P L D 1961 (W (PLP)

SHABIR AHMAD, J.‑In exercise of the powers conferred on him by section 6 of the West Pakistan Waqf Properties Ordinance, 1959 (West Pakistan Ordinance XXI of 1959) the Administrator of Waqfs, by means of Notification No. 3 (8)‑Auqaf‑60, dated the 15th of March 1960, took over the shrine of Shah Daula situated in Gujrat and the property attached thereto. The notification mentioned that the mosque, which was situated in the precincts of the shrine, was also being taken over as were the offerings made at the shrine. By another notification of the same date, the Administrator appointed a manager to manage and maintain the waqf properties attached to the said shrine and to secure the performance of ceremonies at the said shrine in accordance with the orders and directions issued by the Administrator from time to time.

2. On the 13th of April 1966, three persons, namely, Pir Rashiduddaula, Pir Hakam Shah and Pir Fazal Hussain, purporting to act on their own behalf and also on behatf of the other Waridars of Garhi Shahdaula, Gujrat, who were. stated to be 97 in number, presented an application under section 7 of the West Pakistan Waqf Properties Ordinance, 1959 seeking a declara tion that the property was not governed by the Ordinance on the basis of which it had been taken over. At the time this petition was presented the name of the Manager of Waqfs, West Pakistan, mentioned in the West Pakistan Waqf Properties Ordinance, 1959, had been changed to the Chief Administrator of Auqaf, West Pakistan, by means of an amendment brought about by the West Pakistan Waqf Properties (Amendment) Ordinance, 1960 (West Pakistan Ordinance X of 1960) and, therefore, the Chief Administrator of Auqaf, West Pakistan had been impleaded as the respondent in the petition. This petition was presented before Mr. S. M. Tirmizey, District Judge, Gujranwala, who sent it on for disposal to the Additional District Judge, Gujrat, because the case related to the district of Gujrat. Later on, however, Mr. S. M. Tirmizey felt doubtful about the competency under the law of the Additional District Judge. Gujrat, to hear the petition, whereupon he withdrew the case to his own file after having communicated to the Registrar of this Court his desire to do so unless this Court allowed the Additional District Judge, Gujrat to hear the petition. A reply was sent by the Registrar of this Court to Mr. S. M. Tirmizey that as the question raised was one of interpretation of law, it was for him to give his own decision thereon, and the Judges would say nothing at that stage of the case on‑the point. When the petition was taken up by Mr. S. M. Tirmizey, District Judge, Gujranwala, some issues were framed regarding the legality of the West Pakistan Waqf Properties Ordinance, 1959, as amended by West Pakistan Waqf Properties (Amendment) Ordinance, 1960 (West Pakistan Ordinance X of 1960), which was promulgated by the Governor‑ of West Pakistan on the 4th of April 1960. Before the present case was taken' up by Mr. Tirmizey, he had, on the 24th of January 1961, passed an order in another case, namely, Bashir Ahmad and others v. The Administrator of Waqfs, West Pakistan, that the West Pakistan Waqf Properties Ordinance, 1959, was invalid. That decision of Mr. Tirmizey was questioned by the Administrator of Waqfs by means of an appeal which was registered in this Court as F. A: O. No. 13 of 1961. Before, however, that appeal could be disposed of, which it was done on the 6th of April 1961, Lt.‑General Bakhtiar Rana, Adminis trator of Martial Law, Zone B, issued Martial Law Order No. 82, which appeared at page 513 of an Extraordinary Issue of the Gazette of West Pakistan on the 16th of February 1961. This order was in the following terms "Whereas it is expedient in the public interest to administer the West Pakistan Waqf Properties Ordinance, 1959, without interference from any quarter :‑

2. Therefore, I, Lt.‑General Bakhtiar Rana, SQA, MC, Martial Law Administrator, Zone `B', hereby order that :‑ (a) Notwithstanding anything to the contrary contained in any order, injunction or judgment of any Court, the West Pakistan Waqf Properties Ordinance, 1959, will stand valid in all respects, and will not be called in question on any ground, in any manner, in‑ any Court including the High Court and the Supreme Court. (b) This bar to jurisdiction of Courts will be deemed to have been so included in the said Ordinance with effect from 17th April 1959. (3) Any enactment repealed in pursuance of section 20 of the said Ordinance will remain repealed for all purposes with Ahmad, effect from the date of its repeal."

3. The appeal of the Administrator of Waqfs in Bashir Ahmad's case (F. A. O. * No. 13 of 1961) was heard along with Writ Petition No. 838 of 1960 (Inait Ullah and others v. M. A. ' Khan and others) in which it had been indicated by the counsel for the persons who applied to this Court for issue of a writ for setting at naught an order passed by the Manager of the mosque known as Masjid Patolian situated in the city of Lahore that the question of the legality of the West Pakistan Waqf Properties Ordinance, 1959, would be raised. However, when F. A. O. No. 13 of 1961 and Writ Petition No. 838 of 1950 were taken up by a Bench consisting of my brother S. A. Mahmood, J., and myself on the 7th of March 1961, Mr. Shamim Husain Kadri, Advocate, who was the counsel for the petitioners in the writ petition mentioned above, stated that in view of Zone B, Martial Law Order No. 82, (reproduced in the last paragraph) he was of the view that it was not open to him to question that the Ordinance was invalid on the ground that the Governor was incompetent to promulgate it and as even the respondent in F. A. O. No. 13 of 1 961 had not raised the point that the Zone B, Martial Law Order No. 82 could not prevent the competence of the Governor of West Pakistan to promulgate the West Pakistan Waqf Properties Ordinance being raised in Court, the question whether or not the original Ordinance of 1959 and the amending Ordinance of 1960 were good law was not decided and Writ Petition No. 838 of 1960 and F. A. O. No. 13 of 1961 were dealt with on the assumption that the above‑mentioned Martial Law Order precluded anyone from questioning the competence of the Governor of West Pakistan to promulgate the Ordinance. The judgment in the above‑mentioned two cases is Inait Ullah v. M. A. Khan (P L D 1961 Lah. 536).

4. While dealing with the petition presented under section 7 of the West Pakistan Waqf Properties Ordinance, 1959, by persons claiming an interest in the shrine of Shah Daula and the property attached thereto, Mr. S. M. Tirmizey proceeded on the assumption that the law under which the property was taken over was valid but held that the nature of the property was such that made the Ordinance inapplicable to it. In the result Mr. Tirmizey accepted the petition and against that decision the Chief Administrator of Auqaf, West Pakistan, has presented the present appeal. An application has also been made by the Chief Administrator of Auqaf that certain remarks in the judgment of Mr. Tirmizey be expunged. As the appeal and the application that some remarks in the judgment be expunged (Civil Miscellaneous No. 1672 of 1961) arise out of the same judgment, they will be disposed of together.

5. At the hearing of the present appeal, Mr. Mahmud Ali Qasuri, Advocate, who appeared for the respondents in the present appeal, raised the question that Zone B, Martial Law Order No. 82 could not take away the jurisdiction of Courts to determine whether or not the Ordinance was good law. His position was that the Ordinance was not a valid law and consequently could not be acted upon with the result that the order of the Administrator of Waqf Properties dated the 15th of March 1960, by means of which the shrine of Shah Daula, Gujrat, and the property attached thereto, had been taken over must be held to be invalid and of no binding force whatsoever.

6. Mr. M. Anwar, the learned Advocate‑General for West Pakistan, who appeared on behalf of the appellant, contended that in view of the provisions of Zone B, Martial Law Order No. 82, (which has been reproduced in paragraph 2 above) it was not open to the respondents to question the competence of the Governor of West Pakistan to promulgate the Ordinance in question because if that were done it would amount to calling m question a Martial Law Order. He added that not only was it not open to anyone to call in question the Martial Law Order under consideration, but that it was not open even to Courts to hold that the Martial Law Order was not good law. In this regard the learned Advocate‑General placed his reliance on clause (ii) of Article 3 of the Laws ,Continuance in Force) Order, 1958. The relevant part of the Article reads as follows :‑ "

3. No Court or person shall call or permit to be called in question ‑ (i) . (ii) any Order made in pursuance of the Proclamation or any Martial Law Order or Martial Law Regulation ; There can be no manner of doubt that if Martial Law Order No. 82 issued by Zone B, Martial Law Administrator falls within the ambit of Article 3 of the Laws (Continuance in Force) Order, 1958, it would not be open to anyone to raise in any Court situated in the area called Zone B of Martial Law the contention that the Governor of West Pakistan was not competent to promulgate the two Ordinances Which are under consideration in the present appeal.

7. The reply of Mr. Mahmud Ali Qasuri, Advocate, to the contention of the learned Advocate‑General of West Pakistan, to the effect that the validity of Zone B, Martial Law Order No. 82 could not be questioned, was that the Martial Law Order under consideration was not of the kind mentioned in Article 3 of the Laws (Continuance in Force) Order, 1958, and that even if it could be said that it was a Martial Law Order of this kind, it could not take away the jurisdiction of any Court to see that the law which it ‑was called upon to enforce had been passed by an authority competent to pass it. He supported his conten tion by referring to clauses (1) and (2) of Article 2 of the Laws (Continuance in Force) Order, 1958, which read as follows :‑ "2. (1) Notwithstanding the abrogation of the Constitution of the 23rd March 1956 hereinafter referred to as the late Constitution, by the Proclamation and subject to any Order of the President or Regulation made by the Chief Adminis trator of Martial Law the Republic, to be known henceforward as Pakistan, shall be governed as nearly as may be in accordance with the late Constitution. (2) Subject as aforesaid all Courts in existence immediately before the Proclamation shall continue in being and, subject' further to the provisions of this Order, in their powers and jurisdictions." The argument was that the jurisdiction which vested in all Courts before the Proclamation of Martial Law to decide whether or not the law which they had been called upon to enforce was valid law had been preserved by means of paragraph (2) of Article 2 of the Laws (Continuance in Force) Order, 1958, and that that power could be taken away only by the Chief Administrator of Martial Law for Pakistan and that too only by means of a Regulation. To these contentions the learned Advocate‑General replied that even if the contention of Mr. Mahmud Ali Qasuri in this regard were accepted, the juris diction in the present case having been given to Courts by the West Pakistan Waqf Properties Ordinance, 1959 (Ordinance XXI of 1959), was not a jurisdiction which existed .on the 10th of October 1958, when the Laws (Continuance in Force) Order, 1958 was promulgated by Major‑General Iskander Mirza the then President of Pakistan, and Article 2 of that Order did not apply to it.

