P L D 1992 Federal Shariat Court 412 (PLP)

TANZIL‑UR‑RAHMAN, C J.‑‑This Shariat Petition was originally filed on 25‑2‑1989. An amended petition was, however, later on, filed on 21‑3‑1989. It is submitted in the petition that on 26th September, 1973, the Pakistan Civil Servants Act of 1973 was enacted and in the Province of Sindh the same Act was enforced on 5th of December, 1973. As such the Federation of Pakistan has framed Rules in 1973 under the said Act of 1973 and the Province of Sindh framed such Rules under section 26 of the Provincial Act. of 1973, known as Civil Servants (Appointment, Promotion and Transfer) Rules, 1974. It is thus submitted that Rule 14 of the said Rules, as in force in the Federation of Pakistan and Province of Sindh which, in para materia, are the same is against the Injunctions of Islam.

2. It is further submitted that the Office Memorandum No.8/9/72‑TRV dated 31st August, 1973, as disclosed by the Minister Incharge of the Establishment Division on a specific question put by Mr.Wasi Mazhar Nadvi on 11th June, 1987 in the National Assembly that there exists quota system based upon the said Memorandum, having the force of law, is also repugnant to the Injunctions of Islam.

3. The said Rule and Office Memorandum are reproduced as under:‑‑ (i) THE PAKISTAN CIVIL SERVANTS (APPOINTMENT, PROMOTION AND TRANSFER) RULES, 1973 (ii) SINDH CIVIL SERVANTS (APPOINTMENT, PROMOTION AND TRANSFER) RULES, 1974 "Rule. 14.‑‑Vacancies in the undermentioned posts shall be filled on Provincial basis in accordance with the merit and regional or District quota, as determined by Government from time to time: (i) All posts in basic pay scales 16 and above and equivalent; (ii) Posts in basic pay scales 3 to 15 and equivalent in offices, which serve the whole of Pakistan." ESTABLISHMENT DIVISION OFFICE MEMORANDUM N0.8/9/72‑TRV, DATED 31ST AUGUST, 1973 "(a) The provincial quotas have been prescribed under rule 14 of Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 in pursuance of proviso to Article 27(1) of 1973 Constitution. (b) The prescribed provincial quotas laid down vide Establishment Division O.M. No.8/9/72‑TRV, dated 31st August 1973 are as under: Merit quota 10% Punjab (including Federal area of Islamabad) ... ... ... ... ... ... ... ..50% Sindh (including Karachi) .19% The share of Sindh will be further sub‑allocated in the following ratio; Urban areas namely .19% or Karachi, Hyderabad & Sukkur .7.6% Rural areas i.e. rest of Sindh .60% of excluding Karachi .19% or Hyderabad & Sukkur .11.4% N.‑W.F.P .11.5% Balochistan .3.5% Northern Areas and Federally Administrated Tribal Area 4% Azad Kashmir .2% (c) The 19% quota fixed for Sindh has been further distributed in the ratio of 40:60 for Sindh (Urban) and Sindh (Rural) respectively. (d) Sindh (Urban) comprises areas of Karachi, Hyderabad and Sukkur, Sindh (Rural) includes areas of rest of Sindh excluding Karachi, Hyderabad and Sukkur."

4. This Court by its judgment dated 14th June, 1989, held that quota system provided in rule 14 of the Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974 and Office Memorandum No.8/9/72 TRV, dated 31st August, 1973, is protected by Article 27(1) of the Constitution of Pakistan, 1973 and is thus immune from being challenged in this Court in view of Article 203‑B(c) of the said Constitution. The provision of Article 27(1) of the Constitution, for the sake of convenience, is reproduced as under:‑‑ "Art.27(1).‑‑No citizen otherwise qualified for appointment in the service of Pakistan shall be discriminated against in respect of any such appointment on the ground only of race, religion, caste, sex, residence or place of birth: Provided that, for a period not exceeding twenty years from the commencing day, posts may be reserved for persons belonging to any class or area to secure their adequate representation in the service of Pakistan: Provided further that, in the interest of the said service, specified posts or services may be reserved for members of either sex if such posts or services entail the performance of duties and functions which cannot be adequately performed by members of the other sex."

