P L D 1991 Federal Shariat Court 283 (PLP)

13. An incident is reported by Al-Bukhari in his famous work on Hadith, Al-Sahih, that in Medina a woman of the Banu Makhzum tribe committed a theft. The elders of this powerful tribe prevailed on Usamah Bin Zaid to recommend her case to the Holy Prophet (p.b.u.h.), who held Usamah very dear, to save the woman from being subject to the physical punishment of Hadd i.e. the cutting of hand, as the honour of the tribe was at stake, if the woman was subjected to that punishment. On Usamah's intervention the Holy Prophet (p.b.u.h.) said in anger, "Would you intervene in the punishment prescribed by Allah"? Then he turned to the Muslims declaring, "What has been the cause of the downfall of nations before.you, is that when a thief of noble origin was caught, he was allowed to go scot free without punishment, whereas a thief of humble origin was subjected to punishment. I wear by Allah that if Fatima, daughter of Muhammad, committed a theft, I would have had her hand cut oft". This tradition furnishes a significant instance of the application of the rule of equality before law in Islarn even to the Prophet himself and to his family which demonstrates fully the truth of the concept of equality in Islam irrespective of caste, creed or colour.

14. To quote three other incidents, out of many, of the days of the Caliph 'Umar, as reported, his own son was charged with taking liquor, the Caliph 'Umar not only awarded Hadd punishment but personally lashed him with his own hand.

15. The other incident is that of 'Amr Bin Al-'Aas, the then Governor of Egypt, 'Amr Bin 'Al- Aas, came to Madina, the Capital, on his annual State-visit. A man stood up from the assembly and accused the Governor of whipping him without just cause. The Caliph 'Umar on making spot enquiry, ordered that the said man would lash the Governor with equal number of stripes, and so ordered the Governor to come out and stand up and be ready for the Qisas. Then, some of the persons persent at the occasion persuaded that man to forego the Qisas (retaliation) and accept Diyat, the monetary compensation for the unlawful injury caused to him by the Governor.

16. The third incident relates to Jablah, the chief of his tribe, a convert from Christianity to Islam. During Tawaf (circumambulation) of the Holy Ka'bah at Mecca, a corner of his shawl came accidentally under the foot of an Arab villager, Jablah, in anger slapped on his face and broke his tooth. The Caliph 'Umar permitted the villager to take his Qisas from him i.e. slapping on the face of Jablah and breaking his tooth and ordered Jablah to submit in Qisas (retaliation] to the villager, Jablah took it as an insult to him and fled away from the Islamic domain and turned back with his tribe to Christianity. The Caliph 'Umar accepted Jablah's leaving the country and his turning back to Christianity, but did not concede to rescind his order of Qisas.

17. These instances go to prove that Islam provides a framework for establishing a society based on righteousness, piety and God-consciousness, free from all tyrannies, oppressions and injustices.

18. The basic concept of equality of law, besides other Qur'anic verses, is grounded on the following verses of the Holy Qur'an: "O ye, who believe True Law of Equality is prescribed to you in cases of murder: the free for the free, the slave for the slave, the woman for the woman. But if any remission is made by the brother (i.e., the heirs of the murdered person), then grant any reasonable demand, and compensate him (in the form of blood-money), with handsome gratitude. This is a concession and a mercy from your Lord. After this whoever exceeds the limits shall be in grave penalty. In the Law of Equality there is (saving of) Life to you (as it cuts the roots of endless blood-feuds), Oh ye men of understanding, that ye may restrain yourselves." (2:178-79). The Holy Qur'an further says: "We ordained therein for them: Life for life, eye for eye, nose for nose, ear for ear, tooth for tooth and wounds equal for equal. But if any one remits the retaliation byway of charity, it is an act of atonement for himself. And if any fail to judge by (the light of) what Allah hath revealed, they are (no better than) wrongdoers:" (5:45).

19. These verses prescribe the Law of Equality in connection with murder as well as in respect to loss of, or damage to, limbs of the human body caused by one person to another. See "Essays on Islam" by one of us Justice Dr. Tanzilur Rahman, pages 13, 14, 15, 16, 17, 18 Islamic Publications, Lahore. 20. 1n the light of the above Injunctions of Islam no exemption or preference can be given to a party before the Civil or Revenue "Court" and the proceedings of such "Court" cannot necessarily be stayed for or against a party merely because he is a member of the Provincial Assembly or for that matter National Assembly or the Senate, as contemplated by the provision of the law, quoted above.

