P L D 2014 Balochistan 132 (PLP)

QAZI FAEZ ISA, C.J.

A public park was constructed by the Quetta Development Authority ("QDA") at a cost of more than fifty million rupees (hereinafter referred to as "the Park"). The entire land of the Park covers an area of 5.47 - acres (or 238,414 square feet) and is situated within a larger area known as the 'Old Bus Adda' (or 'General Bus Stand') in Satellite Town, Quetta. The Park is accessed through a gated vehicle parking area, which is enclosed within a grilled wall and pedestrians and those in vehicles driving past can view the Park.

2. That QDA had resorted to allotting shops alongside the Park, touching the Park's boundary walls, therefore, the Chamber of Commerce and Industry Quetta and Haji Obaid Ullah assailed the said action of QDA and filed Constitutional Petition No.790 of' 2010 and Constitutional Petition No.164 of 2011 respectively. Both the petitions were heard together and decided through a common judgment dated 15th December, 2011 (reported as Chamber of Commerce and Industry v. Balochistan Director-General, Quetta Development Authority in PLD 2012 Balochistan 31).

3. That the above mentioned judgment was not assailed and attained finality; it concluded in the following terms: "

32. Therefore, for the foregoing reasons, it is hereby declared that: (a) No land could be allotted, leased, sold and or otherwise alienated or shops constructed around the three roads surrounding the Park (Old Bus Adda) situated in Satellite Town, Quetta; and (b) the Park could not be named after a living person."

4. This petition was filed challenging the auction of certain lands of the Old Bus Adda area, however, during a hearing it came to light that a portion of the land of the Park was being encroached upon. In this regard the following is reproduced from the order sheet dated 17th December, 2012: "

1. Mr. Kamran Murtaza files report on behalf of Mr. Zahid Hussain, Director Town Planning and Mr. Khudai Rahim Ejbaani, Director General, Quetta Development Authority ("QDA"), and states that encroachment had been made on the three sides of the 'QDA Family Park', ("Park") but the same has now been removed. Vide judgment dated 15th December 2011 passed in C.Ps. Nos.790 of 2010 and 164 of 2011, we had directed that shops should not be constructed around the three roads surrounding the park, however, QDA in dereliction of its duty allowed the same to come up again. We are not satisfied with the manner in which QDA is being run as it is not safeguarding its own properties. QDA being a statutory body holds properties as a trust for the people of the city, but, unfortunately, either intentionally or through negligence, it is permitting its property to be encroached upon.

2. Mr. Muhammad Qahir Shah, Advocate and Mr. Muhammad Riaz Akhtar Tareen, Advocate state that the frontage of the park is also being encroached upon and construction is being raised in such portion, whereas in the map submitted by QDA it was shown as an open area. We enquired from Mr. Zahid Hussain, Director Town Planning QDA why photographs of the frontage have not been filed and whether any construction was being raised in the area of the car park of the park, to which he stated that there was some construction being raised but he does not have the details of the same, but if an opportunity is provided photographs and complete details of construction will be provided. He is directed to provide details along with photographs of all buildings, structures, whether temporary or permanent or under construction in the frontage of the park. We are told that in view of the onset of winter and the below zero temperature construction has been stopped and will restart in March. Therefore, till the next date of hearing no construction within the car park area of the Park should be raised. QDA is directed to send a copy of the order passed today to the persons raising construction who should be present in court on the next date of hearing along with the approved building plan and details of the construction being raised. QDA is also directed to produce complete record of the same."

5. That one Mr. Abdul Baqi came forward (after notice was issued pursuant to above mentioned order dated 17th December 2012) and stated that he and his colleagues were constructing a 'mosque' in the vehicle parking area of the Park. The order sheet dated 2nd May 2013 recorded, that: "

2. Mr. Abdul Baqi states that a mosque is being raised in the car park of the Park. We enquired from him whether the same was pursuant to an approved building plan or whether any permission had been accorded to raise the construction, to which he stated that Mr. Ismail Gujjar, the then Minister for QDA, had awarded the permission. When asked where and when was such permission granted he changed his position by stating that the same was granted by Mr. Yousaf Sani. Mr. Yousaf Sani, Director Design QDA, is present in court and strongly refutes the statement made by Mr. Abdul Baqi and states that he had in fact tried to stop the construction being raised, but was intimidated by Mr. Abdul Baqi and hundreds of his supporters. Faced with this position Mr. Abdul Baqi stated that he seeks time as the facts are in the better knowledge of his teacher and his namesake Mr. Abdul Baqi."