5. An appeal was preferred against the above judgment (vide Shariat Appeal No.18 of 1989) and the Shariat Appellate Bench of the Supreme Court was pleased (vide its judgment dated 20th February, 1991) to remand the matter to this Court with the following observations:‑‑ "Even if it is proved that the rules and memorandum under consideration were framed under the authority of Article 27(1) of the Constitution, they cannot be held to be the provisions of the Constitution itself and their examination in the light of the Injunctions of Islam does not amount to examining a provision of the Constitution. We, therefore, hold that the federal Shariat Court has the jurisdiction to entertain the petition of the appellant under Article 203‑D of the Constitution and has the jurisdiction to decide whether or not the impugned laws are repugnant to the Injunctions of Islam as laid down in the Holy Qur'an and Sunnah." For the above view reference was made to the Government of N.‑W.F.P. v. Said kamal Shah (PLD 1986 SC 360) and Qazilbash v. Chief Land Commissioner Punjab (PLD 1991 SC 99).

6. A copy of the judgment was received by the office of this Court in the end of March, 1991. The above Shariat Petition was then fixed for regular hearing on 23rd May, 1991 with notice dated 14th April, 1991. The Federal Government and the Provincial Government of Sindh were required to file written statement, as provided under sub‑rule (3) of Rule 12 of the Federal Shariat Court (Procedure) Rules, 1981, accompanied by documents on which they placed reliance not later than one week before the date of hearing.

7. A written statement was however, filed on behalf of the Provincial Government of Sindh on the 28th June, 1991, wherein the objective of reservation of quota was stated to be the obtaining "adequate representation in service for the people of rural areas". The Federation has failed to file any written statement till today or produce any religious scholar in support of the said provisions of law, in spite of further notice issued to it on 10th March, 1992 and so the province of Sindh.

8. The grievance of the petitioner is that the introduction and fixation of the above‑cited quota system in general and its further sub‑division in the province of Sindh in particular has caused serious prejudice to most of the citizens of Pakistan by discriminating between the citizen and citizen on the ground as envisaged in the said rule and Memorandum, thereby depriving them of their rights protected by the Injunctions of Islam.

9. Before discussing the Injunctions of Islam on the subject, we would like to refer to the provisions of Article 27 of the Constitution; reproduced above, that no citizen otherwise qualified for appointment in the service of Pakistan (which includes the service of a Province) shall be discriminated in respect of any such appointment on the ground only of race, religion, caste, sex, residence or place of birth. The said Article, as framed originally, however, provided that for a period not exceeding "ten years" from the commencing day of the Constitution, post may be reserved for persons belonging to any class or area to secure their adequate representation in the service of Pakistan. It may also be noticed that the first proviso to Article 27(1) prescribing "ten years" from the commencing day for reservation of posts for persons belonging to any class or area was substituted for a period not exceeding "twenty years" by virtue of P.O. No.14 of 1985 (vide Article 2 and Sch.).

10. Now, adverting to the Injunctions of Islam as laid down in the Holy Qur'an and Sunnah of the Holy Prophet (p.b.u.h.) we may first refer to a number of verses of the Holy Qur'an which pertain to the question before us. The Holy Qur'an says: (Allah doth command you to render back your trusts to those to whom they are. (Al‑Nisa 4:58). (Ye that believe! Betray not trust of Allah and Apostle, nor misappropriate knowingly things entrusted to you) (Al‑Anfal 8:28).

11. The following verse of the Holy Qur'an is very much apt to the issue before us that there is no difference between the individuals of mankind on the basis of race, colour and territory. All human beings are equal in the eyes of Allah as He created man from a quintessence of clay. The Holy Our'an says: (O ,mankind! We created you from a single (pair) of male and a female, and made you into nations and tribes that ye may know each other (Not ye may despise each other). Verily the most honoured of you in the sight of Allah is (He) who is the most righteous of you (Al- Hujrat 49:13).

12. By this verse the entire humanity is addressed i.e. all mankind without any distinction as to caste, creed and colour, and the territory origin or place of residence. Let us here note this fundamental message of Islam that all humanity belongs to one human family, without any inherent superiority of one over the other. Consequently all racial, national or tribal prejudices stand condemned. The Prophet said: "Behold, Allah has removed from you the arrogance of pagan ignorance (jahiliyyah) with its boast of ancestral glories. Man is but a Allah‑conscious believer' or an unfortunate sinner. All people are children of Adam, and Adam was created out of dust:' (Fragment of a hadith quoted by Tirmidhi and Abu Daud, on the authority of Abu Hurayrah.). The Holy Our'an further say, (Give not unto the abolish your wealth which Allah has given you (Al‑Nisa 4:5)

