P L D 2005 Federal Shariat Court 3 (PLP)

(a) Islamic jurisprudence‑‑ ‑‑‑‑Administration of justice in Islam‑‑‑Appeal‑‑‑Right of appeal is always there in Islam; the Shariah gives less importance to the procedural issues and lays emphasis in maintaining justice and equity; no person can be penalized without giving him a chance to be heard and the Appellate Court/forum is under legal obligation to decide the appeal itself and question of association of the Trial Judge/Qazi in the proceedings of the appeal does not arise‑‑‑Principles. Right of appeal is recognized by the Holy Qur'an as well as Sunnah of Holy Prophet. Islam lays emphasis on maintaining justice and equity. The Qazi has to decide the case according to the Islamic Principles of Qaza. He must be impartial and should decide the cases on the basis of equity, justice and upright testimony. The object of Islamic Justice system is the removal of injustice from the society. The Holy Prophet (Peace be upon him) was the first one to demonstrate impartiality during the administration of justice. Because of his impartiality and uprightness, very often, the non‑Muslims used to bring their disputes before him for adjudication. The Muslims in general have been commanded by Allah to maintain justice and equity in their affairs. In the light of tradition of the Holy Prophet (Peace be upon him) it is not necessary that the person before whom the dispute is brought for decision must occupy the office of Qazi. The phrase "each one of you is a king" in the tradition (Al‑Bukhari‑Kitabul‑Ahkam) makes it abundantly clear that any functionary occupying judicial, quasi‑judicial or administrative, post/capacity who wields the power of rendering decision on any dispute, brought, before him, squarely falls within the definition of Qazi. In Islam there is no particular structure of judiciary, changes can be brought in it at any stage to meet the requirement of the age. Shariah is not hinged by procedural technicalities. The main object, which is required to be achieved is to maintain justice and equity. If any Muslim, by consent of the parties, hears and decides any matter, his decision would be lawful and operative. The Qazi‑ul‑Ulamar may direct any person to decide a particular case and the decision so rendered by him would be with jurisdiction. Four things become abundantly clear, (i) right of appeal is always there in Islam (ii) the Shariah gives less importance to the procedural issues and lays emphasis in maintaining justice and equity (iii) no person can be penalized without giving him a chance to be heard (iv) the Appellate Court/forum is under legal obligation to decide the appeal itself and question of association of the Trial Judge/Qazi in the proceedings of the appeal does not arise. In Shariah, the jurists are unanimously agreed on the point that a Qazi cannot hear his own case nor deliver judgment in his own favour. If he does so, his act would create suspicion in the minds of the people. The Khulafa despite possessing administrative and judicial powers, referred their cases to independent judges for its adjudication. The adjudicating authority, while deciding the cases between citizens inter se or between citizen and State functionary must be independent and should not be one who himself is directly or indirectly a party to the case or otherwise delivered judgment therein. Justice should not only be done but it should also appear to be done. Zafar Awan v. The Islamic Republic of Pakistan; PLD 1989 FSC 84; Al‑Bukhari Katabul‑Ahkaam; 144 ﻥﺩﻣﺗﻰﻣﻼﺴﺍﻯﻭﺑﻧ ﺩﻬﻋ by Maulana Razi‑ud‑Din Ahmad Fakhri, p.144; Mawardi, Vol. VI, p.388 by Adab‑ul‑Qazi; PLD 1985 FSC 365; Pakistan through Secretary, Ministry of Defence v. The General Public PLD 1989 SC 6; Zaidan; Nizamul Qaza, p.272; Al.‑Farooq Vol.4, pp.43‑44; Al‑Samhudi Wafa -al‑Wafa Part 2, pp.482‑483; Muhammad Bin Hayyan Akhtar Al‑Qudat Vol. I, p.108; Hazrat Ali Ibne Abi Talib by Arman Serhadi, p.267; Anwar v. The Crown PLD 1955 FC 185; Mubarik Ali Bhatti v. Fiaz Ali Khan and others PLD 1963 Lah. 8 and Rehmatullah v. Government of West Pakistan PLD 1965 Lah. 112 ref. (b) University of Engineering and Technology, Lahore Act (V of 1974), Ss. 23 & 42‑‑‑Baha‑ud‑Din Zakariya University Act (III of 1975), Ss.25 & 43‑‑‑University of the Agriculture Faisalabad Act (XII of 1973), Ss.24 & 42‑‑‑Gomal University Act (X of 1974), Ss. 21 & 39‑‑‑N.