2001 PLP 1789 (YLR)

Through this Civil Revision under section 115 C.P.C., the applicants have challenged the judgment and decree dated 1st September, 1996, passed by the learned VIIIth Additional District Judge, Karachi East (Mr. Arshad Noor Khan) in C.A. No. 115 of 1994 whereby the judgment and decree dated 16-4-1994 passed by the learned IInd Senior Civil Judge, Karachi East (Mr. Muhammad Yameen) in Suit No. 2883 of 1982 was reversed and the suit filed by the applicants was dismissed.

2. Briefly stated, the factual background of the controversy according to the applicants is that Khan Bahadur Saeedullah Khan, retired Deputy Director General, Post and Telegraph Department intended to construct a mosque in Block II P.E.C.H.S., Karachi. Therefore, on 6-11-1953, late Maulana Ehteshamul Haque Thanvi laid the foundation stone of the mosque. Late Khan Bahadur Haji Wajihuddin of Messrs Pioneer Arms Karachi, donated funds for the purposes of construction and accordingly the mosque was constructed under the supervision of the Committee comprising members residing in the same locality.

3. Late "Mufti-e-Pakistan" Maulana Muhammad Shafi suggested the name of the mosque as Masjid-e-Tayyaba. It is the case of the applicants that the persons above named and majority people of the area as well as members of Masjid Committee belonged to Hanafi, Sunni, Deobandi 'Maslak'. The Imam appointed by Masjid Committee to lead prayers (Namaz) in the mosque was also said to be of Deobandi Maslak and he used to impart Quranic verses in accordance with the teachings of Quran and Sunnah. In the year 1996, after the demise of Maulana Hafiz Qari Sirajuddin, Hafiz Abdul Latif who disclosed his maslak to be Sunni Hanafi (Deobandi) was appointed as Imam in the said mosque by the Managing Committee of Anjuman-e- Masjid-e-Tayyaba. However, after some time the management and control of the mosque was taken over by the Auqaf Department Sindh. The subsequent development, which resulted in dispute is contained in para (sic) of this revision and it reads as under:-- ''That in the year 1966, after the demise of Maulana Hafiz Qari Sirajuddin, Hafiz Abdul Latif, who then had posed himself as professing Sunni Hanafi (Deobandi) Maslak was appointed as Imam of the said mosque by the then Managing Committee of Anjuman-e-Masjid-e -Tayyaba. After sometime when the above said Mosque was taken over by Auqaf Department, above named Hafiz Abdul Latif suddenly changed his Maslak and started preaching Barelvi Maslak on which, all the Namazis strongly objected, but in spite of strong protests of the Namazis, few interested persons of the Auqaf Department in collusion with certain vested interest, started manouvering and changing the Maslak of the said Mosque from Deobandi- to Barelvi. The said persons introduced new slogans in the said Mosque such as saying with full throated voice "Haq Nabi" after each Salat, reciting Naats with full throated Chorus after the Juma prayers every Friday, what they call "Darood-o-Salam" and also inscribed in the walls the words "Ya Muhammad". The plaintiffs and other Namazis raised objections on the above acts started by Hafiz Abdul Latif, as according to the said Namazis the above acts were against the Injunction of Islam, which is not practised in the world except in India and Pakistan and only in Mosques controlled by Barelvi Wslak, Due to the above protest, above named Imam Abdul Latif had to resign from his post and Moazzin of the Mosque Hafiz Ghulam Mustafa Chishti was appointed as Imam as a stop-gap -arrangement by the Auqaf Department. However, the Namazis of the Mosque were not satisfied with the actions of the Auqaf Department and continued their protests on which, in the month of March, 1981 on the spot enquiry was conducted by Provincial Khatib Hyderabad who, being completely satisfied about the Maslak professed in the said Mosque from the time of its establishment, recommended the appointment of an Imam professing Sunni, Hanfi (Deobandi) Maslak. The defendant No.6, District Khatib Auqaf (East) Karachi also carried out on the spot enquiry and submitted his report, in which it was stated that the mosque in question was of Deobandi Maslak. Thereafter, the management of the Auqaf Department of Karachi was transferred to KMC, when the Administrator of Auqaf Karachi (Arambagh Karachi). Defendant No.2 also made a thorough investigation with regard to the affairs of the Mosque in question and after being satisfied that wrong had been committed in the change of Maslak of the said Mosque from Deobandi to Barelvi with mala fide intention and in collusion with certain persons of Auqaf Department, appointed firstly Hafiz Qari Ziaul Haq, professing Sunni Hanafi (Deobandi) Maslak and on his resignation Imam Hafiz Qari Maulana Ziauddin was appointed, who was performing his duties to the complete satisfaction of the Namazis of the Mosque in accordance with Sunni Hanafi (Deobandi) Maslak."