6. We may observe that throughout the hearing of C.Ps. Nos.790 of 2010 and 164 of 2011 and during the entire period of the construction of the Park no evidence of any mosque came to light, or that any portion of the said land was reserved for the construction of a mosque. The plans of the Park filed in court also did not show that any area had been earmarked for a mosque.

7. That, Mr. Abdul Baqi stated that a 'mosque' was being constructed in the vehicle parking area of the Park, therefore: "We enquired from him whether Sharia permits the construction of a mosque in respect of which neither any approval has been sought nor the construction is being raised in accordance with the approved plans as per applicable law. Time is granted to him to come prepared with the said questions and to file any permission granted along with building plans of the proposed mosque. Learned AAG states that it would be appropriate if the views of some renowned ulema/scholars are also, taken on the subject." [Reproduced from the order sheet dated 2nd May 2013]

8. That to better understand the perspective of the Holy Quran and the teaching of Prophet Muhammad, peace and blessing be upon him, on the matter of building mosques, we formulated the following questions (order sheet dated 2nd May 2013): (1) On what land can a mosque be built? (2) Whether a mosque can be constructed on land owned by the government or a statutory body, such as the Quetta Development Authority, without seeking permission of the government/ authority? (3) Whether a mosque can be built by depriving the owner of the land or by force? (4) If the law requires submission and approval of a building plan whether a mosque can be constructed without submission and approval of building plan? (5) If the law requires that a mosque to be designed by a structural engineer and architect, to ensure the safety of worshippers, whether a mosque can be raised without their association therewith?

9. That, in view of the public importance of the matter we permitted anyone to assist the court, and, upon the suggestion of counsel, requested the following ulema (religious scholars) to submit their written replies to the aforesaid questions duly supported with applicable texts: (1) Mufti Gul Hassan of Jamia Raheemia (Neela Gumbad), Quetta, (2) Mufti Muhammad Rozi Khan of Quetta, (3) Professor Fazal-e-Haq Mir of the Taumeer-e-Nau College, Quetta, (4) Dr. Shaheen Qaisrani of the University of Balochistan, Quetta, (5) Dr. Zakir Naik of the Islamic Research Foundation, India, (6) Mr. Javed Ahmad Ghamidi, (7). Justice Shafi Muhammadi, former Shariat Court Judge, and (8) Justice Mufti Muhammad Taqi Usmani, of the Darul Uloom, Karachi. The ulema who responded to the aforesaid questions were: (1) Justice (retired) Mufti Muhammad Taqi Usmani and five other ulema on behalf of the Darul Uloom Korangi, (2) Mufti Gul Hassan of Jamia Islamia Darul Uloom Raheemia, (3) representative of Al-Mawrid on behalf of Mr. Javed Ahmad Ghamidi and (4) Mufti Muhammad Rozi Khan.

10. That the petition came up for hearing time and time again to determine the legality of the construction being raised in the vehicle parking area of the Park (on 18th July, 15th August, 12th September, 26th September, 23rd October and 13th November, 27th November 2013), but adjournments were repeatedly sought on behalf of Mr. Abdul Baqi; since the matter was an important one we indulged him. On behalf of Mr. Abdul Baqi a document titled 'masjid ke sharee haisyet' (the importance of mosques in Islamic law) was submitted, which was authored by his namesake Mr. Abdul Baqi. We heard Messrs Rauf Atta and Abdullah Khan Kakar, Advocates, on behalf of Mr. Abdul Baqi, who requested for filing of Quranic and Hadith references with regard to the said questions during the court's winter vacation, and we granted them time and waited, but the same were not filed.

11. The learned counsel of the Government of Balochistan and QDA opposed the forceful occupation of the land in the Park, and stated the same was completely unconstitutional and illegal. However, without prejudice to his contention the learned AAG on behalf of the Government stated that, the Government was prepared to construct a mosque or provide the requisite funds to QDA to do so at an appropriate location in the area (hereinafter referred to as "the offer"). The extract from the order sheet (of 26th September 2013) is reproduced hereunder: "Mr. Shai Haq, Assistant Advocate General states that with a view to amicably resolve the matter the Government of Balochistan is prepared to construct a mosque itself or provide the requisite funding to QDA to do so at an appropriate location in the area. Mr. Baz Muhammad Kakar, Advocate along with Mr. Usman Marwat, Director General, QDA, state that the offer of the Government of Balochistan is reasonable and QDA can determine an appropriate location for such mosque and will have no objection to the offer of Government of Balochistan itself constructing the same or having the work carried out through QDA. Both the AAG and Mr. Baz Muhammad Kakar, Advocate along with Director General, QDA, state that the forceful occupation of the land and attempt to construct a mosque right in front of the family park does not serve the interest of the people and if the object is simply to have a mosque in the area the people will be better served to have the same at an appropriate location, which does not hamper entrance to the park or conceal it. Mr. Rauf Atta, Advocate seeks time to take instructions."

