P L D 2005 Supreme Court 186 (PLP)

NAZIM HUSSAIN SIDDIQUI, C.J.‑‑‑This order will dispose of Civil Review Petitions Nos. 239 and 240 of 2004 in which common questions of facts and law are involved. The facts of these matters have been narrated in the impugned judgment dated 5‑11‑2004 and the same are not reiterated. Constitution petitions Nos. 23 of 1999 and 21 of 2004 along with C.M.A. No. 1466 of 2004 were disposed of by impugned judgment as follows:‑‑ "

29. In the light of the above discussion, we decide as under:‑‑ ‑‑‑ Constitution Petitions Nos. 23 of 1999 and 21 of 2004 are dismissed; ‑‑‑ C.M.A. No. 1466 of 2001 in Constitution Petition No.23 of 1999 is disposed of in above terms; ‑‑‑ The Act No. V of 2003 passed by the Provincial Assembly of the Punjab is struck down; ‑‑‑ The Ordinance No.11 of 2000 holds the field and is applicable throughout Pakistan and the guests be served in terms of sections 4 and 5 ibid quoted above."

3. Today, these matters were fixed at Serial No. 1 of the cause list. Neither the petitioners nor their counsel nor A.O.R. appeared nor any intimation was sent by them. We kept these matters aside and at 11‑30 a.m. the same were taken up again. At that time also, nobody appeared for the petitioners.

4. A citizen. Mr. Muhammad Hanif Abbasi, who had appeared in the main case through C.M.A. No. 1466 of 2004, is present and made his submissions opposing the Review Petitions.

5. The following grounds have been raised for setting aside the impugned judgment:‑‑ (1) That Constitution Petition No.23 of 1999 was heard by a Bench of this Court headed by the then Hon'ble Chief Justice and after conclusion of the arguments the petition was allowed in open Court and this was noted by the Court Associate on the original file by writing the word "allowed". (2) That the order, which was announced on 8‑11‑2002, was reported in the print and electronic media, as such, the same could not be ignored. (3) That for re‑hearing the matter the Bench should have been constituted of the Judges, who heard and decided the matter on 8‑11‑2002. (4) That the Ulema Judges of this Court were required to be the Members of the Bench. (5) That offering food to the guests at marriage ceremony does not fall within the scope of "Asraaf". (6) That it is almost mandatory in the light of sayings of Holy Prophet (p.b.u.h.) that there may be some festivity, which includes offering of food to the guests, who have come to join marriage ceremony. (7) That there are lots of other occasions apart from marriage where rich food is served like "Chehlum etc." and no such embargo has been imposed thereon, as such, there is no justification whatsoever for such restriction on meals during marriage ceremony. (8) That serving of meals does not create any burden on the host because the persons participating in the marriage contribute towards the expense.

6. The judgment allegedly announced on 8‑11‑2002 is not a judgment in the eye of law. Neither it was written nor signed. Solitary word "allowed" appearing on title of the file could not confer the legal status of a valid judgment. Since it was not a judgment within the meaning of law, as such, the matter was re‑heard. So many other cases, like the present one, have been heard afresh by this Court after retirement of the Judges, who failed to deliver the judgment, as is required under the law. Mere fact that some reports appeared in the print and electronic media does not, ipso facto, bring the oral utterances within the ambit of valid judgment. Besides, the observations of the Court during the course of arguments are not necessarily the part of the judgment and are made only to comprehend the issues involved in the matter.

7. As regards the plea that the matter ought to have been placed before the same Judges, who heard the arguments on 8‑11‑2002, suffice it to say, that two of them had already retired. It is not the right of the petitioners to select the Judges of their own choice. To constitute a Bench is a prerogative of the Chief Justice and the parties cannot ask for a Bench of their choice.

8. So far the plea of Asraaf is concerned, it is noted that the same has been dealt with in the impugned judgment and it could not be re‑agitated by using different phraseology and words. On this point it would be advantageous to reproduce para. 22 of the impugned judgment, which reads as under:‑‑ "

22. We have also gone through the research note placed on record, which was submitted before the Islamic Ideological Council in respect of Walima. It concludes that such functions shall be free from `Asraaf' and `Tabzeer' and such functions shall also be free from such actions and deeds, which are prohibited in Islam and may lead towards un‑Islamic actions and deeds. No doubt, Walima is a Sunnah, but always it shall be within limits as narrated in various Ahadiths quoted above. Extravagance i.e. ostentatious and wasteful expenditures on the occasion of Walima are always discouraged right from the vary beginning. By enormous expenditure of above nature, social vices are created leaving behind horrifying consequences. These evils have generated social inequalities in the society."

9. As regards the contention of not imposing embargo on Chehlum and confining it to the marriage functions alone, it is not that presently we are dealing with the provisions relating to the marriage functions within the scope of the Marriages Functions (Prohibition of Ostentatious Displays and Wasteful Expenses) Ordinance, 2000 and the Punjab Marriage Functions (Prohibition of Ostentatious Displays and Wasteful Expenses) Act, 2003 and not the customs like `Chehlum'. It is for the legislature to enact a law as it deems necessary.‑It is a new plea and was not taken at the time when final arguments for deciding the petitions in question, were heard.

10. We are of the view that 90% of the population of the country cannot afford huge expenses and the poor parents of the girls invariably are exposed to insurmountable financial problems resulting from lavish expenditure on the occasion of the marriage. It appears from various Ahadiths, Valima is only "Mubah" and is not obligatory.

11. When the matter was heard on 8-11‑2002 no Aalim Judge was a member of Bench nor any such prayer was made. In the proceedings instituted under Article 184(3) of the Constitution, Aalim Judge is not the requirement of law. The moot point involved was whether the Ordinance 11 of 2000 being valid and in force, the Government of Punjab could enact the Act V of 2003. It is absolutely clear that in view of Article 143 of the Constitution of 1973, the Act V of 2003 could not be enacted, as the same was inconsistent with the Ordinance II of 2000 promulgated by the Federal Government. Learned counsel for the petitioners, while arguing the main petitions on 24‑9‑2004, made a request to withdraw the petitions viz. Constitution Petitions Nos. 23 of 1999 and 21 of 2004, and this was done, as pointed out by learned Deputy Attorney‑General, only to save the Act V of 2003 which has been struck down by the impugned judgment. The withdrawal was sought for mala fide reasons.

12. Under the circumstances, we are of the view that there is no merit in these review petitions and the same are dismissed on merits.

13. Mr. Muhammad Hanif Abbasi states that the judgment of this Court is not being implemented and food on Valima ceremony is being regularly served throughout the country. In newspapers many articles to this effect have appeared. We direct the Chief Secretaries, Inspectors General Police of the Provinces, Chief Commissioner and Inspector General Police of Federal Capital Territory, Islamabad and District Administration to ensure that the judgment delivered by this Court on 5‑11‑2004 is implemented in letter and spirit and action against those, who contravene the provisions of the Ordinance II of 2000 be initiated promptly. The copies of this order be, sent to all the concerned authorities for compliance. M.B.A./M‑192/S Order accordingly.