8. Before taking up the question whether or not in the face of Zone `B' Martial Law Order No. 82, it is open, to this Court to consider, either by itself or on a contention in this regard being raised by any party, whether the two Ordinances under which the Chief Administrator of Auqaf, West Pakistan, who is the appellant in this appeal, had acted were valid or not, I will dispose of the contention of the learned Advocate‑General that the jurisdiction in the matter under consideration having been given to Courts by the two Ordinances which were promulgated long after the Laws (Continuance in Force) Order, 1958, was issued, nothing in that Order could be Laid to have given the Courts jurisdiction to determine whether or not the Ordinance had been passed by a competent authority. Tote assertion of the learned Advocate‑General that the Ordinances had given the Courts the power to decide the questions that arose in the exercise of powers given by those Ordinances is unassailable but his contention that the Ordinances had not given Courts jurisdiction to determine whether or not the Ordinances were valid law is entirely misconceived. No part of the Ordinances said even a single word to the effect that jurisdiction was being conferred on Courts to determine whether or not the Ordinances were valid, and indeed if such a provision had existed it would have been a departure from the long‑standing practice of law‑makers who have never expressed a doubt that they are acting within their powers. Jurisdiction to determine whether or not a law was valid is vested in all Courts and if it had not been their position would have been unenviable. For example one authority may want one law to be enforced and another some other law and yet another law. In such a case it is for the Courts to decide which law is valid according to the law which governs the powers of the relevant law‑making authority. I might, however, add that this power of Courts to deter mine whether or not the law they have to consider is valid can arise only if the law‑maker who had made the law did not possess unlimited powers of making laws.

9. In British India which sub-continent was divided in. 1947 into Dominions of Pakistan and India it was by virtue of Acts of the Parliament of England that powers were conferred on authori ties to make laws. Those powers were defined and though in the first instance they were exercisable by the Governor‑General in Council they were later on given to other authorities including legislative bodies. The fields in which different authorities given powers to make laws could make laws were clearly defined by the relevant Acts of British Parliament. The Government of India Act, 1935, parts of which were enforced on the first of April 1937, governed the law‑making powers of the Central and the Provincial Legislatures and of the Governor‑General and the Governors of Provinces, the list of subjects being divided into three, namely, the Federal List, the Provincial List, and the Concurrent List. With regard to matters falling in the Federal List, only the Central Legisla ture and in certain specified circumstances, the Governor‑General could make laws. While with regard to those falling in the Provincial List, only the relevant Provincial Legislature and in certain circum stance, the Governor, was competent to make laws. With regard to subjects falling in the Concurrent List, however, both the Central and the Provincial authorities competent to make laws could make laws subject to certain conditions which need not be detailed here. Similar position was maintained in the Constitution of the Islamic Republic of Pakistan which came into force on the 23rd of March 1956. The result was that measures passed by the Federal or the Provincial Legislature or Ordinances promulgated by the Governor- General or the President of Pakistan or the Governors of Provinces could be considered to be valid only if they were within their competence. At the time when the Proclamation was made by Major‑General Iskander Mirza on the night of the 7th of October 1958 that Pakistan had been placed under Martial Law, the posi tion Was that it was competent to Courts to determine whether a law had been passed by an authority competent to pass it. The jurisdiction to determine whether or not a law was valid, which was possessed by the Courts in Pakistan on the 7th of October 1958, was continued intact by the Laws (Continuance in Force) Order, 1958, subjects to the condition that the jurisdiction could be taken away by means of an order of the President or a Martial Law Regulation issued by the Chief Administrator of Martial Law, and did not extend to matters mentioned in Article 3 of the Laws (Continuance in Force) Order, 1958. This power' could undoub tedly be exercised even with regard to laws passed 'after the 7th of October 1958 because Article 5 of the Laws (Continuance in Force) Order, 1958, defined the powers of a Governor of a Province to promulgate Ordinances. If an Ordinance promulgated by him does not fall within the legislative field granted to a Governor o#' a Province, no one can doubt‑ that it is open to Courts in Pakistan to declare that the law passed by a Governor is not a valid law.

10. Here, a passing reference may be made to the President's Order 2 of 1959, called the Legislative Powers Order, 1959, and Order, 17 of 1959, called the Legislative Powers (Amendment) Order, 1959, which were issued by the President of Pakistan on the 20th of March 1959 and the 23rd of September 1959, respec tively, which orders will fall for consideration a little latter. These Orders were in the following terms :‑ "In pursuance of the Proclamation of the 7th day of October 1958, and in exercise of all powers enabling him in that behalf the President is pleased to make and‑ promulgate the following Order :‑ 1. (1) This Order may be called the Legislative Powers Order, 1959. (2) It shall come into force at once and be deemed to have taken effect immediately after the Laws (Continuance in Force) Order, 1958, took effect.

2. The President shall have exclusive power to make laws with respect to the matters set out in ;the Schedule to this Order.

3. The executive authority of the Republic shall extend to the said matters. Military camps and land connected therewith, and the imposi tion of restrictions upon the use and enjoyment of lands in the vicinity thereof. Within cantonments, control of buildings and lands, taxes on professions, buildings and lands, maintenance of land records, recovery of rents, public health, hospitals and dispensaries, adul teration of food, cattle trespass, water supplies. supply and distribution of electricity." Order 17 of 1959 "In pursuance of the Proclamation of the seventh day of ~il1 October 1958, and in exercise of all powers enabling him in that behalf, the President is pleased to make and promulgate the following Order :‑ 1. (1) This Order may be called the 'Legislative Powers (Amendment) Order, 1959. (2) It shall come into force at once. 2‑ In .the Legislative Powers Order, 1958, the following new Articles shall be added at the end, and shall be deemed always to have formed part of that Order, namely :‑ 4. (1) In applying the provisions of clause (1) of Article 2, Clause (1) of Article 4 and clause (1) of Article 5 of the Laws (Continuance in Force) Order, 1958, (a) the matters enumerated in the Provincial List in the Fifth Schedule to the late Constitution shall be deemed to have been included in the Concurrent List of that Schedule ; and (b) the power to make laws with respect to any matter riot enumerated in any list in the Fifth Schedule, including any law , imposing a tax not mentioned in any such list, shall be deemed to be a power to make laws with respect to a matter enumerated in the Concurrent List‑and the power of the Federation and of a Province to make laws shall be deemed to be regulated and the executive authority of the Federation and of a Province shall be deemed to be exten ded accordingly.' 3. (1) Subject to the provisions of the next succeeding clause nothing in ibis Order shall affect the validity of any Provincial law or part thereof in force immediately before the day on which this Order comes into force. (2) If any Provincial Law or part thereof in force at the time the Order comes into force is by reason of ibis Order rendered repugnant to the provisions of any law made by the President sine the seventh day of October 1958, it shall to the extent of the repugnancy be void." It will be noticed that by means of President's Order No. 17 of 1959 which was in that respect made retrospective in operation all subjects of legislation have been placed on the Concurrent List and some matters mentioned in the Schedule to President's Order No. 2 of 1959 could be legislated upon by the President alone. It follows that while after the above‑referred Orders no law made by the President could be declared to be invalid on the ground that it related to a matter about which he could not legislate, it would be open to Courts to say that a law made by a Governor of a Province was invalid, on the ground that it was a law which the Governor of a Province was not competent to make. It will, how ever, be anomalous to say that this power to determine the validity of laws has been conferred by the laws the validity of which is to be adjudicated upon. It is for these reasons that I hold that the argument of the learned Advocate‑General of West Pakistan to the effect that the power of this Court to determine whether or not the Ordinances in question were within the competence of the Governor who promulgated them was derived from those Ordinances cannot stand scrutiny and must be repelled.

11. I will now take up the question whether Article 3 of the, Laws (Continuance in Force) Order, 1958, does not leave it open to any Court to call in question or permit to be called in question Zone `B' Martial' Law Order No. 82, a part of which appears to be aimed at taking away the jurisdiction of Courts to deter mine whether the Ordinance under which the appellant exercised powers in this case was valid law. From the language employed in the Laws (Continuance in Force) Order, 1 95&, it appears clear to me that the Martial Law Orders mentioned in Article 3 (ii) are Martial Law Orders issued by the Chief Administrator of Martial Law. My reasons for this view are given in detail in the opinion delivered by me on the 26th of September 1961 in the Full Bench case, Writ Petition No. 265 of 1961. One of the reasons is that while Article 3 of the Laws. (Continuance in Force) Order, 1958, says that a Martial Law Regulation shall not be called or permitted to be called in question by a Court, Article 5 of the same Order says that a Martial Law Regulation whether issued by the Chief Law for the relevant Martial Zone shall be preferred to an Ordinance passed by the Governor of a Province on the same subject. ,This difference in language regarding Martial Law Regulation makes it clear that the author of the Laws (Continuance in Force) Order, 19)8, had used the expression "Martial Law Regulation" in Article 3 of the Laws (Continuance in Force) Order, 19.)8, to denote Martial Law Regulations issued by the Chief Administrator of Martial Law but not those which a Martial Law Administrator of a Zone may make. As the expression "Martial Law Regulation" occurring in clause (ii) of Article 3 of the Laws (Continuance in Force) Order, 1958, must, therefore, be held to mean a Martial Law Regulation issued by the Chief Administrator of Martial Law, it is difficult to see why the expression "Martial Law Order", occurring in the same clause should not mean only a Martial Law Order issued by the Chief Administrator of Martial Law. Another reason for my view that the expression "Martial Law Order" occurring in Article 3(ii) of the Laws (Continuance in Force) Order, 1958, means an Order issued by the Chief Administrator of Martial Law is that it was only that authority to whom the Order in question gave unlimited powers as is clear from clauses (1) and (2) of Article 2 of the Order which have been reproduced in paragraph 7, and it can be safely presumed that consistency had not been abandoned in the brief document designated the Laws (Continuance in Force) Order, 1958, which was given to the residents of Pakistan as the transitional Constitution of their country. 1.2. I am fortified in the view expressed by me in the last paragraph by another consideration. If Article 3 of the Laws (Continuance in Force) Order, 1.958, meant that whether or not a Martial Law Administrator of a Zone was competent to issue a Martial Law Regulation or a Martial Law Order, the Courts could not doubt its binding nature nor allow a .party in a Court to challenge it, the results could be disastrous sometimes. If, for example, a Martial Law Regulation issued by the Administrator of a Martial Law Zone went counter to one issued by the Chief Administrator of Martial Law, it would not be possible to say which of them the Court was to act upon. If, for example, a Regulation issued by the Chief Administrator of Martial Law prescribed a minimum sentence of fourteen years for an offence, and a Regulation issued by an Administrator of a Martial Law Zone prescribed a minimum sentence of five years for the same offence, the Courts would be contravening Article 3 of the Laws (Continuance in. Force) Order, 1958, by acting on either Regulation, because if they acted on the Regulation issued by the Chief Administrator of Martial Law, it would amount to calling into question a Regulation issued by a Martial Law Administrator, and if they chose to act on the Martial Law Regulation issued by an Administrator of a Martial Law Zone, they would be calling in question a Martial Law Regulation issued by the Chief Administrator of Martial Law. These results could not have been intended by the law‑maker who issued the Laws (Continuance in Force) Order 1958, and as these results must flaw from the inter pretation which the learned Advocate‑General for West Pakistan would have the Court place on Article 3 of the Order, it can be safely presumed that the Martial Law Regulations and Martial Law Orders mentioned in that Article were those issued by the Chief Administrator of Martial Law and not by any other Martial Law Authority.