13. Islam has given the principle of equality (Musawat) to the world in which the class and group‑conflicts reigned supreme. This principle of equality before law has very vividly been elaborated in a large number of Ahadith out of which, a few are reproduced below: It is narrated from Ayisha that: (The Holy Prophet (p.b.u.h.) ordered the people of the tribe of Bani Bayadha that they give in marriage a woman from amongst them to Abu Hind. They replied to the Holy Prophet (p.b.u.h.) that it would be an embarrassing situation for them to mary their daughters to their slaves. Then (Allah revealed this verse: We created you from a single (pair) of a male and a female and made you into nations and tribes that ye may know each other: (Al‑Qurtubi: Al‑Jami' li Ahkam al -Qur'an: Cairo, 1967, Vol. 1.6, p.341) (Al‑Siuti: Al‑Dur al‑Manthur: Bierut, Vol. VI, p.98).

14. Al‑Baihaqui narrated in his book, namely, Dalail al‑Nubuwwah that Ibn Abi Mulaikah said that: (When Makkah was conquered, Bilal mounted on the roof of the Holy Kabah and called people for prayer. At this occasion some people said, in a tone of amazement that this black slave was calling the people, from the top of Kaba, for prayer, while the others said, that perhaps, Allah did not like any person except him. At this juncture the verse of the Holy Qur'an was revealed: O! people, We created you from a single (pair) of a male and female

"

15. Narrated from Abu Hurairah that the Holy Prophet (p,b.u.h.) said: (O! people, Allah has removed from you, the pride of ignorance and boasting, of that time, with forefathers. Men are of two kinds: righteous, pious and respectable in the sight of Allah and the other is one who is profligate, miserable and negligible in the sight of Allah. All people are descendants of Adam and Adam was created from clay. Allah said: O mankind! We created you from a single (pair) of male and female and made you into nations and tribes, that ye may know each other (Not that ye may despise each other). Verily the most honoured of you in the sight of Allah is (he who is) the most righteous of you. (Al‑Jame li‑Al‑Tirmidhi, Vo1.5, p.389).

16. The Holy Prophet (p.b.u.h.) said in his address at the Hajjat‑al‑Wida the last Hajj, performed by him, that:‑‑ "O! people, hear me, your Lord is one and your father is one. No Arab has any superiority over a non‑Arab, nor any non‑Arab over an Arab nor any white man over a black man, nor a black man over. a white man, save in respect of piety and fear of Allah."

17. Abu Dharr narrated that he asked the Holy Prophet (p.b.u.h.): (Will you not appoint me to a public office? He stroked my shoulder with his hand and said: Abu Dharr thou art weak and authority is a trust, and on the day of judgment it is a cause of humiliation and repentance except for one who fulfils its obligation and properly discharges the duties attendant thereupon. (Sahih, Muslim (Kitab al -IImarah), Vol.3, p.1457, Beirut Edn. Eng. Translation by Abdul Hameed Siddiqui, Vol.11, p.1015 pub. Sh. Muhammad Ashraf, Lahore).

18. Hazrat Abu Bakr narrated that the Holy Prophet (p.b.u.h.) said: (Every person who has been given some authority, of the Muslim community and he appoints someone out of favour, he will be cursed by Allah and all of his good actions shall be turned down up accepted). (Musnad, al‑Imam Ahmad bin Hambal, Vol.1, p.6).

19. Lastly, the following Hadith of the Holy Prophet (p.b.u.h.) is narrated: (When honesty is lost, then wait for the Hour (dooms' day). He asked: `How will that be lost. The Prophet said: When the power or authority comes in the hands of unfit persons, then wait for the Hour (dooms' day). Admittedly, a post or an office is a trust' in the hands of the appointing authority as is enshrined in the Objectives Resolution which has now been made substantive part of the Constitution wherein it has been, inter alia, provided that "Sovereignty over the entire universe belongs to Almighty Allah alone, and the authority to be exercised by the people of Pakistan within I the limits prescribed by Him is a sacred trust:"

20. Political power is held in trust (amanah) from the Almighty Allah and "those from amongst you" who have been entrusted with authority must exercise Heir authority or power (a sacred trust) as manifested in His various Commandments and Ordinances.

21. It appears from the study of the Holy Qur'an and Sunnah of the Holy Prophet (p.b.u.h.) that Islam abhors against discrimination or preference between man and man, except for their piety, ability and capability, mentally as well as 'physically.

