P L D 2021 Federal Shariat Court 1 (PLP)

DR. SYED MUHAMMAD ANWER, J.

Through this Shariat Petition, Messrs Najaat Welfare Foundation prayed that Paragraphs 59, 80, 82, 85, 114, 278 and 348 of the Principles of Muhammaden Law (authored by Dinshah Fardunji Mullah) may be declared as repugnant to the injunctions of Islam, as laid down in the Holy Qur'an and Sunnah on the following grounds: i. that there is no codified or enacted law relating to the Inheritance of Muslim residents of Pakistan. ii. Principles of Muhammaden Law written by Dinshah Fardunji Mulla, is not a statutory law but its continuous, unaltered, uninterrupted, uniform and constant practice has attributed it a force of law, which comes under the definition Clause of Article 203B(c) of the Constitution of Islamic Republic of Pakistan, 1973; hence it is within the jurisdiction of this Hon'ble Court to declare it as repugnant to the injunctions of Islam. The whole chapters though are not contradictory to the provisions of the Islamic Laws but some of them are in contradiction to the injunctions of Islam.

2. The petitioner also claimed that there is no enacted law of inheritance except Principles of Muhammaden Law by D.F. Mulla, which is being referred for all inheritance matters. Even the Appellate Courts of Pakistan had referred those Principles for resolving the intricate questions of inheritance. Hence this needs to have proper legislation.

3. He has also claimed in his petition that entire Islamic Law regarding inheritance is in Arabic and there is no substitute of Arabic Language to achieve the exact sense and meanings that it delivers. Therefore, it is necessary to have enactment on the subject and there is no law in Pakistan which states any punishment for depriving anyone from legal inheritance.

4. In response to the petition, the Federal Government (respondent No.1) through Secretary, Ministry of Law and Justice responded that the book i.e. Principles of Muhammaden Law (authored by Dinshah Fardunji Mulla) is only used as reference book and is not a statutory law applicable in Pakistan. However, section 2 of the West Pakistan Muslim Personal (Shariat) Application Act, 1962 is applicable in Pakistan, with respect to the above mentioned issue of inheritance etc. which is reproduced under: "Notwithstanding any custom or usage, in all questions regarding succession (whether testate or intestate) special property of females, betrothal, marriage, divorce, dower, adoption, guardianship. Minority, Legitimacy or bastardy, family relations, waqfs, trust and trust properties, the rule of decision subject to the provisions of any enactment for the time being in force, shall be the Muslim Personal (Shariat) Act, 1962 in cases where the parties are Muslims" The respondent No.1 also challenged the jurisdiction of this Court on the above said reason that it (D.F. Mulla's book) is just a reference book and not a statutory law, hence is not a challengeable in this Court. The powers, jurisdiction and functions of the Federal Shariat Court has been provided in Article 203-D(1) of the Constitution, which is reproduced below. "203-D. Powers, jurisdiction and functions of the Court.--(1) The Court may, either of its own motion or on the petition of a citizen of Pakistan or the Federal Government or a Provincial Government, examine and decide the question whether or not any law or provision of law is repugnant to the Injunctions of Islam, as laid down in the Holy Quran and Sunnah of the Holy Prophet, hereinafter referred to as the Injunctions of Islam." If something is in the said book is proved to be different from the Quran and Sunnah that would be invalid since the main source of Shariat are the Quran and Sunnah.

5. The Respondent No. 3, Secretary of Law, Sindh also replied on the same line on which the petition is replied by respondent No.1 which is as follows: "

2. That these chapters incorporated by the said Book are neither statutory provisions enacted by the Act of Parliament nor these have any force of law. Thus, these chapters don't fall within the definition of law as envisaged under Article 203-B of the Constitution of Islamic Republic of Pakistan, 1973. Therefore, the instant petition is not maintainable and is liable to be dismissed.

3. That even otherwise, the questions pertaining to inheritance, succession, betrothal, marriage, divorce, adoption, legacy, gifts, etc. fall under the ambit of Muslim Personal Law by virtue of section 2 of West Pakistan Muslim Personal (Shariat) Act, 1962. However under Article 203-B of the Constitution of Islamic Republic of Pakistan, 1973, the Muslim Personal Law has been excluded from the definition of "Law". Therefore, the instant petition is not maintainable and is liable to be dismissed."

6. The petitioner has earlier challenged a paragraph 63 of D.F Mulla's book "Principles of Mohammedan Law" on the ground being repugnant to the injunctions of the Islam through a Shariat Petition No.13/1/2013 which was clubbed with another Shariat Petition No.6/I/ 2013 and both were dismissed on 15.2.2016 being misconceived.

7. Although the earlier decision of this court is sufficient for dismissal of this petition qua points which are common in this petition and the two Petitions Nos. (13/1/2013) and (6/1/2013) decided earlier by this court on 15-02-2016; but we consider it relevant and appropriate to examine some other points which the petitioner has raised in the instant petition. In addition, we also consider it necessary to further dilate on the misconception of the Petitioner regarding the book of D.F. Mulla because to some extent it is a common misconception in the legal fraternity.

