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Before Muhammad Afzal Lone, J
MUHAMMAD ASHRAF AND 2 OTHERS-Appellants
versus
Mst. NIAMAT BIBI AND 2 others-Respondents
Regular Second Appeals Nos. 977 and 986 of 1979, decided on 7th February, 1981.
(a) Civil Procedure Code (V of 1908)--
S.9-Jurisdiction of civil Court-Matter relating to right to property brought to civil Court for determination through suit-Such determination necessitating decision upon religious belief, creed or status of a litigating party-.-Held, well within jurisdiction of Court.-{Jurisdiction].
(b) Constitution of Pakistan (1973)--
Art. 260(3)-Term "law" in Art. 260(3)--Held, not used in narrow sense to apply only to laws framed for purposes of Constitution Claim that Qadianis declared non-Muslims for limited purpose of Constitution and law and that otherwise they are Muslims-Held, cannot be accepted.-[Words and pbrases-MuhammEkdan law].
Moula Bux v. Charuk and others P L D 1952 Sind 54; Mrs. Aiyasha Koresh1 and another v. Hishmatullah, Koresh and another P L D 1972 Kar. 653 and Agha Abdul Karim Shorish Kashmir and others v. Province of West Pakistan P L D 1969 Lab. 289 fol.
Abdur Rehman Mobashir and 3 others v. Syed Amir Ali Shah Bokharl and 4 others P L D 1978 Lab. 113 fol.
Thiraj v. Emperor A I R 1929 Lab. 641; Madho Singh v. James R. R. Skinner A I R 1942 Lab. 243; Queen v. Kartich- Chunder Das I L R 14 Cal. 721 and Commissioner of Income-tax v. Mst. Khatija Begum P L D 1965 S C 472 ref.
(c) Interpretation of statutes-.
Rule of ejusdem generic-Meaning.
Ali Muhammad v. Mirza Muhammad Hussqin Beg P L D 1968 Lab. 712 and Sutherland's Statutory Construction ref.
(d) Constitution of Pakistan (1973)-
-- Art. 260(3)---Word "law" in Art. 260(3)-Held, includes only codified law and not Shariat law-[Muhammadan Law-Words and phrases].
Niaz Ahmad Khan v. Province of Sind and others P L D 1977 Kar. 604; Federation of Pakistan v. United Sugar Mills Limited P L D 1977 S C 397 and F. B.. Ali v. The State P L D 1975 S C 506 ref.
(e) Constitution of Pakistan (1973)-
Art. 260(3) read with West Pakistan Muslim Personal Law (Shariat) Application Act (V of 1962), Ss. 2 & 3-Shariat law in respect of inheritance and certain other matters applied through an Act of Legislature-Term "law" used in Art. 260(3) of Constitution-Held, includes Shariat law to relevant extent and authority to apply such law by Courts is derived from legislative enactment.-[Muhammadan Law-Words and phrases].
(f) West Pakistan Muslim Personal Law (Shariat) Application Act (V of 1962)-.
S. 2---Word "Shariat"-Means Islamic Code-Acts, practice and Ahadith of Prophet Muhammad (peace he upon him), apart from Holy Qur'an - Primary source of law in Islam and have binding force.-[Muhammadan Law-Words and phrases].
Holy Qur'an, 11-12 ; 8:20 and 4:80 ref.
(g) Constitution of Pakistan (1973)-
Preamble & Art. 260(3) read with West Pakistan Muslim Personal Law (Shariat) Application Act (V of 1962), S. 2 Inheritance Succession to estate of Muslim by his non-Muslim descendant--Held, prohibited under Shariat.-[Muhammadan Law].
Al-Sirajiyyah (reprinted from the translation of Sir William Johns) by Almanic Rumsey, p. 14; Muhammadan Jurisprudence by Sir Abdur Rahim p. 344 ; "-IJt-)I &.0" (Urdu) tr. by Syed Amir Ali, Vol. IV, p. 872 ; Muhammadan Law by Syed Amir Ali, Vol. II, p. 82; Farooq Leivers v. Adelaide Bridget Mary P L D 1958 Lab. 431 and Chidambaram v. Ma Nyefn Me and others A I R 1928 Rang. 179 ref.
(h) Civil Procedure Code (V of 1908)_
S. 100-Second appeal--Objection that a person was L.;t a Muslim not raised at any stage before Courts below-Held, cannot be entertained in second appeal.
Pathana v. Mst. Wasi and another P L D 1965 S C 134 ref.
