P L D 2022 Balochistan 36 (PLP)

MUHAMMAD HASHIM KHAN KAKAR, J.

Through this petition, the petitioner has challenged the validity of the letter dated 3rd January, 2019, issued by the Deputy Commissioner Quetta, whereby, the Revenue Authorities are restrained from issuing revenue entries/documents, regarding communal properties of Christian Community to anyone except respondent No.9 i.e. Mian Abdul Latif. The letter reads as under: "The undersigned is directed to refer to the subject captioned above and to forward a copy of letter No. CMTA/Verification/ Abdul Latif/Quetta/01/2018 dated 02-01-2019, received from Ms. Ruby Barkat Massey, General Secretary for Trust and to state that Mr. Abdul Latif son of Muhammad Sharif bearing CNIC No.91400- 0136212-5 has been authorized/appointed by the Trust Association for Balochistan Province.

2. In this regard, you are required to avoid issuance of Fard or any other documents in respect of properties belonging to Church Missionary Trust Association of Pakistan and be vigilant (sic) of unauthorized persons. Furthermore, necessary documents be issued to authorized person i.e. Mr. Abdul Latif son of Muhammad Sharif with regard to trust properties.

3. In addition to above, the Trust Properties shall not be transferred to any private individual until approval of competent authority or resolution passed by the body of CMTA in this regard".

2. Admittedly, the letter in question has been issued by the Deputy Commissioner, Quetta, to protect the interests/properties of the Christian Community, which are under threat. To protect and safeguard the interests and rights of minorities is a complex and perplexing question which requires serious consideration. Every country has one or more minority groups with characteristic ethnic, linguistic, and religious identity different from that of the majority population. The respect (in the beliefs and eyes of the majority) for the basic rights of the minorities creates a harmonious environment in the society. This harmony, however, not only needs ethical firmity in the norms of society but also a strong, rigid, and ever helping law to help minorities from all the flaws that emerge from inertia of the status-quo now and then. Like rest of the country, a good number of people, particularly belonging to Hindu, Sikh and Christian communities are living in this province of our beloved country and are facing a number of problems. Since more than 95% of the population of our country is Muslim, as such, it would be appropriate to trace the history of the rights and interests of minorities in the early period of Islam. Historically, right from the conquest of Makkah, the minorities were enjoying their legitimate interests and rights including the right to live, property, practice of faith, freedom of movement, vocation, association and freedom of religion and culture. While structurally speaking, Islamic law granted non-Muslim communities the right to considerable autonomy of self-determination in their internal affairs regarding education, tax collection, law and religion. The treatment meted out by the Holy Prophet (PBUH) to the enemies of Islam at the conquest of Makkah is actually what Islam stands for. Such practice was also followed by the subsequent Muslim empires.

3. Similarly, under the Universal Declaration of Human Rights, the Convention on the Prevention and Punishment of the Crime of Genocide, the International Convention on the Elimination of All Forms of Racial Discrimination, the International Convention on Civil and Political Rights, the international Covenant on Economic, Social and Cultural Rights, the Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief, and the Convention on the Rights of the Child, it is duty of every state to take necessary measures to ensure that the persons belonging to minorities may exercise fully and effectively all their human rights and fundamental freedoms without any discrimination and in full equality before the law. States are also required to create favorable conditions to enable persons belonging to minorities to express their characteristics and to develop their culture, language, religion, traditions and customs, except where specific practices are in violation of national law and contrary to international standards.

4. Likewise, Article 24 of the Constitution guarantees protection of property rights and Article 36 of the Constitution has made it obligatory on the State to safeguard legitimate rights and interests of minorities including their due representation in the Federal and Provincial Services. The Constitution provides equal rights to religious minorities and prohibits discrimination on the ground of religion, caste, creed, gender or place of birth.

5. Undoubtedly, the minorities, particularly the religious groups of Hindus, Parsis and Christian were living and enjoying a very peaceful life in the Province of Balochistan, and due to tribal culture and rich traditions, they were part and parcel of the main stream society. They, however, now are facing some threats and we have come across a number of cases, where they have been deprived of their churches, schools and crematorium/shamshan ghaat by the members of land mafia after joining hands with the so-called representatives of Christian community and revenue officials. We have noticed that some of the individuals while posing themselves to be the representatives of the Church of Pakistan and different dioceses are trying to dispose of properties belonging to Christian Community, particularly in Quetta, Sibi, Chaman and other cities of Balochistan.

6. Despite above mentioned Islamic, legal and constitutional protections, the places of worship, monasteries, seminaries, vicarages, dharamshalas, gaoshalas, burial places, community centers, social welfare, educational, health and recreational institutions meant for communal use of minority communities including side buildings, vacant places, lands, residential places or offices annexed to the said properties are all under a continuous threat.