8. In the colonial India between the eighteenth and twentieth centuries under the East India Company and British rule a genre of legal literature was developed, which was generally named as Anglo-Mohammedan law due to many political, social, cultural and religious reasons. This term was used as a term of convenience to distinguish this law from English and Islamic law. Gradually the term "Muhammadan law" became more popular than "Anglo-Muhammadan law". (Ref: Article titled Anglo Muhammadan Law by Dr. Khalid Masud in Encyclopedia of Islam, pub. Brill and Abdullah Yusuf Ali, preface to 1928 edition of Wilson's Anglo-Muhammadan Law).

9. The book titled, The Principles of Muhammadan Law by D.F Mulla, first published in 1905, was and one of the most popular books among this class and category of legal literature but it was not the only one. Some other notable books which were compiled or written before it and some after it were equally used by the courts and academia. Some of these are as follows: 1 Faiz Badrudin Tyabji, Principles of Muhammadan Law: An Essay at a Complete Statement of the Personal Law Applicable to Muslims in British India, Butterworth, 1919.

2. Sir Roland Knyvet Wilson, Anglo-Muhammadan Law: A Digest Preceded by a Historical and Descriptive Introduction of the Special Rules now Applicable to Muhammadans as Such by the Civil Courts of British India: with Full References to Modern and Ancient Authorities., W. Thacker and Company, 1903.

3. Shama Churun Sircar, The Muhammadan Law: Being a Digest of the Law Applicable Especially to the Sunnis of India, Thacker, 1873.

4. Roland Knyvet Wilson, An Introduction to the Study of Anglo-Muhammadan Law, 1894.

5. Faiz Hassan Badrudin Tyabji, Muhammadan Law: The Personal Law of Muslims, 1940.

6. Mr. Justice Abdur Rahim, The Principles of Muhammadan Jurisprudence , Madras 1911.

7. Syed Ameer Ali Muhammadan Law, 2 volumes Calcutta 1892.

8. Neil B.E. Baillie, A Digest of Moohamadan Law (chiefly translation from Fatawa Alamgiri) 2 Volumes 1874.

9. Sir W.H. Macnaghten, Principles and Precedents of Moohammadan Law, Calcutta 1825.

10. Sir R.K. Wilson An Introduction to the Study of Anglo-Muhammadan Law, 1894.

11. Sir William Jones Al Sirajiyyah or the Muhammadan Law of Inheritance Culcutta 1792. There are many books which are normally included in "the Anglo-Muhammadan Law" classification, above mentioned are some famous books which are commonly used for easy reference even today. All those translators and compilers of legal manuals or books were deeply entrenched in the colonial system, being either imperial and colonial officials or members of the legal elite of Colonial India. For example, W.H. Macnaghten was a court registrar in the service of the East India Company in Bengal, N.E. Baillie was the Assistant Secretary to the Indian Law Commission and an attorney to the Supreme Court of Judicature at Fort William in Bengal, Syed Ameer Ali was a lawyer and judge in Calcutta, while Faiz Badruddin Tyabji was a lawyer and judge in Bombay and D.F. Mulla was lawyer in Bombay. Some of the authors of the Anglo Muhammadan literature were Muslims but they were not trained in the Islamic legal tradition, having been educated in England or at the very least, subject to an English legal syllabus. Their efforts coincided with the overall efforts of the British colonial masters of that time to appease the Muslim subjects of the sub-continent. Although translators sometimes clearly stated that the texts were actually commentaries on law. Such as Neil B.E. Baillie's "A Digest of Moohammadan Law". Despite such acknowledgements these legal texts quickly earned an authoritative status in colonial courts which regarded these texts as the final word on topic of Muslim personal law discussed in those books. These texts, were in other words, made to stand alone without reference to other commentaries. This practice was contrary to Islamic tradition of referring to various sources, especially parallel commentaries, in the process of adjudication. In contrast, legal practitioners in the British colonial regime rarely went beyond colonial sanctioned texts to examine the Quran, Hadith or other legal texts not prescribed by their predecessors. Even Muslim members of the colonial elite such as Faiz Tyabji and Syed Ameer Ali merely replicated patterns of colonial codifications in their own volumes in the early twentieth century since they were not trained in usul al-fiqh (Principles of Islamic Jurisprudence) or they consciously avoided challenging British legal lexicon.