(i) Constitution of Pakistan (1973)
Art. 260(3) [as amended by Constitution (Second Amendment) Act, 1974]--Definition of "non-Muslim"-Provision of Second Amendment Act simply affirmed and declared position as it existed under Shariat-Held, such Act being declaratory, operates retrospectively and can take away even vested rights.-[Words and phrasesj.[Muhammadan Law].
Jones and another v. Bennett (1890) 63 L T 705; Maxwell on Interpretation of Statutes, 10th Edn., p. 214; Crates on Statute Law, 7th Edn., p. 586; Mst. Fazal legum v. Hakim Ali A I R 1941 Lah. 22: Sheaminatha v. Raman Natha A I R 1943 Lah. 573 and Mst. Rashid Bibi v. Tufail Muhammad A I R 1941 Lah. 291 ref.
(J) Interpretation of statates-
Construction of amendment in Constitutional provision--Duty of Court to find out real aim, scope and object of amendment.--[Duty of Court].
Maxwell on Interpretation of Statutes, 10th Edn., p. 18 ref
(k) Custom (Punjab)
Power to alienate ancestral property by a gift inter vivos--Meld, riot much different from power to transfer such property by will.--[Gift].
(l) Custom (Punjab)-
-Gujrat District--Khana damadl gift-Purpose of such gift To benefit a daughter and her male issues and on exhaustion of her male line, property reverts to donor and his male heirs.-[Gift].
Customary Law of the Gujrat District by H. S. Williamson, 1922 Rev. Edn., Q. No. 130; Faq1ra and others v. Mst. Ghulam Maryam A I R 1928 Lab. 117 and Ust. Bhagh Bhari v. Fateh Khan P L D 1960 Lah.1216 ref.
(m) Civil Procedure Code (V of 1908).-.
S. 11-Res judicata-Principle of--Essential prerequisites for application.--[Res judicata].
(n) Specific Relief Act (I of 1877)--
---- S. 42-Declaratory relief-Held, discretionary-Court should not grant such declaration which is likely to lie rendered futile and useless.
Sardar Ahmad v. Pakistan P L D 1961 Kar. 232; Mst. Sughran and another v. Rehmat Ali P L D 1965 Lah. 850; Bishwanath Saran v. Mujtaba Husain A I R 1941 Oudh 442 and Muhammad Ismail v. Patna City Municipality A I R 1943 Pat. 34 ref.
Ch. Aziz Ahmad for Appellants (on 30-60-1980, 2-7-1980 and 7-7-1980), Nemo (on 4-2-1981).
Aftab 1qbal Chaudhry (on 30-6-1980, 2-7-1980, 7-7-1980), Raja Said Akhar (on 7-7-1980 only) and Mumtaz Ali Mirza for Respondents (on 4-2-1981 only).
Dates- of hearing : 30th June; 2nd July; 7th and 4th February, 1981.
JUDJMENT
This judgment shall dispose of two cross appeals, No. R. S. A. 977 of 1979 and R. S. A. 986 of 1979. It shall, however, remain on the file of R. S. A. No. 977 of 1979. Both the appeals arise out of a declaratory suit filed by Muhammad Ashraf and Fateh Ali, appellants, challenging the validity of the gift of the suit land, made in favour of the respondentdefendant, by her sister, namely Mst. Amina Bibi, evidenced by mutation No. 1832 sanctioned on 11-12-1974. This mutation has been called in question under custom. As consequential relief they also prayed for a decree for joint possession.
2. The parties to the suit have a common ancestor named Mouloo, whose estate devolved on his three sons namely Rehmat Khan, Lal Khan and Jalal. All of them have expired. Both the donor and the donee are the daughters of Jalal. Rehmat Khan has two sons, namely Muhammad Ashraf i.e. appellant No. 1 and Akbar Ali. The latter was the husband of Mst. Amina Bibi and died issueless. Appellant No. 2 is the son of Lal Khan.
3. Jalal during his lifetime by means of mutation No. 865 dated 25-6-1943, gifted to his daughter Mst. Amina Bibi, the entire land falling to his share. Apart from this she as issueless, widow also inherited land from Akbar Ali deceased. Thus 3/8th of her ancestral estate, so acquired by Mst. Amina Bibi was alienated by her to the respondent, by way of gift. The appellants assailed the transaction and contended that Akbar Ali deceased was a "Khanadamad" and the land was held by Mst. Amina Bibi from her father as "khanadamadi" gift. The land being their ancestral property, could not be passed on by her to respondent as she was merely a limited owner.