7. We have noticed that the minorities, particularly of Christian community own numerous properties all across the province and various fake and fictitious groups of encroachers and land mafia having power of attorneys of Church Missionary Trust Association and different Dioceses have been emerging from time to time falsely claiming to be representatives of the said organizations and Christian community and asserting wrongful title and ownership in respect of the properties of community spread across the province and in this regard a number of civil suits are also pending before different Courts.

8. This Court, as protector and defender of the Constitution has an inherent duty to ensure that the provisions of the Constitution regarding the interest/rights of minorities are enforced. In this connection, it would be appropriate to mention here regarding returning a 200-year old temple back to the local Hindu community on the directions of the then Chief Justice of High Court of Balochistan, Justice Jamal Khan Mandokhail, who during his visit of Zhob was requested by the Hindu community for return of temple. The temple was used as a government school for 30 years but now the school has been shifted to another place. The keys to the doors of the four-room temple building were handed over to the Hindu community leaders by Maulana Allah Dad Kakar, the Khatib of the central mosque of Zhob in a well-attended ceremony held outside the temple. This historical event of religious harmony was organized by a young talented Deputy Commissioner Mr. Taha, who also apologized for 70-year delay in handing over the temple to the Hindu community. This act of grace and harmony was not only appreciated within the country but also by the international community and this news also originated in the international print and electronic media, while portraying soft image of the country.

9. Keeping in view the importance of the issue and realizing the unfortunate results of such business on the part of land grabbers, the federal government in order to protect the properties of minorities has promulgated " THE PROTECTION OF COMMUNAL PROPERTIES OF MINORITIES ORDINANCE, 2002." and sections 3 and 5 whereof read as under:

3. Ban on sale or transfer of minority communities properties.

(1) No property of a minority community meant for its communal use shall be bought, sold or transferred by any person without N.O.C. from the Federal Government: Provided that nothing contained herein shall apply to a property bought, sold or transferred for a Housing Scheme, meant for a minority community approved by a Provincial or Federal Government. (2) The N.O.C. referred to in subsection (1) may be given by the Federal Government on the recommendation of the National Commission for Minorities.

5. Punishment. - Whoever buys, sells or transfers any property belonging to a minority community meant for its communal use in violation of section 3, shall be punished with imprisonment of either description which may extend to seven years and shall also be liable to fine which not be less than one hundred thousand rupees and the sale or transfer transaction shall be of no legal effect."

10. While following the Federal Government, besides, the sister Provinces of Khyber Pakhtunkhwa, Punjab and Sindh, the Government of Balochistan, in order to protect the rights/interests and communal properties of minorities promulgated the Balochistan Protection of Communal Property of Minorities Act, 2018 (the Act of 2018). Sections 3 and 5 of the same read as under:

3. Ban on Sale or transfer of Minority Communities Property.

No Property of a minority community meant for its communal use shall be bought, sold or transferred by any person Provided that nothing contained herein shall apply to a property bought, sold or transferred for a Housing Scheme, meant for a minority community, approved by the Government. Section

5. Punishment.

Whoever buys, sells or transfers any property belonging to a minority community meant for its communal use in violation of section 3, shall be punishable with imprisonment of either description which may extend to seven years and shall also be liable to fine which not be less than one hundred thousand rupees and the sale or transfer transaction shall have no legal effect."

11. Although such persons, involved in grabbing the properties were required to be dealt with iron hands, yet they could not be dealt with properly due to absence of law on the subject in the Province of Balochistan, to curb this menace and to meet with the situation, as such, on the repeated directions of this Court and imposing red entries in the revenue record in respect of the communal properties belonging to the minorities, the Government has promulgated the Act of 2018 in order to protect the properties of minorities. In such view of the matter, the petition is disposed of in the following terms.

1. No property of a minority community meant for its communal use shall be bought, sold or transferred by any person.

2. Every person belonging to minorities are entitled to receive certified copies of revenue entries/documents in respect of properties meant for communal use of the minorities, however, as stated above no one can buy, sell or transfer the said properties.

3. Neither the Deputy Commissioner, nor any other authority is empowered to approve the transfer of properties meant for communal use of the minorities.

4. Neither the petitioner i.e. Church Missionary Trust Association of Pakistan, nor representative of different dioceses can transfer/ sell, buy or alienate the properties meant for the communal use of minorities.

5. The impugned letter dated 3rd January 2019, vide reference No.23-RB/Misc/2018/025, being illegal, unlawful, void ab initio and of no legal effect, is set aside.

6. All the Civil Judges/Qazis of the Province are directed to decide the fate of pending suits, regarding the communal properties of minorities in the light of provisions of The Balochistan Protection of Communal Property of Minorities Act No.XI of 2018. The Registrar of this Court is directed to send the copies of this judgment to Senior Member Board of Revenue, all Commissioners, Deputy Commissioners, Sub-Registrars, Tehsildars and all the Civil Judges/Qazis of the Province, for information and necessary action. ZH/155/Bal. Order accordingly.