.12.1980 in Appeals Cases Nos.26-P, 27-P and 28-P of 1971 with the direction to decide whether the land should be sold to Sericulture Department under provision of Section 12-B or should it be allotted to the refugees. Consequently, the Chief Settlement Commissioner vide his judgment dated 26.10.1983 decided to transfer the whole of the land to the refugees. Again this decision was challenged in the High Court but before any decision this impugned Martial Law Order No.425 was issued by the Martial Law Administrator on 19.04.1984, whereby the land in question was transferred to the Sericulture Department retrospectively, i.e., w.e.f. 25.10.1983, meaning thereby, this order was given retrospective effect, one day prior to announcement of judgment by the Chief Settlement Commissioner, NFWP. The Chief Settlement Commissioner announced a detailed judgment on 26.10.1983 and MLO No.425 dated 19.04.1984 was given legal effect from 25.10.1983. This act of giving the MLO a retrospective effect shows the clear ulterior motive on the part of the Martial Law Administrator, who thereby hampered the way of justice very blatantly, thwarting and derailing the due process of law, as the judgment of the Chief Settlement Commissioner dated 26.10.1983, which was challenged in the High Court and was pending adjudication in the High Court but before its final decision this impugned Martial Law Order No.425 was notified.

10. The Additional Advocate-General, KPK, while arguing the case pleaded that this MLO No.425 was not a law but a decision of Martial Law Administrator of NWFP to solve a dispute between the parties. By no means, the impugned MLO was made by the Martial Law Administrator to solve a dispute between the parties as asserted by the Additional Advocate-General, KPK. In either case, it is admitted fact that this MLO No.425 is related to a land which is subject matter of a legal dispute between the parties. In addition to that, it is also an admitted fact that the then Martial Law Administrator of NWFP did not offer or provide the opportunity to the petitioners to be heard; hence, they were condemned unheard despite the known fact that they were the interested party to a dispute directly related with the order so passed vide MLO No.425. This act of the Martial Law Administrator as it was executed is against a principle of Islamic Law as laid down in the following Hadith of the Prophet (S.A.W.) narrated by Hazrat All (R.A.):-- Narrated Hazrat Ali (R.A.) ibn Abu Talib: The Messenger of Allah sent me to the Yemen as judge, and I asked: Messenger of Allah, are you sending me when I am young and have no knowledge of the duties of a judge? He replied: Allah will guide your heart and keep your tongue true. When two litigants sit in front of you, do not decide till you hear what the other has to say as you heard what the first had to say; for it is best that you should have a clear idea of the best decision. (Abu-Dawood Kitab ul Aqziya)

11. The crux of this Hadith is that no one should be condemned unheard. The legal maxim audi alteram partem coincides with this principle of Islamic law.

12. Needless to observe that in the light of above-discussion and as per the Constitutional mandate, this Court can exercise jurisdiction only to the extent of reliefs prayed for in the prayer clause vide reliefs Nos.1 and 2.

13. After hearing the parties, perusing the record and for the reasons recorded hereinabove, we are of the view that the Martial Law Order No.425 dated 19.04.1984 as published in Official Gazette on 14.05.1984 is against the injunctions of Islam being an Order to solve an issue between the parties as claimed by the Additional Advocate-General, KPK and was notified in violation of the Islamic principle of law as discussed supra. Hence, the Shariat Petitions are accepted, the Martial Law Order No.425 dated 19.04.1984 passed by the Martial Law Administrator is declared contrary to injunctions of Islam. All the other questions raised by the parties regarding their title over the disputed land and or mariner and quantum of compensation are outside the scope of jurisdiction of this Court, as they do not fall within the precincts of the Article 203-D of the Constitution. MH/14/FSC Order accordingly.