P L D 1988 Supreme Court 645 (PLP)

MUHAMMAD AFZAL ZULLAH (CHAIRMAN).‑‑This appeal under Article 203‑F of the Constitution is directed against Judgment dated 27‑3‑1984 of the Federal Shariat Court; whereby under Article 203‑D of the Constitution on suo motu examination of certain laws including the Pakistan Security Act (XXXV of 1952), some provisions thereof were declared to be repugnant to the injunctions of Islam.

2. The laws examined, which are of similar character, are as follows:‑ . (1) The Sind Crime Control Act IV of 1974; (2) The Prevention of Anti‑National Activities Act VII of 1974; (3) The Punjab Maintenance of Public Order Ordinance XXXI of 1960; The Sind Maintenance of Public Order Ordinance XXXI of 1960; The Baluchistan Maintenance of Public Order Ordinance XXXI of 1960; The West Pakistan Maintenance of Public Order Ordinance XXXI of 1960 (Applicable to N.‑W.F.P.); (4) The Punjab Control of Goondas Ordinance XXXV of 1959; The Baluchistan Control of Goondas Ordinance XXXV of 1959; The West Pakistan Control of Goondas Ordinance XXXV of 1959 (Applicable to N.‑W.F.P.); (5) The Security of Pakistan Act XXXV of 1952; (6) The West Pakistan Press and Publications Ordinance XXX of . 1963.