13. Another consideration that arises is that as the Laws (Continuance in Force) Order, 1958, said clearly that it was only by means of a Martial Law Regulation issued by the Chief Administrator of Martial Law that the existing jurisdiction of Courts could be taken away, it would be against all canons of administration of justice in any part of the world to say that Courts should not concern themselves with seeing whether or not the law that they had been called upon to enforce was made by an authority competent to make it. The position urged by the learned Advocate‑General is so opposed to all principles that 'it could not have been intended that it should be created. The Laws (Continuance in Force) Order, 1958, has been in force for about three years and though the office of the President of Pakistan and the Chief Administrator of Martial Law for Pakistan has been with the same person for all this period except the first three weeks, no change has been made in clauses (t) and (2) of the Laws (Continuance in Force) Order, 1958. Can it be doubted in the face of the clear words used therein that it is only the Chief Administrator of Martial Law who can pass a Regulation that would amend clause (1) of Article 2 of the Laws (Continuance in Force) Order, 1958? If the Administrator of a Martial Law Zone were to issue a Regulation which amended clause (1) of Article 2 of the Order, are the Courts to shut their eyes to the infringement of the law to which they owe their existence and juris diction and are they to enforce a law that could not have been passed.

14. Another reason for my holding the view that Zone `B' Martial Law Order No. 82 has not divested the Courts. of their jurisdiction to determine whether a law was valid or not is that, as shown by me earlier, this power existed at the time of the Proclamation of Martial Law and was to continue because of the Laws (Continuance in Force) Order, 1958. If, therefore, the President of Pakistan wants to take away this power, he will have to issue an Order to that effect, and if the Chief Administrator of Martial Law wants to take the power away from Courts, he would have to issue a Martial Law Regulation and a Martial Law Order issued by him could not be said to have intended to take away this power as was laid down by the Supreme Court of Pakistan is Muhammad Ayub Khuro v. Pakistan (P L D 1960 S C (Pak.) 237.). The power to question the validity of the West Pakistan Waqf Proper ties Ordinances purports to have bean taken away by mans of a Martial Law Order issued by an Administrator of a Martial Late Zone. The Supreme Court expressed the view in Khurds case that the Chief Administrator of Martial Law could not intend to take away jurisdiction of Courts if he did not issue a Regulation to that effect because clause (1) of Article 2 of the Laws (Continuance in Force) Order, 1958, says so. The principles which apply to the Regulations and Orders of the Chief Administrator of Martial Law apply with equal, if not greater, force to those of an authority subordinate to him. It was conten ded that the words used in Zone `B' Martial Law Order No. 82 were not open to any construction but that the Courts had to enforce the West Pakistan Waqf Properties Ordinance irrespective of whether the Governor who promulgated them was competent to do so or not. The language is no doubt clear, but, as in view of the decision of the Supreme Court in Khuro's case it is to be presumed that nothing that could not be achieved was intended to be achieved. 1 would meet the argument that the words used in Zone B' Martial Law Order No. 82 were clear on the point by saying that those words appeared to have been used under the impression that the jurisdiction of Courts sought to be taken away had not been preserved to them by the Laws (Continuance in Force) Order, 1958, but had been given to them by the Ordinance in question‑a view which as I have indicated even the learned Advocate‑General gave expression to at the hearing. I am clear in my mind that if the Ordinances under consideration were invalid for the reason that they contravened an order passed by the President of Pakistan in that behalf, the Zone `B' Martial Law Order No. 82 would have to give way before the President's Order. In view of what I have said above, I am clearly of the view that for more reasons than one, Martial Law Zone `B' Order No. 82, which was promulgated on the 16th of February 1961, had not taken away the jurisdiction which vested in Courts to determine whether o not the West Pakistan Waqf Properties Ordinance (XXI of 1959) and the West Pakistan Waqf Properties (Amendment) Ordinance (X of 1960) were valid law.

15. Having held that the jurisdiction of the Courts to determine whether or not West Pakistan Waqf Properties Ordinance (XXI of 1959) and the West Pakistan Waqf Properties (Amendment) Ordinance (X of 1960) are valid law exists, I proceed to consider whether the objection to the validity of these laws raised on behalf of the respondent can be accepted. Mr. Mahmud Ali Qasuri said that the reasons in support of his conten‑ F tion that the two Ordinances were not valid law are the same, except in one regard, as were given by Mr. S. M. Tirmizey in his judgment dated the 24th of January 1961 in the petition of Bashir Abmad which was the subject‑matter of First Appeal from Order No. 13 of 1961 in this Court, to which case a reference has been, made in paragraph 2 and 3. 1 would, therefore, proceed to consider whether the views expressed by S. M. Tirmizey in that case were correct.

16. In his judgment in Bashir Ahmad's case, Mr. S. M. Tirmizey expressed the view that sections 3, 4, 5 and 6 of the West Pakistan Ordinance XXI of 1959, which relate to the appointment of an Administrator and his power to take over Waqf properties, are bad law because they come in conflict with section 22 of the Religious Endowments Act, 1863. Section 6 of Ordinance XXI of 1959, as amended by Ordinance X of 1960, reads as follows :‑ "

6. Chief Administrator may take over Waqf property by Notification.‑Notwithstanding anything in section 22 of the Religious Endowments Act, 1863, the Chief Administrator may by notification, take over and assume the administration, control, management and maintenance of a waqf property." Section 22 of the Religious Endowments Act, 1863, is in the following terms :‑ "Except as provided in this Acts it shall not be lawful for the Central Government or any Provincial Government, or for any officer of any Government in his official character, to undertake or resume the superintendence of any land or other property granted for the support of, or otherwise belonging to, any mosque, temple or other religious establishment, or to take any part in the management or appropriation of any endowment made for the maintenance of any such mosque, temple or other establishment, or to nominate or appoint any trustee, manager or superin tendent thereof to be in any way concerned therewith.". I agree with the view of Mr. S. M. Tirmizey that section 6 of Ordinance XXI of 1959 came in conflict with section 22 of the Religious Endowments Act but the question that requires deter mination is whether the Ordinance was void wholly or partially for this reason. West Pakistan Ordinance XXI of 1959 was promulgated on the 17th of April 1959 on which date the legisla tive powers of the Governor were, as is clear from clause (1) of Article 5 of the Laws (Continuance in Force) Order, 1958, the same as given in Articles 102 and 106 of the Constitution of the Islamic Republic of Pakistan and he could promulgate Ordinances regarding all subjects about which the Provincial Legislature could have made laws. This power extended to making laws on all subjects included in the Provincial List con tained in the Fifth Schedule of the late Constitution and under certain conditions on all subjects contained in the Concurrent List of that Schedule. Entries 65 and 69 of the above‑mentioned Provincial List read as follows :‑ "

65. Charities and charitable institutions ; charitable and religious endowments." "

69. Waqfs and mosques." These entries can leave no doubt that the Governor could promul gate Ordinances with regard to waqfs and mosques as well as with regard to religious endowments. The Religious Endowments Act, 1863, was an existing law for the purposes of Article 110 of the late Constitution, and as the subject of religious endowment s subject dealt with is the above‑mentioned Act‑fell clearly within the Provincial List contained in the Fifth Schedule of the late Constitution, the provisions of the West Pakistan Ordinance, 1959, with regard to taking over of waqf properties by the Adminis trator, were perfectly valid notwithstanding the fact that they may come in conflict with the provisions of the Religious Endowments Act, 1863.

17. Mr. Mahmud Ali Qasuri contended that though the provisions of sections 3, 4, 5 and 6 of the West Pakistan Ordinance XXI of 1959 with regard to taking over the properties attached to waqfs, mosques, or religious endowments may have been valid law, the same could not be said with regard to the amendment brought about in the provisions of the sections by means of West Pakistan Ordinance X of 1960. It is in this regard that Mr. Mahmd Ali Qasuri said that his reasons for contending that the Ordinances under consideration were not valid law differed Dada from those of Mr. S. M. Tirmizey. The changes brought about by means of West Pakistan Ordinance X of 1960 with respect to the matter under consideration were that the person who had been called "Administrator of Waqfs" in the West Pakistan Ordinance XXI of 1959 was to be called the "Chief Administrator of Aukaf" and persons who bad been designated as "Deputy Administrators of Waqfs" were to be known as "Administrators of Aukaf". It is clear that the power of taking over of waqf properties and assuming their control had been validly given by means of West Pakistan Ordinance XXI of 1959. The contention of Mr. Mahmud Ali Qasuri was that the West Pakistan Ordinance X of 1960 was promulgated at a time when the subjects of waqfs and religious endowments were on the Concurrent List and, therefore, the provisions of the Ordinance which in a sense empowered the Chief Administrator of Auqaf to take over waqf properties were invalid on the ground that they came in conflict with the provisions of the Religious Endowments Act, 1863, because the provisions in the West Pakistan Ordinance (X of 1960) had been brought on the statute‑book by the Governor without complying with the provisions of clause (2) of Article 110 of the late Constitution, which were to the effect that if a provision of law on a subject contained in the Concurrent List given in the Fifth Schedule to the late Constitution came in conflict with an Act of Pakistan Parliament, or an existing law, it was not to be deemed valid if it had not received the assent of the President of Pakistan. The West Pakistan Ordinance X of 1960 was promulgated on the 4th of April 1960, and Mr. Mahmud Ali Qasuri was right in saying that on that date the subjects of waqfs, mosques and religious endowments had been placed on the Concurrent List mentioned in the Fifth Schedule to the late constitution by means of the President's Order 17 of 1959 which was passed on the 23rd of September 1959, and which I have reproduced in paragraph 10, but in my opinion that is an entirely immaterial circumstances. Section 22 of the Religious Endowments Act, 1863, was to the effect that neither the Government nor any of its servants could assume control of any religious endowment. By means of West Pakistan Ordinance XXI of 1959 power to assume control of waqfs in West Pakistan had been conferred on persons appointed by the Provincial Government and all that was done in this connection, by means of the West Pakistan Ordinance X of 1960 was to change the designation of the persons who could assume charge of waqfs properties on being appointed by the Provincial Government. It is clear, therefore, that the provisions of the two Ordinances with regard to the taking over of waqfs properties were not invalid and this inference would not change even if it were to be held that the expression "religious endowment" meant something other than waqfs because if it did, the West Pakistan Ordinance XXI of 1959 had not legislated about a matter covered by the Religious Endowments Act, 1863 and if the expression "religious endowment" included waqfs, the subject fell at the relevant time within the four corners of entries Nos. 65 and 69 of the Provincial List contained in the Fifth Schedule to the late Constitution.