21. It may, however, be added that presence of a party in such cases is not always necessary and he may, perhaps, appear through an authorised agent. The Shariat Appellate Bench of Supreme Court, while upholding the judgment of this Court in SSM No.196 of 1983, observed as under:-- "We do not find any force in these submissions because a can take judicial notice of the fact that whenever an Hon'ble Member of the ??????????? "'????????? National Assembly is busy attending a session of the House, the Courts, a.:on being apprised of this fact, invariably grant him accommodation and ??????????????????????? do not prevent him from discharging his duties as such Member, and the ??????????????????????? argument that his obligations to national interests deserve preference ??????????????????????? over individual interests is more theoretical than real. The privilege a,ferred on Members by sections 3 and 4 of the Ordinance appears to on air.;: be designed, in point of fact, from making it almost impossible to obtain ,<-<, justice as against him, if he is arrayed as a party before a Court so long as he continues to be a Member of the National Assembly. This results in negation of the concept of equality of citizens before law in the Islamic Republic of Pakistan. The verses of the Holy Qur'an and the Ahadith of the Holy Prophet (p.b.u.h.) cited in the judgment of the Federal Shariat Court clearly establish that the provisions relating to exemption of Members of the National Assembly from appearance before the Courts and the provisions for the stay of proceedings of these Courts for the whole period when the Assembly is in Session and for a period of 14 days before and 14 days after the Session are manifestly repugnant to the injunctions of Islam. Accordingly, they require amendment with a view to bring them in accord with the Injunctions of Ialsm. PLD 1991 SC 459.

22. The provisions of sections 3 and 4 of the Members of the National Assembly (Exemption from Preventive Detention and Personal Appearance) Ordinance IX of 1983 are the same as that of section 7 of N.-W.F.P. Provincial Assembly (Powers, Immunities and Privileges) Act, 1988.

23. We heard Mr. Shahabuddin Burq, Law Officer, N.-W.F.P. and I-lafiz SA. Rehman, Standing Counsel for Federation. Hafiz S.A. Rahman, Standing Counsel for the Federation relied upon thejudgment of the Shariat Appellatc Bench of the Supreme Court of Pakistan referred to above reported in PLD 1991 SC page 459.

24. We, therefore, declare that section 7 of N.-W.F.P. Provincial Assembly (Powers, Immunities and Privileges) Act, 1988, curtailing the inherent powers and discretion of a Civil Court or a Revenue Court or a Tribunal having powers under Civil Procedure Code, 1908 and putting restrictions on them amounts to undue interference with the administration of justice, as against the basic concept of justice in Islam and is, therefore, repugnant to the Injunctions of Islam as laid down in the Holy Qur'an and Sunnah of the Holy Prophet (p.b.u.h.) and unless amended suitably to be in conformity with the Injunctions of Islam, it shall be ineffective on 31st December, 1991. IBADAT YAR KHAN, J,--I have had the advantage of reading the I judgment proposed by the learned Chief Justice. After reading section 7 of the N.-W.F.P. Provincial Assembly (Powers, Immunities and Privileges) Act, 1988, 1 have a feeling that it does not clash with concept of equality among human beings as enunciated in Islam nor in my humble opinion the message conveyed through Ayats and Ahdith quoted in the judgment come in clash with the legislative intent reflected in this section.

2. If at all it is only an institutional distinction between two institutions of the State-- the legislature and the legal forums. The idea behind it is to reconcile the conflicting claims of these two forums/institutions on an individual who has an obligation to be present before these two forums at one and the same time. The legislature in its wisdom, for good reasons or bad has by enacting section 7 desired that for a limited specified period Courts and tribunals should stay the proceedings and spare the member for concentrating on the legislative business.

3. In the first instance the section does not seek to confer any distinction or superiority on any individual on account of his racial, parochial, tribal affiliations, The member does not claim any pride on account of blue blood running through his veins or on account of his birth through the womb of a Princess. It is the arrogance and pride raised and cherished by the individuals, on such notions which is condemned in Islam and it is in such situation that Ayats or Ahdith quoted in the judgment would be attracted.

4. When we look at section 7 of the Act it is clear that classification, if there is any, is on account of holding a public office and in relation to public duty. It simply says that only for duration of the legislative business the member should be excused from appearance in Court. As stated above the exception is not claimed on account of any personal pride or arrogance but on account of public duty and for being dutiful to his constituency on whose mandate he happens to be a member. The member concerned may happen to be the. poorest and the humbliest in the social order. Yet by virtue of his office he enjoys a position which is distinguishable from others.

5. Islam does not aim at creating a classless society. The Holy Qur'an itself declares:-- In every day life we notice that the rules of protocol do make a distinction between high dignitaries like the Judges of the Superior Courts, High Military and Civil Officials and they are accorded treatment according to their status at the time of State functions. To do otherwise on such occasions would be neither fair nor desirable. Yet it cannot be said that this classification is on account of any false notions, or tribal affiliations. Islam condemns such pretentions and distinctions which are based on racial parochial, linguistic or other artificial considerations but recognises nay eulbgises distinctions, classifications if they are based on the basis of spiritual professional attainments or attributes. The position is well explained in the following Ayat:--

6. In the case on hand a member has a conflicting claim on him by two institutions. On the one hand he is supposed to plead the cause of populace of his contituency on the other he has to plead for himself or contest/rebut a charge against him in a Court. Section 7 does not say that he would be exempted from appearance for all time because he has a feather in his cap. It only seeks to avoid a clash between two institutions before whom the presence of the member would be necessary at the same time.