10. The perception of the petitioner, about the book of D.F. Mulla that its continuous, unaltered, uninterrupted, uniform and constant practice has attributed it a force of law hence it comes under the definition of Clause (c) of Article 203-B of the Constitution of Islamic Republic of Pakistan , is wrong for the following reasons: Firstly; D.F. Mulla edited many editions of his book during his lifetime by incorporating the developments made by the judicial pronouncements and various legislative measures. For example the 8th Edition of his book contained 16 Chapters while the 10th edition contained 19 Chapters. D.F. Mulla did acknowledge that he largely relied upon the translation of Hedaya by Hamilton and translation of Fatawa Alamgiri by Baillie. Hence, relying on secondary sources by D.F. Mulla is itself a question mark on the validity of the opinion contained therein and on the understanding of the Islamic Law by him. Mulla in addition to the incorporation of precedents of the higher judiciary incorporated the changes required due to the promulgation of new enactments like Mussalman Wakf Validation Act, 1913 and "Mussalman Wakf Validation Act, 1930", this process of edition continued even after the death of Mulla by the editors of the subsequent editions on his book due to introduction and promulgation of the new laws in the area of Muslim Personal law like for example the "Dissolution of Muslim Marriages Act, 1939". Like any other reference book its updating and rectifications was a fundamental requirement. This demonstrates that the book of Mulla kept on changing according to the changing requirements. Hence the understanding of the petitioner about the consistency and the continuity of the Mulla's book is incorrect. The Book titled the "Principles of Muhammadan Law" authored by D.F. Mulla was first published in 1905; then, it was edited at least ten times by its author before his death in 1935. Even after the death of its author, it was edited number of times by different editors. If we compare the first edition of 1905 with the updated editions being published in Pakistan, generally under the title of "Mulla's Principles of Muhammadan Law" by different publishers and also those editions, which were published in India under the same title after the death of D.F. Mulla. One can find many changes by way of amendments in the numbered paragraphs, addition of new paragraphs, deletion of some old paragraphs and even alteration of wording within the paragraphs for example: i. The total number of chapters in the First Edition of 1905 were 13 while the current edition of the same book contained 19 chapters and many appendices. ii. The total number of paragraphs in the First Edition, which were numbered to give the sense that each paragraph contains some principles of Islamic law, was 228 but now it contains 375 paragraphs. iii. The scheme of the book has also been shuffled and reshuffled many times since it first published as the sequence of its chapter have been arranged and rearranged many times. iv. The book is written and presented in such a way that a presumption attached to it is that each of its numbered paragraph contains some principle of Islamic law, which were mostly translated or copied by the author D.F. Mulla from the English translation of Hedaya, Sirajiyya, Fatawa Alamgiri and some other works of English authors like Neil B.E. Baillie and Sir Roland Knyvett Wilson, etc., as acknowledged by the author (D.F. Mulla) in the prefatory note of his book as: "I have fallen back upon the translations of the Hedaya and the Fatawa Alamgiri, with such modifications as were necessary or proper for the requirements of modern law" .. "This work is in the main modelled on the plan of Sir Roland Wilson's excellent Digest of Anglo Muhammadan Law..." Despite the scheme and arrangement as explained by the author in the prefatory, there are some paragraphs which are based on the rulings or judgments of some Indian High Courts like High Court of Bombay and Calcutta, etc, which are though judicial precedents but in no way can be called as principles of Muslim Personal Law (For example paragraphs 322 and 333 (3) are based on judgments of Bombay High Court. Similarly some of the paragraphs are opinions of other English authors (for example paragraphs 333, 334 and 336(v)(ii) are based on opinion of Baillie. v. Some paragraphs in the book are based on customary laws prevalent in some territories of India predominantly Muslim population of a specific area of India. Such customary practices cannot be generalized as an Islamic principle for Muslims generally and more specifically they have no relation whatsoever with the Muslim population of Pakistan For example Para-172 which reads as: "

172. Gift by a Muhammedan governed by Marumakkatyam law to a tawazhi.-A tawazhi consists of a mother and all her children and descendants in the female line. It is a corporate unit, and capable of holding property as such. Therefore, where a Muhammedan who follows the Marumakkatyam law, makes a gift of property to his wife and all her children constituting a tawazhi, without any expression of intention as to how they are to hold and enjoy it, the gift will be deemed to be a gift to the tawazhi, and the donees will take the property subject to the incidents of an ordinary tawad or tawazhi property, one of which is impartibility. But when the gift is to the wife and her children by him, to the exclusion of her children by a former husband, the gift cannot be deemed to be one to a tawazhi, and the donees will take the property as tenants-in-common in equal shares with power to alienate their respective interests." vi. At some instance it appears that it is a mere legal cross-reference book when it refers to some other enactments, for example paragraph 225 contains the reference of enactments relating to administration of trust which apply to Wakf also. Para 225 is reproduced as under: "

225. Enactments relating to administration of trust, which apply to Wakfs also.

The following is a list of enactments which provide for the protection, enforcement and administration of public endowments:-- (i) Official Trustees (Act II of 1913) (ii) Charitable Endowments Act VI of 1890, sections 2, 3, 4, 5, 6 and 8. (iii) Religious Endowments Act (XX of 1863), section 14. (iv) The Code of Civil Procedure, 1908, sections 92-93. (v) Charitable and Religious Trusts Act (XIV of 1920)." vii. At times it contains suggestions for the Court the manner to decide an issue which in no way can be binding upon any Court of Pakistan. Para 204 is reproduced herein below: "

