2004 PLP 637 (YLR)

Ghulam Hussain Zohra Mai Jewan Karim Bakhsh Zohra died about 40/50 years before death of her father Ghulam Hussain according to the 'petitioners; whereas she died about 25/30 years before death of Ghulam Hussain according to the respondent. Zulaikha The mutation of inheritance was sanctioned in favour of all the legal heirs of Ghulam Hussain vide Mutation No.149 which was sanctioned by the Revenue Officer on 21‑5‑1998 ‑in view of section 4 of Muslim Family Laws Ordinance, 1961. Section 4 of the Muslim Family Laws Ordinance was declared un‑Islamic by‑ the Federal Shariat Court titled in "Allah Rakha and others v. Federation of Pakistan and others" PLD 2002 FSC

1. The Federal Shariat Court had fixed cut off date 31‑3‑2002 i.e. said section shall cease to have effect after the target date. It is pertinent to mention here that the aforesaid judgment of the Federal Shariat Court has been challenged before the Honourable Supreme Court, therefore, judgment of the Federal Shariat Court shall be suspended automatically till the disposal of appeal in view of Article 203(D), 1(A)(2) proviso, therefore, section 4 of Muslim Family Laws Ordinance, shall remain in the field till the disposal of appeal by the Supreme Court of Pakistan, Shariat Appellate Bench. In arriving to this conclusion, I am fortified by the law laid down by the Honourable Supreme Court in "Fazeelat Jan and others v. Sikandar through his legal heirs" PLD 2003 SC 475.

6. It is admitted fact that Mutation No. 149 was sanctioned on 21‑5‑1998 by the Revenue Officer in view of section 4 of the Muslim Family Laws Ordinance, 1961: whereas Federal Shariat Court declared section 4 of Muslim Family Laws Ordinance against Injunction of Islam, vide judgment dated 29‑12‑1999. The Federal Shariat Court as mentioned above, has fixed cut off dated 31‑3‑2000. It is settled principle of law that the judgment of Federal Shariat Court has prospective effect and not retrospective effect. In arriving to this conclusion, I am fortified by the law laid down by the superior Courts in the following judgments:‑‑ "Muhammad Yusuf v. Chief Settlement Commissioner and others" PLD 1968 SC 101; "Chief Land Commissioner and others v. Ch. Atta Muhammad Bajwa and others" 1991 SCMR 736; "Muhammad Sharif, etc. v. Nawab Ali, etc." 2002 CLC

285. The Courts below have no jurisdiction to decide the matter in view of Article 2A of the Constitution in view of Article 203‑G of the Constitution as law laid down by the Honourable Supreme Court in "Hakam Ali's case. PLD 1992 SC 595 and law laid down by the D.B. of this Court in "Muhammad Ramzan's case" 2001 CLC

158. The question of law has been considered by this Court in "Kamal Khan alias Kamala v. Zainab Bibi" PLD 1983 Lahore 546 and laid down the following principle:‑‑ "The starting point is that notionally the offspring of the propositus is deemed to be alive for the purpose of succession, at the time of the death of the propositus, and the succession of the grandchild is to be calculated again notionally as if the parent of the grandchild died after the death of the original propositus. " The aforesaid proposition of law has also supported by the law laid down by the Superior Courts in the following judgments:‑‑ "Ibrahim and 3 others v. Nehmat Bi and others" PLD 1988 Lahore, 186; "Mst. Iqbal Mai and others v. Falak Sher and others" PLD 1986 SC 228; "Asghar Ali v. Siraj‑ullah Khan' alias Shaji‑ullah" 1993 CLC

545. The ratio of the aforesaid judgments of the superior Courts, is that the grandchild is entitled to share equal to the share .of his mother or father in view of section 4 of the Muslim Family Laws Ordinance, 1961. It is pertinent to mention here that mutation of inheritance reveals that Karim Bakhsh, Jewan and Zohra Mai, are legal heirs of original owner Ghulam Hussain, had taken 4 share; whereas granddaughter of original owner i.e. Zulaikha daughter of Zohra Mai, secured one share which means that she had taken share only of her mother which is in accordance with law laid down by the Superior Courts in the aforesaid judgments. Even otherwise, it is pertinent to mention here that the petitioners did not take the aforesaid grounds in the memorandum of the appeal before the First Appellate Court. The grounds which are taken by the petitioners in the memorandum of appeal are reproduced hereunder for ready reference:‑‑ The aforesaid grounds clearly reveal that the petitioners did not take plea which was argued by the learned counsel of the petitioners before this Court, therefore, the counsel of the petitioners cannot allow to raise the aforesaid plea before this Court as per law laid down by the superior Courts in the following judgments: ‑‑ "Ashfaq‑ur‑Rehman v. Ch. Muhammad Afzal" PLD 1971 SC 766; "John E. Brown‑lee v. Vivian Mac Millan" AIR 1940 PC (sic). In view of what has been discussed above, this civil revision has no merit and the same is dismissed. H.B.T./K‑255/L Revision dismissed.