1984 PLP 1081 (SCMR)

Anwar Ahmad Qadri, Advocate‑on‑Record for Respondent. Date of hearing : 22nd October, 1983. SHAFIUR RAHMAN, J.‑This appeal as of right has been filed by Saeed‑ ullah Kazmi under Article 203‑F of the Constitution challenging the decision of the Federal Shariat Court, dated 23‑12‑1980 whereby a petition :lied by him under Article 203‑D was dismissed as incompetent. The appellant by his petition before the Federal Shariat Court challenged the practice of presenting Guard of Honour by contingents of armed Forces at the Mazar of Quaid‑i‑Azam in Karachi. It was contended by him that this practice has the patronage and is indulged in under the directions of the Central Government. It was, according to the appellant, repugnant to the commands of Holy Qur'an and the Sunnah of the Holy prophet. It amounted to idolatry. He wanted that it should be declared :is repugnant to Quran and Sunnah and discontinued forthwith. The appellant appeared before the Federal Shariat Court in person on 23rd of December, 1980 and by a short order which is as follows, his petition was dismissed as incompetent "The petitioner does not challenge any law or custom or usage having the force of law. The petition is incompetent and is accordingly dismissed." The appellant appeared in person before us to argue his appeal. His contention was that as this practice had the backing and the blessings of Government of Pakistan, it had existed and has the force of law irrespective of the fact whether it qualified as custom or usage or not, It was also contended that as it was being observed and practised according to a set timing and with punctuality it has grown to be a custom and usage having the force of law and must on that account be tested in accordance with the test provided in Chapter 3‑A of the Constitution. The credentials of Mr. Kazmi and his interest in the proceedings need not be examined at any length for he has been an appellant in at least two such appeals coming up before this Court and already decided. The first in point of time was Shariat Appeal No. K‑1 of 1980 decided on 29‑9‑1980 (P L D 1981 S C 42). The others were a bunch of six connected Shariat Appeals Nos. K‑10 to 12, 14, 15 and 17 of 1980, decided on 18‑1‑1981 (P L D 1981 S C 627). In order to qualify as a custom, the appellant had to show that it ha existed either actually or presumptively from time immemorial and has A obtained the force of law in a particular locality. The essentials of an enforcible custom have been succinctly dealt with in Halsbury's 3rd Edition Vol. II as follows :‑ "A custom to be valid must have four essential attributes. First, it must be immemorial ; secondly, it must be reasonable, thirdly, it must have continued without interruption since its immemorial origin; and fourthly, it must be certain in respect of its nature generally, as well as in respect of the locality where it is alleged to obtain and the persons whom it is alleged to effect. These characteristics are the necessary corollaries of the definition of a custom as being local common law, and they serve a practical purpose as rules of evidence when the existence of a custom is to be established or refuted." By immemorial is meant that the custom must have been in existence from a time preceding the memory of man. The test of reasonableness is the artificial and legal reason warranted by authority of law for its enfor cement. The test of continuity involves habitual usage. The practice as alleged by the appellant is not immemorial. According to his own averments it' is of recent origin, not even forty years old. It does not, therefore, qualify as the custom much less as a custom having the force of law which alone under the definition of law in Article 203‑B of the Constitution is justiciable under Chapter 3‑A invoked by the appellant. Usage in legal parlance has a restricted meaning. It refers to a particular course of dealing or line of conduct generally adopted by persons engaged in a particular department of business life or more fully as a particular course of dealing or line of conduct which has acquired such notoriety, that where persons enter into contractual relationships in matter respecting the particular branch of business life where the usage is alleged to exist, those persons must be taken to have intended to follow that course of dealing or line of conduct, unless they have expressly or impliedly stipulated to the contrary ; that is to say that a rule of conduct amounts to a usage, if so generally known in the particular department of business life in which the case occurs, that, unless expressly or impliedly excluded, it must be considered as forming part of the contract. In the case of custom antiquity is the hallmark. Usage is distinguished by notoriety. None of these requirements is satisfied in the case put forward by the appellant. The practice attacked by him does not amount to custom or usage having the force of law. There is no law, rule of instruction which may have been directly attacked by the appellant as violative of Quran and the Sunnah of the Holy Prophet. A fuller description of what is custom and usage to qualify as having the force of law and liable to be adjudicated upon under Chapter 3‑A is contained in the earlier appeals filed by the appellant in this Court parti cularly in Shariat Appeal No. K‑1 of 198.0. Applying the same test, we find that there is no merit in this appeal and this appeal must fail. It is, therefore, dismissed with no order as to costs. S. Q. Appeal dismissed.