204. Appointment of Mutawalli.

(1) The founder of the Wakf has power to appoint the first Mutawalli, and to lay down a scheme for the administration of the trust and for succession to the office of Mutawalli. He may nominate the successors by name, or indicate the class together with their qualifications, from whom the Mutawalli may be appointed, and may invest the Mutawalli with power to nominate a successor after his death or relinquishment of office. (2) If any person appointed as Mutawalli dies, or refuses to act in the trust, or is removed by the Court, or if the office of Mutawalli otherwise becomes vacant, and there is no provision in the deed of Wakf regarding succession to the office, a new Mutawalli may be appointed. (a) by the founder of the Wakf; (b) by his executor (if any); (c) if there be no executor, the Mutawali for the time being may, subject to the provisions of section 205 below, appoint a successor on his death-bed; (d) if no such appointment is made, the Court may appoint a Mutawalli. In making the appointment the Court will have regard to the following rules:- (i) the Court should not disregard the directions of the founder except for the manifest benefit of the endowment; (ii) the Court should not appoint a stranger, so long as there is any member of the founder's family in existence qualified to hold the office; (iii) where there is a contest between a lineal descendant of the founder and one who is not a lineal descendant, the Court is not bound to appoint the lineal descendant, but has a discretion in the matter, and may in the exercise of that discretion appoint the other claimant to be Mutawalli." [ Emphisis added] Secondly; The very title of the work "Mohammedan Law" contains a term "Mohammedan" this term is often criticized by Muslims of the sub-continent which was and is alien to Muslims in the context in which it was used by the compiler of the work i.e., D.F. Mulla. M. Hidayatullah, the Chief Justice of India has stated in the Preface of his book Mulla's Principle of Moharnmadan Law (16th edition 1968) as "The name of the book "Mahomedan Law" has been retained but I may say that this expression was coined by the English, Islamic law was not Mahomed's Law. The expressions 'Mahomedan' and 'Mahomedanism' are not correct and, in a sense, are even objectionable. The proper expressions are Islamic Law and Muslim Law. The Pakistani Courts have shown preference for these two expressions and writers on the subject prefer one or the other of the two latter expressions." Modern Muslims dislike the terms Mohammedan and Mohammedanism, which seem to them to carry the implication of worship of Mohammed, as Christian and Christianity imply the worship of Christ. Although the work itself is a result of hard work but mere using a 'misnomer' for referring it in its title made the whole effort bit controversial amongst the population for which it was compiled by its compiler. According to Merriam Webster Dictionary it was first used in English in 1681 whereas the Oxford English Dictionary cites 1663 as the first recorded usage of the English term. According to Cambridge Dictionary this word "Mohammedan" was previously often used for "Muslim" in English, but Muslims consider it offensive because it suggests that they worship Mohammed rather than Allah. Apparently, there is no conspiracy behind its use as suggested by some. The English word is derived from New Latin Mahometanus, from Medieval Latin Mahometus, Muhammad. Perhaps it is an example of existing gulf and misunderstanding between the major cultures and religions of the world that existed in eighteenth and nineteenth centuries which dispersed and dispelled with globalization. Now, the term 'Mohammedan' has been largely superseded by Muslim or Islamic. Mohammedan was commonly used in English and other European languages literature until at least the mid-1960s.The term Muslim is more commonly used today at the wake of globalization, and the term Mohammedan is widely considered archaic or in some cases even offensive. The American Heritage Dictionary of the English Language, Fourth Edition (2000) annotates the term as "offensive" Muhammadan and Mohammedan are based on the name of the Prophet Mohammed (S.A.W), and both are considered offensive [Kenneth G. Wilson, The Columbia Guide to Standard American English, p. 291]. The Oxford English Dictionary has "its use is now widely seen as depreciatory or offensive", referring to English Today "The term Mohammedan [...] is considered offensive or pejorative to most Muslims since it makes human beings central in their religion, a position which only Allah may occupy". With this felonious feeling associated with the title of any scholarly work makes it difficult to place it at any higher place. Thirdly; the appreciation and use of this book in the legal fraternity since 1905 to 1947 is different from its use after the independence of Pakistan. After independence, the superior Courts of Pakistan started viewing this book differently and all the other books of this category i.e. which are the part of Anglo-Mohammadan Legal Literature. Though the work done by Mulla being a non-Muslim is remarkable and quite comprehensive, at least to the extent of topics of Islamic Law which are included in this book in certain way; but the very understanding of the basis of Islamic Jurisprudence is somewhat lacking. This aspect becomes evident from the very start of the book where it explains the `Sources of Islamic Law' in paragraph 33 of his book as: "

33. Sources of Muhammedan Law.

There are four sources of Muhammedan Law, namely, (1) the Koran; (2) Hadis, that is, precepts, actions and saying of the Prophet Mohammad, not written down during his lifetime, but preserved by tradition and handed down by authorized persons; (3) Ijmaa, that is, a concurrence of opinion of the companions of Mohammad and his disciples; and (4) Qiyas being analogical deductions derived from a comparison of the first three sources when they did not apply to the particular case." [ Emphasis added ] The term "Source of Islamic Law" is a comprehensive term which is defined by the Supreme Court as : (i) The First Source, The Holy Qur'an.