18. It was contended by Mr. Mahmud Ali Qasuri, Advocate, that the effect of the President's Order 17 of 1959 was that all subjects, which were on the Provincial List of the 5th Schedule to the late Constitution were to be deemed to have been placed on the Concurrent List from the 7th of October 1958, and, therefore, those parts of the West Pakistan Ordinance XXI of 1959 and West Pakistan Ordinance X of 1960, which were in. conflict with section 22 of the Religious Endow ments Act, 1863, were invalid. This contention, which is based on Article 2 of the President's Order 17 of 1959 (reproduced in Paragraph 10) is untenable. The provisions of the second Article of the President's Order 17 of 1959 are to the effect that even if the President of Pakistan had, between the 7th of October 19,,8 and the 23rd of September 1959, made a law about a subject which at that time stood on the Provincial List of the Fifth Schedule to the late Constitution, it would be a perfectly ,valid law. As regards the effect of Article 2 of the President's Order 17 of 1959 on an Ordinance promulgated by the Governor of a Province between the 7th of October 1958 and the 23rd of September 1959, one has to turn to Article 3 of that Order. The second clause of Article 3 of ‑the President's Order 17 of 1959 is to the effect that an Ordinance promulgated by a Governor after the 7th of October 1958 but before the 23rd of September 1959 with regard to a subject which was at the relevant time on the Provincial List of the Fifth Schedule to the late Constitution, would be invalid only if it could be shown that it was repugnant to a law made by the President of Pakistan between the 7th of October 1958 and the 23rd of September 1959. If, therefore, an Ordinance of the Governor of a Province promul gated between the 7th of October 1958 and the 23rd of September 1959 was not invalid on the ground that it came in conflict with a law in force in Pakistan which had been made by an authority other than the Provincial law‑maker it would continue to be valid unless it can be shown that it comes in conflict with a law on the subject made by the President of Pakistan between the 7th of October 195 d and the 23rd of September 1959 or that it came in conflict with a Martial Law Regulation and was, therefore, invalid under Article 5 of the Laws (Continuance in Force) Order, 1958. Mr. Mahmud Ali Qasuri did not contend that the provisions with regard to the taking over of property by the Chief Administrator contained in the Ordinance, which he wanted to get declared invalid, came in conflict, with any of the laws made. by the President or with a Martial Law Regulation and, consequently, I have no hesitation in holding that the sections of the West Pakistan Waqf Properties Ordinance (West Pakistan Ordinance XXI of 1959) as amended by the West Pakistan Waqf Properties (Amendment) Ordinance (West Pakistan Ordinance X of 1960), which authorised the Chief Administrator of Auqaf and his subordinates to take over waqf properties were not invalid.

19. Another reason given by Mr. S. M. Tirmizey in his judgment in Bashir Ahmad's case, and adopted by Mr. Mahmud i Ali Qasuri, to show that the West Pakistan Ordinance XXI of 1959 was invalid was that the Chief Administrator of Auqaf was a trustee and, therefore, the subject‑matter of the Ordinance under consideration fell within the Concurrent List contained in the Fifth Schedule to the late Constitution about no subject contained in which list the Governor of a Province was competent to make a law except after complying with some conditions. While dealing with the question whether the Ordinance came in conflict with section 22 of the Religious Endowments Act, 1863, I have made it clear that the subject about which the law was passed by the Governor of the Province related to waqfs or in the alternative to religious endowments both of which were shown in the Fifth Schedule to the late Constitution to be on the Provincial List. The entries in the Provincial List clearly applied to the subject of waqfs and religious endowments and consequently to the powers of the Chief Administrator of Auqaf with regard to those institutions with the result that the contention that the appoint ment of the Chief Administrator of Auqaf or the Administra tor of Waqfs, as he was previously called, was an appointment of a trustee, contemplated in Entry 1 of the Fifth Schedule to the late Constitution has no force.

20. The points concerning the taking over of waqf property by the Chief Administrator of Auqaf having been dealt with, it appears to me that none of the other reasons given by Mr. S. M. Tirmizey in his judgment in Bashir Ahmad's case called for serious consideration because they do not arise in this case just as they did not arise in the case of Bashir Ahmad. It is well‑settled that Courts, unless they be Courts of ultimate jurisdiction, cannot give findings on a question of law that does not arise in the case which they are dealing with. As, however, Mr. S. M. Tirmizey has raised some doubts about the validity of the West Pakistan Waqf Properties Ordinance (West Pakistan Ordinance XXI of 1959), as amended by the West Pakistan Waqf properties (Amendment) Ordinance (West Pakistan Ordinance X of 1 960), and Mr. Mahmud Ali Qasuri has adopted the reasons given by Mr. S. M. Tirmizey, it appears desirable that his view should be examined lest the views given by him be used as findings ' regarding the points dealt with by him and may at some time be adopted by a Court subordinate to him it was said by Mr. S. M. Tirmizey, whose reasoning on the point was adopted by Mr.'Mahmud Ali Qasuri, that Explanation 2 of clause 2 (d) of the West Pakistan Waqf Properties Ordinance, 1959, was invalid because it dealt with evacuee property a subject with regard to which it was not the competence of the Governor to make laws. The Explanation mentioned by Mr. Tirmizey reads as follows :‑ "Property allotted in lieu or in exchange of waqf property left in India shall be deemed to be waqf property." It would be noticed that all that the Explanation says is that if a person, who has come from India, has been given evacuee property in Pakistan on the ground that while in India he was in possession of some waqf property, the property given to him in Pakistan shall be deemed to be waqf property in his hand. In my view this provision cannot make the West Pakistan Ordinance XXI of 1959 a law with regard to evacuee property as it only deals with they rights of a person who has obtained property in Pakistan for property he left in India and all that the Chief Administrator waqf take over is the rights and interests of the person to whom evacuee property was given.

21. In support of his view that the West Pakistan Ordinance XXI of 1959 was invalid, Mr. S. M. Tirmizey has also said that section 10 of the Ordinance was bad law because it said that the judgment of the High Court in an appeal against an Order of a District Judge passed on a petition presented under section 7 of the Ordinance was to be final. From this an inference was drawn that the jurisdiction of the Supreme Court has been taken away by the Governor which he was not competent to do. There is a fallacy, in the reasoning of Mr. Tirmizey. If the jurisdiction of the Supreme Court was beyond the pale of the legislative powers of a Governor, would not a Governor be travelling outside his legislative powers if he conferred jurisdiction in a matter as the Supreme Court ? And if the Governor could not take away the powers of the Supreme Court, section 10 of the West Pakistan Ordinance XXI of 1959 cannot be said to have taken it away especially as it was not attempted by even a single word to oust the jurisdiction of the Supreme Court. The jurisdiction of Supreme Court to hear appeals, which was conferred by means of the late Constitution, continues intact by virtue of the Laws (Conti nuance in Force) Order, 1958, and need not be conferred by any 1 other law, and I have not been able to discover on what recognised canons of interpretation of laws it has been held by Mr. Tirmizey that section 10 of the West Pakistan Ordinance XXI of 1959 took away the jurisdiction of the Supreme Court in the matters dealt with in that Ordinance.

22. In another part of his judgment in Bashir Ahmad's ease, Mr. Tirmizey said that section 12 of the West Pakistan Ordinance, J 1959, was bad law because it authorised the Provincial Govern ment to allow the Chief Administrator to sell any part of the pro perty taken over by him. The section reads as under :‑ "Government may permit the Administrator (Chief Adminis trator) to sell or otherwise dispose of any waqf property and invest the proceeds in accordance with its directions." Mr. Tirmizey expressed the opinion that the subject dealt with in the ‑above‑reproduced section 12 of the Ordinance was covered by Entry No. 1 of the Concurrent List contained in the Fifth Schedule to the late Constitution. The relevant part of the entry relied upon reads as under :‑ "All matters in respect of which parties in judicial proceedings were immediately before the Constitution Day subject to their personal law." It is difficult to see how this entry can apply to the matter under consideration. Mr. Tirmizey said that as the founder of the waqf was governed by Muslim Law, Entry No. 1 of the Concurrent List was attracted to the property which was waqf. This was clearly an incorrect approach to the question. It will be noticed that the part of Entry No. 1 of the Concurrent List of the Fifth Schedule on which reliance bad been placed envisaged that personal law was applicable to the parties on the 23rd of March 1956, on which date the late Constitution had been enforced. It was admitted by Mr. Tirmizey in his judgment that the bar against the transfer of waqf property before the West Pakistan Waqf Properties Ordinance XXl of 1959 was not absolute and that such property could be sold under orders of a Court. The view of Mr. Tirmizey was that because the power to dispose of waqf property had been placed in the hands of the executive while previously it reposed in those of Courts, the previous law had been changed and, therefore, the subject falling within Entry No. 1 of the Concurrent List contained, in the Fifth Schedule to the late Con,titution the Governor was incompetent to promulgate an Ordinance about it. The question relates to transfer of waqf properties and would, therefore, fall within the four corners of Entry No. 69 of the Provincial List contained in the Fifth Schedule to the late Constitution because it is well‑settled that when a person can make laws about a subject he can make laws with regard to all matters relating to the subject unless his powers are limited by law. It follows, therefore, that the ground taken against the validity of section 12 of the West Pakistan Waqf Properties Ordinance XXI of 195') was not sound.

