PLD1981SC 627 (PLP)

In the list attached with the memo. of appeal, three names, including that of the President of Pakistan are mentioned as witnesses and Alm‑e‑Din and the name of Mr. A. K. Brohi as Jurist Consult. In S. A. K‑12 of 1980, the prayer made in the memo. of appeal is that the performance and practice of "Urs" be declared as against the Holy Koran and Sunnah. The appeal has been filed from the order of the Federal Shariat Court whereby it was held that the practice of "Urs" was not such a usage or custom which had the force of law. Therefore, the Shariat petition was not competent and was dismissed accordingly. The list filed with the memo. of appeal contains two names of Ulma‑e Din and one Jurist Consult. In S. A. K‑14 of 1980, the relief claimed is that the custom of women folk in Pakistan moving about without "Pardah" was against the Injunctions of Islam, therefore, all Government action which aid such custom should be stopped, and that the President of Pakistan may be summoned in this appeal also with a peculiar condition that so long as the President of Pakistan is not examined by the Court, the matter should not be decided. In the list of witnesses, the name of Gen. Muhammad Ziaul Haq is repeated as a witness and the name of Mr. A. K. Brohi is mentioned as Jurist Consult. The appeal is from the order of the Federal Shariat Court, dismissing the Shariat Petition on the ground that it was not competent for the reason that the petitioners had failed to show "that such a custom exists far less it has the force of law". In S. A. K. 15 of 1980, the prayer made in the memo. of appeal is that a part of the educational policy of the Government of Pakistan, which has been described as unlslamic and which relates to the practice of "co‑edu cation" be declared as against the Injunctions of Islam. The list attached with the appeal contains one name under the heading "Witness Alam‑e‑Din" and another under the heading "Jurist Consult". The learned Federal Shariat Court noted that two similar Shariat Petitions had been moved before it, one which related to "custom of women without Pardah in Pakistan", and in the other objection was raised to "co‑education of males and females" on the ground that such co‑education is against the Injunctions of Islam. The argument that "this custom AURATOON KI BAY-PARDAGI against the Injunctions of Islam and should be stopped" was considered and it was held that the petitioners had "failed to show that such a custom exists. It was also held that if there was any such custom, it could not be considered to have the force of law. The Shariat Petition was accordingly dismissed summarily. The prayer made in the memo. of S. A. K‑17 of 1980 is that the decision of the Federal Shariat Court, dated 4th of "November", 1980 be declared as void and after taking note of the irregularities alleged to have been committed by the said Court, the matter be remanded for rehearing in accordance with law. In the paragraph preceding the prayer paragraph, the appellant complained that the Federal Shariat Court had decided these Shariat petitions, observing in each one of them that it was beyond the jurisdiction of the Court, and that the same procedure was adopted in the petition out of which the present appeal had arisen. A further complaint has been made that the Federal Shariat Court was not willing to decide any issue, and that is the reason why it has not admitted any petition for hearing so much so that "it had not taken the trouble of summoning the witnesses who would have furnished proof with regard to the competency of the Shariat petitions, and that the request in that behalf had been refused without assigning any reasons, nor any note was kept on the record in this behalf". This, it has been also pleaded in the memo. of appeal, is against justice. For all these reasons, it has been further urged, the decision of the Federal Shariat Court be reversed. As it appears from the order of the Federal Shariat Court impugned in this appeal, the relief claimed in this case was that "the word "Jumhooriat" is repugnant to the Injunctions of Islam, and consequently the word used in "The Islamic Republic of Pakistan" in the Constitution is repugnant to the Injunctions of Islam". This prayer, it was held, concerned the Constitution. Therefore, the Federal Shariat Court bad no jurisdiction to entertain the Shariat petition which was accordingly summarily dismissed. Mr. Saeedullah Kazmi is the appellant in all these six appeals. He himself has appeared in support of the appeals He also addressed arguments at some length in Shariat Appeal No. K‑10 of 1980. While hearing this appeal, it was pointed out to Mr. Kazmi that the controversy raised in the Shariat petition as also in this appeal related to "Fiqa‑e‑Jaafria none professing the said faith has been impleaded as a respondent. This, it was pointed out was in contrast to the conduct of the appellant in some of the other appeals wherein an attempt has been made to implead unnecessary as also the affected parties. He was unable to give any satisfactory reply in so far as this aspect of the matter is concerned, We have beard Mr. Kazmi on the competency of the Shariat petition as also the appeal (K‑10) on the questions :‑ (a) whether the so‑called circular permitting