4. The applicants/plaintiffs alleged that the defendant No.2 without making any fresh inquiry or issuance of show cause notice to Maulana Ziauddin and even without consulting Namazis with mala fide intention issued termination order of Maulana Ziauddin allegedly in collusion with certain interested persons and appointed Imam of Barelvi Maslak in the said mosque. Therefore, they filed the suit for the following reliefs: "(a) For Declaration, declaring that the foundation of Masjid Tayyaba was laid by Maulana Ehteshmul Haq Thanvi and the said Masjid was constructed initially by the funds made available by late Khan Bahadur Haji Wajihuddin and Darse-Quran was imparted for at least 25 years by late Maulana Muhammad Hussain Palva and Imam who lead Salats in the said Masjid professed Hanafi Sunni (Deobandi) Maslak, and that the said Masjid is of Hanafi Sunni Deobandi Maslak. (b) For declaration that no addition can be made before or after the established words of Azan. (c) For declaration that the alleged Darood-o-Salam which is sung in a chorus in full throated voice after Juma Salat in any Masjid in the manner and particularly in the standing posture as a religious ritual was never performed during the date of Rasoolullah Sallallaho Alahe Wassalam, Sahaba-Karam R.A., Tabeen or Taba Tabeen or any other Imam or Wali during the last twelve and half centuries throughout the world and the insistence of its performance of this ritual in a specific manner or form is a Bidat and is against the sanctity of the Masjid and is against the teaching of Quran and Sunnah and to profess a faith that Rasoolullah Sallalaho Alahe Wassalam is "Hazir and Nazir" is "Shirk Fis Sifat" of Allah, the Creator. (d) For an order of permanent injunction restraining the Defendant No. 1 or any other person or persons professing Barelvi Maslak from leading Salat in the Masjid-e -Tayyaba Block 2, P.E.C.H.S. Society Karachi and restraining the other defendants from jointly or severally in any manner, imposing, appointing or assisting in such appointment of any person, professing Barelvi Maslak as Imam or Moezzin in the said Masjid and removing, terminating the services or creating hindrances in the performance of official duties or in any manner obstructing the present Imam Hafiz Qari Maulana Ziauddin, from leading Salats and Tarayveehs, or from delivering Khutba in the said Masjid. "

5. Respondents Nos.2 and 5 filed their written statements and denied the claim of the applicants stating that the mosque is of Barelvi Maslak from the very beginning. Even when its management was taken over by the Auqaf Department, it was of Barelvi Maslak and Pesh Imam was also of same Maslak. Therefore, the Auqaf Department was not authorised to make any change. Regarding termination of services of Qari Ziaul Haq it was stated that his appointment was temporary and when it came to light that he was a Deobandi he was removed and respondent/defendant No. 1 appointed a Barelvi Imam, but the followers of apposite Maslak wanted to remove him as Imam of the said mosque. It would be relevant to quote the following passage from para 2 of the written statement, which highlights the background of the controversy from the respondent's point of view. "2. ................................................................................... that no document has been filed by plaintiff in support of his case which shows the hollowness of claim. Brief history of the mosque as per record of the Department of Auqaf and prior to taking over by Auqaf reveals that the Mosque belongs to Barelvi Maslak. First of all it was taken by Auqaf on 15-6-1974 when Qari Abdul Latif of Barelvi Maslak was Khateeb and Pesh Imam and all sorts of functions of Barelvi Maslak took place in it. Later it was released on 27-2-1974 but retaken on 3-10-1974 by Auqaf and at that time also same Qari Abdul Latif of Barelvi Maslak was there and functions were held of Barelvi Maslak. Photocopy of Charge report of Secretary dated 28-6-1974 and report of Manager of Auqaf dated 31-10-1975 already filed. Prior to taking over two booklets of 1965-66 and 1976-8-68, containing annual report which already indicates Barelvi Maslak at page 7 heading "Taqrib" letters of Manager Deputy administrator show Barelvi Maslak Photocopy already filed. After the taking over the plaintiffs made a false complaint to Martial Law Authorities and after enquiry a detailed report was sent to S.M.L.A. and the matter ended there Photocopies of letters of Deputy Administrator already filed. Since these few people were trying to disrupt Management, a report was also lodged against the plaintiffs who have no backing at all. Photocopy of report already filed. There is cemented engravement on Mosque at the main gate and on walls" YA ALLAH AND YA MUHAMMAD."

6. The respondents also took-up the objection that since the relief prayed for related to two sects of Sunni Maslak the learned trial Court had no jurisdiction to decide as to which sect was right and which was wrong.

7. Respondent/Defendant No.6 in his written statement stated that after holding the inquiry about the affairs of Masjid-e-Tayyaba submitted his finding on 2-2-1982 to the defendant No.2 i.e. Administrator Auqaf.