22. The Holy Qur'an has fixed a. parameter of the selection of eligible person for getting appointments. The Holy Qur'an says:‑‑ (Truly the best of men for thee to employ is the roar: who is strong and trustworthy). (Al‑Qasas 28:36).

23. Imam Ibn Talmiyyah in his well‑known work (Sayasat ul Shariah) (Urdu Tr.) Karachi, pp. 83‑84 has stated that:‑‑

24. The Holy Qur'an commands us to render back the trusts to those whom they arc due. It further commands that when you judge between man and man it is to be judged with justice. There is a consensus among the commentators of the Holy Qur'an that the word ) (trust) used in Verse 58 of Surah Al‑Nisa is not to be given a restricted meaning and any sort of trust comes under its purview. Although the said verse was revealed in connection with giving back the keys of Ka'ba to Bani Talha but for the generality of the word (Ba maaarkam) in the verse, this commandment applies to all the trusts and all persons for giving them to whom they arc due. It is so stated in Tafsir Mazhari by Sanaullah Panipati, Vol.II, page 148.

25. Tafseer Abi Sa'ud, Vol.l, Beirut, page 193 also states that: Here the rulers have been commanded to give the rights that they possess i.e. any charge or post to its deserving. The same thing is stated in Tafsir Al‑Kabir by Imam Razi, Vol.IX, page 138. (Although this verse was revealed in connection with the above mentioned story but you must know that this commandment cannot specifically be connected with this story but all sorts of trusts come under its purview.

26. Tafsir al‑Qur'an al‑Azim by Ismail bin Kathir Damishqi, Beirut, Vol.I, page 516 states that: (This verse was revealed in connection with that story. Whatever the case may be, every body has been enjoined in general (to give the trust to whom it is due) According to Ibn Abbs, Muhammad Ibn Ali Hanfia, all pious and sinners have been ordained in general while according to Muhammad bin K'ab, Zaid bin Aslam and Shahr Ibn Hushab, the high‑ups and rulers of the nation have been specifically commanded to give the trust to its deserving). 27 Allama Rashid Raza in his Tafsir Al‑Manar, Vol.III, page 138 states that: (Irrespective of the genuineness or otherwise of the story of keys of Ka'ba the subject‑matter and the generality of this commandment remain in place any specific reason does not nullify the generality of the commandment).

28. Explaining the word (Bamar kam) doth command you) Zamkhashari in his commentary Tafsir at‑Kashhaf An Ghawamis al‑Tanzil, Vol.1, page 535, writes that: (Only the rulers and state high‑ups have been addressed to give the trust to its deserving and to decide the case between the people justly). and lastly Allama Ourtubi in his Tafseer Al‑Ahkam al‑Qur'an, Vol.V, page '.',56 writes that: (According to Ali, Zaid bin Aslam, Shahar bin Hushab and Ibn Zaid, in this verse, the rulers specifically Muslim rulers, the Holy Prophet (p.b.u.h.), his wives and who come after them have been enjoyed to give the trust to its deserving. According to Ibn Jurij, this verse was revealed only in connection with the keys of Ka'ba while according to Ibn Abbas although the Muslims rulers have been specifically addressed, the generality of the commandment is also manifestly clear from the verse).

29. In view of the above commentaries of the verse (IV:58) it can easily be concluded that although the verse has been revealed on the occasion of the handing over of the keys of Ka'ba to the Holy Prophet (p.b.u.h.) after the conquest of Makkah, but all the Muslims, particularly, the rulers, have been ordained through this verse, to give the trust to those persons who are worthy of trust. The reference to a particular situation as to a circumstance or even must never be taken to obstruct the underlying intent and purpose of that verse and its message.

30. By the use of the words (Bamarkum) and (Amanat) all the Muslim rulers and officials, in their various capacities, are commanded to return back the trust to the deserving which includes to appoint deserving person to a post and assignment. The term (Amanat) denotes anything one has been entrusted with, be it in the physical or moral sense. "By this divine commandment a trust, is sacred to be passed on to those who are entitled thereto. The above does not preclude the ordinance from having a wider scope as well, that is, from its being applied to any material object or moral responsibility which may have been entrusted to a believer and, in particular, to the exercise of worldly power and political sovereignty by the Muslim community or a Muslim State, to which the next verse refers." ("The Message of the Qur'an by Allama Muhammad Asad, Dar Al‑Andalus Gibraltar, 1980, page 115). Expediency whether it be political or otherwise should be subservient to the divine commandment of Allah and not that the divine commandment is made subordinate to the expediency.