This is the first and the great legislative Code of Islam. To the writers on the Muslim Law, Qur'an is the first source of law in point of time no less than in point of importance. It is original, primary, basic and most fundamental source of the Islamic Shariah. It is the Last Book of His revelations for entire humanity. Hence, its teachings shall ever remain the fountain of all guidance of all times, ages and people. On points and matters where there is a direct mandate of the Holy Qur'an the same are to be decided and handled in accordance therewith. (ii) The Second Source: The Sunnah.--(i.e. the Hadis, i.e. the precepts, actions and sayings of the Holy Prophet (may peace and blessings of God be on him) are then the second source of Islamic Law. For relationship between the Holy Qur'an and the Sunnah and for its sanction in the Holy Qur'an itself see a detailed discussion in "A Code of Muslim Personal Law" by Dr. Tanzil-ur-Rahman (at pages 3 to 9). The Sunnah may be three types namely(i) Sunnat-ul-Qaul ( ) i.e. -all words, counsels or precepts of the Prophet; (ii) Sunnat-ul-fieel ( ) ",,. i.e. his actions, works and daily practices ; and (iii) Sunnat-ul-taqrir i.e. his silence implying a tacit approbation on his part of any individual act committed by his disciples. At this place it may be mentioned that all the Hadis collectively can further be classified into three categories from the point of view of their inter se priority. The order of their priority is as follows :-- (1) Ahadis-i-Mutawter ( ) These are those traditions which have received universal publicity and acceptance in each one of the three periods namely (a) the period of the "Companions who were more righteous and had often shared the counsel of the Holy Prophet; (b) the eriod of the Successors of the "Companions" known as Tabaeen; and (c) the period of their successors known as Taba-e-Tabaeen ( ) (2) Ahadis-i-Mashhura ( ) These are those traditions which through known publicly by a great majority of people, do not possess the character of universal frame. They carry conviction of genuineness but are reported by a limited number of "Companions" and thereafter in the two successive periods aforesaid. (3) Ahadis-i-Wahid ( ) These are those traditions which depend on isolated individuals. (iii) The Third Source': Ijma'a ( ) It is of three types, namely: (i) Ijmaa, i.e. consensus of the "Companions" of the Holy Prophet which is universally accepted throughout the Muslim world and is unrepeatable (ii) Ijmaa of the jurists; and (iii) Ijmaa of the people, i.e. the general body of the Muslims. It is to be mentioned that in this way Ijmaa cannot be confined or limited to any particular age or country. It is completed when the jurists, after due deliberation, come to a finding. It cannot then be questioned or challenged by an individual jurist. Ijmaa of any age may be reversed or modified by the Ijmaa of the same or subsequent age. (iv) The Fourth Source : Ijtehad by Qyas or analogical deductions. It is an extension of law from the original text by means of common cause or effective cause, i.e. 'illat'. It is a process of deduction which is not to change the law 'of the text. It is applicable in cases not covered by the language of the text, but may fall under the reason of the text. Therefore, in importance, Qyas, occupies a place next to the Holy Qur'an, Hadis and Ijmaa. v) There are other sources also like (i) Istihsan; ( ) (ii) Istislah ( ) (iii) Maslaih-al-Mursalah ( ) (iv) Istidlal ( ) (v) Illat ( ) (vi) Urf ( ) and (vii). Taqlid ( ) etc. We need not go into the detailed discussion of all these and for our purpose it is sufficient to mention that these are all methods through which the law from the Holy Qur'an and the Sunnah is deduced, those two remaining the fundamental and primary sources at all times (and often termed as the "text" or the "original text")."[Ref: PLD 1980 SC 160, para 4] Fourthly: D.F. Mulla's book Principles of Muhammadan Law and all the other books which are part of legal literature generally called as "Anglo Muhammadan Law" as explained in paras 8 and 9 supra are remarkable work being the first of its kind in the English language, there is an inherent problem of understanding of Islamic Jurisprudence in it in a traditional sense. All their authors were English trained lawyers and they were instrumental in solidifying the colonial rule over the Muslim subjects trying to produce a genre of so-called Muslim personal law in English language in somewhat 'codified' manner they helped to placate the Muslim population against the British rulers. They help to make an aura and impression of congeniality amongst the Muslim subjects towards the rulers. They all worked painstakingly, meticulously and thoroughly in the compilation of Anglo-Muhammadan literature. In some cases, they did the translation of the old source material in English too; but they all remained limited and restricted towards adopting the Fatawa or the opinions of the Ulema of Hanafi school of thought. This was because of the obvious historic and political reasons specific both of that era and area. Sub-continent was ruled by the Mughals and Hanafi Fiqh was the official Mashab of the Mughals, Fatawa-i-Alamgiri was the major book which was in vogue during that period. D.F. Mulla's book as well as all the other books of its category lost their relevance after the creation of Pakistan apart from other reasons, one reason is their somewhat time bound and myopic view of Muslim Personal law which was restricted only to the fatawa of Hanfi school. There is nothing wrong in practice as such, but the English rulers did not understand the fact that Islamic Jurisprudence or Fiqh is not subject to a stagnant theme. Islamic Fiqh gives you a general directions and ways and manner of thinking on the basis of settled principles called Usul al-Fiqh. The basis of Islamic Injunctions is Quran and Sunnah as explained by the Constitution of the Islamic Republic of Pakistan in its Article 227. "Provisions relating to the Holy Quran and Sunnah.- (1) All existing laws shall be brought in conformity with the Injunctions of Islam as laid down in the Holy Quran and Sunnah, in this Part referred to as the Injunctions of Islam, and no law shall be enacted which is repugnant to such injunctions. Explanation.-In the application of this clause to the personal law of any Muslim sect, the expression "Quran and Sunnah" shall mean the Quran and Sunnah as interpreted by that sect. (2) Effect shall be given to the provisions of clause (1) only in the manner provided in this Part. (3) Nothing in this Part shall affect the personal laws of non-Muslim citizens or their status as citizens." This point becomes more clearer from the sayings of Imam Abu Hanifa and other Imams as : This point of view has already been relied upon by this court in the following manner as : "However, according to the constitutional requirements, we cannot declare any law or its provisions repugnant to the Injunctions of Islam merely on the basis of an opinion expressed by a Muslim Jurist. Regarding the question under consideration, we have minutely gone through the relevant injunctions contained in the Holy Qur'an and Sunnah of the Holy Prophet (p.b.u.h.) but have been unable to find any specific Verse or authentic Hadith, in this particular matter that could be quoted to support the contentions raised by the learned counsel for petitioner." [ PLD 2007 FSC p.1 para 9] Fifthly; the authors of Anglo Muhammadan legal literature including D.F. Mulla while attempting to introduce the Hanafi fiqh in so-called "codified form" could not properly appreciate the actual and authentic status of any Fiqh in Islam. They could not understand that any attempt to transform the Juristic opinions in some sort of codified form is equal to locking the Fiqh in a specific time frame which is not at all the purpose of Fiqh rather the realty is other way around that Fiqh is a continuously evolving subject, the core purpose of which is to regulate the lives of Muslims in the light of Quran and Sunnah of the Prophet (S.A.W.) in every point in time and all across the world. This specific aspect of Islamic Jurisprudence surfaced and gained ground after 1947 in Pakistan. The superior judiciary of Pakistan through their knowledgeable, erudite and well-conversant judgments in the issues involving Muslim Personal law has evolved a new genre of Islamic Jurisprudence of Muslim Personal Law. In the last seven decades the superior Courts have evolved a class of Juristic opinions in Muslim Personal law; this class of juristic opinion is a kind of its own which can be used by the other Islamic jurisdictions as a precedence as well. This vibrant thinking was not easily possible if our judiciary remained restricted and confined to the so-called Mohammedan Law. This patent manifestation of the Islamic Jurisprudence became possible because of Articles 2-A, and 31 of the Constitution in addition to Article 227, the Islamic provisions of the previous constitutions of Pakistan also played their part in this development respectively. This point of view was adopted by the Supreme Court since the early decades of Independence. In one of the judgment Supreme Court held: "The fundamental laws of Islam are contained in the Qur'an and this is, by common consent, the primary source of law for Muslims. Hanafi Muslim jurisprudence also recognizes hadith, ijtehad and, ijma as the three other secondary