P L D 1980 Peshawar 239 (PLP)

It would be necessary to prove that such trees are in the absolute ownership of the petitioners and also that the sharing thereof is not by concur rence and agreement of the persons concerned. The concept of holding of property by an individual is not foreign to Islam. In Islam an individual can acquire property in three ways; IKTISAB" (earning); by VIRSA (inheritance); " HIBA" (gift). "Acquisition of property by the individual, whether male or female, is recognized by Islam as one of the basic laws regulating human society : "Men shall have the benefit of what they earn" (4 : 32): Both sexes have also an equal right to inheritance of property ; "Men shall have a portion of what the parents and the near relatives leave and women shall have a portion of what the parents and the near relatives leave" (4 : 7). No limitation is placed upon the property or wealth, which an individual may acquire or give away. The Holy Qur'an speaks even of heaps of gold being in the possession of a man which he may give away to a woman as her dowry "And if you have given one of them a heap of gold, take not from it anything" (4 : 20). Islam is thus opposed to Bolshevism, which recognize no individual right of property ; but it is at the same time socialistic in its tendencies, inasmuch as it tries .to bring about a more or less equal distribution of wealth."-["The Religion of Islam" by Maulana Muhammad Ali, 1950 Edition, page 690].

6. While giving ample protection to the right of private property, Islam looks upon the sharing of the blessings of God in the form of wealth and worldly goods by the `haves' with the `have-nots' as a most Praiseworthy behaviour of a Muslim. The Holy Book and the traditions are full of the pursuasions in one form or the other to the rich and "MUNGAM" to share wealth with poor and needy. `Zakat', `Sadakat', `Ihsan' `Infaq-e-mal' `Auqaf', sharing of wealth with near relations and injunctions to take care that no one in the neighbourhood remains hungry are some of such good deeds which have great rewards and a believer is repeatedly called upon to perform on this earth during his lifetime. So instead of jealously guarding the property and the hoarded wealth of an individual, the position in Islam is rather converse.

7. Everything, which is grown out of land or pertains to the land does not in every case become the absolute property of the owner. There are certain exceptions. For example the water flowing out of land, which becomes surplus after the use of the owner of that particular piece of land, becomes the property of the community. By virtue of the following Hadith the owner is digested of the right of sale of the surplus water:- Hadith No. 1502 (Sahih Muslim Sharif, Volume, II, page 608): Rendered into English this saying of the Holy Prophet (Peace be upon him) would read as follows:- "Abu Bakr son of Abi Shaiba told us who was told in his turn by Muhammad Bin Hatim by Yahya Bin Saeed, by Ibne Jarij, by Abdul Zubayr and Hazrat Jabbar Bin Abdullah that the Holy Prophet (peace be upon him) forbade the sale of water which is more than the needs." Hadith No. 1503 (Sahih Muslim Sharif Volume II, page 608:

Translated into English this Hadith reads:- "Ishaque Bin Ibrahim tells from the same source that the Holy Prophet (Peace be upon him) was heard forbidding the sale of water of land for cultivation and of camel for copulating." From the foregoing Ahadith it becomes clear that the rule of private right of ownership in Islam is not so absolute as not to warrant in certain cases the sharing of the benefits of the private property by the com munity. (Verse

19. Surah LI Chanter). In English it would read :- "And in their property there is right (share) for the beggars and the needy." The same Verse is repeated elsewhere in this way (Verses 24, 25 Chapter 70): With the addition of the word "MALUM " in regard to share of this class of persons the share of the beggars and the needy in the property of a Muslim becomes a known or fixed share.

8. But it does not mean that an individual is not capable of holding absolute ownership is any kind of property. To claim the absolute right of possession and enjoyment to the exclusion of the other members of the society the 'milk' or ownership must completely be vested in the individual. In the instant case the petitioners do not have "milk" in the trees in question as they have acquired the rights of the original owners, as stated earlier, by operation of law because of their status of occupancy tenants therein. Their predecessors-in-interest, the original owners, were also sharing the usufruct of these trees with the whole proprietary body of the village. These trees were therefore, not their "milk" property. Thus what the petitioners have acquired in the land is not a complete milk. Be that as it may, Islam does not allow) the infringement in any form of the private right of property, whether absolute or imperfect, by others by 'fib', or 'JL4' means. "Sahih Muslim" published by Quran Mahal, Karachi, contains at page 663 of its Volume-II a full chapter containing a number of Ahadith of the Holy Prophet (Peace be upon him) forbidding the usurpation of the smallest parcel of the land of anybody. The gist of the said Ahadith is that: "Anybody who usurps even a span of land of another, he will have, on the day of judgment, a yoke in his neck which would be equal to seven earths in weight."

