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Shariat Petition No. 3 of 1980, decided on 19^thMarch, 1980.

-- "Wajibul Arz", what is.

A Wajibul Arz' is a record of those customs and practices, which are prevalent at the time of its preparation in the community and have attained sanctity by lapse of time and have acquired authenticity by the consensus of the community by long practice.

-----Art. 203-B-Declaration as to sharing of malikana being against injunctions of Islam-While giving ample protection to right of private property, Islam looks upon sharing of blessings of God in form of wealth and worldly goods by the haves and have-nots-Rule of private ownership in Islam Not so absolute as not to warrant sharing of benefits of private property by community in certain cases-Absolute right of possession and enjoyment to exclusion of other members of society-Can be claimed when milk or ownership completely vests in individual concerned-Predecessor-in-interest of petitioners, original owners, proved by Wajibul Arz to have been sharing usufruct of trees in suit with whole proprietary body of village-Such trees hence not their milk absolutely-Sharing of usufruct of trees-Made by agreement of persons concerned-Trees in suit treated as shamilat and common property of proprietary body of village irrespective of fact as to on whose particular land such trees grew and such practice adhered to for ages and acquired sanctity of custom and consensus of community without any element of BATL and GHASB practice, held, not violative of injunctions of Islam-Contention that half of proceeds of sale of such trees could not be shared by all proprietary body of village without regard to ownership in specific land overruled.

Qur'an. Verse 188 of Chapter II (Surah Al-Baqarah); Verse 29 of Chapter IV (Surah An-Nisa); (The Religion of Islam by Maulana Muhammad All, 1950 Edn., p. 690; Hadith No. 1503 (Sahih Muslim Sharif, Vol. II, p. 608; Hadith No. 1503 (Sahih Muslim Sharif, Volume II, p. 608); Verse 19, Surah LI Chapter; Verses 24, 25, Chapter 70; Sahih Muslim, published by Qur'an Mahal, Karachi, p. 663, Vol. 11; Sahih Bukhari Sharif, Arabi-Urdu, Vol. 1, Chapter No. 1370, p. 764; Hadith No. 1804, Sahih Muslim, Vol. III, published by Quran Mahal, Karachi ref.

Qazi Muhammad Jamil for Petitioner.

Date of hearing : 19th March. 1980.

.-Syed Qasim Shah, son of Muhammad Shah, resident of Mansehra Town, District Mansehra and Ismail son of Abdul Hamid, resident of village Jabbar, Tehsil and District Mansehra, have prefer red this petition under Article 203-B of the Constitution of the Islamic Republic of Pakistan, 1973, seeking a declaration from the Shariat Bench to the effect that the sharing of 'Malikana' in Biar, Diar, Pludar and Sum types of trees grown over the land of the petitioners by the entire proprietary body of the village is repugnant to the injunctions of Islam. The petitioners have claimed that they are tenant-in-common of land m Khasra No. 2401, situate in village Jabber, District Mansehra, inheriting the land from their forefathers as occupancy tenancy. That the petitioners became co-owners alongwith other occupancy tenants through statutory purchase by payment of compen sation under the N.-W. F. P. Tenancy Act, 1950 and by virtue of this purchase they enjoy the status of full owners of the land. That out of the different kinds of trees grown on the land comprising of Khasra No. 2401, four, namely Biar, Diar, Pludar, and Sum are being sold by the Government, who retain half of the sale proceeds as 'Malikana' and the other half is distributed among the proprietors of the entire village regardless of their ownership in the particular Khasra number on which the trees are grown . The petitioners have challenged the sharing of the proceeds of the sale of the, trees in question by the others of the village on the ground that this practice offends the sanctity attached by Islam to the right of an individual of holding of private property as the persons who are not owners in the property are allowed to enjoy its usufruct. This practice, according to the petitioners, is against the injunctions of Islam, as laid down by the Holy Quran and Sunnah.

This usufruct is being enjoyed by the proprietors of the whole village since time immemorial, as is reflected by the abstract of the 'Wajibul Arz' placed on the record and assailed in this petition by the petitioners. The petitioners have relied on Verse 188 from Surah 2 and Verse 29 of Surah 4 of the Hole Qur'an in support of their contention that the sharing of the produce of the trees, which are grown in their land, by these, who were not owners in this land, is 'BATIL'.