4. Mst. Amina Bibi was also sued as a defendant in the suit but has not been impleaded as a party in the first appeal as well as in the R. S. A. She as well as the respondent contested the suit. It was pleaded that Mst. Amina Bibi was the full owner of the land; that. the limitation would commence from the date of sanction of the mutation dated 25-6-1943; the suit was thus barred by time. Another formidable objection raised by them was that the appellants' professed Ahmedi religion and being nonMuslim could not inherit the land in dispute and, therefore, they had no locus standi to file the suit.
5. The learned trial Court held that the limitation would start from the date of alienation of the land in favour of the respondent and, therefore, the suit was within. time. Relying on Mst. Bhag Bhari v. Fateh Khan and others (P L D 1960 Lah. 1216), it further maintained that under the customary law, "Khanadamadi" gift in favour of a daughter, upon extension of her line, reverted to the heirs of the donor; Mst. Amina Bibi was a limited owner, the gift made by her in favour of the respondent was contrary to the customary law. These two crucial points were thus decided against the respondent. The learned Civil Judge, however, came to the conclusion that the appellants are Ahmedis, and being non-Muslims could not inherit the estate of a Muslim. The result of these findings was that he declared the disputed -gift as void but declined to grant the declaration that the transaction was ineffective on the appellants' reversionary rights and accordingly dismissed the suit to that extent.
6. Both the parties appealed against the judgment and decree of the learned trial Court. The learned Additional District Judge who was seized of the matter, upheld the findings of the trial Court and dismissed both the appeals by a single judgment dated 12-6-1979. Both the parties have now come to this Court in second appeal. R. S. A. No. 977 of 1979 has been filed by the plaintiffs and whereas R. S. A. No. 986 of 1979 has been preferred by the defendant.
7. It is to be noticed that the Courts below paractically had accepted the appellants' contention, but refused to grant the declaration prayed for by them, on the sole ground that they being Ahmadi', in law, were disentitled to inherit the property in dispute. Much of the arguments of Mr. Aziz Ahmad, who represented the appellants, were thus directed towards their status. He argued that it is not within the province of the civil Court to determine as to what was the claim of Mirza Ghulam Ahmad and that as to whether he claimed to be a Prophet or not. That his claim is only that what is believed by his followers. The learned counsel then highlighted the difference in the approach of the two sections of the "Qadyani" community namely Lahori Group' and "Rabwah Group" and urged that amongst the followers of Mirza Ghulam Ahmad the former do not believe him to be a Prophet. In his submission what is relevant is the appellants' faith and ' opinion about Mirza Ghulam Ahmad and not the latter's claim, but according to him the appellants' belief about Mirza Ghulam Ahmad, as to whether or not they considered him as a Prophet, could not be gone into by the Courts. Much emphasis was laid down by the learned counsel on the submission that it was not the business of the Court to give a decision in respect of ecclesiastical matters and determine the religious views of the appellants, particularly, when no question was put to them in this behalf and they were never asked as to what was their belief about Mirza Ghulam Ahmad and whether they really regarded him as a Prophet.
8. It is well known that Mirza Ghulam Ahmad laid a claim to Prophethood. He rested his this .claim on verse Nos. 157 and 158 of Sura No. IV of the Holy Qur'an and contrary to the connotation thereof, generally accepted by all sects of Muslims, he asserted that Jesus did not die on the Cross but met a natural death. He also depricated general belief of the Muslim Community that Jesus was taken to heaven and would be brought to this earth alive. As per his claim "Eisa-ibne-Maryam" referred to in the Hadis of Prophet Muhammad (peace be upon him) did not mean Jesus but some one else like him, and that he himself was that person.
9. There had never been any differences of opinion, between Muslim Ummah to whichever stet they belong, on the authenticity of the saying of the Prophet Muhammad (peace be upon him) y)". The belief in the absolute and unqualified finality of the Prophethood of Muhammad (peace be upon him) is the article of faith for every Muslim. Eversince Mirza Ghulam Ahmad's claim to Prophethood, the Muslims of the Sub-Continent, have been waging a campaign that he and his followers are apostate from Islam. The struggle to get declared the adherents of the Ahmadi tenets, as non-Muslims, continued even after the creation of Pakistan. About the middle of the year 1974, the campaign gained ' such a momentum that twenty-two members the then National Assembly moved the following Motion in the House for determination of the status of Qadianis in Islam :
"Whereas it is a fully established fact that Mirza Ghulam Ahmad of Qadian claimed to be a prophet after the late Prophet Muhammad (peace be upon him);
And whereas his false declaration to be a prophet, his attempts to falsify numerous Qur'anic texts and to abolish Jihad were treacherous to the main issues of Islam;
And whereas he was a creation of imperialism for the sole purpose of destroying Muslim solidarity and falsifying Islam;
And whereas there is a consensus of the entire Muslim Ummah that Mirza Ghulam Ahmad's followers, whether they believe in the prophethood of the said Mirza Gbulam Ahmad or consider him as their reformer or religious leader in any form whatever, are outside the pale of Islam;
And whereas his followers, by whatever name they are called, are indulging in subversive activities internally and externally by mixing with Muslims and pretending to be a sect of Islam;
And whereas in a Conference of the World Muslim Organisation held in the holy city of Mecca-Al-Mukurram between the 6th and 10th April, 1974, under the auspices of Al-Rabita Al-Alam-e-Al-Islami, wherein delegations from one hundred and forty AZuslim organizations and institutions from all parts of the world participated, it hag been unanimously held that Qadianism is a subversive movement against Islam and Muslim world, which falsely and deceitfully claims to be an Islamic sect;
Now this Assembly do proceed to declare that the followers of Mirza Ghulam Ahmad, by whatever name they are called, are not Muslims and that an official Bill be moved in the National Assembly to make adequate and necessary amendments in the Constitution to give effect to such declaration and to provide for the safeguard of their legitimate rights and interests as a non-Muslim minority of the Islamic Republic of Pakistan."