12. The offer of the Government was, however, declined by Mr. Abdul Baqi, and he insisted that after completion of the construction of the 'mosque' its management must vest in him and his supporters. Since the attempt to amicably resolve the controversy failed and the offer of the Government refused we proceeded to hear, whether the construction that had been raised in the vehicle parking area of Park, albeit for a 'mosque', complied with the law and shariah.

13. In his reply Mr. Abdul Baqi states, that, verbal permission to build the `mosque' was given on 16th October 2011, "through Haji Abdul Qadir Raisani, the President of Transport Union, by the former Provincial Minister and Chairman QDA". However, neither of the said two gentlemen came forward to support Mr. Abdul Baqi's contention nor filed their respective affidavits in support thereof. If, for the sake of argument it is accepted, that permission was given it needs consideration whether an individual can do so on behalf of an institution, such as QDA. The Chairman of QDA is not the owner of the lands owned by QDA, therefore, even if he gave permission it would be of no consequence and would not be legally binding.

14. QDA was established pursuant to the Quetta Development Authority Ordinance, 1978 (Balochistan Ordinance No. IV of 1978) (the QDA Ordinance'), and its affairs are governed in accordance with the terms of the QDA Ordinance. The QDA Ordinance set up the Quetta Development Authority, to carry out the purposes of the QDA Ordinance (Section 3) under the general directions of the Governing Body (Section 4). The Governing Body comprises of a Chairman, Director-General and ten other Members. The law does not grant an individual member of the Governing Body, nor even its Chairman, the power to give away the land of QDA. Admittedly, the Governing Body had not granted nor earmarked any land for the construction of a mosque. On the contrary QDA has specifically denied the contention of Mr. Abdul Baqi.

15. The raison d' tre of the QDA Ordinance is pithily contained in its preamble, reproduced hereunder: "WHERERAS it is expedient to make provision for the development and improvement of certain areas in Quetta District by opening up congested areas, laying out or altering streets, providing public amenities like parks, gardens, and play grounds, executing works for water supply and sewerage or by demolishing, improving or constructing buildings; for the acquisition of land for such development of improving, including the re-housing of persons affected thereby and certain other persons for the preparation and execution of development or improvement schemes, building research schemes and similar other schemes; and for matters connected therewith or incidental thereto." [emphasis added] The Park, including its vehicle parking area, where the construction was being raised, was and is owned by QDA. Article 24 of the Constitution of the Islamic Republic of Pakistan guarantees as a 'Fundamental Right' the holding and utilization of property; and a person can only be compulsorily deprived of property if it is acquired for a public purpose in accordance with law and the owner is adequately compensated. Land grabbing and illegal encroachment, even for the purpose of construction of a 'mosque', is not permitted by the QDA Ordinance, the Constitution of the Islamic Republic of Pakistan or any other law.

16. That, it was for Mr. Abdul Baqi, who alleged the grant of land, to prove/establish it, but he completely failed to do so. Admittedly, no portion of the said land was allotted, leased, transferred or alienated in favour of Mr. Abdul Baqi or set aside for the purpose of raising a mosque thereon. QDA also did not permit Mr. Abdul Baqi, or his supporters, to construct a mosque thereon. Mr. Abdul Baqi and his supporters, took the law into their own hands, threatened the employees of a statutory body, trespassed and encroached upon QDA property and started building works, ostensibly to construct a 'mosque'. The construction that was being raised was also without requisite approval of a building plan. The act of trespass, encroachment and construction on the said land was thus completely illegal.