23. It was then said by Mr. S. M. Tirmizey in his judgment in Bashir Ahmad's case that section 15 of the West Pakistan Ordi nance XXI of 1959 was invalid because it said that no injunction could issue with regard to the proceedings of the Administrator of Waqfs (which designation was later on changed to the Chief Administrator of Auqaf), and this provision, according to him, would come in conflict with the provisions of the Code of Civil Procedure whereby Civil Courts had been given the power to issue injunctions in appropriate cases. Entry No. 92 of the Provincial List of the Fifth Schedule of the late Constitution, which is to the effect that laws could be made with regard to jurisdiction of Courts concerning matters entered in the list, appears to have been over looked completely. I have shown in paragraphs 16 and 17 that waqfs fell within the Provincial List of the Fifth Schedule to the late Constitution and it follows, therefore, that the Governor K was competent to make a law which limited the jurisdiction of Courts other than the Supreme Court to issue injunctions or in an other respect.

24. One of the attacks of Mr. S. M. Tirmizey against the West Pakistan Waqf Properties Ordinance XX1 of 1959 was that it came in conflict with Regulation No. 64 issued by the Chief Administrator of Martial Law, called the West Pakistan Land Reforms Regulation. This Regulation was issued in the beginning of March 1959 while West Pakistan Ordinance XXI of 1959 was h promulgated by the Governor on the 17th of April 1959. The opinion of Mr. Tirmizey, which Mr. Mahmud Ali Qasuri supported, was that parts of the Ordinance contravened the above‑mentioned Regulation and were for that reason invalid. It was said that because under Martial Law Regulation No. 64 property could be per mitted to be held by charitable and religious institutions approved by Government, the provisions of the , West Pakistan Ordinance XXI of 1959, which allowed the taking over of the property by a person appointed by the Provincial Government were repugnant to the Regulation. There is no repugnancy in the Martial law Regulation 64 and West Pakistan Ordinance XXI of 1959 at all because the property taken over under the Ordinance by the person appointed in that behalf by the Provincial Governor remains the property of the institution to which it belonged and all that results is that instead of the mutwalli a person mentioned in the Ordinance takes charge of the property. Equally unconvincing is the reason advanced that paragraph 16 of the Regulation would make the notification regarding taking over of the property under the Ordi nance ineffective.

25. Another attack of Mr. S. M. Tirmizey in his judgment in Bashir Ahmad's case and of Mr. Mafimud Ali Qasuri in the present case, was that section 20 of the West Pakistan Ordinance XXI of 1959 was invalid because it left the selection of the date of repeal of certain laws, which were applicable to waqfs in different parts of West Pakistan, to the Provincial Government. It is by now the established practice of law‑makers to leave the enforcement of a law that has been made to the Government which has to select the date of the enforcement of the law, but the question that arises is whether or not the same power can be conferred for repealing an enactment. It appears doubtful that the selection of the date of repeal of an enactment can be left by the law‑maker to some M other authority but it is unnecessary in this case to deal with that question because it does not arise in the case just as it did not in Bashir Ahmad's case. I might mention that Zone `B' Martial Law Order No. 82 says in its second paragraph that the enact ments mentioned in section 20 of the West Pakistan Ordinance XXl of 1959, shall stand repealed. I have in an earlier part of this order held that the Zone `B' Martial Law Order No. '82 could not take away the jurisdiction of Courts to determine whether or not a law they have been called upon to enforce was valid, and the question is whether the same can be said of that part of the Zone `B' Martial Law Order No. 82 which says that the enactments mentioned in section 20 of the West Pakistan Ordinance XXI of 1959, shall stand repealed. The Martial Law Order repeals the enactments' mentioned in section 20 of the West Pakistan Ordi nance XXI of 1959, which according to that section were to be repealed when the Provincial Government considered proper. It is clear, therefore, that the Ordinance and the Martial Law Order are repugnant in some respect to each other. The law on the subject contained in Article 5 of the Law (Continuance in Force) Order of 1958 is that if an Ordinance promulgated by the Gover nor of a Province is repugnant to a Martial Law Regulation issued by the Chief Administrator of Martial Law, or to a Martial Law Regulation issued by an Administrator of Martial Law, the latter has to prevail. Martial Law Order No. 82 is not a Martial Law Regulation and Mr. Mahmud Ali Qasuri contended that the decision of their Lordships of the Supreme Court in Khuro's case, applied with the result that the Martial Law Order could not be set to be preferable to the Ordinance. The argument is correct .only to this extent that if an Order of an Administrator of Martial Law for a Zone, as disting uished from his Regulation, and an Ordinance promulgated by a Governor are repugnant to each other, clause (3) of Article 5, of the Laws (Continuance in Force) Order, 1958, will have no application because the clause is in. the following terms :‑ "Nothing in this Article shall prejudice the operation of any Regulation made by the Chief Administrator of Martial Law or by any person having authority from the Chief Administrator of Martial Law to make Martial Law Regulations and where any Ordinance or any provision thereof made under clause (1) of this Article is repugnant to any such Regulation or part thereof the Regulation or part shall prevail." That, however, does not solve the problem for Mr Mahmud Ali Qasuri. If section 20 of the Ordinance was not good Law for the reason that it left the, selection of the date of repeal of enact ments mentioned therein to the Provincial Government the result would be that section 20 of the Ordinance does not exist at all. If section 20 of the Ordinance did not exist, paragraph 2 of the Zone `B' Martial Law Order was a law in a field which was entirely uncovered and will have to be followed. These being the circum stances it is not necessary to decide in this case whether in case of repugnancy between a Martial Law Order issued by a Martial r Law Administrator for the relevant Zone and an Ordinance issuer, by a Governor the former or the latter will have to give way.

26. The fact is that so far no question has arisen whether in a particular case the West Pakistan Ordinance XXI of 1959 or any of the enactments mentioned in section 20 of that Ordinance, assuming that these enactments did not stand repealed, should prevail. Whether or not the Ordinance under consideration and the enactments mentioned in its 20th section can stand together is a question which has not cropped up so far. If the Ordinance and the enactments mentioned in its 20th section do not come in conflict with each other the whole of the Ordinance could not be said to be invalid because one of its sections has left the repeal of the enactments to the Provincial Government. The reason for adopting an unprecedented method of repeal appears to have been that the Government did not want that the checks on persons in possession of waqf properties placed by the enact ments mentioned in section 20 of the Ordinance should be removed before the properties bad been taken over under the West Pakistan Ordinance XXI of 1959. I might mention that notifica tion No. 1 (1)‑Aukaf‑60, dated the 9th of January 1960, was issued to achieve the result mentioned in section 20 of the Ordi nance. Mr. M. Anwar, learned Advocate‑General for West Pakistan, urged that as the notification was issued by the Governor the defect, if any, in the 20th section of the Ordinance stood cured because the notification said that it was issued by the Governor of West Pakistan who was competent to promulgate an Ordi nance. I cannot accept this contention of the learned Advocate -General for more reasons than one. The fact that the notification purported to have been issued by the Governor could not prove that he had issued it personally because under the Rules of Busi ness of the Provincial Government a number of officials can act for the Governor though the order will issue in the name of the Governor. Moreover, I cannot accept the contention that if the Governor can do a thing by means of an Ordinance he could do it by means of a notification. That, however, does not change the position because as held by me in the last paragraph the enactments mentioned in section 20 of the Ordinance stood repealed on account of Zone `B' Martial Law Order No. 82.1

27. Before I pass on to the merits of the present appeal, I consider it necessary to mention that even if the decision given by Mr. Tirmizey in Bashir Ahmad's case regarding matters other than those relating to the persons appointed to take over the waqf properties had been correct, the Ordinance could not have been declared to be wholly void. In that eventuality all that would have resulted would have been that the Ordinance would have been bad law as far as those matters went, but the power to take over waqf properties would not have been diminished in the least because the power to take over and manage waqf properties could be exercised irrespective of whether the other things men tioned in the judgment of Mr. Tirmizey could be validly done or not.

28. I will now take up the consideration of the appeal on merits. The learned trial Judge has held that the shrine of Pir Shah Daula and the property attached thereto is not a waqf, of the kind covered by the West Pakistan Waqf Properties Ordinance, 1959, and, consequently, the Chief Administrator of Auqaf, West Pakistan, was incompetent to assume charge of them. This finding was given after taking the evidence produced by the parties. The issues framed by the learned trial Judge were these :‑ (1) Whether the petitioners are descendants or members of the family of the founder, Shah Daula ? (1‑A) Whether any benefit for the time being is claimable by the petitioners for themselves ? (1‑B) What is the effect ? (2) Whether the land comprised in Khasra No. 185, wherein the shrine is situate was waqf property ? (3) Whether the income from the box kept at the shrine was not to be deemed as waqf property without showing that the income was for some charitable purpose ? (4) If issue No. 3 is found in the affirmative, was the income from the box meant for the maintenance of the shrine or for some other charitable, pious or religious purpose ? (5) Whether the offerings and subscriptions (except the income from the box) were meant for any religious, pious or charitable , purposes and constituted waqf property ? (onus objected to). (6) Had the petitioners been enjoying or dealing with the offerings, the subscriptions and the income from the box as their personal property in accordance with their shares under the Muslim Law of Inheritance, if so, what was its effect on the alleged waqf nature of the property ? (7) Had there been no sajjada‑nashin, amin or mutawalli for the management of the income of the shrine, if so, what was its effect ? (8) Whether the shrine had always been maintained as a private institution by special collections from the waridars and other interested persons, if so, what was its effect ? (9) Relief. When one looks at the petition put in by the respondent one finds that their claim was not that the property in dispute was a private waqf or a mixed waqf, i.e., a waqf partly private and partly public, but that it was their personal property. Mr. M. Anwar, learned Advocate‑General for West Pakistan, contended that the finding on this point could not stand because it was in accordance neither with the case set up for the respondents nor with that set up by the appellant. To the extent that the learned trial Judge held that the property was a waqf of a mixed character, i.e., partly private and partly public, his finding can be said to have gone against the pleadings of the claimants before him. It is well settled that a Court should not travel beyond the pleadings of the parties, but it is also equally well settled that if a relief which had not been claimed had been given the Court in which that grant of relief is challenged will not set aside the judgment of the trial Court if the material placed on the record justified the P finding, and the only defect that had occurred was that an issue had not been framed regarding .the question adjudicated upon by means of the finding. Moreover, the law does not prevent the grant to a party of a relief less than claimed. In the present case, the respondents had claimed that they were owners of the property in dispute and as the relief granted to them was that the property in dispute was a waqf, though not a waqf of a kind covered by the West Pakistan Ordinance XXI of 1959, the judgment appealed against cannot be considered to be defective on the score that it did not confine itself to the consideration of the question whether or not the relief claimed should be granted. I would, therefore, overlook the fact that the learned trial Judge had not accepted the case set up by the respondents in their petition but had allowed them to set up another case and had granted a relief which had not been claimed in the petition.