The National Assembly of Pakistan converted itself into a sub-Committee of the whole House to discuss this issue. This resolution was carried unanimously and upon the recommendations of the Sub-Committee, Article 106 and Article 260 of the Constitution of Pakistan wc;re amended. Thus by means of the Constitution (Second Amendment) Act, 1974, in Article 106(3) which ordains provision of reserved seat for Christian, Hindu, Sikh, Buddhist and Parsi Communities, a reference was inserted to persons of "Qadiani Group" or "Lahori Group" (who called themselves "Ahmidi"). Similarly in Article 260 embodying the interpretation clauses, a sub-Article (3) was added which is reproduced below:--
" . . . . . . . . A person who does not believe in the absolute and unqualified finality of the Prophethood of Muhammad (peace be upon him) the Last of the Prophets or claims to be a prophet, in any sense of the word or of any description whatsoever, after Muhammad (peace be upon him), or recognizes such a claimant as a prophet or a religious reformer, is not a Muslim for the purposes of the Constitution or law . . . ."
There is thus now absolutely no room for doubt about the belief and the claim of Mirza Ghulam Ahmad nor is there any. misgiving left about the status of the persons belonging to Ahmadia persuasion ; with which ever the group they may be associated. They have been unequivocally declared non-Muslims.
< [if supportLists]>10. It is in the statement of Faiz Ahmad P. W. 1 that both the appellants are Ahmadi'. Even appellant No. I while appearing as his own witness admitted that he is Ahmadi'. As long as the appellants profess themselves as 'Abmadis', their personal notions about the views of Mirza Ghulam Ahmad are immaterial, for Ahmadi' tenets are too well-known and according to the Constitution both the sections of the Qadiani denomination stand excluded from the pale of Islam.
11. It is correct that under section 9, C. P. C. the civil Courts do no adjudicate upon purely religious views as such matters, by themselves, d not constitute civil rights. However, when the rights to property are involve and brought to the civil Court for determination through a suit, if such determination, necessitates decision upon the religious belief, creed or statue of a litigating party, the Courts would be well within their jurisdiction t make such determination. The instant case involves the question of inheritance to the estate of Jalal, out of which essentially has emerged the question o religious belief of the appellants, for under 'Shariat' a non-:Muslim cannot be the heir of a Muslim. Mr. Aziz Ahmad's objection to the recognition of this doctrine as an element of Islamic law of inheritance, however, shall be discussed in the later part of the judgment.
12. The learned counsel for the appellants then dwelt on Article 260(3) to argue that Ahmadis have been pronounced non-Muslims only for the purposes of constitution and law, which did not deprive them of their status as a Muslim under 'Shariat' and in other matters. He debated the definition of the term 'Muslim' from purely theological point of view to canvass that adherence to Ahmedia tenets did not amount to abandonment of fundamentals of Islam. His approach was that there assertion on the part of the appellants, that they are Muslims, was sufficient to confer the status of a Muslim on them. He heavily relied on the following observations made by Tyabji, C. J. in Moula Bux v. Charuk and others (P L D 1952 Sind 54):
. . For, it is well-settled law, and one of the Fundamental principles of the Muhammadan Law itself, that no Court can test or gauge the sincerity of religious belief, and in order to hold that a person was Sunni Muslim, it was sufficient for a Court to be satisfied that he professed to be a Sunni Muslim. It is not permissible to any Court to enquire further into the state of the mind and the beliefs of a person who professed to belong to a particular faith and inquire whether his actual beliefs conformed to the orthodox tenets of that particular faith . . . . . . ."