17. That we now proceed to consider the matter in the light of shariah, with the assistance provided by the learned ulema, and attempt to answer the five listed questions: (1) On what land can a mosque be built? (2) Whether a mosque can be constructed on land owned by the government or a statutory body, such as the Quetta Development Authority, without seeking permission of the government/ authority? (3) Whether a mosque can be built by depriving the owner of the land or by force? (4) If the law requires submission and approval of a building plan whether a mosque can be constructed without submission and approval of building plan? (5) If the law requires that a mosque to be designed by a structural engineer and architect, to ensure the safety of worshippers, whether a mosque can be raised without their association therewith?

18. For a Muslim, the foremost place to consider a matter is Holy Quran, the words of Almighty Allah. As regards where and how mosques should not be built and how they should be built verses 107 through to 110 of Surah At-Taubah (9) are relevant. The opening words of verse 107 mentions building a mosque to cause diraran, which is derived from the Arabic word dirar, that is, the inflicting of a loss upon other people and one which brings no gain for the person inflicting it. Those who build such mosques to sow harm or disunity are castigated: "

107. And those who built a masjid to cause harm and for unbelief and to cause disunion among the believers and as an outpost for those made war against Allah and His Apostle aforetime; they will certainly swear: We did not desire aught but good; and Allah bears witness that they are most surely liars." And in such mosques we are told not to offer prayers: "

108. Never stand in it; certainly a masjid founded on piety from the very first day is more deserving that you should stand in it; in it are men who love that they should be purified; and Allah loves those who purify themselves." The mosques in which we are told to pray are those built sincerely and for Almighty Allah's pleasure, whereas those causing dissension are strongly disapproved: "

109. Is, therefore, better who lays his foundation on fear of Allah and (His) good pleasure, or he who lays his foundation on the edge of a cracking hollowed bank, so it broke down with him into the fire of hell; and Allah does not guide the unjust people." "

110. The building which they have built will ever continue to be a source of disquiet in their hearts, except that their hearts get cut into pieces; and Allah is knowing, Wise."

19. In his Ma'ariful Quran ('A Comprehensive Commentary on the Holy Quran' published by Maktab-e-Darul-Uloom, Karachi, Edition 2010) Mufti Muhammad Shafi explains the aforesaid verses (Volume 4 at page 466) thus: "This presentation as a whole proves that the 'masjid' which was declared to be a 'harmful mosque' (Masjid Dirar) by the Holy Qur'an, and which was demolished and burnt down under the orders of the Holy Prophet was no masjid in the real sense. Nor was it intended to be a place where people could pray. The three objectives behind it have been mentioned immediately above. From here we learn the rules that should be followed in our time. Today, may be some Muslims were to make a masjid close to and in competition of another Masjid, while their purpose is nothing but the same mutual discord, the same old effect to split up the congregation of the first masjid, or any other evil interest of this nature. If so, the maker of such a masjid will deserve no reward from Allah. Rather, he would be a sinner because of having created dissension between Muslims .." "From here we also learn about another rule relevant in contemporary setting. If a Muslim makes a masjid in that manner, either to show off or to take an opposing stance out of obstinacy and enmity, the maker will, though, not get the reward of making a masjid, instead, will incur a sin, yet it will not be what Masjid Dirar is in the terminology of the Holy Qur'an, that is, it will not be called by that name. When some people notice a masjid like that, they would say that it was Masjid Dirar. This is not correct. However, one could say that it was like Masjid Dirar. Therefore, its building can also be stayed - as done by Sayyidna 'Umar through a court order where he had instructed that another masjid should not be made close to the one already there lest the congregation and flourish of the first masjid is affected adversely (Tafsir Kashshaf)." "About this Masjid Dirar, the Holy Prophet, has been given the order: ( ) Do not ever stand there (in prayer) - 108". The word 'qiyam' in the text denotes standing for prayer."