8. Respondent/Defendant No.7, in his written statement also took up pleas that the suit was barred under sections 42 and 54 of the Specific Relief Act, as suit was filed without any cause of action and the applicants had no legal character, title or interest and even locus standi to file the suit, which was based on false and vexatious allegation. Therefore, the same were also denied.

9. The learned trial Court settled the following issues; "(1) Whether the suit in present form is maintainable? (2) Whether the foundation of Masjid-e -Tayyaba was laid down by the persons professing Sunni (Deobandi) Maslak? (3) Whether during the construction-and thereafter the Masjid-e-Tayyaba was managed and controlled by persons professing Hanafi Sunni (Deobandi) Maslak? (4) Whether after taking over by Auyaf Department the religious perfor mances and practices of Deobandi Maslak was deviated into Barelvi M aslak? (5) Whether the persons professing Deobandi Maslak raised objection of the change of religious practices of Deobandi Maslak into Barelvi Maslak? (6) Whether the enquiry into the affairs of Masjid-e-Tayyaba was made by defendant- No.2 and Imam professing Deobandi Maslak was appointed as a result of such enquiry? (7) Whether the defendant No.6 carried out enquiry and his finding was to the effect that the subject religious performances in Masjid-e-Tayyaba was in accordance with Deobandi Maslak? (8) Whether defendants be directed to regulate the practices and religious performances according to Hanafi Sunni (Deobandi) Maslak? (9) Whether the plaintiffs are entitled to any relief? (10) ..............................

10. Parties led their evidence. From the side of the plaintiffs/applicants M. Iqbal Abbasi (Plaintiff No.3), and Abdul Sattar Afghani were examined, and from the side of the respondents/defendants Maulvi Ghulam Mustafa and Muhammad lqbal Khan were examined.

11. The learned trial Court granted relief's (a) and (d) of the prayer clause (supra) vide judgment-dated 16-4-1994 and decreed the suit accordingly. However, the learned appellate Court in C. A. No. 115 of 1994 reversed the findings of the learned trial Court, and dismissed the suit. Hence this Revision.

12. I heard learned counsel for the parties at length and perused the record. Learned counsel for the petitioner contended that the impugned decree passed by the learned appellate Court is not based on facts available on record and therefore it is illegal and void ab initio. He also referred to the scheme -of the 'West Pakistan Waqf Property (Administration) Rules, 1960 (hereinafter ' referred to as Waqf (Administration) Rules (1960) pertaining to the management of Waqf property and submitted that the defendants/respondents did not follow the relevant Rules. Lastly, he submitted that the impugned judgment suffers from misreading and non-reading of evidence. In support of his submissions he cited Madan Gopal and 4 others v. Maran Bepari and 3 others PLD 1969 SC 617.

13. Learned counsel for the respondents/defendants supported the judgment of the learned appellate Court. He also submitted that the suit as framed and filed by the applicants was not maintainable and they were not entitled to any declaration under section 42 of the Specific Relief Act, 1877 and cited the case-law, Muhammad Sadiq and 15 others v. Chief Administrator of Auqaf, West Pakistan Lahore and another PLD 1972 Lahore 480.

14. To begin with the basic point, which' requires consideration is the 'object' status and importance of mosque in Islam. Undoubtedly, a mosque belongs to God Almighty and it is a vital religious institution of Islamic society (see Sura Gin Verse 18, Sura Al Baqara verse 125; Sura Al Imran Verse 96; Sura Al Tawba verse 18; Sura Al- Aaraf Verse 31; and Sura Al Hajj Verse 41). It would be advantageous to reproduce the following para (19) from the judgment reported as Haq Nawaz v. Province of the Punjab, 1997 MLD 299. "

19. A mosque is "House of Allah" which is used by Muslims mainly as a place for community worship of Almighty Allah. "The word "Mosque" is derived from the Arabic 'Masjid', meaning literally the place of prostrations and the building it describes serves both as a house of worship and as a symbol of Islam" ("The Mosque", edited by Martin Frishman and Hasan-un-Din Khan, Prefacer, page 11, published by Thames and Hudson Ltd. London). The status and sanctity of this institution is closely linked with the supreme importance of "Salat" or prayer in the religion of Islam. It is an obligatory duty to be performed by Muslims at fixed times/hour during day and night. In this connection, the Injunction of the Holy Quran is:-- Muslims gather together in mosques five times in a day and once in a week on the day of Juma-tul-Mubarak to offer prayers in congregation. Prayer is the pillar of Din and the most attractive style of the Islamic life. It demonstrates Man's surrender to God and his defiance of the Devil who had vowed to stray him away from the path of virtue and obedience of the Creator. The Holy Quran contains about one hundred Verses regarding the need, worth and value of prayers and the obligation of Muslims to establish the system of 'Salaat".