‑W.F.P. University of Engineering and Technology Ordinance (XIII of 1980), Ss.14 & 35‑‑‑N.‑W.F.P. Agricultural University Ordinance (I of 1981), Ss.14 & 35‑‑‑University of Punjab Act (IX of 1973), Ss.25 & 43‑‑‑Islamia University, Bahawalpur Act (IV of 1975); Ss.24 & 42 and University of Peshawar Act (II of 1975), Ss.21 & 39‑‑‑ ‑‑‑‑Constitution of Pakistan (1973), Art.203‑D‑‑‑Repugnancy to Injunctions of Islam ‑‑‑Vires of University of Engineering and Technology, Lahore Act (V of 1974), Ss.23 & 42; Baha‑ud‑Din Zakariya University Act (III of 1975), Ss.25 & 43; University of the Agriculture Faisalabad Act (XII of 1973), Ss.24 & 42; Gomal University Act (X of 1974), Ss.21 & 39; N.‑W.F.P. University of Engineering and Technology Ordinance (XIII of 1980), Ss.14 & 35; N.‑W.F.P. Agricultural University Ordinance (I of 1981), Ss. 14 & 35; University of Punjab Act (IX of 1973), Ss.25 & 43; Islamia University, Bahawalpur Act (IV of 1975); Ss.24 & 42 and University of Peshawar Act (II of 1975), Ss. 21 & 39‑‑Contentions of the petitioners were that Vice -Chancellor of the University, having himself imposed punishment upon the delinquent employees of the University, could not be legally permitted to attend the meeting of the‑ Syndicate at the time of adjudication of their appeal; that it would amount to making the Vice- Chancellor Judge in his own cause which would lead to unsavoury, rather unacceptable consequences; that Vice‑Chancellor being the Head of the administration of the University, was most likely to exert overt/covert influence on those members of the Syndicate who happened to be his subordinates and that the ultimate verdict of the Syndicate would be violative of the Injunctions of Islam‑‑‑Petitioners thus prayed that the relevant provisions of the impugned legislation being repugnant to the Injunctions of Islam merited to be declared as such with consequential direction to the concerned Provincial Government to suitably amend them so as to be brought in conformity with the Injunctions of Islam‑‑‑Plea raised on behalf of the Universities was that since against the decision of the Syndicate the employee could now avail of remedy of revision petition before the Chancellor of the University provided under the relevant provision, therefore impugned provisions of the respective statutes did not call for any change/amendment‑‑-Validity‑‑‑Held, Ss.23 & 42 of University of Engineering and Technology, Lahore Act (V of 1974), Ss.25 & 43 of Baha‑ud‑Din Zakariya University Act (III of 1975), Ss.24 & 42 of University of the Agriculture Faisalabad Act (XII of 1973), Ss.21 & 39 of Gomal University Act (X of 1974), Ss.14 & 35 of N.‑W.F.P. University of Engineering and Technology Ordinance (XIII of 1980), Ss.14 & 35 of N.‑W.F.P. Agricultural University Ordinance (I of 1981), Ss.25 & 43 of University of Punjab Act (IX of 1973), Ss.24 & 42 of Islamia University, Bahawalpur Act (IV of 1975) and Ss. 21 & 39 of University of Peshawar Act (II of 1975) in their present form, were violative of Injunctions of Islam to the extent that these permit the Vice‑Chancellor to participate in the proceedings, of the Syndicate for decision of the appeal of any employee of the University who had been punished, in any manner, by him‑‑‑Federal Shariat Court directed the authorities to suitably amend Ss.23 & 42 of University of Engineering and Technology, Lahore Act (V of 1974), Ss. 25 & 43 of Baha‑ud‑Din Zakariya University Act (III of 1975), Ss.24 & 42 of University of the Agriculture Faisalabad Act (XII of 1973), Ss.21 & 39 of Gomal University Act (X of 1974), Ss.14 & 35 of N.‑W.F.P. University of Engineering and Technology Ordinance (XIII of 1980), Ss.14 & 35 of N.