the women of "Fiqa‑e Ja'afria9' to perform Haj without a Mahram, could be‑treated as a law ? (b) if it could be treated as a law, whether it would not fall within the scope of "Muslim personal Law", which is outside the ambit of the jurisdiction of the Federal Shariat Court as also of the Appellate Forum ? As Mr. Kazmi was not assisted by any lawyer, later we asked him to address us on the assumption that the se‑called circular might be a law, but he must satisfy us on the question that this so‑called law does not fall within the scope of "Muslim Personal Law". His only reply remained throughout a lengthy repetitive address, that the challenge made in the Shariat Application so also in this appeal is not to the Personal Law of the "Ja'afria Sect". In other words, the "Ja'afria Fiqa" or "Shariat" is not being challenged it is only an action of the Government in the form of Haj Policy and circulars which constituted law on the subject of controversy, which was being challenged, and because they had been framed by the Government; therefore, they are not included in what has been mentioned in the Constitution, as "Muslim Personal Law". He read from page 1 of Principles and Digest of Muslim Law by Shaukat Mahmood as also the provisions of West Pakistan Muslim Personal Law (Shariat) Application Act, 1962. That, however, has no relevancy to the point in issue whether the question raised if it be assumed one of law did not relate to "Muslim Personal Law". As to what is the scope of the expression "Muslim Personal Law" when used in Article 203‑B of the Constitution, has been considered and decided by this Court in The Federation . of Pakistan v. Mst. Fqrishta (PLD 1981 SC 120 ) After a comparative analysis of Article 203‑1# and Article 227 of the Constitution, it was observed as follows :‑ "In Article 227 the scope and sphere of Council of Islamic Ideology is very wide whereas in Article 203‑B, the jurisdiction of the courts is limited both in point of time and also as regards certain subject mentioned therein. To come nearer to the point in hand, Article 203‑B excludes from its purview examination of "Muslim Personal Law", whereas there is no such exclusion from the purview of the Council of Islamic Ideology. Allowing both these Articles to operate in their respective spheres, the conclusion is inevitable that all such laws which apply to Muslims in their capacity as Muslims, whether ‑these are statutory laws, or are applied under sanction of a statute, are left t be dealt with by the Council of Islamic Ideology and are not to b gone into by courts and this is what the phrase 'Muslim Personal Law' for the purpose of its exclusion ‑in the, context means." It was also held that "Muslim Personal Law" in this special context, therefore, means such codified or legislated law which is being applied to Muslim residents of Pakistan as or with the denomination `Muslim' which governs their person as such and as distinct from general law of the land which applies to everybody". While examining the expressed "Muslim Personal Law" in another context, it was farther observed as follows :‑ "The question is not what is the "Muslim Personal Law" of the Muslims in the Divine sense of that law, but as to what is the law for the time being in force which applies and has been applied to Muslims alone as a class and as a special law. If it has been so applied, it will fall within the set of those laws which apply to the class of people known as Muslims and in the resultant sense will be "Muslim Personal Law" for them. This law will not be challengeable before the Shariat Courts and the wrong, if any, done by that law, will be remedied by the Council of Islamic Ideology. The point in this way is not of giving validity to any such law but only of examining as to through which forum, institution, agencies, or media it is to be remedied. This should not cause any stir, because, there are other laws also like laws of procedure of a Tribunal or Courts, fiscal laws, banking laws, taxation laws and insurance laws etc. which have been kept outside the jurisdic tion of Shariat Courts. Merely, because, jurisdiction has not been given to such courts to examine their validity, it does not mean, that they become "Muslim Personal Law" of Muslims in" their Divine sense, and all that it means is, that to remedy them, it will be the Council of Islamic Ideology which will deliver the goods in their own way, and not the Shariat Courts One meaning is, that it refers to the Divine and religious law of the community known as Muslims of Pakistan. Second meaning is that it consists of all such special laws and statutes denominated as "Muslim" which in Pakistan apply to Muslims alone as distinct from the general laws which apply to all types of people resident in Pakistan. The exclusion in the Explanation to Article 203‑B of the Constitution is the second type of laws and not the former, as the former are already immune and constitute the touch‑stone with reference to which the other laws are to be examined." It is not necessary to examine and analyse any further the scope and connotation of the expression "Muslim Personal Law" as used in Art. 203‑B of the Constitution. The circular said to have been issued by the Government wherein women belonging to "Fiqa‑e‑Ja'afria" were