P L D 1991 Supreme Court 459 (PLP)

(2) Nothing in subsection (1) shall be construed as applying to any Member who is detained under any such law as is referred to in subsection (1)‑‑ (a) at any time during the period commencing on the fifteenth day next after the conclusion of a session and ending on the 15th day before the commencement of the next session; or (b) for reasons of State connected with defence, external affairs, or the security of, Pakistan or any part thereof." The Federal Shariat Court has found that the provisions of Section 3 to the extent of that it dispenses with the requirement of personal appearance of the Member in any Civil or Revenue Court during a session and for a period of 14 days before and 14 days after the session if a Member is a party to the proceedings is repugnant to the Injunctions of Islam. Section 4 of the Ordinance reads as follows:‑‑ "

4. Proceedings in Civil Courts. etc.‑‑(l) Notwithstanding anything to the contrary contained in any law for the time being in force, no Civil or Revenue Court shall proceed, during a session and for a period of fourteen days before and fourteen days after the session, with any matter before it in which a Member is a party, unless the privilege conferred by Section 3 is waived, by application made in writing to the Court by the Member concerned with the matter, and, where more Members than one are so concerned, by all of them. (2) The provisions of subsection (1) shall apply to all matters pending immediately before the commencement of this Ordinance in any Civil or Revenue Court, in which a Member is a party, and no such Court shall proceed further with any such matter, unless the privilege referred to therein is waived in accordance with the provision thereof, or the period specified therein has lapsed." In other words according to Section 4, no Civil or Revenue Court shall proceed during a Session and for a period of 14 days before and 14 days after the Session with any matter before it in which a Member is a party unless exemption is waived on application to the Court by the Member concerned. The Federal Shariat Court found that the above Sections of the Ordinance are repugnant to the Injunctions of Islam. The reasons given for coming to this conclusion are decipherable from the following observations made in its judgment dated 6‑10‑1988, impugned herein: "The concept of equality between human beings is the, cornerstone o Islam. The Holy Quran made the concept very clear and left no ambiguity that all human beings are equal in the eye of law and there is no difference between them except for their piety. Al‑Hujurat 49 : 13, Al‑Nisa 4:1, Younus 10‑19 refer. The Holy Prophet (s.a.w.s.) elaborated the idea of equality of human beings in many traditions, one of which is that all mankind is equal like teeth of the comb. There is no preference for an Arab over a non‑Arab except for his piety. Kindly see Musnadul‑Imarn Ahmad Bin Hambal Vol. V p.111. In the matter of administration of justice, Surah Al‑Nisa, Verse 135 requires that justice be rendered regardless of the status of the parties before the Court. Similar provision is made in the same Surah, Verses 42 and

