2002 PLP 285 (CLC)

4. Feeling dissatisfied by the abovesaid judgment/decree instant civil revision has been filed. The learned counsel for petitioner Mr. Abdul Aziz Qureshi, Advocate, has contended that in view of the dictum laid down by Honourable Judges of Federal Shariat Court in case Allah Rakha and. others v. Federation of Pakistan and others PLD 2000 FSC 1, the respondents were not entitled to get any share from the inheritance left by their grandfather as section 4 of Muslim Family Law Ordinance, 1961 has been declared repugnant to Injunction of Islam by the Federal Shariat Court and in the light of abovesaid judgment the respondents have no legal right to claim inheritance out of property, left by deceased, Malik Muhammad. This contention of the learned counsel has no force. In para.63 of the judgment their Lordships observed as under:‑‑ "In view of the foregoing discussion we hold that the provision contained in section 4 of the Muslim Family Laws Ordinance, 1961 as presently in force, is repugnant to the Injunction of Islam and direct the President of Pakistan to take steps to amend the law so as to bring the said provision in conformity with the Injunction of Islam. We further direct that the said provision which has been held repugnant to the Injunction of Islam cease to have effect from 31st day of March, 2000. " The date given by their Lordships from when section 4 of the Muslim Family Laws Ordinance would cease to have effect was 31st March, 2000. Admittedly Malik Muhammad died in the year 1969 and mutation of inheritance which had been impugned by the respondent was sanctioned on 18‑3‑1970. The respondent filed suit in the year 1981 since then they are pressing for their rights. It is well‑settled that powers of the Federal Shariat Court to make a declaration to give effect to it from a future date and to leave the pending proceeding unaffected.

5. In case Muhammad Akbar v. Iftikhar Gillani PLD 1991 SC 71 in para. 17 it was observed as under:‑‑ "The power of the Federal Shariat Court to make a declaration to give effect to it from a future date and to leave the pending proceedings unaffected, was considered first in the case of Muhammad Masood Khan Bhatti v. Mst. Ghulam Fatima 1987 SCMR 1206. It was held at page 1209 as hereunder:‑‑ `The very first assumption of the learned counsel that Shariat Appellate Bench of this Court enjoys under Chapter 3‑A of the Constitution, particularly Article 203‑D a jurisdiction in the nature of enacting declaratory statute is to say the least, wholly erroneous. The power conferred on the Courts is of examining and deciding the question whether or any law or provision of law is repugnant to the Injunctions of Islam.' Where the Court finds that any law or provision of law is repugnant to the Injunctions of Islam, it is required to set out in its decision the reasons for its holding that opinion and also deciding the extent to which such law or provision of law is so repugnant. It is clearly an adjudicatory power of applying the test of repugnancy, a new test of ultra vires. Further, a power has been conferred to specify the date on which the decision shall take effect. It is by reference to this power that it is provided that such law or provision of law shall to the extent to which it is held to be so repugnant cease, to have the effect on the date on which the decision of the Court takes effect'."' Further, in the case of Sardar Ali and others PLD 1988 SC 287 held as under;

"The combined reading of these two provisions would show that the decision of the Court shall not take effect before the day specified by it in this behalf; and further, that the law concerned shall cease to have effect only on that day. In other words prior to that date neither the decision shall take effect nor the law would cease to have effect. Thus, the law concerned shall continue to have effect till the day prior to the date fixed by the Court."

6. In Nusrat Wahid and 3 others v. Administrator, Thal, Bhakkar 1980 CLC 334 in para. 7 it was observed as under:‑‑ "It cannot be ignored that a statute taking away or impairing vested rights acquired under existing laws cannot have a retrospective effect. I have held in Barkat Ali v. Administrator, Thal Development, Bhakkar PLD 1978 Lah. 867 that a statute which takes away or affects right of action is presumed not to apply to pending actions unless there are express words in the statute affecting such rights. Courts have always leaned very strongly against applying a new statute to pending actions, when the language of the statute does not compel to do so."

7. The Federal Shariat Court in its judgment relied upon by the learned counsel for petitioner have categorically mentioned that section 4 of the Muslim Family Laws Ordinance, 1961 shall cease to have effect from 31‑3‑2000. In the present case the cause of action had accrued to the respondent and the suit had been instituted by them in the year 1981. The finding recorded by the learned Appellate Court in this regard about determination of their share suffers from no illegality as the judgment passed by the learned Federal Shariat Court has to take effect from 31‑3‑2000 and it has no` retrospective effect. About the retrospectivity of the judgment passed by the learned Federal Shariat Court I am also fortified by the judgment passed in case Taj Deen and 8 others v. Karim Bakhsh and 11 others 2000 SCMR 1463 in para. 12 Honourable Supreme Court observed an. under:‑‑ "We find that that limb of the argument of Mr. Jhoja which relates to the execution of sale‑deed Exh.P.1 being tantamount to acknowledging the mortgage rights for another period of 60 years for redemption, was advanced without noticing that the learned Judge in Chambers had referred to the law declared by this Court in Nazeef v. Abdul Ghaffar and others PLD 1966 SC 267 that the rights and interests of the mortgagors or their successors stood extinguished on expiry of the said period as no redemption took place within the period of limitation. As regards the second limb of Mr. Jhoja's arguments that section 28 ibid has been declared to be against the tenets of Islam, we suffice by observing that neither the case of Maqbool Ahmad (supra) is applicable to the facts and circumstances of this case nor the petitioners can be permitted to blow hot and cold in the same breath. Moreso, when admittedly the first limb of Mr. Jhoja's argument on the point of limitation was rightly repelled by the learned Judge in Chambers on the strength of Nazeef (supra). Moreover, the judgment in Maqbool Ahmad (supra) was to take effect on 31st of August, 1991 and as the judgment of the 1st Appellate Court favouring the respondents was made on 28‑1‑1979, the precedent will not have any retrospective effect."

8. Therefore, the judgment referred by the learned counsel for petitioner is of no help to him and is not applicable in this case. As in the instant case, the inheritance of Malik Muhammad deceased opened in the year 1969 (year of his death) and the respondents being grandson of Malik Muhammad were entitled to inherit his estate under section 4 of F the Muslim Family Laws Ordinance, which was very much in force at that time. The learned counsel for petitioner has failed to point out any illegality or infirmity in the judgment/decree passed by learned Additional District Judge, Gujranwala, which is just and correct.

10. In view of what has been discussed above, this civil revision has not merit and the same is dismissed. H.B.T./M‑819/L Revision dismissed.