9. Now coming to the Verses of the Holy Qur'an relied upon by the petitioners and reproduced hereinabove, the forbidding of eating up or sharing away of other's property is confined to the 'BATIL' means. The word 'BATIL' is derived from 'BATL which is Inter alia capable of the following meanings:-- False, untrue or wrong, incorrect, spurious, unfounded, unsound, vain, unreal, naught, futile, worthless, useless or in a nutshell, devoid of the virtue and efficacy and that which is counter to HAQ - (truth).

10. In view of the above definition of the word 'BATL', sharing in or taking away of the property of one individual by the others would only be against the injunctions of Islam if it is done by any manner falling within its scope. Second Verse; quoted above, contains permission or create' exception in the rule of forbiddance of eating up or sharing away of the pro perty of one by the others. This permission or exception is of ' TAJARAH which is by 'TARAZ' on the part of the owner. The word ' TAJARAH means commerce or trade and ' TARAZ ', means to agree with each other to accept something, to come to terms with one, to settle down a thing. It, therefore, follows from the meanings of said Verse of the Holy Qur'an that eating or taking the property of one by another by way of trade on commerce by agreement, occurrence and contract would be perfectly permissible. As stated earlier, in the instant case there is an agreement an occurrence between the community of the land owners of the village Jabber to share the produce in question. Any practice prevailing in a society which is not repugnant to the basic principles of Islam has not only been allowed to be practised in Islam but has been looked upon as `MUSTAHSIN'. Such practice or custom in the language of Shariah is called 'MAROOF'. In a Chapter (bearing No. 1370) where under a number of the Ahadith of Holy Prophet (peace be upon him) have been collected by Imam Bukhari deals with the topic of adaptation of customs prevailing in a community in this manner :- Sahih Bukhari Sharif, Arabi-Urdu, Volume I, Chaper No. 1370; page 764; The English translation of it would be as under :-. "In purchases and sales, in contracts and measures and weights the practice, customs, intentions and the known ways of the people would be binding and 'Shuraih' (the renowned Qazi of the first century of Islam) told the cotton thread sellers that the decision would be in accordance with their customs and practices." According to the Ahadith mentioned in the Chapter the Holy Prophet (Peace be upon him) had on several occasions ordered the people to act according to the customs and practices prevailing in their communities. This adaptation of customs and practices is allowed, of course, subject to the doctrine of 'MAROOF' (Maroof) that is which is based on (Bir). In other words that which is good, virtuous, correct and beneficial and is counter to (Isem) (sin). The (Bir) and the (Isem) were defined by the Holy Prophet (PBUH) in the Hadith related by Hazrat Nawas Bin Samaan Ansari who says :

"I asked the Holy Prophet (Peace be upon him) as to what is (Bir) and what is (Isem) and the Holy Prophet and (Bir) is the best of the character and the (Isem) is that which takes away the peace of year mind and you do not like the people to have the knowledge of the same." (Hadith No. 1804, Sahth Muslim, Volume ill, published by Quran Mahal, Karachi). In the same compilation there is another Hadith of the saying of the Holy Prophet from another source containing the same definition of (Bir) and (Isem). It follows from the above that any custom or usage, which contains the element of (Bir) and is free from '(Isem) is recognised by Islam and is called '(maroof). In the nutshell, the sharing of the sale proceeds of the trees in question by the whole proprietor body of the village Jabber regardless of the location of the growth of these trees and of the private right of ownership in the land underneath, the practice and the custom, as recorded in the 'Wajibul Arz', placed before us, has acquired the sanctity of agreement and consensus of the community since ages and is, therefore, not violative of any injunction of Islam as laid in Qur'an and Sunnah because of the absence of any element of '(Batal) or (Ghasab) in it. The petition, therefore, has no substance and is dismissed to limine. S. A. H Petition dismissed in limine.