15. In the Holy Quran there are verses about four mosques namely Holy Kaba or Baitullah, Masjid-e-Nabvi, Masjid Al Aqsa and Masjid-e-Quba. (see Sura Al-Imran Verse 96; Sura Bani Israel Verse 1; Sura AL Hajj Verse 3 and Sura Almaida Verse

2. Once a mosque is established it is symbol of Allah and open for every Muslim to offer prayers five times a day. The best examples of such institutions of our times are Baitullah and Masjid-e-Nabvi, where Muslims from all over the world gather to offer prayers irrespective of their caste, creed or sects etc. In this regard it is needless to emphasis that we must know and appreciate the great treasure we possess the Holy Quran teachings of the Holy Prophet (P.B.U.H.) the dynamic and revolutionary concept of Tauheed. The ideas of brother-hood and equality of mankind and concepts of socio economic justice. But when we look at ourselves, we are dismayed and disappointed, the reason being the division among the believers into different groups and sects. Every sect presents its own version of Islam to target individuals who, seeing them locked in deadly conflicts with each other, get confused about what to accept and what to reject. The Quran clearly ordains: "Cling one and all to the faith of Allah and let nothing divide you. Remember the favours He has bestowed upon you; how He united your hearts when you were enemies, so that you are now brothers through His grace; and how He delivered you from the abyss of fire when your were on the very brink of it. Thus Allah makes plain to you His revelations so that you may be rightly guided." "The Holy Quran (English Translation-Assisted by a "Committee of Muslim Scholars" - Approved by The Supreme Sunni and Shia Councils of the Republic of Lebanon -- Beirut, October, 1998).

16. Respectfully following the teachings of the Holy Quran (supra) I am of 'the view that discretionary relief in the form of declaration under section 42 of the Specific Relief Act cannot be given to get a mosque declared as Barelvi mosque or Deobandi mosque. Moreover, Article 20 of our Constitutional guarantees fundamental right to all citizens to profess, practise and propagate their religion and to establish, maintain and manage their religious institutions subject to law, public order and morality but this article is to be interpreted in the light of the following principles laid down in Mst. Kaneez Fatima v. Wali Muhammad and another PLD 1993 SC 901. '...while interpreting Constitution, enactment, rules and regulations having the force of law and examining orders, acts and actions of Government functionaries/authorities the Court is competent to apply well recognised principles of Islamic Common Law and such interpreta tion which is in conformity with the injunctions of Islam. In the fields not occupied by statutory dispensations principles of Islamic Common Law or principles in conformity with Injunctions of Islam can be pressed into service." (at pp.912-913). Therefore, undoubtedly the Muslims following any particular faith (Maslak) can establish mosque but it is held that such institutions should not be named after any particular Maslak. In order to maintain harmony, peace and brotherhood it is essential that due respect and sanctity should be accorded to the faith (Maslak) whose followers constructed the mosque irrespective of the fact whether the management and control of such a mosque is in the hands of the Mosque Committee or the Auqaf Department. In the instant case it is established through evidence that Masjid-e-Tayyaba was constructed by persons professing Deobandi Maslak and now its management and control is with the Provincial Auqaf Department. As was rightly submitted by the learned counsel for the applicant under Rule 4 of Waqf Rules, 1960 Scheme for the management of Waqf property is to be prepared by the Manager for settlement by the Chief Administrator for the administration of the Waqf Property in his charge and the said Scheme is to be designed to give effect to such wishes of the persons dedicating, as can be ascertained and to which effect can reasonably be given. It is further provided in Rule 4(2) of the said Rules that where the Waqf property is a mosque, the Scheme shall ensure that the religious services and other functions performed therein are continued. In other words under the above mentioned rules the wishes of the dedicator must be given effect to and the Auqaf Department has to administer the property in accordance with the rules framed under section 21 of the Waqf Properties Ordinance, 1979. Thus wishes of the dedicator cannot be disregarded." The upshot of the above discussion is that keeping in view the relevant rules (supra) and the evidence led by the parties I have come to the conclusion that the learned appellate Court seriously erred in law by mis-appreciating the evidence led by the parties, particularly that of applicants/Plaintiffs and also gave conflicting opinion regarding the maintainability of the suit under section 42 of the Specific Relief Act. It is established from the evidence that Deobandi Maslak was being practised by the dedicator and Namazis from the time of establishment of Masjid-e-Tayyaba till its management was taken over by the Auqaf Department. Therefore, on the basis of dictum laid down by the Hon'ble Supreme Court in Madan Gopal and others v. Maran Bepart and others PLD 1969 SC 617, this revision is allowed. The judgment of the learned appellate Court is reversed and the judgment and decree passed by the learned trial Court is upheld with costs. H.B.T./M-240/K Revision allowed.