29. It is not necessary to consider all the issues framed by the learned trial Judge and his findings thereon because the fate of the appeal depends on whether or not the finding of the learned trial Judge that the property in dispute was not covered by the West Pakistan Waqf Properties Ordinance (XXI of 1959) was correct. As mentioned by me already, the learned trial Judge was of the view that though the property in dispute was waqf it was not a waqf of the kind covered by the West Pakistan Waqf Properties Ordinance (XXI of 1959) as it was a waqf which was partly public and partly private. The definition of "waqf property" given in the Ordinance is contained in clause (d) of section 2, which reads as follows :‑ " `Waqf property' means property of any kind permanently dedicated by a person professing Islam for any purpose recog nised by Islam as religious, pious or charitable, but does not include property of any waqf such as is described in section 3 of the Mussalman Waqf Validating Act, 1913, under which any benefit is for the time being claimable for himself by the person by whom the waqf was created or by any member of his family or descendants." The learned trial Judge has found that the property in dispute was waqf such as is described in section 3 of the Mussalman Waqf Validating Act, 1913. Mr. M. Anwar contended that the property which was taken over by the Chief Administrator cf Auqaf was a waqf of a public character. If the property is waqf, its creation is shrouded in mystery. At one stage in the trial of the case before the learned District Judge the respondents appear to have said that Pir Shah Daula himself had built the shrine but at another stage of the case that position appears to have been abandoned and it appears to have been asserted that the shrine was set up by Bhawan Shah who was stated to be a son of Pir Shah Daula after whose name the shrine is named. The uncertainty about the exact date of the setting up of the shrine would not be material in case it is found that the shrine and the property attached thereto is waqf property because it is a principle of law in force for many a decade that it is no absolutely necessary that the writing by which a waqf was created should exist or that there should be direct evidence about the creation of a waqf and its terms, and that a waqf may be created by user. I am doubtful of the correctness of the expression that a waqf may be created by user and in my view the proper way of expressing the point is that the creation of a waqf may be established be immemorial user of the property as waqf. It is Q hardly' open to question that if any property has been used as waqf property from times immemorial, a Court of law would be justified in drawing an inference that a valid waqf bad been created. When a Court draws this inference, it. is acting in complete accord with the law because section 3 of the Evidence Act makes it clear that for the purposes of Court a fact can be said to be proved if on the material before the Court a reason able person would believe that fact exists.

30. The facts established in the present case are that there is a shrine known as the shrine of Pir Shah Daula to which are attached some rooms where, according to the evidence, visitors to the shrine resided, and that mosque, which according to the evidence on the record could contain 500 worshippers, is also attached to this shrine. On the evidence on the record it may be safely presumed that the mosque was set up after the shrine was and the note which the learned District Judge recorded after his inspection of the shrine would lend support to the evidence on the record in this regard. There is some evidence to the effect that at least a part of the income of the shrine has been utilised for feeding visitors and sometimes for supporting the "human rats." The belief of some persons regarding the "human rats." may be mentioned here. It is believed that if a couple who had not been able to get a child go and pray at the shrine of Pir Shah Daula they shall be blessed with a child but the child will be sub‑normal in mind and body and because of the smallness of his head would look like a rat. These children, according to some evidence on the record, were to be left at the shrine and it was not denied by the respondents that they were supported from the income which accrued to the shrine on account of the offerings made thereon.

31. Mr. Mahmud Ali Qasuri, Advocate, who represented the respondents, urged that the property in dispute was the private property of the respondents out of the income of which a part was spent on laudable purposes at their will and added that if it be held that the property did not belong to the res pondents the finding of the learned District Judge that the property was not a waqf of the kind which fell within the ambit of the West Pakistan Waqf Properties Ordinance XXI of 1959 should be upheld. As already mentioned by me some evidence on the record is to the effect that the shrine was set up by Bhawan Shah, who is claimed by the respondents to be a son of Pir Shah Daula. Learned counsel for the respondents said that the evidence on the record showed that all along the descendants of Pir Shah Daula had been enjoying the income of the shrine and be urged that this circumstance was sufficient for holding that the property was private property and not waqf. This argument has no force. The mere fact that a person has been using income of any property does not mean that it was his personal property. It is common knowledge that people who had any connection with shrines in the sub‑continent of British India which was in 1947 divided into Pakistan and India commanded respect from people who came to the shrines. One of the reasons for commanding this respect was that they generally had influence with the people in charge of the administration, the reason for which influence could easily have been that they could be used to the benefit of the administration. Another reason was that people who visited the shrines in the hope of getting something by praying at the shrines would have faith in persons who are intimately connected with the shrines which they look up to for their salvation in this world and the next. If, therefore, any of these persons was allowed to use the income of a shrine the circumstance could not be treated as conclusive proof of the property being private property. It can hardly be doubted that most of the people who make offerings at shrines believe that they are making offerings to the soul of the great personage who lies buried under the shrine: After they have made their offerings, they are not concerned with whether they are put R to a lawful use or not. These things which had gone on for very long time in the sub‑continent which was divided into Pakistan and India in 1947 did not stop even when Pakistan came into being and can be safely taken judicial notice of without doing violence to the provisions of the law relating to the evidence that a Court can take into consideration. The mere fact, therefore, that the respondents or their ascendants had been using the income for their own benefit cannot be sufficient for proving that the property was private property. To support his contention that the property belongs to the respondents Mr. Mahmud Ali Qasuri relied on a decision given as a Judge of the Lahore High Court by Cornelius, J. (the present Chief Justice of Pakistan) in Walayat Shah v. Sardara (P L. D 1949 Lah. 249), It is no doubt true that in that case the learned Judge said in clear terms that the shrine he was dealing with was private property but as no reason for this view which was opposed to the view expressed in many other judgments including those of the Judicial Committee of the Privy Council and in some text‑books of unquestioned authority on Muslim Law wherein it has been said that shrines are waqf

32. The claim that the property was private property, received a blow from the fact that part of it is a mosque which can accommodate about 500 worshipers. It is inconceivable that anyone had set up a mosque of that magnitude in his private: property. If the respondents or their ancestors have been using the income from the shrine as their personal property, the property has not become their private property though they were perhaps guilty of breach of trust with regard to the income which had accrued from the offerings at the shrine. That a shrine is ordinarily a waqf of a public nature would be clear from any book of authority on Muslim Law. In this connection reference may profitably be made to Ameer Ali's book on Muhammadan Law. The book which is of undoubted authority and has been accepted S as such for a very long time says in clear terms that shrines and khanqahs are public waqf properties. It is true that the sajjadanashins have had for a number of years a good deal of control over the income of shrines and khanqahs and that for the most part that income was used mostly for the benefit of the sajjadanashins and the mujawars, but that does not mean that the nature of the property had been altered by this use, which strictly speaking was a misuse, of the income from a waqf. lVtr. Mahmud Ali Qasuri, Advocate, who argued the case for the respondents with his usual thoroughness, urged that even in some judgments given concerning disputes about the property in question it had been recognised that the descendants of Pir Shah Daula were entitled to the income that had accrued to the shrine from the offerings made. In this connection he referred to two judgments Exhs. P. 41 and P. 6 as well as a document Exh. P. 1 which witnessed the sale of a share in the income of the shrine by one of the persons who claimed to be entitled to it. In neither of the cases the judgments in which have been relied on by Mr. Mahmud Ali Qasuri was the public or any of its rr?rr:ers a party, and the same is the case with the document on which he placed so much reliance. In these circumstances, it is difficult to see how the judgments and documents could prove that the income from the shrine was the property of the descendants of Pir Shah Daula. I might add that it is not only in standard books on Muslim Law that shrines and khanqahs are shown to be waqf but that even in judgments of Courts the same view was taken about their character, the only exception being the judgment of the Lahore High Court delivered by the Cornelius, J . which is reported as Walayat Shah v. Sardara and to which I have alluded in the last paragraph. In this. connection I may make a reference to Mian Hamid v. Mian Mahmud (ILR4Lah.15(PC)) which is the well‑known Taunsa case and on parts of the judgment in which Mr. Mahmud Ali Qasuri placed a good deal of reliance in support of his contention. In this judgment their Lordships of the Judicial Committee of the Privy Council stated in clear terms that the shrine was waqf property.

33. Having disposed of the contention of Mr. Mahmud Ali Qasuri, learned counsel for the respondents, to the effect that the property of which the Chief Administrator of Auqaf had taken charge in exercise of the powers conferred on him by the West Pakistan Waqf Properties Ordinance (XXI of 1959) was the private property of the respondents, I pass on to the other questions that arise with regard to the property. Mr. M. Anwar, the learned Advocate‑General for West Pakistan, who appeared for the appellant, contended that the property was waqf and that the waqf was of a character which fell within the four corners of the West Pakistan Waqf Properties Ordinance (XXI of 1959), while Mr. Mahmud Ali Qasuri contended that in case it was held that the property was not the private property of the respondents it could not but be held that it was a waqf of a kind to which the Ordinance had no application. Mr. M. Anwar relied on the evidence on the record which was to the effect that the shrine of Pir Shah Daula had attached to it a mosque which could accommodate about 500 worshippers, that the shrine had attached to it rooms where visitors to the shrine stayed, and that a part of the income of the shrine was spent to support "human rats" as well as for the mosque. He added that the above indicia were sufficient proof of the public waqf nature of the property and that even if there were any doubts they must be held to have been set at rest by the West Pakistan Waqf Properties Ordinance (XXI of 1959) which contained a provision in the form of Explanation 4 to section 2(d) to the effect that the income from boxes placed in shrines were to be deemed to be waqf property.

34. Before taking up the question what effect Explanation 4 to section 2 (d) of the West Pakistan Waqf Properties Ordinance (XXI of 1959) will have, I will take up the question whether the facts relied upon by Mr. M. Anwar could suffice to prove that the property was the subject of a waqf of a public nature. It is not necessary to determine who set up the mosque and I need not, therefore, take into consideration the assertion of Mr. M. Anwar that the mosque was built with public subscription. The facts relating to the mosque which are uncontrovertible are that it goes with the shrine and that about 500 persons can say their prayers in it at once. A mosque is a place meant for the worship of God in the Muslim way and though there can be a private mosque, provided it is used by and is meant for the residence that within which it is situated, I can say with confidence that mosque is the most common and most well‑known example of Muslim Public Waqf. It was not asserted by the respondents that the mosque was not meant for the use of the public and indeed if such an assertion had been made it would not have invited any serious consideration. The fact that the mosque can accommodate about 500 worshippers is more than sufficient proof of the fact that it was meant for the use of the public at large. The mosque is certainly a public waqf and as it is connected with the shrine, the inference is irresistible that the shrine too is a public waqf. This finding receives incalculable support from the fact that part of the income of the shrine is utilised for the upkeep of the mosque.