sources of law. The last-two really fall under a single category of subsidiary reasoning;' ijtehad being by individual scholars and ijma being the concensus of scholars who have resorted to ijtehad in any one age. That this is the order of priority, in their importance, is clear from the well-known hadith. relating to Muadh-ibn-e-Jabal who was sent by the Prophet as Governor and Qazi of Yemen. The Prophet asked him, how he would adjudicate cases. "By the Book of God", he replied. "But if you find nothing in the Book of God, how?" Then by the "precedent of the Prophet". "But if there be no precedent?" "Then I will diligently try to form my own judgment." On this, the Prophet is reported to have said, "Praise be to God who hath fulfilled in the messenger sent forth by His Apostle that which is well-pleasing to the Apostle of Allah". The four orthodox schools of Sunni fiqah were headed by Imam Abu Hanifa, Imam Malik, Imam Shafei and Imam Ahmad-bin. Humbal. The learned Imams never 'claimed finality for the opinions, but due to various historical causes, their followers in subsequent ages, invented the doctrine of taqlid, under which a Sunni, Muslim must follow the opinions of only one of their Imams. exclusively, irrespective of whether reason be in favour of another opinion. There is no warrant for this doctrinaire fossilization, in the Quran or authentic Ahadith. In the Almital-wan-Nihal (page 39), it is stated that the great Abu Hanifa used to say "This is my opinion and I consider it to be the best. If someone regards another person's opinion to be better, he is welcome to it ("for him is his opinion and for us ours")." [PLD 1967 SC 97] There is an abundance of precedents of our Superior Courts to demonstrate a phenomenon that our Judiciary progressively analyzed and examined the opinions contained in D.F. Mulla's and some other books of the same category and gave better and practical decisions which are more conforming to the principles of Islamic Injunctions as envisaged in Quran and Sunnah for the betterment of the whole community. While setting the precedents in issues relating to Muslim Personal law, the superior Courts thoroughly examine the source material by consulting plenty of the material available. There is a plethora of judgments of the superior Courts of Pakistan, where they have differed from the so-called text books of Muhammadan Law including Mulla's book. This trend was initiated soon after independence of Pakistan. Although, in a very limited way and sporadically, this trend was there even in pre-partition era of British India. After the independence of Pakistan, this trend became a norm by the superior Courts of Pakistan to evolve their own jurisprudence inter alia in the matters of Muslim Personal law also. For example; It was stated in a judgment very clearly while deciding a matter of Hisanat, which is an issue of Muslim Personal Law as: "It would be permissible for the Courts to differ from the rules of Hisanat as quoted or stated in the text books like book of Mulla". [Reference PLD 1965 W.P. Lahore 695]. This trend kept on evolving, and is still evolving. This process is primarily based on following factors: (i) the superior courts are clearly of the view that the opinion contained in text book of so-called Muhammadan Law, are neither final nor binding upon the superior Courts of Pakistan. While discussing paragraphs 352 and 354 of Mulla's book the Supreme Court held: "It has been construed by the Courts in Pakistan that this may not be an absolute rule but it may be departed from, if there are exceptional circumstances to justify such departure and in making of such departure the only fact, which the Court has to see where the welfare of minor lies and there may be a situation where despite second marriage of the mother, the welfare of minor may still lie in her custody." (2014 SCMR 343 para 13) (ii) It is clearly mentioned in number of judgments that the book of D.F. Mulla is just a reference and not a statutory law applicable in Pakistan, so it is optional upon the Courts to consult this book while examining any matter in issue related to Muslim Personal Law. While dilating upon paragraph 113 of the Mulla's book it was held: "The Quranic Command, as reflected here-in-above, in Verse No.12 of Surah Nisa has completely been ignored in the case, in hand, rather a totally contrary view is being preferred. The main sources of Shariat are; Holy Qur'an, Sunnah, Ijma and Qias and the Hon'ble Federal Shariat Court in case titled "Muhammad Nasrullah Khan v. The Federation of Pakistan and another" (Shariat Petition No.06/I of 2013) has held that, if something in any Book is proved to be different from Quran and Sunnah, that would be invalid. Muhammadan Law by D.F.Mulla, not only in the present case, but other cases also is oftenly quoted for a reference. The Hon'ble Federal Shariat Court, in the referred judgment, has held that, said law is in fact only a reference book and not a statutory law applicable in Pakistan, in the sense that the legislature has not enacted the same. It is just an option of the Court to consult the same on the basis of equity and refer to the principles mentioned in paragraphs of the said book, at times, and that too casually in some matters only. Moreover, the rules quoted in Muhammadan Law are not at all applicable, if in the opinion of the Court, they are found opposed to justice, equity and good con-science. These rules are not even referred to in situations directly covered by the Holy Quran or Sunnah or by binding Ijma and Qias. According to Para-113 of Muhammadan Law by D.F. Mulla, a childless widow takes no share in her husband's lands, but she is entitled to her one-fourth share in the value of trees and buildings standing thereon, as well as in his movable property including debts due to him though they may be secured by a usufructuary mortgage or otherwise."(PLD 2016 Lahore 865 para 6) (iii) The superior Courts also very clearly pointed out one of the core reasons why in many cases the text books (like book of Mulla) do not give a comprehensive and clear answer to any proposition of Muslim Personal Law because it suffers from over simplification. "The rule enunciated in para.354 of Principles of Muhammadan Law by Mulla suffers from over simplification. Similarly the statement of law from textbooks on Muslim Law 'made by the learned Single Judge is not comprehensive. Similarly he has ignored many relevant portions of the textbooks on the subject of Hizanat." (Ref: 2000 SCMR 838). For these reasons, as discussed earlier, a whole set of jurisprudence of Muslim Personal Law has been evolved in Pakistan by the superior Courts. A few examples are as follows: i) A rule of custody of minor as mentioned in a paragraph-352 in Mulla's book that a son has to remain with his mother till the age of 07 is not absolute (Ref: 1989 CLC 604). There is no bar on mother or father to have custody of a minor according to Quran and Sunnah nor it is any body's preferential right. It is a question of fact and in all cases the prime consideration is the welfare of child (2000 MLD 1967, 2002 YLR 2548, PLD 2002 Lahore 283, 2004 SCMR 1839 etc.) ii) Similarly, law has been evolved and advanced by the superior Courts on issues related to the claim and payment of prompt and deferred Dower far beyond the restricted and limited definition done by Mulla in para-290 of his book. The difference of prompt and deferred Dowers are also clearly explained through judgments of the superior Courts. (Ref: 2009 SCMR 1458, 2016 YLR 440, PLD 2015 Lahore 405, 2006 YLR 33, 2000 CLC 1384 etc.). iii) The comprehensiveness of Muslim Law inheritance is a fact, it is explained elaborately in many judgments (Ref: PLD 1990 SC 1). Number of opinions mentioned by Mulla in his book are either unclear for example proposition of child custody in paras 352 and 354; or even against the spirit of Islamic law of inheritance when it gives preference to customary law over Islamic law of inheritance for example para 59 of Mulla's book which talks about the 'exclusion of daughter from inheritance by custom or statute'. (Ref: PLD 2001 SC 18). Other issues of inheritance, for example, as stated in para-113 regarding the inheritance of childless mother in Mulla's book has been reviewed thoroughly, and is condemned in number of judgments for being against the Injunctions of Islam (Ref: PLD 2016 Lahore 865 para-7). iv) Some issues which are either not comprehensively quoted in the book of Mulla like the maintenance right of divorced daughter. The scope of maintaining a divorced daughter by her father is discussed in many judgments. (Ref: 2011 MLD 1012, PLD 2012 Lahore 154 and PLD 2013 Lahore 464). Mulla's "Principles of Muhammadan Law" is a reference or a text book as some times referred in our judgments like other books of this category and not a statutory book. Usually, when the Courts consult it, this exercise is just like consulting a book where the opinions of the great Muslim jurists are easy to get because opinions are mentioned in English language in an over simplified language and paragraphs of the book are numerically marked. The very style of composition of this book often create a confusion amongst the reader that it is a statute book which it is not. Perhaps this is the reason why the petitioner states in his petition that the book of D.F. Mulla comes within the purview of custom and usage which is absolutely wrong and incorrect.