20. Mufti Muhammad Shafi adds a further 'Special Note' (Volume 4 at page 468) in concluding his commentary on the aforesaid verses, as under: "From here we also come to know that the merit or superiority of a masjid really depends on the fact that it should have been made with, absolute sincerity for the sake of Allah. And to put it conversely, there should not be any trace of duplicity, any motive to earn name, fame and recognition, or any other false and corrupting interest involved in its making. Then, we also learn that the quality of those who pray in a masjid is significant. If they are good, righteous, knowledgeable about their religion ('Alim) and are devoted to the worship of Allah ('Abid), the superiority of the masjid increases. Offering prayers in a masjid frequented by such God-fearing people is more merit worthy." "In the third (109) and the fourth (110) verses, Masjid Dirar (the harmful mosque) made by the hypocrites has been condemned as it has to be when compared with a masjid that is blessed. This has been accomplished through the use of a similitude. The surface of the land on which they were laying the foundation of their 'masjid' has been likened to a landmass that has been corroded on the inside by flowing water. The topsoil looks solid and smooth. Now, if someone starts building there, it is obvious that the whole thing would collapse instantly. Similarly, the foundation of this Masjid Dirar was inherently unstable. The result was that it collapsed and went right into the fire of Jahannam. The expression 'collapsed into the fire of Jahannam' could be figurative in its sense - in that it smoothed out the way of Jahannam for its makers. Some others have taken it in the real sense - in that the masjid, when made to collapse, went into the Jahannam. Allah knows best." "Then, in the last verse (110), it was said that this building would always keep increasing the doubt and hypocrisy in their hearts unless their hearts are shredded into pieces. The sense is that their doubt, hypocrisy, envy and chagrin would go on increasing right to the end of their life."

21. Justice (retired) Mufti Taqi Usmani and five other Islamic scholars of the Darul-Uloom Karachi have collectively replied to the aforesaid five questions, thus: Q.1 & 2: It is not permissible to build a mosque on any land owned by the government or by a statutory authority without permission and if it is built the same is not halal; in this regard reference is made to Surah An-Nisa (4) of the Holy Quran: "0 you who believe! Eat not up your property among yourselves unjustly except it be trade amongst you by mutual consent" (verse 29). Reference has also been made to a 'saying of the Holy Prophet, peace and blessings be upon him, that, "A property of a Muslim is not halal for another Muslim unless it has been given happily" ('Al-Sunan-ulkubra lil Behaqi 316/8). Q.3: "To deprive any owner (person or institution) of the ownership of his land or constructing on his/its land a mosque by force is not permissible, whether the construction is raised by the people or the government, because Quran Majeed and the blessed hadith strongly deprecate the same. The Prophet, peace be upon him, said, `If any person took another's land unlawfully then on the Day of Judgment he will be stuffed under the weight of seven lands' " ('Sahih Bukhari' 130/3). Q.4 & 5: "Shariah requires that every citizen should respect and abide by the laws of the country. Shariah does not permit a citizen to violate any law." "Therefore, if the law requires, that prior to constructing a mosque its building plans must be deposited and its approval acquired, and its design and structure must be made by an engineer or architect to ensure the safety of those performing their prayers, then it is essential to abide by this law, and its non-compliance is neither permitted by law nor by shariah."

22. Mufti Gul Hassan of Jamia Islamia Darul Uloom Raheemia in his written opinion states that when the Messenger of Allah, peace be upon him, migrated to Medina he bought land to build a mosque, despite it being offered to him free of charge, as reported in two of the major compilations of hadith, 'Muslim' (volume 1 page 200) and Sahih Bukhari' (volume 1 page 283). It is stated that only a pure thing (halal aur pak) can be accepted for a mosque and which has been obtained in accordance with shariah. He then refers to the opinions of fuquha (Fath Al-Qadeer', volume 2 at page 875 and Fatawa Alamgiri', volume 3 at page 235) and states that a land in which a right of pre-emption (haq shufa) and/or inheritance (virasat) exists can not be utilized for building a mosque. Nor should a mosque be constructed upon illegally acquired land, or to forcefully build a mosque in someone's house, and if this is done it is not permissible to offer prayers in such a `mosque' (Fatawa Alamgiri', volume 6 at page 214). The learned Mufti further states that if a man wants to have a mosque built on any portion of his land he should provide access to it and separate such land and announce his intention for the utilization of the same as a mosque (`Fath Al-Qadeer', volume 2 at page 777 and 'Rad Al-Mohtar al-Mashoor bil-Shami', volume 3 at page 513).

23. Mufti Gul Hassan then proceeds, to distinguish a shariah compliant mosque (sharee masjid) from a place where people may simply pray (jai musalla). To constitute a sharee masjid three conditions have to be met; firstly, the land must be legally given, secondly, it must be accepted legally, and, thirdly, the person (waqif) who gives the land must be its real owner; any other place where prayers (namaz) are offered does not constitute, a mosque. The learned Mufti writes that, a 'mosque' which does not fulfil the aforesaid three conditions, and in which prayers may have been read even for over twenty five years, is not a mosque but simply a jai musalla (place to pray) and in this regard refers to 'Fatawa Biynaat (volume 3 at page 630) and `Al-Bahralraeq Kitab ul Waqf (volume 5 at page 197) and that it is permissible to demolish it, raise a house thereon or change its use because it is not a mosque.

