2002 PLP 426 (SCMR)

TANVIR AHMED KHAN, J.‑‑‑Leave to appeal is sought against the order dated 23‑12‑1998 passed by a learned Single Judge of the Lahore High Court, Bahawalpur Bench, Bahawalpur, whereby petitioners' Civil Revision No.496‑D of 1998 was dismissed.

2. The facts briefly stated for the disposal of this petition are that Nizam Din, predecessor‑in‑interest of both the parties, died in the year 1977. After his death mutation of Inheritance No.202 was sanctioned on 12‑1‑1978 in favour of all the heirs of the deceased except the respondents, the children of Mst. Usmat, a predeceased daughter of said Nizam Din. The respondents filed declaratory suit on 27‑11‑1993 claiming share in the property in dispute of their predecessor‑in‑intrerest. The petitioners resisted the suit and in view of divergent pleadings of the parties, issues were framed, The learned Senior Civil Judge, Bahawalpur, after recording evidence of the parties, decreed the suit vide his judgment dated 30‑11‑1996. Being aggrieved by the said judgment, the petitioners went in appeal which was dismissed by the learned Additional District Judge, Bahawalpur, through his judgment dated 28‑11‑1998. Thereafter, they preferred Civil Revision No. 496‑D of 1998 in the Lahore High Court, Bahawalpur Bench, which too met the same fate. Hence this petition for leave to appeal.

3. The only ground urged by the learned counsel for the petitioners is that section 4 of the Family Laws Ordinance, 1961, hereinafter referred to as the Ordinance, has been declared repugnant to the Injunctions of Islam by the Federal Shariat Court in the case reported as Allah Rakha and others v. Federation of Pakistan and others (PLD 2000 FSC 1), as such, all the judgments rendered in this case should have been declared to have been passed without any lawful authority and of no legal effect.

4. We have considered the above contention of the learned counsel and have gone through all the documents appended with the petition. It is reflected from the perusal of the record that the petitioners played a fraud while getting Mutation No. 202 sanctioned in their favour on 12‑1‑1978 as they intentionally and deliberately excluded the respondents, the children of their predeceased sister. Section 4 of the Ordinance was very much in the field at the time of attestation of mutation. They deliberately and knowingly got the names of the respondents omitted from the aforesaid mutation. This act on the part of the petitioners is highly deprecated and cannot be condoned on any ground. This aspect alone disentitle them from any relief.

5. The other ground that section 4 of the Ordinance has been declared violative of the Injunctions of Holy Qur'an as such, the respondents cannot get any share out of the property of their predecessor‑in‑interest, Nizam Din, is devoid of any force in the present case. While going through the judgment of the Federal Shariat Court in the above‑referred case, it is specifically mentioned in para.63 thereof that the said provision of the Ordinance which has been held repugnant to the Injunctions of Islam shall cease to have effect from 31‑3‑2000. In the case, in hand, the disputed mutation was sanctioned on 12‑1‑1978 after the death of predecessor-in‑interest of the parties, Nizam Din, as such, this would not be applicable to the instant case. Even otherwise, the learned Judges of the Federal Shariat Court while declaring section 4 of the Ordinance as repugnant to the Holy Qur'an have taken care of the rights of orphan grandchildren. It would be appropriate to reproduce paras.55 and 57 of the said judgment, which read as under:‑‑ "

55. The next question to be examined is as to what would be the solution for the socio‑economic problem with which the orphan grandchildren may be confronted with on the demise of a grandparent, who may have left estate from which uncles and aunts would inherit but they would not and thus, 'may have a sense of deprivation or for that matter confronted with economic problems. 56 ..:

57. The Islamic Ideological Council in one of its reports on the subject of inheritance has recommended that the uncles and aunts of orphan grandchildren are duty bound to take care of their orphan nephews and nieces and provide for them. It has also been recommended that in the case of non‑performance of this duty by aunts and uncles a legal obligation be cast upon them to abide by their duty. Probably the above recommendation is derived from Ayat 8 of Sura‑e‑Nisa which lays down that at the time of distribution of assets those next of kins and orphans and others, who are present, be also dealt with kindly. This is a direction for general application to all next of kins who are present at the time of distribution to be taken care of and not specifically for orphan grandchildren. "

6. There is another aspect of the case that the decision of the Federal Shariat Court in the above‑referred case declaring section 4 of the Ordinance as repugnant to the Injunctions of Islam would take effect, if any, after the appeal pending before this Court is disposed of. In this regard, it would be appropriate to reproduce sub‑Article (2) of Article 203D of the Constitution of the Islamic Republic of Pakistan, 1973, which is in the following terms:‑‑ "(2) If the Court decides that any law or provision of law is repugnant to the Injunctions of Islam, it shall set out in its decision‑‑ (a) the reason for its holding that opinion; and (b) the extent to which such .law or provision is so repugnant; and specify the day on which the decision shall take effect: Provided that no such decision shall be deemed to take effect before the expiration of the period within which an appeal therefrom may be preferred to the Supreme Court or, where an appeal has been so preferred before the disposal of such appeal." (Underlining is for emphasis).

7. Since in this case the appeal before this Court is pending adjudication, as such, in view of the aforesaid provision of the Constitution, the decision of the Federal Sharait Court till the disposal of the appeal would not be attracted.

8. Resultantly, for what has been stated above, the instant petition being devoid of substance is dismissed and leave declined. Q.M.H./M.A.K./M‑299/S Petition dismissed.