2004 PLP 302 (YLR)

(1) Whether the land measuring four Kanals within the boundary wall around the shrine is "Waqf‑alal‑Aulad" and cannot be taken over by the Auqaf Department? OPP (2) Whether the impugned notification issued by the Chief Administrator Auqaf is liable to be set aside‑as a whole or in part? OPP (3) Whether the impugned act of the respondents is tainted with mala fides? If so, with what effect? OPP (4) Relief.

6. The respondents adduced five witnesses namely Syed Matloob‑ul‑Hassan P. W.1, Muhammad Rafique P. W.2, Pir Bukhsh P.W.3, Noor Ahmad P.W.4 and Baqar Ali Shah petitioner‑respondent himself has appeared as P.W.5. None appeared on behalf of respondent‑defendant so they were proceeded against ex parte and the application of the petitioner‑respondent was accepted by the learned District Judge, Attock vide his judgment dated 21‑3‑1989. The F.A.O. No.31 of 1989 against the said judgment was filed by the Auqaf Department which was accepted by the learned Single Judge in Chamber of this Court vide his order dated 24‑5‑1994. The F.A.O. was allowed and the case was remanded to the learned District Judge, Attock with the direction that the respondent be allowed to produce evidence. After remand the petitioner -respondent has also examined Sher Alam P.W.6 thereafter the respondent‑appellant adduced D. W. 1 Muhammad Munawar Khan, District Manager, Auqaf and produced documents Exh.R‑1 to Exh.R‑5, vide impugned judgment dated 26th June, 1996 the learned District Judge, Attock accepted the petition to the extent of four Kanals of land enclosed by the compound wall and notification dated 16th May, 1988 to the extent of 4 Kanals was declared to be null and void against the rights of the petitioner.

7. The learned counsel appearing for both the parties relied on the provision of section 2, sub‑clause (iii) of Punjab Waqf Properties Ordinance, 1979 and also placed reliance on the provisions of Musalman Waqf Validating Act, 1913. The judgment of Sheikh Mumtaz Ahmad v. Chief Administrator of Auqaf, West Pakistan, Lahore PLD 1975 Lahore 1147 was also relied from both the sides. The definition of "Waqf Property" is given in section 2 of the Punjab Waqf Properties Ordinance, 1979 which reads as follows:‑‑ "`Waqf property' means property of any kind permanently dedicated by a person professing Islam for any purpose recognized by Islam as religious, pious and charitable, but does not include property of any Waqf such as described in section 3 of Musalman Waqf Validating Act, 1913 (VI of 1913) under which any benefit is for the time being claimable for himself by the person by whom the Waqf was created or by any member of his family of descendants. Explanation I.‑‑‑If a property has been used from time immemorial for any purpose recognized by Islam as religious pious or charitable, then in spite of there being no evidence of express dedication, such property shall be deemed to be Waqf property. Explanations 2 to 6‑‑‑‑‑"

8. The other provisions relevant for decision of this case are contained in Mussalman Waqf Validating Act, 1913. Section 3 of the Mussalman Validating Act, 1913 is relied by the learned counsel for the respondent. Section 3 is reproduced as under:-- Section 3. "Power of Mussalmans to create certain Waqfs.‑‑‑It shall be lawful for any person professing the Mussalman faith to create a Waqf which in all other respects is in accordance with the provisions of Muslim Law, for the following among other purposes:‑‑ (a) For the maintenance and support wholly or partially of his family, children or descendants, and (b) where the person creating Waqf is Hanafi Mussalman also for his own maintenance and support during his lifetime or for the payment of his debts of the rents and profits , of the property dedicated: Provided that ultimate benefit is in such cases expressly or impliedly reserved for the poor or for any other purpose recognized by the Mussalmans Law as a religious, pious or charitable purpose of a permanent character."

9. The case set up by the petitioner- respondent is that the petitioner is the Sajjada Nasheen of Shrine of Hazrat Sakhi Sultan Sadar‑ud‑Din and that he is living in adjoining room of the shrine alongwith his family. That there is no income from the shrine. That there is an area which is an area of shrine which is shown as ABCD in the attached plan and in this area is situated the shrine and the graves of the family of the petitioner and the said area is four Kanals of land. It is further averred in the petition that from time immemorial this area is graveyard and it has assumed the character of Waqfal-al‑Aulad.

10. By virtue of Mussalman Validating Act, 1913 it was provided that it would be lawful to a person professing the Muslim faith to create a Waqf which in all other aspect is in accordance with the provisions of Mussalmans Laws in the following among other purposes. For the maintenance and support wholly or partially of his family, children or descendants and where the persons creating Waqf is Hanafi Mussalmans also for his own maintenance and support during his lifetime or for the payment of his debts out of the rents arid profits of the property dedicated. Provided that ultimate benefit in such cases expressly or impliedly reserved for the poor or for any other purposes recognized by the Mussalmans Law as a religious, pious or charitable purpose of a permanent character.