24. Mufti Gul Hassan replies to the five questions, thus: Q.1: A mosque can be constructed wherever there is a Muslim community and should not be constructed where no one lives and relies upon `Fath Al-Qadeer' (volume 1 at page 377) and 'Fatawa Alamgiri' (volume 3 at page 214). Q.2: "If the owner of the land is the government or any authority (QDA) it is not permissible to build a mosque without permission of the owner. For the construction of a mosque the permission and consent of the owner is required and the land must be given (waqf). Please observe what the Prophet, peace be upon him, said, 'Be warned! Do not commit injustice, Be warned! Not to take someone's property without his consent' ('Mashkawat-ul-Masabeh', volume 1 at page 255)." "If any person builds a 'mosque' without permission on government land or on the land of any authority it is not a mosque built in accordance with shariah (sharee masjid), instead, at the very most it is place where people pray and whenever the government or the authority so desires it can utilize the said land for any other purpose; and if an alternative place to pray is offered it is good, but if it is not there is no harm." Q.3: "If anyone threatens the owner or forcefully occupies his land and builds a 'mosque' thereon then it would not a sharee masjid instead it will be usurped land (ghasab) and on seized land to pray is not permissible (makru tahreema) and prayers are not accepted ('Al-Dar ul Mukhtar Ala Hamish Rad ul Muhtarij', volume 1 at page 280)." The answers to the remaining two questions are not being reproduced as the answers are without reference to any verse of the Holy Quran, saying of the Prophet, peace and blessings be upon him, or any other source or material.

25. The reply received from Al-Mawrid, Foundation for Islamic Research and Education, on behalf of Mr. Javed Ahmad Ghamidi, is reproduced hereunder: "We believe that the issue of building a mosque on a piece of land illegally acquired should be judged against universal moral principles. Islam claims that the first source of religious and moral knowledge is the innate guidance implanted in the human fitrah (orientation). All the foundational moral values are known to humans through this source. These are called ma'ruf (the known good) and munkar (evil). The Holy Qur'an takes these principles for granted and repeatedly commands the humans to follow them. Therefore, we see that the Book of God does not list everything for us and leaves it upon universal moral percepts shared by all humans. The Holy Qur'an stresses that these values must be observed and the Prophet (p.b.u.h.) too commanded adherence to and propagating of the ma'ruf. We find frequent references in the basic source of the religion to this knowledge upon which we can base ourselves. The following verse uses the term bi al-batil (by evil means) without detailing it, a reference to the shared moral values. The Almight says: 0 belieyers! Do not devour one another's wealth by evil means except through trading by mutual consent. (4:29). While explaining the verse Mr. Ghamidi writes: "This verse prohibits a person from devouring other people's wealth through means which are against justice, honesty, fairness and against the good conventions of a society. It is this directive of the Qur'an which forms the basis of all prohibitions in Islam that pertain to economic matters. Obtaining money through illegal gratification, theft, extortion, lying, co-operation with evil, embezzlement, misappropriation, consuming unclaimed items without publicizing them, all come under it. These evils require no further discussion since they are universally acknowledged sins in every society and in every religion. Transactions and activities which become a source of deceit or damage for the parties involved are also corollaries of this directive." (Ghamidi, Mizan, p. 503) The Prophet [p.b.u.h.] said: Indeed, your blood and your wealth are as sacred and inviolable as this day (i.e. the day of sacrifice) of yours, this month (i.e. the month of dhu al-hajj) of yours in this city (i.e. the city of Makkah) of yours. (Muslim, No: 1218) The verse and the Hadith of the Prophet [p.b.u.h.] prohibit illegal possession of the property of others. The expression is general and absolute. There is no exception to the case. The Prophet [pbuh] set the excellent example by buying the piece of land before building the Masjid al-Nabawi in Madinah. He even did not like to take it a gift from the owners so that it is not taken as an excuse for others to pressurize others in this issue. Keeping the above in perspective our response to the specific questions you have raised follows:

1. A mosque can be built on a land that is in legal possession of the person intending to take up the good work.

2. A mosque cannot be built on a land that is owned by other than the builders themselves. One has to turn to the owner person or organization and get permission as set out in the law.

3. A mosque cannot be built by forcibly depriving the legal owner of it. 4-5. The law of the land must be followed. It is the requirement of the Shair'ah, ethics and convention. Therefore, it is not possible for a believer to violate the law and build mosque without following the procedures."