‑W.F.P. Agricultural University Ordinance (I of 1981), Ss.25 & 43 of University of Punjab Act (IX of 1973), Ss.24 & 42 of Islamia University; Bahawalpur Act (IV of 1975) and Ss.21 & 39 of University of Peshawar Act (II of 1975), so as to incorporate provisions therein that the Vice‑Chancellor would be debarred .from participating in the meeting of the Syndicate before which the appeal of an employee of the University, challenging his adverse order, passed qua him, was presented for adjudication‑‑‑Necessary amendments were directed to be carried out within six months i.e. before the 15‑6‑2005, failing which the impugned provisions would cease to have legal effect‑‑‑Principles. Contentions of the petitioners were that the impugned provisions of respective laws were repugnant to the, Injunctions of Holy Qur'an and Sunnah and merit to be declared as such with consequential direction to the concerned Provincial Government to suitably amend them so as to be brought in conformity with the Injunctions of Islam. The thrust of the arguments of the petitioner was that the Vice -Chancellor, having himself imposed punishment upon the delinquent employee of the University, could not be legally permitted to attend the meeting of the Syndicate at the time of adjudication of his appeal. It was argued that it would amount to making the Vice‑Chancellor judge in his own cause which would lead to unsavoury, rather unacceptable consequences. He being the Head of the administration of the University, was most likely to exert overt/covert influence on those members of the Syndicate who happened to be his subordinates. The ultimate verdict of the Syndicate would be violative of the Injunctions of Islam. The plea raised on behalf of the University was that since against the decision of the Syndicate the employee can now avail of remedy of revision petition before Chancellor, therefore, impugned provisions do not call for any change/amendment. Under the impugned provisions the Vice‑Chancellor of the University, in exercise of his administrative powers takes disciplinary action against an, employee of the University and, subsequently, presides over the appellate forum i.e.' Syndicate to hear the appeal of the said employee. University Syndicate, as a body, while dealing with the appeal of any aggrieved employee of the University is to be equated with Qazi. The employee having been penalized by the Vice‑Chancellor, could not in the ordinary course of human behaviour, have faith in him, when he presides over the meeting of the Syndicate to decide his appeal. Whether or not the Vice‑Chancellor sits there with open mind, unbiased by his previous decision in the matter, is immaterial, as Islamic system of justice requires that the aggrieved person (herein the employee) should not harbour any apprehension in his mind that he would not be able to receive fair and impartial decision of his appeal. The possibility of the lurking fear in his mind that some members of the Syndicate, might be influenced by the presence of the Vice‑Chancellor cannot be ruled out. It is of paramount importance that parties arraigned before Courts should have confidence in the impartiality of the Courts. Indeed reasonable apprehension would arise in the mind of aggrieved employee that the presence of Vice‑Chancellor in. the meeting of the Syndicate would adversely affect the decision of the appeal against his order. It provided ample justification for transfer of the Lis to another forum of competent jurisdiction, which, in the scheme of the Act, is non‑existent. Scope of the revisional power is quite limited and it would be exercised only in cases involving illegal assumption, non‑exercise, or irregular exercise of jurisdiction by the lower Court/forum. It cannot be invoked against conclusions of law or facts, which do not in any way affect the jurisdiction of the lower Court, no matter, howsoever erroneous or wrong its decision may be on a question of law or facts, unless it involves a matter of jurisdiction. The person/functionary who decided the matter at initial stage would become disqualified to hear the same matter at any level i.e. appellate/review proceedings. The mere presence of such a person in these proceedings "renders it incompetent to function as such" and "it is immaterial in appellate/revisional forum what part that particular member played in the proceedings of the Tribunal and how far he was able to influence its