31. The following traditions of the Holy Prophet (p.b.u.h.) will further illustrate the point:‑‑ (i) Hazrat Abu Dharr narrated from the Holy Prophet (p.b.u.h.) that he requested:‑‑ (Will you not appoint me to a public office? He stroked my shoulder with his hand and said: Abu Dharr, thou art weak and authority is a trust, and on the Day of Judgment it is a cause). (Sahih Muslim, Vo1.III, p.1015). (ii) It is narrated from Ibn Abbas that the Holy Prophet (p.b.u.h.) said: (One who appointed a person on a public post from among a group of people and there is a person who is more near to the pleasure of Allah he definitely betrayed the trust of Allah, His Prophet and the believers) (Al‑Mustadrak, Vol. IV, p. 93). (iii) Hazrat Abu Bakr narrated that the Holy. Prophet (p.b.u.h.) said: (Ones who has been given an authority of Muslims and he appointed someone on public post out of favour, there is upon him the curse of Allah and Allah will not accept from him, either obligatory acts or the superarrogatory acts and he will be sent in Hell) (Al‑Mustadrak, Vol.IV, p. 93). (iv) Allama Ibne‑Taimiyah discussing the vase of the Holy Qur'an (Al -Nisa‑58) and relevant Ahadith said: (It is, a duty of the ruler to appoint on public posts such persons who are more competent for that) . (Al‑Siyasat Al‑ Shara'iyyah, p.10, Beirut).

32. We may also refer' to an Article published in the monthly journal (Al Qanun) Karachi, Vol.III, Issues Nos.l and 2 for January and February, 1992, appearing at pages 39‑40 in, which. under the caption. it has been, inter alia, stated that: The said Article further states that : The Article also states that

33. It is true as submitted by Dr. Irfani, that the standard of education in rural areas is much below as compared to the standard in urban areas and so the quota system has been introduced, but it is equally true that the standard of education in different urban areas also suffers from inequalities; it differs from institution to institution. In fact, there are two systems of education which are running parallel: one is available to affluent people where the medium of instruction, generally speaking, is English whereas the other system of education is available for lower middle and poor classes where Urdu medium is in practice. This double system of education has been responsible in creating polarization in our society which is poisonous for the growth and development of the society on Islamic lines. If we look to the past history of Muslim rule in the sub‑continent or for that matter in other Muslim countries, we rind one and the same system of education meant for all classes of people whether poor or rich, or in rural areas or the urban ones. The education used to be, free, and the son of a king or a caliph used to go and attend classes in the same `madrasa' (school) where the children of poor people also used to receive instruction. So, the cure lies in bringing in uniformity in the system of education and making it free and not the quota system.

34. Now, it seems pertinent to make a reference to section 3 of the Shari'ah Act, 1992, which declares with certain exceptions, with which we arc not presently concerned, that the Shari'ah that is, the Injunctions of Islam as laid down in the Holy Qur'an and Sunnah of the Holy Prophet (p.b.u.h.) shall be the supreme law of Pakistan.

35. In the end, we would like to refer to the statement of the Prime Minister of Pakistan, Mr. Muhammad Nawaz Sharif, as reported in the Press (Daily `Muslim', Islamabad, April 17, 1992), who appears to have stated his Government's determination to bring about such structural changes in the country that would institutionalise merit and fairplay. "We are here to correct the lapses of the past and to eliminate nepotism and favouritism and political expediency will never influence our course," he stated,

36. The Holy Qur'an and Sunnah should form the basis of all our directions for all our spiritual as well as wordly endeavours as they provide us a guidance not only towards the good in the Hereafter but also to attain a good life in this world. Quota system in disregard of merit makes the place of domicile as the criteria and this has, unfortunately, been so woven and institutionalised in our socio‑political fabric that unless we return to the original message of the Holy Qur'an we will be further away from the righteous and straight path .

37. For the aforesaid reasons, Rule 14 of the Pakistan Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 and the Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974 in so far as they pertain to quota system, and the Establishment Division Office Memorandum No.8/9/72‑TRV, dated 31st August, 1973 are declared repugnant to the Injunctions of Islam and they shall cease to have effect on the expiry of six months from the date of this judgment unless amended and brought in conformity with the Injunctions of Islam as discussed above. M.B.A./685/F.S.C. Order accordingly.