26. That Mufti Muhammad Rozi Khan's written reply to the said questions starts with a number of sayings of the Prophet, peace and blessings be upon him, informing about the benefits that accrue to a person who builds a mosque, he then submits the answers to the said questions, as under: Q.l: (a) Masjid can be built on such a land that has been given by the owner (waqif, one who creates a waqf) without any fear or threat and with his consent. (b) The waqif must be the real owner of the land, that is, no one else should have any right in such land along with the waqif. (c) Waqif must have sharee right to grant the land, for instance he must not be a child, lunatic, et cetera. (d) The waqif of the donated land must separate such land from his other land and no one's right should remain therein, including his own. If all these conditions are not met then such land cannot be considered to be waqf land as per principles of shariah, nor can a masjid be built on such land." The authorities relied upon by Mufti Muhammad Rozi Khan in support of his answers are `Kitabul Waqf' (volume 5 at page 328, Masjid-e-Rasheedeah, Quetta) and `Kitabul Waqf' (volume 2, Chapter 1 at page 353, Maktaba Uloom Islamia, Chaman). Q.2: "...By taking possession of government land, such as a school, park, etcetera and without taking permission of the government it is not permissible to build a mosque on it, but if despite this a mosque is constructed on such land it will not enjoy the status of a sharee masjid, and whilst one can offer prayers in it, but the same will not earn the sawab of reading namaz in a masjid. And if the government demolishes such a 'Mosque' and brings the land on which it stood into its own use it can do so, though it is preferable to leave it" (`Fatawa Haqqania wa Kifayetul Mufta Aur Aap Kay Masail Aur Unka Hal' (`Kifabul Waqf Matlab: Manazira Ibn Shana', volume 4 at page 390, H. M. Syed Company, Karachi). Q.3: "If a mosque is tried to be built by snatching government land it will be considered as ghasab (unlawful seizure), and such a `mosque' will not be considered to be a sharee masjid and, if the government wants to demolish such a mosque it may do so" ('Limafi Sharil Mujalla li Saleem Rustam Baz', Raqam al Mada: 96, Darul Kutubu1 Almia, Beirut, Lebanon) ('Kitabul Waqf volume 2, Chapter I at page 353, Maktab Uloom Islamia, Chaman). Q.4 & 5: "If the land belongs to the government and the government declares that for the construction of buildings (example mosques, houses, etcetera) it is necessary to deposit building plan and obtain permission or if the law requires this, that for construction of a mosque services of an engineer or an architect is required, and the government is concerned about the safety of those saying their prayers therein ... then the applicable law must be observed."

27. Mr. Abdul Baqi in his reply does not cite any verse of the Holy Quran, a saying of the Holy Prophet (peace and blessings be upon him) or any recognized source to negate the opinion of the learned ulema who had submitted their written opinions. Instead the authorities referred to in his reply are premised on a person having agreed to give his land for the construction of a mosque, which is not the case here. A number of hadith mentioning the benefits of building mosques are then cited, but there is no difference of opinion regarding this. However, as has become clear from the above, Islam forbids the seizure of another's property, even if it is used for a noble purpose. The written reply submitted by Mr. Abdul Baqi appears to intentionally ignore this fundamental aspect of the matter.

28. A person who donates his land for the construction of a mosque and a mosque is raised thereon will undoubtedly earn favour (sawab) with Almighty Allah, and even after his death sawab will accrue to him as long as people continue to offer prayers therein. Islam encourages Muslims to vie with each other in good deeds, to donate their own lands or buy lands for the construction of mosques and charitable purposes, but Islam forbids seizing someone else's land for such purpose. Prophet Muhammad (peace and blessings be upon him) encouraged the building of mosques. It has been reported on the authority of 'Uthman ibn 'Affan that the Messenger of Allah said, "He who builds a mosque for the sake of Allah, seeking the pleasure of Allah, Allah would reward him with a dwelling in Heaven." In the building of a mosque the best example before us is that of the Messenger of Allah, who began to build a mosque as soon as he migrated from Macca to Yathrib (which later became 'Madinah Munawwara' 'or City of Light, as he took up residence therein). Prophet Muhammad (peace and blessings be upon him) took part in the building work personally. This mosque accommodated all Muslims, the mohajirun (those who had migrated from Macca) and the ansar (helpers, residents of Madinah), men and women, the old and the young, every race and colour.