allowed to perform Haj without a Mahram even if treated as law would, falls within the scope of Muslim Personal Law as discussed and defined above. It is not denied; that if the law or usage custom having the force of law, falls within the field of "Muslim Personal Law", it would be beyond the jurisdiction of the Federal Shariat Court. That being so, the dismissal of the Shariat Petition by the said Court, as beyond its jurisdiction was unexceptionable. This Appeal (K‑10) therefore, has no force and is accordingly dismissed. There shall be, however, no order as to costs. As already noted, Mr. Saeedullah Kazmi appeared in person in support of several Shariat Appeals. Before taking up these appeals being dealt with in this judgment, we heard Shariat Appeal No. K‑13 of 1980 which also had been filed by Mr. Saeedullah Kazmi. He had challenged the use of the expression having the force of law in Art. 203‑B which deals with definitions tinder the heading "Law". After some discussion, when it was pointed out to him that the provisions contained in the Constitution are beyond the scope of the jurisdiction of the Federal Shariat Court and further that it had been so held by this Court in Shariat Appeal No. K‑2 of 1980. Mr. Saeedullah Kazmi had withdrawn the appeal. It was accordingly dismissed as withdrawn. Thereafter the hearing of the other appeals, in which Mr. Kazmi was appearing in person, commenced. We heard him on 17‑1‑1981 in support of Shariat Appeal No. K‑10 of 1980. It remained part heard on 17th and after hearing at some length on 18th January, 1981, we announced the order of its dismissal in Court in presence of Mr. Kazmi. On hearing the order of the dismissal of the said appeal, Mr Kazmi visibly felt displeased. Not only this but it also appeared as if he was annoyed. Shariat Appeal No. K‑11 of 1980 was then taken up for hearing. Mr. Kazmi was asked as to what he had to urge in support thereof. But he with some amount of indignation refused to pursue the appeal and stated that he would not press it signifying thereby also that he would not prosecute the same. He also seemed to have stated something hurriedly which if correctly understood was to convey that unless what he wanted, he would not pursue the appeal. He was told that unless he satisfies the Court on the point of jurisdiction, it would not be possible to proceed any further. In this case he remained adamant. Appeal No. K‑11 of 1980 was accordingly dismissed, as not being pressed. Same happened when we took up the next appeal, namely, Shariat Appeal No. K‑12 of 1980. In answer to a Court question, Mr. Kazmi clarified that unless the Court accepts his plea with regard to the summoning of the witnesses, he would not press the appeal. He was informed again that the first question to be resolved was of jurisdiction. He remained adament and repeated his position that he would not press the appeal. We accordingly announced the dismissal of that appeal also as not pressed. His position remained the same with regard to Shariat Appeals Nos. K‑14, K‑15 and K‑17 of 1980. We accordingly announced the orders of dismissal of these appeals also as not pressed. The reason for the dismissal of the appeals is obvious. Mr. Kazmi did not want to press these appeals. Presumably he did not feel pleased with announcement of the order of dismissal in Shariat Appeal No. K‑10 of 1980. However, as an afterthought he put forward an excuse that unless the witneses named by him in the appeals are summoned, he would not pursue the same. Our earlier expressed supposition finds support from the fact that out of the six appeals, namely, Nos. K‑10 K‑11, K‑42, K‑14, K‑15 and K‑17, request had been made for summoning Gen. Muhammad Ziaul Haq, President of Pakistan as a witness in the prayer paragraphs of two appeals only Nos. K‑11 and K‑14 of 1980. There was no justification for making an attempt to impose such a condition on this Court even in these two appeals. The summoning of the President of Pakistan as a witness was not at all essential for determining the jurisdiction of the Federal Shariat Court or even for the matter of the competency of the appeals. Although in one of the appeals (K‑14 of 1980), the request for summoning the President as a witness has been made in the prayer part of appeal and the first lady has also been mentioned as a respondent but even that factor did not justify the summoning of the President for deciding the question of jurisdiction. The insistence of Kazmi besides being unrealistic to say, the least, was most irrational. If he did not pursue the appeals on account of the reason that he felt displeased by our decision in Shariat Appeal No. K‑10 of 1980, his conduct _cannot but be considered as most reprehensible. And if he did so on account of the reason that as in Shanat Appeal No. K‑13 of 1980, he in fact realized that the Federal Sbariat Court had no jurisdiction in these matters, he should have said so candidly. The third reason which he stated has the real cause for not pressing the appeals, as noted earlier, does not appear to be either genuine or rational. In connection with the foregoing, it would not be out of place to mention here a grievance made by the appellant in one of these appeals (K‑12 of 1980). In a sub‑para. of para. 2 of the memo. of appeal, it