3. The provisions of the Pakistan Security Act, 1952, which were held repugnant to the injunctions of Islam wholly or partly, read as follows: ‑ "11‑A. (1) Where the Federal Government is of the opinion that any undertaking is being used, whether with the aid of funds from foreign sources or otherwise, or is likely to be used, for the purpose of making, printing, publishing or otherwise disseminating news, reports or information, likely to endanger the defence, the external affairs or the security of Pakistan, or any part thereof, or for the purpose of promoting such interests of any foreign State as are in conflict with the interests of Pakistan, it may, by order, remove the owner or, if there be more than one, all or any of them, and, in the case of a company, all or any of the directors, managing directors, managing agents or any other person., from the control or management of such undertaking, and appoint a person to take possession of the whole or any part of the undertaking or its property, movable or immovable, and exercise such powers and perform such duties, including, in the case of a company, all or any of the powers or duties of the Board of Directors, as may be set down in the order, and such appointment may at any time be revoked, and a fresh appointment made on such conditions and with such limitations as the Federal Government may determine. (2) Where an order has been made under subsection (1), the Federal Government, or any authority or person authorized by it in this behalf, shall, as soon as possible, make arrangements to transfer, subject to such conditions as may be deemed fit, and transfer. by way of sale, in any manner considered expedient, any right, title or interest in the undertaking, or if the undertaking be a company, in the shares thereof, of any director or shareholder to any other person not acting for or on behalf of or in collusion with. such director or shareholder. (3) Every sale under subsection (2) shall be subject to confirmation by the Federal Government, and such confirmation shall be notified in the official Gazette. (4) If such undertaking as aforesaid be a company, the Federal Government may give a direction that the shares held by every or any director or shareholder shall be seized, wherever the shares may be, for sale under subsection (2), in such manner that such director or shareholder shall effectively cease to hold them. (5) Where possession has been taken under subsection (1), or a direction has been given in pursuance of subsection (4), any police officer may seize any property of the undertaking, or the shares thereof, or any document relating thereto, found anywhere in Pakistan, and any Magistrate may, by warrant authorize any police officer not below the rank of Sub‑Inspector, to enter upon and search for any such property, share or document in any premises where the same may be or may reasonably be suspected to be. (6) The Federal Government, or any authority or person authorized by it in this behalf, may, by order, make such arrangements as may be considered expedient to ensure that the continuity of the functioning of the undertaking affected by an order under subsection . (1) is not interrupted during the period between the date of such order and the date on which the person appointed under subsection (1) makes over the control and management of the undertaking under subsection (5) of section 11‑B, and any expenditure incurred in connection with such arrangements, including the remuneration of any person or persons, shall be met as the expenses of the undertaking. (7) If within fourteen days of the promulgation of the Security of Pakistan (Amendment) Ordinance, 1961, or the publication of a notification under subsection (3), the person whose right, title or interest has been transferred by sale, or the person to whom the sale has been made, makes to the Federal Government a representation against the sale, the Federal Government, after perusal of the record, may, subject to such conditions as it may deem fit to impose, set aside the .sale and order a fresh sale. Explanation (I).‑‑A fresh sale under this subsection shall be deemed to be a sale under subsection (2). Explanation (1I).‑‑The Federal Government shall not be bound to hear any of the parties or their counsel or agent or to examine any witness or document, before making an order under this subsection. (8) Before a sale is set aside under subsection (7), the Federal Government may require the person making the representation to pay an amount sufficient to meet the expenses of the stile, and to forfeit to the Federal Government such other amount, not exceeding twenty‑five per cent of the sale price, as may be determined by the Federal Government. (9) If the purchaser fails to pay the full price of the sale, the property may be resold, and any deficiency which may happen on resale and all expenses attending such resale may be recovered from him. (10) Any amount payable under this section, whether as unpaid price, or as forfeiture or otherwise, if not paid within the time specified, if any, shall be recoverable as arrears of land revenue. (11) The sale shall be complete after all proceedings under this section relating to sale or resale, as the case may be, have been concluded and all sums due from the purchaser in whose favour the sale has been concluded have been paid by or recovered from him. 11‑B.‑ (1) On the completion of sale the Federal Government or the authority or person, as the case may be, arranging the sale shall deliver possession of the property, or in the case of shares, of the certificates relating thereto, to the purchaser, supported by a sale certificate. (2) If in consequence of the action taken under subsection (1) of section 11‑A, the Board of Directors of a company has ceased to function, the person appointed thereunder shall, immediately after the delivery of possession under subsection (1), call, notwithstanding anything to the contrary in the Companies Act, 1913, or the constitution of the company, by public advertisement, a general meeting of the company to be held under his chairmanship for the purpose of electing directors. (3) A meeting called under subsection (2) shall, as far as practicable, be held and conducted in accordance with the Articles of Association of the company. (4) On the conclusion of a meeting held under this section, a record of the proceedings shall be made and certified by the Chairman, and such certificate shall be conclusive proof of the directors named therein having been validly appointed. (5) Immediately after the record of proceedings is certified under subsection (4), the control and management of the company shall be made over to the directors. 11‑C.‑ (1) Any amount realized as price from a sale, or from a fresh sale, as the case may be, under section 11‑A, shall, after deducting the expenses of the sale, be paid, within such time as may be specified by the Federal Government, to the person whose right, title or interest has been transferred by such sale. (2) Where the shares of more than one person have been sold in a single lot, the amount payable shall, with the shareholders' consent, be paid to them against a joint discharge, and in the absence of such consent, the amount shall be paid to each shareholder in proportion to the paid amount of his shares. (3) If the person to whom any right, title or interest, is transferred under section 11‑A has deposited any moneys before the sale to him is set aside, the amount so deposited or paid shall, after deducting the amount, if any, due from such person under any of the provisions thereof, be refunded to him, and thereupon .all documents executed and endorsements made in his favour shall stand cancelled. 4) Where, in order to effect the transfer of any property, instrument or share, any document or endorsement is required to be executed or made by a person whose right, title or interest, is transferred, the Federal Government or any authority or person authorized by it in this behalf, may execute such document or make such endorsement, and any document so executed and endorsement so made shall be deemed to have been executed and made by the person whose right, title or interest is so transferred, and shall be conclusive proof of such transfer for all purposes. (5) In this section, and in section 11‑A, the expression 'expenses of the sale' shall include expenditure incurred in connection with any dispute arising out of the sale, and such other expenditure as the Federal Government may determine to be such expenses. (6) The provisions of this section and sections 11‑A and 11‑B shall have effect notwithstanding anything to the contrary contained in any law other than this Act, or in any instrument, deed or document. (7) For the removal of doubt it is hereby declared that where a person appointed under subsection (1) of section 11‑A is required to exercise the powers or perform the duties of the Board of Directors of a Company, the provisions of the Companies Act, 1913, shall, as respects duties not expressly set forth in the order under subsection (1) of section 11‑A, not apply to him.

12. Regulation of publication of certain matters.‑‑(1) Where the Federal Government is satisfied that in the interest of the defence, the external affairs or the security of Pakistan it is necessary so to do, the Federal Government or any authority empowered by it in this behalf may, by order addressed to a printer, publisher or editor, or printers, publishers or editors generally, require that all matters relating to a particular subject or class of subjects affecting the defence, the external affairs or the security of Pakistan shall, before being published in any document or class of documents, be submitted for scrutiny to any authority specified in the order, who shall, within seventy‑two hours of its submission, either approve of its publication or, if it is satisfied that it is likely to prejudicially affect the defence, the external affairs or the security of Pakistan prohibit it and no matter the publication whereof has been so prohibited shall be published. (2) Any person affected by an order under subsection (1) prohibiting the publication of any matter may, within seven days of the communication of the order, appeal against it to the District Judge of the district in which such person resides. Provided that where appeals against the same order have been made by persons who reside in different districts all such appeals shall be preferred to the senior of the District Judges of such districts. Explanation.‑‑A person shall be deemed to reside in the district which he ordinarily resides or carries on business or personally works for gain. (3) The District Judge to whom an appeal has been made under subsection (2) shall, after giving the appellant an opportunity of being heard, consider the appeal as speedily as possible and pass such orders thereon as he may deem fit; and the orders shall be final. (4) If any person contravenes any order made under subsection (1), then, without prejudice to any other proceedings which may be taken against such person, the Federal Government may declare to be forfeited to Government every copy of any document published or made in contravention of such order and any press used in the making of such document." (Section 12 as amended in pursuance of the impugned judgment)