29. The example set by the Prophet (peace and blessings be upon him) at times is not followed, and today, we have mosques belonging to various Islamic groups, parties and Schools of Thought, and each one yearns for power, leadership, and authority. On 26th September 2013 the Government of Balochistan had offered to construct a mosque itself or provide requisite funds to QDA to do so at an appropriate place in the area. However, the offer of the Government was rejected by Mr. Abdul Baqi as he and his group wanted to have the management and control of the mosque, despite the fact that the mosques are for Almighty Allah and not for a particular group, party, sect (mazhab) or sub-sect (maslaq). Almighty Allah in Surah Al-Jinn (72) commands: "And the mosques are for Allah (alone), so invoke not anyone along with Allah" (verse 18). "Say: invoke only my Lord, and none I associate along with Him as partners" (verse 20).

30. We can thus safely conclude that the act of raising any construction in the vehicle parking area of the Park is contrary to Quranic injunctions and the example and sayings of the Holy Prophet (peace and blessings be upon him).

31. That from the aforesaid discussion we can derive the following: Constitutional and legal principles: (1) Land grabs and illegal encroachments, even for the purpose of building a mosque, contravene the QDA Ordinance and the Constitution of Pakistan; (2) An individual Member, including the Chairman of the Governing Body of QDA, does not have the authority to grant or divest the land of QDA; And the following principles of shariah: (3) To constitute a sharee masjid the following conditions must be fulfilled: firstly, the land must be given with consent, without fear, threat or coercion, secondly, the land must be given by the legal owner of the land who is capable to grant it, thirdly, it must be legally accepted, and, fourthly, the land must be separated from the land in which another has an interest therein, including one's own; (4) To forcefully build a mosque on another's land, including land held by a government or a statutory authority, is tantamount to devouring someone else's property and a sin; (5) There is a distinction between a sharre masjid (a mosque built in accordance with shariah) and jai musalla (a place where people may simply pray), and a jai musalla does not constitute a mosque, and therefore can be demolished; (6) Shariah requires everyone to observe the laws of a country; (7) If the law requires the submission and seeking approval of building plans before building a mosque the same must be complied with; (8) A 'mosque' that is built to cause dirar (dissension) amongst Muslims is haram and cannot be categorized as a mosque and Muslims must not offer prayers therein; (9) If a mosque is built out of obstinacy or enmity or some other ulterior motive, it will not earn reward for the builder, and may also constitute a sin; (10) If a mosque is sincerely built for the sake of Almighty Allah and without a motive to earn name, fame and/or recognition one earns sawab (reward); and (11) In building mosques the best example is that of Prophet Muhammad, peace and blessing be upon him, who, despite being offered free land, purchased the land on which he built a mosque, which was open to all Muslims, men and women, old, young, every race and colour.

32. That, unfortunately public lands, including designated amenity plots, are illegally trespassed and encroached upon and used to build 'mosques'. Public functionaries whose duty it is to preserve such properties either look the other way or get intimidated, as in the present case. It is the duty of government servants and employees of statutory organizations, all of whom are paid out of the public exchequer, to take every effort to safeguard the properties entrusted to their care. It is regrettable that such transgression of the Holy Quran and sunnah takes place in the Islamic Republic of Pakistan. The sensitivities of true believers are further trampled when the law breakers audaciously proclaim doing a noble act.

33. Therefore, for the aforesaid reasons, we direct Quetta Development Authority to take back possession of the area, situated in the vehicle parking area of the Park, where partial construction has been raised and to demolish it. All concerned are directed to extend whatever help is solicited in this regard. QDA is further directed to ensure that the entire land of the Park is preserved, no encroachments are made thereon and the judgment dated 15th December 2011 of this court in C.P. No.790 of 2010 and C.P. No. 164 of 2011 (above) is strictly abided by in letter and in spirit.

34. We record our appreciation to the learned religious ulema for their comprehensive replies to the questions asked of them. Allah Almighty may reward them for their effort.

35. That since this order attends to important matters facing Muslims, for the determination of which renowned ulema have opined, and as it is based on the principles of Islamic shariah we feel that it should be made accessible to the general public. Therefore, this order has been translated into Urdu for widespread understanding and dissemination (reference, Munir Hussain Bhatti, Advocate v. Federation of Pakistan PLD 2011 SC 407), however, the English version shall constitute precedent. MWA/32/Bal. Order accordingly.