7. In this view of the matter if a timely concession is allowed to an individual or a group of individuals it cannot be said that the concession is violating the concept of equality. It is nothing more that seeking accommodation from one forum for the sake of performing duties before another.

8. To be mote precise, suppose a University Professor is a member of the Assembly and, he is exempted for attending his normal duties if he is busy in Assembly or on one of its Committees can such rule be called to be discriminatory and offensive to the text of the Ayats or Ahdith Mubarka. If the classification mentioned above can be permissible why can the proceedings before an Income Tax Officer, or a Mukhtarkar or any other non-judicial Tribunal be not put off for a period till the Assembly session is over.

9. Part of section 7 which relates to Courts is, however, objectionable but for a different reason. It hits at the concept of independence and supremacy of judiciary in Islam. It is interference in the judicial process. It is a command to the Qazi (Court) to stay and suspend the business of the Court and be at the mercy of the litigant and allow him to appear if he himself chooses to appear. This cannot be countenanced.

10. It is an unfettered privilege of the Court to conduct the proceedings evenly and impartially. In appropriate cases Courts do accommodate the lawyers and the litigants by allowing adjournments of proceedings. There are inherent powers of the Court. The Courts have always remained vigilant--nay jealous of preserving these powers and have never allowed any encroachment in this discretionary precinct by any intruder. An unscrupulous legislator who may be facing a charge for a heinous crime in a speedy trial Court or whose attendance may be necessary for a speedy disposal of a cause being tried before a special Court, can conveniently bypass the legal process thus causing hardships to the parties involved in the case and defeating the ends of justice. Similarly in other proceedings which are governed by Civil Procedure Code unscrupulous defendants/Respondents should not be allowed to delay and defeat justice. It should be left to the Court itself to use its discretion and put off the hearing, keeping in mind that least prejudice or inconvenience should be caused to the other side. This aspect of the case has been considered in the judgment of Justice Dr. Nasim Hassan Shah in Shariat Appeal No.5 of 1989. The learned Judge observed:-- "We can take judicial notice of the fact that whenever an Hon'ble Member of the National Assembly is busy attending a session of the House, the Courts, on being apprised of this fact, invariably grant him accommodation and do not prevent him from discharging his duties as such Member and the argument that his obligations to national interests deserve preference over individual interests is more theoretical than real. The privilege conferred on Members by sections 3 and 4 of the Ordinance appears to be designed, in point of fact, from making it almost impossible to obtain justice as against him, if he is arrayed as a party before a Court so long as he continues to be a Member of the National Assembly."

11. To highlight the views on institutional distinction and concept of supremacy of judiciary I would refer to the following few cases:-= Hazrat, Umar appointed Hazrat Abada Bin Samit as Qazi in Palestine. I Hazrat Abada during the course of his duties as Qazi had to deal with a case in which the Governor of the area Hazrat Muawiyah was interested. The two came in confrontation with each other. Hazrat Muawiyah not only disregarded the decision of the Oazi but also cautioned the Qazi from not attempting to "interfere"-in the actions of the Governor. The Oazi left the job and returned to Madina. Hazrat Umar on hearing the facts from the Qazi ordered him to return and resume his duties forthwith. He then wrote to Governor Muawiyah. The relevant part is as follows:-- There have been occasions when the Caliph himself has walked to the Court of a Qazi and appeared before him as an ordinary party. Once Hazrat, Umar attended the Court of Qazi Zaid Ion Sabit. The Qazi was overawed for a moment. Hazrat, Umar immediately realised the position and said to the Qazi, "this is the first injustice you committed". ???????????

12. Yet another incident relates to the fourth Caliph of Islam. He had to appear before Qazi Sharaih in the famous case of his ( a,4j ). The dispute was between Hazrat Ali and a Jew each claiming the ownership of ( -0 / j ). The witnesses in support of the claim of Hazrat Ali was his son Hazrat Hasan and his servant Qambar. The Qazi after hearing the parties and the evidence rejected the claim of.the Caliph for want of supporting evidence. The evidence of Hazrat Hasan was excluded because of the latter's close relationship with the Caliph.

13. This again shows how high was the standard of dispensation of justice and what position was accorded to the judiciary in the golden era of Caliphate.

14. The upshot of the above discussion is that section 7 quoted above is repugnant to the concept of independence and supremacy of judiciary in Islam to the extent of its applicability to Courts. But its applicability to administrative and other Tribunals is not against Qur'an'and Sunnah. It may be suitably amended by the Government of N.-W.F.P. failing which section 7 will cease to have effect from the date mentioned in the main judgment. M.B.A./631/FSC ??????? Order accordingly.