2. We have heard Qazi Muhammad Jamil, Advocate counsel for the petitioners at great length.

The learned counsel for the petitioners did not elaborate his arguments apart from the contentions in vague and general terms that the right of enjoy ment of private property by an individual is fully protected by the tenets of Islam. When - repeatedly asked by us to point out any Verse from the Holy Book or a Hadith of the Holy Prophet (Peace be upon him) which forbids such an arrangement as is envisaged in the 'Wajibul Arz' in question or as to how the practice was in violation of the injunctions contained in the two Qur'anic Verses, mentioned in the petition, the learned counsel, to say the least was not very helpful.

3. The Part III of the 'Wajibul Arz' of the village, which has been -assailed by the petitioners, is reproduced here below:-

Translated in English this would read as under :--

"Rakh Ona which was in our village and was previously our property, then it became the property of the Government. Out of which those trees, which are of the kinds of Biar, Pludar, Sum, Diar, Akhor etc., when sold, half of the sale proceeds is paid to us by the Government through Tehsil or District Head quartes or sometimes it is sent to us by the Forest Department directly. This sum is brought from the District Office by Lumbardar and we distribute the same to the rest of the owners in the village according to their shares.

(2) Biar, Diar, Pludar and Sum trees if grown in anybody's land are the Shamilat, if sold, all owners in the village share its 'Malikana'. It means that these are considered as Shamilat property. The rest of the kinds of the trees whenever sold, the proceeds go to the owners of the land in which these are grown and in these kinds of trees 'Malikana' is not shared by anybody else."

It may be noted here that the Khasra number, under reference, comprises of thick forest, The petitioners in their petition have not specifically assailed the sharing of the half of the proceeds of the sale of the trees in question by the Government. Their objection is to the sharing of the half of the proceeds by all the proprietary body of the village without regard to the ownership in the specific land. According to the petitioners these trees, which are grown on their land, are their absolute property and the sharing of the proceeds by the others is tantamount to the deprivation of the owners of their lawful property, which is not allowed by injunctions of Islam. This practice, as recorded in the 'Wajibul Arz', is termed by the learned counsel for the petitioners, as a 'custom' and therefore, amenable to the jurisdiction of this Bench under Article 203-B of the Constitution, whereby the Shariat Bench has been empowered to examine, on the petition of a citizen of Pakistan and others, and decide the question whether or not a law is repugnant to the injunctions of Islam as laid down in the Holy Qur'an and the Sunnah of the Holy Prophet (Peace be upon him). By the explanation added to Sub-Article (2) of Article 203-B of the Constitution any custom or usage having the force of law has been included in the express "law" which the Bench is required by the main Article to examine and decide.

We do not consider it necessary for the adjudication of this peti tion to enter into discussion on the question whether the impugned practice as reflected by the Wajibul Arz' could be termed as Custom' or usage' having the force of law, as this petition can be disposed of on other grounds.

4. A Wajibul Arz' is a record of those customs and practices which are prevalent at the time of its preparation in the community and have attained sanctity by lapse of time and have acquired authenticity by the consensus of the community by long practice, Keeping in view this aspect of the matter, the impugned sharing of the produce of the certain kinds of trees is a practice in vogue in the community since several decades, whereby the owners in the village have agreed among themselves to treat these trees as Shamilat' and share the sale proceeds thereof, as arising out of the common property of the proprietary body of the village irrespective of the fact o whose particular land these trees grow. This practice was adhered to by the predecessor-in-interest of the petitioners under whom the petitioners were occupancy tenants and whose rights have now been acquired by them by the operation of law (N.-W. F. P. Tenancy Act, 1950). Thus although the land underneath the trees has come in the absolute ownership of the petitioners, the trees of the kinds in question have not become so.

5. Suffice it to say that the petitioners are labouring under misconception of law of Islam when they base their case on the interpretation of the above-mentioned two Verses of the Holy Qur an, Verse 188 of Chapter II (Surah Al-Baqarah) reads :--

These Verses, translated into English by the Great Muslim Scholar Mr. Muhammad Marmaduke Pickthal, read as under:---

Verse No. 188 (Chapter II):

"And eat not up your property among yourselves in vanity, nor seek by it to gain the hearing of the judges that ye may knowingly devour a portion of the property of others wrongfully:"

Verse No. 29 (Chapter IV):-

"O ye who believe Squander not your wealth among yourselves in vanity, except it be a trade by mutual consent, and kill not yourselves. Lo : Allah is ever Merciful unto you."

In order to bring the trees in question within the definition of "AMWALKAM

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.

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