4. Sections 11‑A, 11‑B and 11‑C were found repugnant to the injunctions of Islam and direction was given for their "omission". Section 12 was found partially repugnant and was ordered to be amended accordingly. Federation of Pakistan felt aggrieved by this part of the Judgment and filed this appeal.

5. Learned Deputy Attorney‑General has stated that the Government has accepted the decision regarding section 12 of the Act and amendment has been made accordingly. Therefore, only sections 11‑A, 11‑B and 11‑C are now the subject‑matter of this appeal.

6. He raised two‑fold contentions; one, that no reference has been made to injunctions of Quran and Sunnah in the impugned Judgment, therefore, as laid down by this Court in Pakistan v. Public at Large (P L' D 1986 S C 240) it is liable to be set aside. And two, that the Security of Pakistan Act having been approved generally and found not repugnant to the injunctions of Islam in the detailed discussion in the impugned Judgment, the provisions in Sections 11‑A, 11‑B and 11‑C have been held repugnant only on the ground of "harshness", without justifying it on the touchstone of the injunctions of Islam.

7. When questioned, whether these provisions could not be treated as repugnant to the injunctions of Islam on the ground of negation of the right of the opportunity of hearing, before action thereunder is taken, he relied on verses 107 and 108 of Surah (IX) Tauba", relating to iMasjid‑i‑Zarar, to contend that in the context of 'security' that right can be dispensed with. In this behalf he also contended that the wisdom and intention of the legislature in making an exception to a .general rule cannot be questioned before the Federal Shariat Court; nor, could it exercise the power under Article 203‑D of the Constitution, on that basis.

8. It is correct that the Federal Shariat Court tried to give the extent of various human rights in Islam including those relating to life, liberty, thought, expression, property, equality, honour and others; and, we would add dignity of man, soul and body. It is also correct that an effort has been made to highlight the limitations on the exercise of these rights and power of the State to make laws in that behalf. Learned Deputy Attorney‑General is right in claiming that the Court justified the preventive measures generally, as contained in the provisions like those in Sections 11‑A, 11‑B and 11‑C of the Act.

9. In this context for example amongst others, Verse 33 of Sura (V) (Almaida) has been interpreted in paragraph 160 of the impugned judgment. This verse and the next Verse 34 read as follows:‑ "33 ‑ The recompense of those who war against God and His Messenger and strive in the land, spreading mischief (therein) is only that they be slain or crucified or their hands and their feet should be cut off, from the opposite sides, or be banished from the land; This, for them shall be the disgrace in this world, and for them, in the Hereafter shall be a great torment. 34 ‑ Except those who repent before you gain power over them; know that God is Oft‑pardoning, Merciful. (Translated by S.V. Mir Ahmed Ali). While commenting on the subject of this Quranic Verse, it was observed: "Some of the commentators of the Holy Quran include preventive action also within the scope of the Verse Q 5:33 about Hiraba. In this connection the first important observation is that of Imam Malik. He said that if a Muharib (belligerent who fights with Allah and His Prophet) kills somebody, he will be put to death but if he does not commit murder he can be awarded the punishment out of the four sentences described in the above verse, which is appropriate for him. He said: (It is immaterial for the applicability of the verse) whether the person striving after corruption does it secretly or clandestinely, or he does it openly or publicly. (Ahkam ul Quran, Vo1.2, p.596 by Ibn‑e Arabi). The secret or mysterious nature of mischief‑mongering will include preparation also as striving after corruption would include preparation for spreading corruption or mischief. The words wal mustattirro fi zalik i.e. whether he does it clandestinely used by Imam Mali k, are extremely significant. "Allama Rashid Raza writes in the commentary of Verse 33 of Chapter 5: (Irrespective of the contradictory and opposing views and narrations it is manifest that the order in this verse is general and is applicable to every man who commits such acts in an Islamic state, and he is subdued and arrested in such state that either he is in fact committing such acts (of belligerency or he has achieved the capability necessary for their commission). (Almanar, Vol.6,p.293). It is clear that attainment of capability is only a stage of preparation from which one can feel satisfied that if proper preventive action is not taken the person making such preparation may embark upon corruption and mischief‑mongering as planned by him. "Maulana Shabbir Ahmad Usmani includes criminal conspiracy and seditious propaganda also within the category of offences dealt with by this verse. Propaganda may be something manifest, but criminal conspiracy may be a preparatory stage for commission of the criminal offence in future. (see his commentary on verse Q.5:33). "Maulana Abdul Majid Daryabadi said that expulsion or imprisonment can be ordered even though murder might not have been committed and the arrest may have been made when there was either preparation for it or even attempt. (Al‑Quran ul Hakeem, by Maulana Abdul Majid Daryabadi). "Maulana Ameen Ahsan Islahi writes in the commentary of this verse: "The words of the verse in the Holy Quran are conclusive proof that the Government is empowered to take such action as it considers necessary, keepirig in view the circumstances and consequences of any breach of security and peace, extant as well as expected. The view of those persons is correct who say that the Government is vested with the authority to take all effective measures expedient in the circumstances for maintenance of peace and security, and elimination of mischief. In such a situation it is not sufficient consideration that the group of criminals has only caused financial loss. What is essentially to be kept in view is the time, place and objectives and intentions of the criminals and their likely consequences. "(Tadabbur ul Quran, Vo1.2, pp.278‑9)." We need not go into the afore‑discussed question because no appeal has been filed before this Court by any party aggrieved by the justification of the measures provided in the Security Laws in general.