11. The request and prayer of the petitioner from this Court to give direction to make legislation on Inheritance is also misconceived mainly for the two reasons: Firstly, it is not within the jurisdiction of this Court to issue any such direction within the meaning of 203 D of the Constitution. It is purely the prerogative of the Parliament to legislate on any and all the issues. Secondly, to have legislation on any issue related to Muslim Personal law has certain pros and cons which have been discussed by the Supreme Court [PLD 1980 SC 160] in the following manner which should be kept in mind by the legislature too before doing any legislation on matters of Muslim Personal law: "In order to adopt and mould the existing laws in conformity with the "Primary text", may include the process of doing Ijtehad on various subjects and in various fields within the framework and the limits permissible under the "sources of Islamic Laws". The advantages of codification will be (a) cognoscibility of law; (b) to remove uncertainty of law; (c) check the introduction of the technical rules of the English Law, e.g. the western concept of the maxim of justice, equity and good conscience; (d) to avoid, as they are sometimes called by some as evils of judicial legislation; (e) to preserve the customs suited to the people of the country; and (f) unifying the influence of Codes. However, objection against this method generally advanced are (1) inherent incompleteness of codes, though its remedy would be time to time Revision and ljtehad, etc. (2) stereotyping of law by codification and judge-made law (3) alleged inadaptability of Islamic Law to codification; (4) alleged failure of existing codes; (5) the difficulty to satisfy members of each community who may insist that their own personal law be applied to them; and (6) the belief that it will amount to encroachment upon religion where under God alone is the legislator in Islam...". So far the objection of the petitioner is concerned regarding Council of Islamic Ideology, is also not factual and is misconceived. The Council has duly formulated its recommendation being an advisory body for the legislation on the Islamic inheritance law which is available to public. Ref: In addition, the understanding of the petitioner that there exists no other book in Urdu on the inheritance other than Mulla's book is also wrong Kitab al-Faraiz al Sirajiyah is one of the most important works on Islamic law of inheritance. It was first translated into English by Sir William Jones, which was published in 1792 in Calcutta. Subsequently, it was used as the source by D.F. Mulla to write the Chapter of Inheritance of his book The Principles of Muhammadan Law and same was acknowledged by him in the introduction of his book. It is considered as one of the comprehensive books on the subject and same is available in Urdu also. Numbers of commentaries of this book are also available in Urdu. For example, one of the commentaries is which also contains the original Arabic text. In addition to that reasonable numbers of good, books are available in Urdu on law of Inheritance. Just for brief reference following books and many other are also available on the subject in Urdu:

12. Before Parting we would like to make following obser-vations: i) The scholarly trend set by our superior judiciary by evolving the Islamic Jurisprudence especially in the area of Muslim Personal Law is commendable. It is perhaps a unique precedence set by our Judiciary in the Muslim World to keep the issues of "Muslim Personal Law" practical and in conformation to the contemporary world in the light of the teaching of Quran and Sunnah. ii) The attempt of indexing and numbering the Islamic juristic opinions of the past in an over simplistic language and at times avoiding the use of standard Arabic terminology with an attempt to change them with their English equals often give rise of confusion in the minds of readers . iii) The term "Mohammadan" is considered by many as misnomer, so the phrase "Muhammaden Law" creates more misunder-standing. This is best explained by M. Hidayatullah, the Chief Justice of India he has stated in the Preface of his book which is commentary on D.F. Mulla's book titled Mulla's Principle of Muhammedan Law (16th edition 1968) as "The name of the book "Mahomedan Law" has been retained but I may say that this expression was coined by the English, Islamic law was not Mahomed's Law. The expressions `Mahomedan' and `Mahomedanism' are not correct and, in a sense, are even objectionable. The proper expressions are "Islamic Law" and "Muslim Law". [Emphasis added]. The Pakistani Courts have shown preference for these two expressions and writers on the subject prefer one or the other of the two latter expressions." Hence this phrase of "Mohammedan Law" as a synonym of the "Muslim Personal Law" may be avoided as has been done at many instances by the Superior Court in their judgments. iv) The paragraphs which are numbered by the author must not be mistakenly taken as sections of a statute. v) Both the extreme points of view regarding D. F. Mulla's book, "The Principles of Mohammedan Law" are wrong. Neither should this book be discarded merely on the basis that it is written by an English trained, non-Muslim, Zoroastrian lawyer of British India, nor should it be treated as equallant to a Statute of Law of Muslim Personal Law as done by some. vi) This book in the way how it is presented and the purpose of its writing can be well understood by no other explanation other than that provided by its author D.F. Mulla in his own words in the opening sentence of the preface of the book as: "This work has been mainly designed for the use of students as a guide to their study of Mahomedan law. Hence, for a speedy and convenient grasp of its principles, I have cast them in a series of distinct propositions, systematically arranged in the order of consecutive sections, illustrated by decided cases applicable to each section." [Emphasis added] vii) Finally, the book of D.F. Mullah titled "The Principles of the Mohammedan Law" is just a text book as stated by Mulla himself or it can be considered as a reference book but in no way it is a statute. This has already been decided by this Court in Shariat Petitions Nos.06/I and 13/I of 2013.

13. After examining the petition, we are of the considerate view that the petition is misconceived, the prayer in the petition is completely pointless, hence, it is dismissed accordingly. MWA/4/FSC Petition dismisse