58. In Surah Al‑Baqra Verse 282 it is provided that witnesses cannot refuse to appear in Court whenever they are called upon to do so. There are Ahadith in support of it. In a Hadith stated by Hazrat Sumra, the Holy Prophet (s.a.w.s.) commanded that whenever dispute between the parties is brought before the Court, the party who refuses to appear be deprived of its rights. (Al‑Haisami Majrna‑ul‑Zawaid, Vol.IV P.198) Hazrat Umar, Hazrat Usman, Hazrat Ali when Caliphs personally appeared in Court in their civil disputes. (Kanzul Amaal VoLV page 838, Ibne Kasir Al‑bidaya Walnihaya, Vol.VIII page 4, Al‑Bahaky‑Alsunan ul‑Kubra, Vol.X, page 136.) Therefore, we are of the view that no preference can be given to a party before the Civil or Revenue Court. In Islam a person can be forgiven for his failure to perform Huquq‑Ullah but with respect to Huquq‑ul‑Ibad a person must either perform it or obtain permission of the person whom he owes the rights so much so that even prayers can be interrupted for attending to Huquq‑ul‑lbad. The purpose in granting exemption from personal appearance before a Civil or Revenue Court and provision for stay of proceedings against, a Member of the National Assembly is to allow him to sit 'in the proceedings without interruption. The personal appearance of a litigant before such a Court is not always necessary". And note was taken of the fact that a Member of the National Assembly' can absent himself from the House with its leave (vide Article 64 (2) of the Constitution). Moreover, a Member can be represented before a Court through an agent and his evidence can even be recorded on commission. Accordingly, the proceedings before the Civil or Revenue Courts need not be stayed even where the Member of the Assembly cannot appear personally before these Courts. On this view of the matter, the Federal Shariat Court concluded‑-- "That the provisions in Sections 3 and 4 of the Members of the National Assembly (Exemption from Preventive Detention ' and Personal Appearance) Ordinance IX of 1963 as amended up‑to‑date to the extent of personal appearance of the Member and stay of proceedings during a Session and before and after 14 days of any Session if the Member' is a party are repugnant to the Injunctions of Islam. Therefore, we order that Section 4 of the Ordinance be omitted and Section 3 be amended to allow exemption on application of the Member before Civil or Revenue Court subject to the discretion of the Court." Hafiz SA. Rehman, learned counsel appearing on behalf of the appellant (Federation of Pakistan), submitted that the Members of the National Assembly owe a duty towards every citizen of the State in each and every matter which is being discussed in the National Assembly and regarding which some decision is to be taken as a policy decision of the State or some law applicable to each and every citizen of the State is to be enacted in the best interest of the country and its citizens. It is a duty towards the State and the people of the State. The matters under consideration before the National Assembly being of material importance have to be given preference over matters involving individual interest. The duty to attend and to pay full attention to the business before the National Assembly comes under Huquq‑ul‑Ibad. If there are two matters of Huquq‑ul‑Ibad at one and the same time, one requiring immediate and preferential attendance and consideration, has to be attended first. Thus the provisions of law contained in Sections 3 and 4 of Ordinance IX of 1963 providing protection to Members of National Assembly, keeping in view their duties of national importance, do not in any way come in conflict with the Injunctions of Islam. As such the declaration made by the learned Federal Shariat Court about these provisions was not correct. We do not find any force in these submissions because we can take judicial notice of the fact that whenever an Hon'ble Member of the National Assembly is busy attending a session of the House, the Courts, on being apprised of this fact, invariably grant him accommodation and do not prevent him from discharging his duties as such Member and the argument that his obligations to national interests deserve preference over individual interests is more theoretical than real. The privilege conferred on Members by Sections 3 and 4 of the Ordinance appears to be designed, in point of fact, from making it almost impossible to obtain justice as against him, if he is arrayed as a party before a Court so long as he continues to be a Member of the National Assembly. This results in negation of the concept of equality of citizens before law in the Islamic Republic of Pakistan. The verses of the Holy Quran and the Ahadith of the Holy Prophet cited in the judgment of the Federal Shariat Court clearly establish that the provisions relating to exemption of Members of the National Assembly from appearance before the Courts and the provisions for the stay of proceedings of these Courts for the whole period when the Assembly is in Session and for a period of 14 days before and 14 days after the Session are manifestly repugnant to the Injunctions of Islam. Accordingly, they require amendment with a view to bringing them in accord with the Injunctions of Islam. The Federal Shariat Court had directed that the necessary amendments be made by the 10th of April, 1989. This direction remained stayed on account of the preferment of this appeal by the Federation of Pakistan. As we have found no force in this appeal, the same must be dismissed. Although the order of the Federal Shariat Court has been upheld but the date specified by the said Court for carrying out the amendments has expired during the pendency of the appeal. We, therefore, direct that the amendments in Ordinance IX of 1963 as directed by the Federal Shariat Court shall now be carried out by the 30th June, 1991 and in case the necessary amendments in the provisions of Section 3 and Section 4 are not carried out by the said date, the said provisions shall cease to have effect on 1‑7‑1991. M.BA./F‑207/S Appeal dismissed