10. However, on principle, we would not hesitate in laying down the rule that all these limitations on human rights must be subordinated to the most fundamental of all the human rights in Islam, the one A which cannot at all be abridged by any limitation; namely, right to justice. It was ruled by this Court in Pakistan v. Public at Large PLD 1987 SC 304) that: "Man having been born in the image of Allah cannot be permitted in matters of judgment to do injustice." It was also held in Capt. (Retd.) Abdul Wajid and others v. Federation of Pakistan (P L D 1988 SC 167) that:‑ "The Quran and Sunnah are full of Injunctions emphasising undiluted justice, with its much more pronounced importance in our polity, as compared to Western jurisprudence. It is one of main pillars of Islam‑‑after Touhid and Risalat‑‑like Taqva in one sense." It mould be examined in due course, whether this rule is relevant and needs to be observed in the present context of abridgment of human rights.

12. The first question for determination is; whether after having held that on the touchstone of Islamic injunctions the legislature has the power to control the. right to enjoy property and freedom of Press, trade and business for the sake of security, defence and external affairs or other similar interests of Pakistan, could the Federal Shariat Court annul the disputed provisions on the touchstone of what it thought to be "harshness"; which was spelled out as follows:‑ "These sections cannot be justified in Sharia. If any judicial authority finds that any undertaking is being used to endanger inter. alia the security of Pakistan, it would be open to that authority to seize and forfeit such undertaking. But such power cannot be allowed to be exercised by a Government merely on the basis of its opinion. This amounts to encroachment on the Sharia freedom to own property and to carry on trade' or business. Clearly the object of empowering the Government to act on opinion by excluding judicial trial and to forfeit one's property would be repugnant to the Quran and the Sunnah." It is also necessary here to notice that while discussing the sanctity of the right to property, it is observed in the impugned Judgment as follows:‑ "(v) RIGHT TO PROPERTY Alongwith security of life, Islam has also guaranteed with equal clarity and force the sanctity and security of the right of ownership and property, see the address of the Farewell Hajj . The Holy Qur'an declares that the taking of some one's property is completely prohibited unless it is acquired by lawful means as permitted in the Shariah. The Quran categorically declares "Do not devour one another's wealth by false and illegal means" (2:188)." The Holy Prophet declared a man to be martyr in the way of Allah if he is killed while defending his lawful property (Bukhari). Explaining this principle of the sanctity of the lawful property of the people, Imam Abu‑Yusuf mentions the legal maxim developed by Muslim jurists. (It is not lawful for the Government to take something out of the possession of someone save according to an established and approved right (k. al‑Kharaj, discussion On Ihya' al‑Mawat, also Zarqa, Vol.tt, p.1081): The limits of the right of Government to property was discussed in detail in Muhammad Ameen's case (P L D 1981 FSC 23)." The entire approach of the Federal Shariat Court on question if individual's right to property was its sanctity and protection except where the legislature has to control it for the defence, security, foreign affairs etc. of Pakistan. This limitation was found justified on the touchstone of the injunctions of Islam. Therefore, we do not agree with the learned Deputy Attorney‑General that the injunctions have not been referred in the impugned judgment. The rule in this behalf laid down by this Court relied upon by him, has in our view, been satisfied. His argument on that point is, therefore, without any force. However, with respect, we find that the Federal Shariat Court fell into error in the reasoning from the aforenoticed point onward. On the one hand legislative control on exercise of property rights in the relevant provisions was found justified on the touchstone of the Islamic injunctions; and, on the other they were ordered to be omitted on the ground only of "harshness". The proper course was to remove the harshness with the aid of the Islamic injunctions regarding another fundamental right guaranteed by Islam; namely, opportunity of showing cause against abridgment of a basic right‑‑here, of property. And i indeed the harshness in similar provisions of West Pakistan Press and Publications Ordinance XXX of 1963, was removed by the Court in the same judgment. Remedial measures were ordered. Failing which only, they would have ceased to have effect. This course was not adopted in regard to the provisions in question in the Pakistan Security Act. For these reasons, therefore, the impugned judgment cannot be upheld in so far as these provisions are concerned.‑‑Sections 11‑AJ 11‑B and 11‑C.