is stated as follows :‑ The appellant, as it appears from the above quoted ground, was under an impression that it is within the jurisdiction of the Federal Shariat Court to make declarations with regard to all practices (usages or custom) which are against the Islamic Injunctions regardless of the fact whether they have the force of law". It is for that reason that a separate petition for the omission of this rider was filed and the same was dismissed as incompetent. And an appeal was filed in this Court which has .been withdrawn. If the appellant had thought that every usage and action which is against the Injunctions of Islam is within the ambit of the jurisdiction of the Federal Shariat Court, he was gravely mistaken. It is necessary to clarify the position that the Federal Shariat Court has jurisdiction "(i) with regard to `laws' as generally understood including the sub ordinate legislation ; (ii) if a particular practice does not fall under the term "law" thus understood, it can still be within its jurisdiction provided it can fall within well‑understood legal terms, `usage' and `custom'; and (iii) if a particular practice is a `usage' or `custom', it would not fail within the jurisdiction of the Federal Shariat Court unless it has the force of law." For further understanding of these concepts, the decision of this Court in Saeedullah Kazmi v. Government of Pakistan (PLD1981SC42), might be read with advantage It is also clarified that the mere fact that a practice falls within the connotation of "law" as defined in Art. 203‑B of the Constitution, it is not necessary that it must be within the jurisdiction of the Federal Shariat Court. Further exclusions have been made to sub‑clause (c) of Art. 203‑B, namely, that‑‑‑ (i) it should not be included in the Constitution ; (ii) it should not form part of "Muslim Personal Law"; (iii) it is not a law relating to "Procedure of a Court or Tribunal" ; and (iv) certain other laws like fiscal laws for a period of three years from the commencement of Chapter 3‑A, Part 7 of the Constitution 2nd para., sub‑clause (c).' For detailed discussion on the questions as to what is "Muslim Personal Law" and the scope of "law" relating to "Procedure of a Court or Tribunal". see the decisions of this Court in the case of Mst. Farishta and S. M. Junaid v. President of Pakistan (PLD1981SC12). Before closing this judgmcnt. it is necessary to make some comments on the attitude of the appellant (Mr. Saeedullah Kazmi) towards the Federal Shariat Court and towards the subject matters coming before that Court. L Unfortunately, he (may be on account of unawareness of the modes of address and pleadings) made, to say the least, most uncharitable remarks in the grounds of appeals filed in this Court some of which could have necessitated the commencement of formal proceedings against him in that behalf. He had done so in an earlier appeal also which was heard during the previous session at Karachi. Having noticed that he was not well versed in the practice of the superior Courts and under a realisation that individual citizens might get discouraged by any formal action, we had then thought it fit only to make him understand his mistakes in his attitude, on which he haal expressed his regrets. Despite that he has in the memos. of appeals in these cases made such assertions which border on personal attacks on the learned Judges of the Federal Shariat Court and in some remarks has even gone to the extent of imputing motives and lack of propriety. When questioned in this behalf, he tried to explain it away by stating that the use of objected phraseology was made by him only in a technical and not in a personal sense., We do not want to make any further comment on this particular aspect because we would not like to prejudice the appellant's position in case the Federal Shariat Court proceeds to take any formal action against him. However, it would not be out of place to put the appellant on caution that if he persists in this attitude, regardless of what the Federal Shariat Court would do in the matter, this Court might also feel constrained to take action as may be permitted by law. It is in this very context that the appellant is put on a further caution that it is highly undesirable that without any rhyme. or reason such persons should be impleaded as parties who prima facie have nothing to do with the subject matter of the case. The appellant should also keep in mind that an important underlying intention of the provisions of the Constitution creating the new Court and jurisdiction is not to subject the issues relating to Shariat to the rigours of the clashing interests. It is unfortunate that the appellant when drafting the memos. of appeals thought and wrongly so as if the learned Judges of the Federal Shariat Court were his adversaries. In view of what has been stated above, we are constrained to direct that no copy of the memo. of appeals filed in these matters shall be issued to any person without first deleting the uncalled for statements, averments and asser tions made therein, and that too under the direct orders of the Registrar of this Court. With the foregoing remarks, observations and directions, all these appeals stand dismissed. There shall be no order as to costs. s. A. H. Appeals dismissed.