11. A perusal of the notification shows that an area of 252 Kanals and 14 Marlas of land including shrine, a mosque, and five rooms, and graveyard was taken over alongwith income from the Cash Box. It is admitted in the petition by the respondent that there exists a shrine of Hazrat Sakhi Sultan Sadar‑ud‑Din and he also claimed to be Sajjadah Nasheen of that shrine. It is also categorically stated that there ‑is no income from the shrine. The area of four Kanals which is mentioned in the petition and deletion whereof a prayer has been made through the petition is four Kanals of area wherein it is clearly mentioned in the petition that this area contains the shrine, and graves of the ancestors of the respondent‑petitioner. The respondent petitioner has further asserted that this area of four Kanals has assumed the character of Waqf‑alal‑Aulad. In order to succeed the respondent was required to prove that the property comprising of four Kanals of land containing the shrine and graveyard of his ancestors was a Waqf created by a person in favour of their family, children and descendants and ultimately for the benefit of poor or other relevant charitable special purposes as spelled out in section 3 of Validating Act, 1913. Admittedly the nature of the property is a Waqf property and it falls within the definition of `Waqf property' as given in section 2, sub -clause E of the Punjab Waqf Properties Ordinance, 1979 and only exclusion is the kind of Waqf which is described in section 3 of the Validating Act, 1913. From his own showing it is admitted by the respondent‑petitioner that the property has been used from time immemorial as a shrine and graveyard which is recognized in Islam as religious, pious and charitable purposes but no evidence has been produced on the record to show that this property of four Kanals constituted a Waqf for the maintenance and support wholly or partially of his family, children, or descendants by a person creating Waqf or in any manner was being used as such Waqf and that ultimately was reserved for poor or for any purpose recognized by the Mussalmans Law as a religious, pious or charitable purposes.

12. Conversely, the evidence produced by the respondent‑petitioner is that the property comprising of shrine and graveyard has no income and that he is a Sajjada Nasheen of the shrine and that the graveyard is only meant for the graves of the ancestors of the respondent‑petitioner. All the six witnesses produced by the respondent‑petitioner merely stated that within the compound of four Kanals shrine, a mosque and a graveyard is located. The petitioner‑respondent while appearing as P.W.5 has admitted that he is engaged in cultivation, that he has personally no land and Annual Urs is held at the shrine of Hazrat Sakhi Sultan in August every year and general holiday on the occasion of the Urs is observed in the District Locality. He also admitted that many people come to shrine to pay homage to the shrine including people from North‑West Frontier Province and from other parts of the Punjab. It is also stated in the cross‑examination by the respondent‑petitioner that people do offer "Nazrana" to Bibi Sahiba and not to the shrine of Hazrat Sakhi Sultan. According to him Syeda Inam Bibi looks after the shrine and manage its affairs and she is his real "Khala".

13. From the evidence on the record I do not find any supportive evidence whereby four Kanals area containing shrine, a mosque and the graveyard is proved not to be a kind of a Waqf created by the Waqf in terms of section 3 of the Musalman Waqf Validating Act, 1913. There is no evidence that shrine, a mosque and graveyard in the area exist for the benefit, maintenance and support of the family, children or descendants of Hazrat Sakhi Sultan. On the contrary it is admitted by the respondent‑petitioner that the shrine has no income as is evident from the admission contained in the petition as well as in the statements of P.W.1 to P.W.6. There is a shrine, a mosque and graveyard which is being used from time immemorial, as such therefore, it is safely deduced that it is a Waqf property as is admitted by the respondent‑petitioner and the other P.Ws. It is not a case of Waqf‑alal‑Aulad as this Waqf property is not meant to provide maintenance and support wholly or partially to the successors of Hazrat Sakhi Sultan, Accordingly, it is held that it S is not Waqf‑alal‑Aulad. The learned District Judge, Attock has not advanced any plausible reason to exclude the property from the notification dated 16‑5‑1988.

14. On the question of limitation neither of the parties has touched the question of limitation in filing the present F.A.O. There is an. application for condonation of delay of 17 days in filing the present F.A.O. The application was allowed by the order of this Court dated 18‑2‑1997 and the delay was condoned. Against the order passed by this Court on 18‑2‑1997, the respondent‑petitioner filed a petition for leave to appeal before the Honourable Supreme Court. Leave was granted on 9‑12‑1997 but while finally disposing of Civil Appeal No.1461 of 1997 and the leave granted was, withdrawn. As the delay in filing 17 days in filing the F.A.O. has been condoned by this Court vide order dated 18‑2‑1997 was neither set aside nor modified by the Honourable Supreme Court of Pakistan. Keeping in view the ratio of the said order, the delay in filing the F.A.O. is condoned for the reasons already given in the said order.

15. Resultantly, the appeal succeeds and the judgment of the learned District Judge, Attock dated 26‑6‑1996 is set aside and the application filed by the respondent‑petitioner is dismissed. S.A.K./C‑225/L Appeal allowed.