12. The next question relates to the remedial amendment in these provisions. During the arguments, it was at one stage thought, that once repugnancy to Islamic injunctions is found in a provision of law, there is no escape from the same "ceasing to have effect"; and, that the Government/ Legislature cannot be allowed option to make necessary amendment in order to save that effect. It was, on examination, ultimately agreed and rightly so, that consistent with the spirit of the Constitutional provisions in this behalf, the said serious consequence can be saved, by the Court permitting the amendment to be indicated in its judgments, with or without conditions. This would, however, be possible only if such amendment has positive nexus with the provision in question; and, supplies the omission, without which it would remain repugnant to the injunctions of Islam.

13. On this view of the matter in this case, it was essential for the Federal Shariat Court to spell out the remedial measures fort removing the element of "harshness". The defects in that behalf, as~D it appears from the reasoning in the impugned judgment, regarding similar provisions in the Press and Publications Ordinance could be removed by: (1) Adequate provision for opportunity of hearing; and (2) Necessary provision for final determination of the disputes by a judicial forum. Both these points have been taken care of in the said Ordinance, by directing amendments in its various provisions, including sections 48 and 49 thereof. As to the first point (opportunity of hearing) it is further pointed out that this Court has discussed the same at length its basis in injunctions of Islam in Pakistan and others v. Public at Large (P L D 1987 S C 304). The same can be seen as guidelines in this case as well. We have also rendered another decision on this subject in Province of Sind v. Public at Large (P L D 1988 S C 138). It has been ruled therein that the observance of the principles regarding "opportunity of hearing" would be satisfied in cases of emergency by affording it as soon after the action as is possible. Otherwise, the well‑established rule in cases other than those of emergency, remains intact; that it should be the prior opportunity. The reasoning of the Federal Shariat Court for providing effective and final judicial remedy in original section 12 of the Security of Pakistan Act and sections 48 and 49 of the Press and Publications Ordinance, if applicable to right of trade, profession and expression/ publication, it would be more pronouncedly applicable to the exercise of right to property involved in the provisions in question in this case.

14. Therefore, in the light of foregoing discussion, amendments can be made in the provisions in question, on both the points;‑‑one, opportunity of hearing at various stages where right to own, possess and enjoy property is affected; and, two, the final adjudication by judicial forum. They would be in accord, mutatus mutandis, with the amendments which were indicated for the Press . and Publications 1 Ordinance, 1963.

15. It is clarified that before the preparation of this judgment. the hearing of Shariat Appeal No.18‑R of 1984 regarding Press and Publications Ordinance having taken place, it was partly allowed. The judgment of this Court in that appeal shall be kept in mind when considering the amendments to be made in the provisions in question of the Security of Pakistan Act.

16. This is not all. At this stage it is also necessary to deal with two other arguments of the learned Deputy Attorney‑General; one, relating to the right of opportunity of hearing; and, the other regarding power of the Court under Article 203‑D, vis‑a‑vis that of the legislature. 17 . There is detailed discussion on the first point with the relevant conclusions in the majority judgment in the case already noted‑‑Pakistan and others v. Public at Large (P L D 1987 S C 304). Nevertheless learned Deputy Attorney‑General has relied on the following verse in the Holy Qur'an (and also on the relevant Sunnah) S.9‑‑Al‑Tauba verses 107 and 108 (the case of Mosque de Zarar):‑ "107 ‑And there are those who put up a mosque By way of mischief and infidelity‑‑To disunite the Believers‑‑And in preparation for one who warred against Allah And His Apostle aforetime. They will indeed swear That their intention is nothing but good; but Allah doth declare That they are certainly liars. 108 ‑Never stand thou forth therein. There is a mosque whose foundation was laid from the first day On piety; it is more worthy Of thy standing forth (for prayer) Therein. In it are men who Love to be purified; and Allah Loveth those who make themselves pure." (Translation by Abdullah Yusuf Ali)