35. Coming now to the circumstance that a part of the income from the shrine had been. utilised from times immemorial for the upkeep of the "human rats", I am of the view that this too is a clear indication of the public nature of the waqf. That "human rats" are handicapped persons is hardly open to question. Nor is it open to question that the upkeep of human beings who are incapable of doing anything themselves in that regard is, a charitable object. The object being charitable, the property meant for carrying it out would be waqf property under the Muslim Law. Under the Muslim Law a waqf from which all can benefit is a public waqf. It was not the case of the respondents that "human rats" of any particular family had been supported out of the income of the shrine and it cannot but he held that by reason of the fact that a part of the income of the shrine was to be devoted to the upkeep of "human rats" the shrine was a waqf of a public nature.

36. Before taking up the consideration of Explanation 4 to section 2(d) of the West Pakistan Waqf Properties Ordinance XXI of 1959 on which reliance was placed by the learned counsel for the appellants, I will dispose of the contentions of Mr. Mahmud Ali Qasuri with regard to the income of the shrine. He contended that the offerings made at the shrine were in fact made to the descendants of Pir Shah Daula, but this contention cannot bear even a moment's scrutiny, not only because offerings at shrines and other waqfs are made for the benefit of the waqfs and not for the benefit of their mutawallis or other caretakers, but also because the evidence on the record showed that the income from offerings had increased since the taking over of the property by the appellant. And if the offerings at the shrine are made to the respondents and not for the shrine of the saint who lies buried there, the respondents must be held to have launched upon an unnecessary litigation, because the offerings were being made to them, they will continue even if they are deprived of the right to show to the world that they were serving the shrine. Another contention of Mr. Mahmud Ali Qasuri in this regard was that as a major part of the offerings had been taken from times immemorial by the respondents or their ancestors, it must be presumed that the offerings or their major part at least were meant for the descendants of Pir Shah Daula. I have, while dealing with the contentions of Mr. Mahmud Ali Qasuri to the effect that the property belonged to the respondents said in paragraph 31 that the use of the income of properties belonging to God which all waqf properties are by persons who have the properties in their control cannot prove that the use of the income was valid. God, the owner of the property, does not assert His rights before His creatures and as only the public spirited persons undertake the championship of the rights of God in mundane things it is but rarely that the misuse of income of property belonging to God is taken notice of. It follows that the fact that the respondents had been treating the income of the property as their property cannot be of any great avail to them. Here I might mention that while dealing with the question whether it was one of tire terms of the dedication of the shrine that a part of the income was to go to the descendants of the person who set up the shrine, the learned trial Judge said that use of the income by the respondents and their ancestors was sufficient to prove a waqf in their favour. This was an approach based on a complete over looking of ordinary human conduct. When a. waqf is presumed because the property claimed to be subject to it has been used as waqf, the inference is arrived at by keeping ordinary human conduct in view because it is ordinary human conduct that persons do not allow their own property to be treated as someone else's even though that someone be God Almighty himself. But if a person has been using some property as his own that circumstance alone is not sufficient, from the very nature of things, as proof that God had not been declared to be its owner by the person who could make this declaration.

37. The weakness of the case of the respondents to the effect that they were entitled to the income from the shrine or at least a major part of it consists in this that they cannot definitely say who had made the dedication that is whether it was Pir Shah Daula or Bhawan Shah Who, according to the material on the record, was either a son or a disciple of the former. It is not necessary for the purposes of this case to determine whether the respondents are direct descendants of Pir Shah Daula or claim kinship with him through Bhawan Shah who was his son or a disciple but if a decision on the point had been necessary it would not have been easy to arrive at because the caste of the respondents and their relatives was differently recorded as Syed Gujjar, etc., in the revenue records. In the trial Court the respondents appear to have taken ultimately the position that the founder of the shrine was Pir Shah Daula and that he had made his descendants the owners of the income from the shrine. The evidence in support of this claim is said to be included in a manuscript book called the Karamat Namah written by one Mushtaq Ram who though a non -Muslim appears to have had great faith in Pir Daula Shah. It is stated in the book which is written in Persian that near about his death Pir Daula Shah told his son Bhawan Shah that though he himself had not had more than a half loaf of bread his progeny will have an entire loaf of bread and that his son and his descendants shall not want for bread or clothing. That Pir Daula Shah was a great philanthropist is hardly open to question because he is stated to have built bridges as well as some other works of public utility and I do not doubt that he had some spiritual power, but the question for determination is whether he uttered the words ascribed to him in the book Karamat Namah and if so what the meaning of those words was. The learned trial Judge has held that these words meant that Bhawan Shah and his descendants shall be entitled to a part of the income of the shrine. It appears to me that the conclusion has been arrived at on the basis of very meagre material. One flaw in the above case set up by the respondents was that while the income of the institution is said to have been conferred by Pir Shah Daula on his children and their descendants the institution itself was brought into being by Bhawan Shah.

38. But even if it be assumed that a part of the income of the shrine had been conferred on the respondents, their ascendants and their descendants. I do not see how the West Pakistan Waqf Properties Ordinance X XI of 1959 was inapplicable to the waqf. The learned trial Judge expressed the view that a waqf which fell within the ambit of the Mussalman Waqf Validating Act, 1913, would not fall within the ambit of West Pakistan Ordinance XXI of 1959, and a waqf part of the income of which was to go to the family of the founder fell within the Mussalman Waqf Validating Act, 1913, the waqf under consideration did not fall within the four corners of the Ordinance. This finding is based on a lock of complete knowledge of the objects of the Mussalman Waqf Validating Act, 1913. A some what detailed examination of the Mussalman Waqf Validating Act, 1913, would not be out of place and I would, therefore, undertake it. It need hardly be emphasised that under the Muslim Law there are three kinds of waqfs i.e., public, private and mixed. A public waqf is one in which property is dedicate to God for the use of human beings. A private waqf is one in which the income of the property is for the use of the descendants of the person who dedicated the property and on their extinction the property is to go to God completely, while a mixed waqf is one in which both the above kinds of waqf are blended. In British India the private waqfs were not looked upon with favour and judgments of Courts including those of the Judicial Committee of the Privy Council would not recognise the private waqfs of Muslim Law. A number of decisions to this effect were given by the Privy Council and the most important of these were: Muhammad Ahsanullah Chowdhury v. Amar Chand Kundu (I L R 17 Cal. 498= 17 1 A 28) and Abul Fala Mahomed Ishak v. Russomov Dhur Chowdhury (I L R 22 Cal. 619=22 1 A 70). A passage from the judgment of their Lordships of the Privy Council delivered by Lord Hobhouse in the case reported in Abul Fata Mahomed Ishak v. Russomv Dhur Chowdhury, which gives a vivid picture of the opinion of the British and British India Judges regarding private waqfs which passage occurs at page 87 of 22 I A 76 reads as under :‑ "Among the very elaborate arguments and judgment reported in Bikani Mia's Case (I L R 20 Cal. 116), some doubts are expressed whether cases of this kind are governed by Mahomedan Law : and it is suggested that the decision iii Ahsanullah Cowdhry's case (Law Reporter 17 I A 28) displaced the Mahomedan Law in favour of English law. Clearly the Mahomedan law ought to govern a purely Mahomedan disposition of property. Their Lordships have endeavoured to the best of their ability to ascertain and apply the Mahomedan law, as know and administered in India ; but they cannot find that it is in accordance with the absolute, and as it seems to them extravagent, application of abstract precepts taken from the mouth of the Prophet. Those precepts may be excellent in their proper application. They may, for ought their Lordships know, have had their effect in moulding the law and practice of waqf, as the learned Judge says they have. But it would be doing wrong to the great law‑giver to suppose that he is thereby commending gifts for which the donor exercises no self‑denial ; in which be takes back with one hand what he appears to put away with the other, which arc to form the centre of attraction for accumulations of income and further accessions of family property ; which carefully protect so‑called managers from being called to account ; which seek to give to the donors and their family the enjoyment of property free from all liability to creditors ; and which do not seek the benefit of other beyond the use of empty words."

39. The fact that a waqf recognised by Muslim Law did not receive recognition from Courts in British India and even the British Privy Council was naturally not relished by the Muslims .of British India and though many representations oral and written were made to the Government they fell on deaf ears. On the 17th March 1911, however, Mr. Muhammad Ali Jinnah who later became the Quaid‑i‑Azam and the Founder of Pakistan, introduced the Mussalman Waqf Validating Bill in the Council of the Governor‑General of India constituted under the provisions of the Indian Councils Act, 1861, and in 1913 this Bill emerged as the Mussalman Wakaf Validating Act (VI of 1913). The Statement of Objects and Reasons for the law were stated to be as follows:.‑ "Whereas doubts have arisen regarding the validity of waqfs created by persons professing the Musslaman faith in favour of themselves, their families, children and descendants and ultimately for the benefit of the poor or for other religious, pious of charitable purposes ; and whereas it is expedient to remove such doubts ; It is hereby enacted as follows :" Section 3 of the Act reads as under :‑ "It shall be lawful for any person professing the Mussalman faith to create a waqf which in all other respects is in accordance with the provisions of Mussalman law, for the following among other purposes :‑ (a) for the maintenance and support wholly or partially of his family, children or descendants, and (b) Where the person creating a waqf is a.Hanafi Mussalman, also for his own maintenance and support during his lifetime or for the payment of his debts out of the rents and profits of the property dedicated: Pro‑tided that the ultimate benefit is in such cases expressly or impliedly received for the poor or for any other purpose recognised by the Mussalman law as religious, pious or charitable purpose of a permanent character."

