1992 MLD 1147 (PLP)

Peer Buy, his two sons namely Muhammad Arshad and Ijaz Ahmad, and his daughter Mst. Shahnaz Akhtar, filed this Constitution petition seeking a declaration that the decree. dated 22nd February, 1945, passed in Regular First Appeal No.236/42 in favour of respondents 5 and 6 is executable in law and is still intact regarding all the rights flowing from the said decree accruing to petitioners 1 to 3 and respondents 5 and 6.

2. The facts on the basis of which the aforesaid declaration is sought as given in the petition are that Muhammad Aslam am' Muhammad Akhtar, respondents 5 and 6, had filed a suit on 22nd June, 1930 challenging the alienation of the ancestral property made by Peer Bux, petitioner No.4, their father vide registered sale‑deed, dated 17th May, 1935. This land Peer Bux had received through gift vide mutation No.28, dated 17th May, 1917. The suit filed under custom was dismissed by the learned Civil Judge which led to the filing of Regular First Appeal No 23(‑1/42 by the said respondents. The appeal succeeded vide judgment, dated 22nd February, 1945, of the High Court of Judicature at Lahore and a decree of declaration to the effect that the sale as such will not affect their reversionary rights after the death of Peer Bux except to the extent of Rs.8,725 which is due on the footing of previous mortgages from Peer Bux. was granted. Muhammad Arshad, Ijaz Ahmad and Mst. Shahnaz Akhtar, petitioners 1 to 3, were born after the passing of the aforementioned declaratory decree passed by the High Court at the instance of respondents S and

6. Peer Bux, petitioner No.4, is still alive. It is claimed that petitioners 1 to 3 and respondents 5 and 6 are Ahmadis anti though the aforementioned declaratory decree as per its terms is effective after .the life time of Peer Bux but since Peer Bux is an old than of 78. years and has lived out of the normal expectancy of life so respondents 5 and 6 %ant to settle their rights in the land qua the declaratory decree under Ordinance X111 of 1983 during the life time of their father.

3. The petitioners further assert that Peer Bux as well as his father Jalal Din are not covered by the definition of the word `Muslim' as given in sub- clause (3)(a) of Article 260 as they being Ahmadis fall within clause (3)(b) o1 Article 200 of the Constitution. It is added that this sub‑clause (3) was added to Article 200 of the Constitution by virtue of Constitution (Second Amendment) and thus those persons and citizens who call themselves to be Ahmadis were to be treated as non‑Muslims. This sub‑clause was further substituted by the Constitution (Third Amendment) Order 1983. It is asserted that the petitioners or their father have not signed any declaration like Appendix II given in the National Registration Rules, 1975, and as such they continue to be Ahmadis. The petitioners have challenged the vires of Ordinance XIII of 1983 with the assertion that the law was not passed by the legislature by applying its own legislative mind or power conferred on it under the Constitution. This plea is premised on the basis that the said Ordinance was passed on the specific direction given by the Shariat Appellate Bench of the Supreme Court which Court itself was not properly constituted. Ordinance XIII of 1983 is known as the West Pakistan Muslim Personal Law (Shariat) Act (Amendment) Ordinance, 1983. This Ordinance inter alia provides in section 2‑A as follows:‑‑‑ "2‑A. Succession prior to Act IX of 1948‑‑Notwithstanding anything to the contrary contained in section 2 or any other law for the time being in force, or any custom or usage or decree, judgment or order of any Court, where before the. commencement of the Punjab Muslim Personal Law (Shariat) Application Act, 1.948, a male heir had acquired any agricultural land under custom from the person who at the time of such acquisition was a Muslim:‑‑‑ ****************************** (b) any decree, judgment or order of any Court affirming the right of any reversioner under custom or usage, to call in question such an alienation or directing delivery or possession of agricultural land on such basis shall be void, inexecutable and of no legal effect to the extent it is contrary to the Muslim Personal Law (Shariat) Act; ******************************

4. Having gone through the petition and having heard the lengthy arguments addressed by the learned counsel I find that this petition is misconceived. Firstly nothing has been placed on record to support the pica that petitioners 1 to 3 and respondents 5 and 6 hats approached the revenue authorities for making an entry of the aforementioned decree in the revenue record but the request was refused on the pica that they and their father having Muslim names Ordinance X111 of 1993 is effective and operative and that the decree is not executable. Again the plea that the executing Court at Sheikhupura similarly is not inclined to entertain the execution application for execution of the decree in case father of petitioners 1 to 3 and respondents 5, and 6 breathes his last, is imaginary as admittedly no such execution application lies in the life time of Peer Bux. Had the petitioners filed any written application before the revenue authorities a copy of the same tend the order passed thereon could be filed. The plea that because of their names the petitioners are being treated as Muslims, is also incorrect, as irrespective of the Muslim names, all the Ahmadis are to be treated as non‑Muslims in view of the mandate contained in sub‑Article (3)(b) of Article 260 of the Constitution of the Islamic Republic of Pakistan. The petitioners, admittedly in the life time of Peer Bux have no cause of action. The plea that respondents 5 and G want to settle their rights in the land qua the declaratory decree during the life time of their father cannot also be accepted as this petition has not been filed by them, rather they have been arrayed as respondents. In any case this assertion fails to furnish the petitioners with a cause of action to claim any right on the basis of j the decree in question during the life time of Peer Bux. If the petitioners are off the view that they being Ahmadis are non‑Muslims as defined inl Article 260(3)(b) of the Constitution and the West Pakistan Muslim Personal` Law (Shariat) Act (Amendment) Ordinance, 1983, does not apply to them, and that they want to execute the decree, dated 22‑2‑19.15, they can raise these pleas before the appropriate forum by instituting proper proceedings after the death of Peer Bux and in that eventuality no occasion would arise to challenge the vires of aforesaid Ordinance XIII of 1983.

5. In this view of the matter it will be appropriate not to comment upon the pleas raised with regard to the challenge made to Ordinance XIII of 1983 lest it may prejudice the case of either party before the Court dealing with the execution application as and when filed. The other questions raised regarding constitution of the Shariat Appellate Bench of the Supreme Court and the vires of Ordinance XX of 1984 need not be dealt with here as they have no bearing on the relief claimed in this petition. Moreover, in the presence of the judgment of the Federal Shariat Court in the case of Mujeebur Rehman v. Federal Government PLD 1985 FSC 8 the plea that Ordinance XX of 1984 is ultra vires is without merit.

6. For the reasons given above this petition fails and is dismissed being; misconceived. A.A./M‑60/ Petition dismissed