18. The Commentary on Verses Nos.107 and 108 at pages 381 and 382 by S.V. Mir Ahmed Ali is also reproduced below as it contains the relevant Sunnah also:‑ 107 ‑Abu‑Amir was a nobleman of the Khazraj tribe, and was very well versed in the Torah and the Evangel. He used to always address the people of Medina about the advent of the Last Prophet of God, giving the description of the Holy Prophet Muhammad. But the Holy Prophet emigrated to edina and all the people flocked to him and none cared for Abu Amir in the least and he got envious of the Prophet of God and became his vehement opponent. At last after the Battle of Badr he ran away from Madina and joined the heathens, at Mecca and participated in the Battle of Ohod and was the first to shoot the first arrow on the Muslims. He took part also in the Battle of Honain but when none of his efforts were of any avail to him, he went .to Hercules the Emperor of Rome, to instigate him against the Muslims. He wrote letters to the gang of his fellow‑hypocrites saying, that very shortly he would march with a huge army to crush the Muslims at Medina and he would need a mosque of his own to preach his own doctrines, and .desired them to put a mosque at Quba (about three miles from Medina) to counter the Mosque built there by the Holy Prophet. Thus, Tha Laba bin Hatib and the twelve others of the hypocrites quickly constructed a Mosque (called the Mosque of Zarar, i.e., the Harmful Mosque). But by the time the Mosque was completed Abu Amir died at Syria. When the Holy Prophet was about to start on his expedition to Tabuk the hypocrites requested the Holy Prophet to solemnize it by his praying in it. The Holy Prophet first got .on a mule to go to the Mosque but the animal would not move towards it. He then got on a horse‑‑ the horse also did the same. Then the Holy Prophet started on foot alongwith some of his companions but their feet became wonderfully heavy and they could never walk. Then the Holy Prophet said: 'God does not will it,' He would consider the question of praying in the Mosque after his return from Tabuk." "108 ‑When on his return from Tabuk the hypocrites once again approached him for his praying in the mosque, then arrived God's command through this verse. The Mosque was demolished, for it was founded just to create dissension among the believers."

19. As already mentioned, the general question regarding right of opportunity of hearing, before any right of a citizen guaranteed by Islam, is taken away or abridged, has been upheld in Pakistan and others v. Public at Large (P L D 1987 S C 304). The limited question raised in this case by the learned Deputy Attorney‑General is that; if in matters relating to Zarar and Fasad‑fil‑Arz and for similar other reasons for making proper exceptions, the power is exercised by a law‑making organ of the State, the Federal Shariat Court, or for that matter, the Supreme Court has no jurisdiction to declare the exception concerned as against injunctions of Islam under Article 20:3‑D read with Article 203‑F of the Constitution.

20. The question of making exceptions with regard to a general rule contained in Islamic injunctions has been dealt with by this Court in N.‑W.F.P. v. Hussan Pari (P L D 1988 S C 144); and Pakistan v. Public At Large (P L D 1986 S.C.240). In the former case, it was held that where Zaroorat is made the basis for an exception, the Federal Shariat Court has the power under Article 203‑D to declare that such provision (relating to exception) is against the injunctions of Islam if it is not found as a case of Zaroorat, in accordance with the injunctions of Islam. Some of the wed‑known limitations in this behalf have also been spelled in latter case. If those limitations are applicable to Courts, they would, with necessary variations, depending upon each situation, mutatis mutandis, be also applicable to the law making agencies (see page 253 et sequens of the report). It is, perhaps, in obedience to the conditions Nos.(iii) and (iv) at page 254 of the above‑cited case, that the learned Deputy Attorney‑General in support of his plea that the exception/ Zaroorat is established vis‑a‑vis the provision in question, relied on the case of Masjid‑i‑Zarar already cited, from the Holy Qur'an. These conditions are:‑ ''(iii) Whether a relaxation is approvable on the accepted rules and principles of Ijtihad and Ijmah, old or new, Zaroorat or Zarar; Tawil, or Takhsis; Urf and other recognized methods like Qiyas Ihsan, Istehsan, Masalah Mursalah etc.? (iv) Whether in a case a new principle like the foregoing, is visualised there is support for the same in the Holy Qur'an and the Sunnah? He confined himself to the case of Masjid‑i‑Zarar and did not try to seek support for his contention from any other material regarding the Islamic injunctions as contained in the Holy Qur'an and the Sunnah‑‑their interpretation or' application. We would, therefore, assuming for .the sake of arguments, that the legislature has the power to make exceptions with regard to certain rights guaranteed by Islam, whether by way of its denial, abridgment or control, would deal with the case of Masjid‑i‑Zarar; so as to see whether it justifies the denial of the right of hearing in the situation visualised in sections 11‑A, 11‑& and 11‑C of the Security of Pakistan Act.