40. The learned trial Judge has held that as the object of the waqf under consideration were at least partly private, namely the enjoyment of apart of the income by the descendants‑ of the dedicator, section 3 of the Mussalman Waqf Validating Act, 1913, applied to it. I am clear in my mind that the interpretation which the learned trial Judge has placed on section 3 of the Mussalman Waqf Validating Act, 1913, is not correct. It should be remembered that mixed waqfs, of the kind of which, according to the learned trial Judge, the waqf under consideration was one, were always recognised as valid by the 'Courts in British India and it was only the private waqfs created under the Muslim Law that the Courts in British India had declined to recognise and that it was to get recognition for that kind of waqfs that the Mussalman Waqf Validating Act was passed. The Statement of Objects and Reasons which has been reproduced in the last paragraph leaves not the slightest reason for the view that waqfs which are not purely private fall under the section. The correct position that emerges is that while the Mussalman Waqf Validating Act (VI of 1913) governs private waqfs or waqf‑al‑aulad as they are called, the ordinary Muslim Law governs the public and mixed waqfs. It follows, therefore, that even if the respondents had succeeded in proving that they were entitled to a part of the income from the shrine, which in my view they have not, the, provisions of section 2(d) of the West Pakistan Waqf Properties Ordinance XXI of 1959 would not be inapplicable to the case.

41. This takes me to the question what effect explanation 4 to section 2(d) of the West Pakistan Ordinance XXI of 1959, on which Mr. M. Anwar relied in his arguments, has on the facts of the present case. The explanation reads as under :‑ "The income from boxes placed at a shrine and offerings or subscriptions for charitable purposes shall be deemed to be waqf property." The plain meaning of these words which are relevant for the present purpose is that the offerings at shrines whether made in kind or money were to be treated as waqf property for the purposes of the West Pakistan Waqf Properties Ordinance XXI of 1959. It may be that the law‑maker was under the impression that under the law as in force previously offerings at shrines were not waqf property or not waqf property of the kind to which the Ordinance would be held to. be applicable or that the explanation was necessary because in many shrines the offerings had been believed by the sajjadanashins and mujawirs to be mainly their private property. But be that as it may, it is clear that the offerings made at shrines were for the purposes of the Ordinance to be treated as property governed by the Ordinance. I have no doubt in my mind that under the Muslim Law offerings at shrines, which institutions are public waqfs tinder that Law, are waqf property of the same,‑nature as the shrines themselves, and if they have been treated as any other kind of property they could not have been. But if there were any doubts on the point they have been completely set at rest by the provisions of the West Pakistan Waqf Properties Ordinance XXI of 1959. In my view, explanation 4 to section 2 (4) of the West Pakistan Waqf Properties Ordinance XXI of 1959 is in complete accord with the Muslim Law but if it is not it will not be bad law on that account. In paragraphs 16 and 17 of this judgment I have explained that as the subject of waqfs was at the time of the promulgation of the West Pakistan Ordinance XXI of 1959. included in the Provincial List of the Fifth Schedule to the Constitution of the Islamic Republic of Pakistan which was abrogated by Major‑General Iskandar Mirza, the then President of Pakistan on the night of the 7th of October 1951, the Governor of West Pakistan was competent to legislate on all subjects relating to waqfs and a law made by him would be invalid only if it came in conflict with either a law made by the President of Pakistan after the 7th of October 1958 or was repugnant to a Martial Law Regulation issued by the Chief Administrator of Martial Law or a regulation made by an Chief Administrator of Martial Law for a Martial Law Zone and repugnancy with no other law could invalidate the whole or any part of the Ordinance As the law stands, the Ordinance would not be invalid even if any of its provisions were repugnant to Muslim Law pure and simple and the remedy in that case would lie not with the Courts but the law‑maker. If, therefore, explanation 4 to section 2 (d) of the West Pakistan Ordinance XXI of 1959 offends against pure Muslim Law, which in my view it does not, it cannot be declared to be invalid on that ground and will hold the field till it is amended or repealed by a competent authority. Consequently, even if for any reason the offerings at shrines could not have been treated as waqf property before the promulgation of the West Pakistan Waqf Properties Ordinance XXI of 1959, they have to be treated as such under that Ordinance and the order of the Chief Administrator of Auqaf with regard to such offerings would be valid.

42. Having dealt with all the questions agitated by Mr. M.I Anwar and Mr. Mahmud Ali Qasuri for the purposes of the appeal, I pass on to the consideration of the application of the Chief Administrator of Aukaf which prayed that some remarks in the judgment appealed against should be expunged therefrom. These remarks which are contained in paragraph 14 of the judgment of the learned trial Judge are as follows :‑ "The reply that the waqf was `for religious, pious and charit able purposes' was on the face of it an evasive reply. I feel justified in regarding this evasion as dishonest and unworthy. The Administrator should have displayed a better spirit than the spirit of an ordinary litigant in the country . It appears necessary by the purposes of disposing of the application for expungment of remarks to know something more than the words complained of I would, therefore, reproduce that part of paragraph 14 of the judgment of the learned trial Judge which is relevant for the present purpose. It reads as follows :‑ "In view of what has been stated above, I am satisfied that Shah Daula's institution (khanqah, that is the master's place) was meant for continuing his life work including his interest in the buildings, the Rat‑children and his own descendants. As against these clear indications, the Administrator has chosen to describe the purposes and objects of the shrine as `religious, pious and charitable': This description is contained in a tele gram sent on the Administrator's behalf by the officer on special duty to the Manager, Auqaf Gujrat. I had specifically asked the Manager to get ascertained from the superiors the objects and purposes for which the waqf in question was created or had been put to through ages. The reply that the waqf was `for religious, pious and charitable purposes' was on the face of it an evasive reply. I feel justified in regarding this evasion as dishonest and unworthy. The Administrator should have dis played a better spirit than the spirit of an ordinary litigant in the country. A spirit such as this has been recently condemned by the Supreme Court during the. course of a learned judgment in Muhammad Akhor Khan v. Province of West Pakistan (P L D 1961 S C (Pak.) 17) ..

43. The reply sent by the Chief Administrator of Auqaf to the questions by the learned trial Judge cannot be considered to be adequate because it does not give the information that was asked for. The learned Judge bad wanted to know what the case of the Chief Administrator of Auqaf with regard to the purposes of the waqf in question was, and though the information supplied may have been considered sufficient by those who had claimed that they West Pakistan Waqf Properties Ordinance XXI of 1959 was applicable it could not be considered sufficient by a person who had to give a finding whether or not the Ordinance had application and that person would expect‑and not unjustifiably either‑that he should be given the facts on which be was expected to find whether the law was applicable. If in a trial for murder the officer who had sent the accused up for trial were to reply to the question of the Judge as to what the accused had done that he had committed a murder the answer would clearly not be adequate and the same is the case with the reply sent by the Chief Administrator of Auqaf. If, for the purpose of determining whether he could take control of the property, be had asked the person in whose possession it was to tell him the objects of the waqf and had received the reply that it was waqf to which the law under which the Chief Administrator of Auqaf could take over properties did not apply, I am certain that the Chief Administrator would have considered the reply evasive. In the present case the reply sent by the Chief Administrator of Auqaf in effect was precisely the same though instead of saying that the objects of the waqf were of the kind that would make the West Pakistan Waqf Properties Ordinance applicable to them be named the objects which would make the Ordinance applicable. The Chief Administrator of Auqaf should have known that the trial Judge did not doubt that the Chief Administrator had been of the opinion that the waqf was of a charitable, pious and religious, nature otherwise the property could not have been taken over and it should not have been difficult for the Chief Administrator to know what information was required. In describing the reply as evasive, the learned trial Judge cannot be held to have drawn an unwarranted inference because in his place I myself would have drawn precisely the same inference. It appears to me, however, that the epithets "dishonest and unworthy" need not have been used with regard to the evasion which the learned trial Judge found that the Chief Administrator of Auqaf had resorted to.

44. The question to consider, however, is whether any action on the application for expungement of remarks is called. I am prepared to concede in favour of the Chief Administrator of Auqaf that his lapse received from the learned trial Judge, perhaps, a more caustic comment than was called for but I have also to con cede in favour of the learned trial Judge that an evasive reply from such a high public servant as the Chief Administrator of Auqaf if allowed to go unnoticed would have led to that officer adopting the same attitude in other cases of the kind and would, probably, have engendered the same attitude in his subordinates. Courts of law have to perform a delicate duty because they have to administer justice according to law and to ensure that all parties before them get the rights that the law gives them. It is very likely that in the same circumstances, though 1 would not have allowed the evasive reply go unnoticed, I would very probably not have used the words "unworthy" and "dishonest" with regard to the evasion. The fact that i would not have used the words "unworthy" and "dishonest" is not however conclusive in the matter. Judgments of Courts should not be mutilated by higher Courts if their mutilation can be avoided. I am alive to the fact that at least two judgments of the High Court had had remarks expunged from them. One such judgment was of Muhammad Munir J., who later on retired about eighteen months ago as the Chief Justice of Pakistan. The Federal Court expunged certain remarks from the judgment because they were held to be entirely uncalled for and referred to a judgment of the Federal Court itself in what was held to be a manner not allowed by law. I am alluding to the judgment of the Federal Court in Fazal Elahi v. The Crown (PLD 1953 FC 35). The second judgment of the High Court from which certain remarks were expunged was my own in the well'‑known defamation case "M. A. Gurmani v. Z. A. Sulehri etc." which judgment minus the remarks expunged under the orders of the Supreme Court of Pakistan is reported as M. A. Gurmani v. Z.A. Sulehri etc. (P L R 1959 La h. 321‑P L D 1958 Lah. 747) while the judgment of the Supreme Court as Malik Feroze Khan Noon v. The State (P L D 1958 S C (Pak.) 333). The main reason for expunging remarks from my judgment was that Malik Feroze Khan loon was not a party to the proceedings to which my judgment related. It is manifest that the considerations which weighed with the ultimate Court in Pakistan in the above mentioned two cases do not arise in the present case. The evasion on the part of the Chief Administrator of Auqaf to give a reply of the kind that should have been given cannot be held to be non existent and though I may be of the view that the learned trial Judge could easily have avoided describing the evasion as "dishonest" and "unworthy", I find no sufficient ground for exercising jurisdiction to take such a drastic step as directing that the words "dishonest and unworthy" should be scored, out.

45. In view of what I have said above, I would hold that the property taken over by the appellant as well as the offerings made at the shrine fall within the ambit of the West Pakistan Waqf Properties Ordinance (XXI of 1959) and that the application made by the Chief Administrator of Auqaf for expungement of certain remarks from the judgment under appeal cannot succeed. The result is that while F.A.O. No. 61 of 1961 is accepted, Civil Miscellaneous No. 1672 of 1961 is dismissed but, in view of the circumstances, the parties are left to bear their own costs. This order regarding costs will apply not only to the appeal but also to the proceedings before the lower Court. ANWARUL HAQ, J.‑I agree. Order accordingly.