decision". The revisional jurisdiction is discretionary in nature and the revision, if preferred, might be turned down/rejected in limine in the secrecy of his chamber by the Chancellor without even calling the employee for hearing and or sending for the record of the case. This remedy thus might prove quite illusory for the employee with the bitter feeling that justice has been denied to him. Such a situation cannot be countenanced in the Islamic system of justice for adjudication of dispute. The plea raised by the respondent University is repelled, as being devoid of force. Impugned provisions in their present form, are violative of Injunctions of Islam to the extent that these permit the Vice‑Chancellor to participate in the proceedings of the Syndicate for decision of the appeal of any employee of the University who had been punished, in any manner, by him. Federal Shariat Court directed the Authorities to suitably amend sections 23 and 41 of the University of Engineering and Technology, Lahore Act, 1974; Ss. 25 & 43 of Baha‑ud‑Din Zakariya University Act, 1975; Ss.24 & 42 of University of the Agriculture Faisala6ad Act, 1973; Ss.21 & 39 of Gomal University Act, 1974; Ss.14 & 35 of N.‑W.F.P. University of Engineering and Technology Ordinance, 1980; Ss. 14 & 35 of N.‑W.F.P. Agricultural University Ordinance, 1981; Ss.25 & 43 of University of Punjab Act, 1973; Ss.24 & 42 of Islamia University, Bahawalpur Act, 1975 and Ss.21 & 39 of University of Peshawar Act, 1975 so as to incorporate provisions therein that the Vice‑Chancellor would be debarred from participating, in the meeting of the Syndicate before which the appeal of an employee of the University, challenging his adverse order, passed qua him, is presented for adjudication. The necessary amendments shall be carried out within six months i.e. before the 15th June, 2005, failing which the impugned provisions would cease to have legal effect. Zafar Awan v. The Islamic Republic of Pakistan: PLD 1989 FSC 84; Al‑Bukhari Katabul‑Ahkaam; 144 ﻥﺩﻣﺗﻰﻣﻼﺴﺍﻯﻭﺑﻧ ﺩﻬﻋ Maulana Razi-ud‑Din Ahmad Fakhri, p. 144; Mawardi. Vol. VI, p.388 by Adab‑ul‑Qazi; PLD 1985 FSC 365; Pakistan through Secretary, Ministry of Defence v. the General Public PLD 1989 SC 6; Zaidan; Nizamul Qaza; p.272; Al‑Farooq Vol.4, pp.43‑44; A1‑Samhudi: Wafa -al‑Wafa Part 2, pp.482‑483; Muhammad Bin Hayyan: Akhtar al‑Qudat Vol. I, p.108; Hazrat Ali Ibne Abi Tabb by Arman Serhadi, p.267; Anwar v. The Crown PLD 1955 FC 185; Mubarik Ali Bhatti v. Fiaz. Ali Khan and others PLD 1963 Lah. 8 and Rehmatullah v. Government of West Pakistan PLD 1965 Lah. 112 ref. Sardar Abdul Majeed for Federal Government (in Shariat Petition No.51/I of 1992). Shafqat Munir Malik, Asstt. A:-G., Punjab for Punjab Government (in Shariat Petition No.51/I of 1992). Arshad Lodhi, Asstt. A.‑G; Sindh for Sindh Government (in Shariat Petition No.51/I of 1992). Shoaib Abbasi for Balochistan Government (in Shariat Petition No.51/I of 1992). Muhammad Sharif Janjua for N.‑W.F.P. Government (in Shariat Petition No.51/I of 1992). Zahoor Nawaz, District Officer Colleges, Rawalpindi on behalf of Colleges (in Shariat Petition No.51/I of 1992). Sajjad Hussain for Engineering University, Lahore (in Shariat Petition No.51/I of 1992). Shamshad Ali (HEC) Deputy Director on behalf of Higher Education Commission (in Shariat Petition No. 51/I of 1992). Muhammad Lateef, O.S.D. Litigation, University of Agriculture, Faisalabad on behalf of University of Agriculture, Faisalabd (in Shariat Petition No.51/I of 1992). Nazir Ahmad Chishti, Assistant Registrar, Legal (in Shariat Petition No.33/I of 1992). Bilqias Khan, Asstt. Law Officer (in Shariat Petition No.40/I of 1992). Abdul Qadir Khatak, Advocate and Mushtaq Ahmad, Law Officer (in Shariat Petition No.41/I of 1992). Dr. Nawab Ali, Registrar, University of Agriculture, Peshawar on behalf of University of Agriculture, Peshawar. Rehmat Ali Qureshi, Asstt. Registrar, University of Punjab, Lahore oil behalf of Punjab University, Lahore. M. Aftab Anwar, Asstt. Legal Adviser, Islamia University, Bahawalpur on behalf of Islamia University, Bahawalpur. Zubair, Assistant Registrar (in Shariat Petition No.51/I of 1992).