21. As is apparent from the text of Sections 107 and 108 (verses) of Sura 9 as also the Sunnah in that behalf related in various commentaries, the Holy Prophet (P. B . U . H) did not afford formal opportunity of hearing to those, who were responsible for constructing the Masjid‑i‑Zarar before directing its demolition. The impression is straightaway gained as if they were not entitled to an opportunity of showing cause against domolition.

22. It has already been noticed in connection with the arguments of the learned Deputy Attorney‑General, that the Federal Shariat Court did concede power of the legislature similar to that visualised in the provisions in question, when the following basic condition is satisfied:‑ "Where the Federal Government is of the opinion that any undertaking is being used, whether with the aid of funds from foreign sources or otherwise, or is likely to be used, for the purpose of making, printing, publishing or otherwise disseminating news, reports or information, likely to endanger the defence, the external affairs or the security of Pakistan, or any part thereof, or for the purpose of promoting such interests of any foreign State, it may, by order, remove the owner or, " (Section 11‑A)

23. It is also correct that, amongst others, reliance was placed on Verse 33 of Sura‑5‑‑Almaida and related material which deals with those, who wage war against the State or create disorder in the country or spread mischief or do similar other acts. And it is in that context that we, agreeing with the learned Deputy Attorney‑General, have already held that the subject‑matter of the provisions in question cannot be treated as repugnant to the injunctions of Islam. He, however, wants us to hold further that in addition to the abridgment and control of right to hold and enjoy ones property guaranteed by Islamic injunctions, that part of the provisions which denies the right of hearing to the party concerned should also be treated as not repugnant to those injunctions. His interpretation of the words; "Where the Federal Government is of the opinion" in fact is that on the basis of the case of Masjid‑i‑Zarar, the Federal Government can entertain, hold and execute an opinion in the form of an order in cases covered by the provisions in question, even when opportunity of showing cause is not afforded to the accused party.

24. The case .of Masjid‑i‑Zarar is clearly distinguishable on more than one grounds. The persons concerned did have enough opportunity of satisfying the Prophet (P. B . U . H .) with regard to their beliefs and practice, which had already been demonstrably found to be anti State. They had also enough opportunity of convincing the Prophet (P. B . U . H) despite their previous conduct that they were not in the wrong, when an attempt was made by them to persuade him to visit and offer the prayer in the said mosque. Some signs/evidence as mentioned in the commentary quoted above, had already appeared within the knowledge of the persons concerned indicating that their stand was wrong. Not only this, in order to remove all doubts, Allah, the all knowing, Himself became the Witness in the matter‑‑and this shows how important is the right of an accused person to defend himself. The words used in section (Verse) 107 are:‑ One translation we have already quoted wherein means "Allah doth declare". In another translation the same words mean "God (Himself) bears witness" ‑‑Muhammad Asad's The Message of the Quran.

25. It is not possible to imagine that after a verdict was rendered by Allah Himself on a controversy, then His Messenger (P . B. U . H . ) would not or could have declined to act upon it on the basis of any technical or procedural hindrance. However, in this case that hindrance also was not there because; firstly, Allah Himself as a Witness established that the persons concerned (the accused) were guilty. And it also establishes the rule: that in matters of right guaranteed by Islam no adverse action can be taken except on the basis of some material/evidence/proof/testimony, vis‑a‑vis misuse of the right. Secondly, even when .Allah had Himself furnished the evidence by becoming Witness. He felt it necessary presumably on account of the importance of the right of hearing that it was further revealed in Verse‑107: that when those persons would be summoned to answer the accusation, they would "swear that..." a particular reply. In other words a principle was being laid down that though those persons were entitled to right of hearing, yet on account of their utterances and previous opportunity of explaining their position, they would state what Allah knew and the same is then rendered in the words of those persons, in Verse‑107 itself. In one translation already quoted the words are:‑ "They will indeed swear That their intention is nothing But good." but in the other translation by Muhammad Asad in the Message of the Qur'an, the translation is as follows:‑ "And they will surely swear (to you, 0 believers), 'We had but the best of intentions'‑‑the while God (Himself) bears witness that they are lying."‑‑

26. In the light of the foregoing discussion, it can be safely said that as a corollary to the right of hearing, acknowledged in Islam, one so‑called variation (there may be others) can be visualised that .whenever it is known to the extent of certainty that if and when an opportunity is afforded the person concerned "surely" would take a certain position already taken as his defence, the formalities of summoning him again for a repetitive performance, could be dispensed with. It is not necessary to elaborate this principle here any further, Its application would depend upon the circumstances of the situation vis‑a‑vis the Law, each case and particular action.

27. The next point raised by the learned Deputy Attorney‑General regarding the "power of the Court" under Article 203‑D as against that of the legislature, ‑.vas discussed in some detail in the case of Pakistan v . Public at Large (P L D 1986 S C 240) . It is reiterated that under Article 203‑D the Court has the jurisdiction to decide the question whether or not any law or provision of alaw is repugnant to the injunctions of Islam. The words "Law" here means all laws, made by any law‑making organ or agency, except those laws which are excluded by the definition of law as contained in Article 203‑B(c). Thus barring those exceptions any law made by the legislature including the Pakistan Security Act, 1952, could be lawfully examined under Article 203‑D. If as a result of this examination and decision of the Court such law is held by the Court to be repugnant to the injunctions of Islam, it would "cease to have effect" on the day on which the decision of the Court "takes effect",‑‑See Clause (3) of Article 203‑D. Same is the power of the Supreme Court in appeal preferred under Article 203‑F.

28. The only remaining contention raised by the learned Deputy Attorney‑General to the effect that when a legislature in its wisdom makes a certain exception with regard to right of opportunity of hearing as in the provisions in .dispute, the Court has no power under Article 203‑D/203‑F to examine such wisdom or for that matter) intention of the legislature, is also without force. It is obvious that if the exception or for that matter its purpose, runs counter to "the injunctions of Islam as contained in the Holy Qur'an and the Sunnah" as already interpreted in the aforesaid case, the Courts will be competent to take the necessary decision and declare it under Article 203‑D/203‑F of the Constitution. It may be mentioned here that, as held in the cases of B . Z . Kaikaus v . Federal Government of Pakistan and others (P L D 1982 S C 409) and Abdul Hameed v. The State PLD 1983 S C 130), when the Shariat Appellate Bench of the Supreme Court determines matter brought before it under Article 203‑F read with Article. 203‑D of the Constitution, except for the relevant limitations contained in Chapter 3‑A of the Constitution, it continues to be the same Supreme Court as is visualized under Part VII, Chapter 1 of the Constitution. In that context it has the power under.Article 187(1) "to issue such directions, orders or decrees as may be necessary for doing complete justice in any case or matter pending before it".. Apart from other conditions the expression "complete justice" in the context of the ~ jurisdiction of the Court under Article 203‑F read with Article 203‑D would have to be in accord with the principles contained in or derived from the Islamic injunctions as contained in the Holy Qur'an and the Sunnah.

29. Accordingly, this appeal is partly allowed. The Judgment of the Federal Shariat Court to the extent it held the entire provisions contained in sections 11‑A, 11‑B and 11‑C of the Pakistan Security Act, 1952 as against the injunctions of Islam and directed their "omission" from the statute, is set aside. The provisions shall continue to remain on Statute book only if the necessary amendments /provisions are made therein‑‑as indicated in this judgment with regard to right of opportunity of hearing and right of appeal before and on final adjudication by a judicial forum whenever an action is proposed to be taken or is taken under the provisions in question: It would also be in accord with the principles contained in the Holy Qur'an and the Sunnah as discussed in the impugned Judgment that the words; "where the Federal Government is of the opinion that ...." are substituted by the words "where the Federal Government is satisfied that......... The right of opportunity of hearing would ordinarily be provided prior to the adverse action proposed to be taken under those provisions. However, exception can be made to the effect that in case of emergency this opportunity shall be afforded as soon after the action as possible. Adequate provision can also be made regarding the manner of affording the opportunity of hearing at the original and appellate stages.

30. Sufficient guidelines and directions have been given in the foregoing discussion for bringing the provisions in question in accord with the injunctions of Islam. In order to afford adequate time for doing the needful, this decision shall take effect on 1st January, 1989 and, unless as.discussed in this Judgment, amendments /provisions are. made in the Security of Pakistan Act, 1952, in the meanwhile, Sections 11‑A, ‑ 11‑B and 11‑C thereof shall cease to have effect on the said date‑‑1st January, 1989.

31. There shall be no order as to costs M.B.A./F‑64/S Appeal partly allowed