It was argued that for becoming a Muslim one has only to declare that he is a Muslim; believe in the Unity of God and that Muhammad (peace be upon him) is the Prophet of Allah. The learned counsel then endeavoured to enlist some support from a judgment of the High Court of Sind in the case of Mrs. Alyasha Kareshi a d another v. Hishmatullah, Koreshi and another (P L D 1972 Kar. 653). He also referred to Agha Abdul Karim Shorish Kashmiri and others v. Province of West Pakistan (P L D 1969 Lah. 289), in aid of his claim that Ahmadis can legitimately show that they are within the fold of Islam.
13. The other limb of Mr. Aziz Ahmad's argument was that in Article 260(3), the term Law has been used ejusdem generis with the expression constitution and its application is limited only to those laws which are enacted for the purposes of the constitution, such as electoral laws; it does not embrace every statutory law within the ambit thereof. In any case. he submitted. the temp taw has been incorporated in this article, in the sense of positive law and does not extend to cover the religious doctrines or even Shariat Law on which exclusion of the appellants from inheritance, by regarding them as a non Muslim, was founded. In this connection, the learned counsel referred to Niaz Ahmad Khan v. Province of Sind and others (P L D 1977 Kar. 604).
14. The argument, whether the Ahmadis can be regarded as a Muslim for the putposes of Shariat was dealt With exhaustively by a Division Bench of this Court in Abdur Rehma Mobashir and 3 others v. Syed Amir Ali Shaft Bokhari and 4 others (P L D 1978 Lah. 113). Paragraph 95 of the judgment in so far as it is relevant for this case, is quoted hereunder:
" . . . . . . Neither the law or Constitution nor Islamic Shariah allows a persoh to remain Kafir for certain purposes and to be converted to Islam for other purpose. A person either in his capacity as Muslim is a part of the Ummah or is . outside its pale in his capacity as a Kafir. He cannot claim to be both a Muslim and a Kafir simultaneously. It is true that Legislature can pass any law and can declare even a man as a woman or conversely a woman as a man but it is not possible in the case of Legislature of this State of which the constitutionally declare religion is Islam (Article 2), and in which there is a constitutional guarantee that all it is existing laws shall be brought in conformity with the Injunctions of Islam as laid down in the Holy Qur'an and Sunnah and no law shall be enacted which is repugnant to such injunctions (Article 227). In the face of this guarantee that no future law shall be repugnant to Islamic injunctions it was not possible to declare the Ahmadis as non-Muslims for certain purposes and to let them remain as Muslims for the other purpows. This error which would render the Legislature as an object of ridicule cannot be attributed to them . . . . . . .
Respectfully agreeing with this reasoning, I am unable to accept the appellants' claim that Qadianis have been declared non-Muslims for the limited purpose of Constitution and Law and that otherwise they are Muslims.
I5. I now pass onto the examination of the precedents cited by the learned counsel for the appellants. Mauls Bux v. Chruk was a bigamy case in which transfer application was filed by the complainant. The defence raised by the accused was that the complainant's marriage with the lady concerned was not a valid marriage as he was "zikree" i.e. infidel. The complainant, however, professed and claimed to be a Sunni-Muslim. It was in this context that the learned Chief Justice made the observations relied. upon by Mr. Aziz Ahmad. In the instant case the appellants admit that they are Ahmadis but assert that the Ahmadis are Muslims. This assertion is, however, negatived by the constitutional provisions. In Mrs. Aiyshah's case the defendant who demand share in the property, left by his deceased son, also claimed that he was a Sunni-Muslim. The material on the file showed that he was excommunicated from 'bhaism'. Under these circumstances a learned Single Judge of the Karachi High Court observed :
" . . . . He was a Muslim before becoming Babai and after ceasing to be Bahai he would obviously revert to Islam even if Bahaism was a different religion from Islam for arguments sake, without of course deciding the question. For becoming a Muslim all authoritative books of Islam are agreed that if a person believes in the unity of God (Allah) and Muhammad (May peace be upon him) to be his Prophet and also says that he is a Muslim then he becomes a Muslim and no other formalities or rituals are to b gone through by him "
These observations are qualified by the facts of that case and cannot be of any aid to the appellants' claim that despite being Ahmadis, they are Muslims. As regards Agha Abdul Karim Shorish Kashmiri's case the petitioners therein sought justification for an article published against the Qadianis' in "Weekly Chatan" and pleaded that on account of basic doctrinal differences, between this denomination and the Muslim Community, they could not be treated as Muslims. In the course of discussion of the arguments, advanced on behalf of the petitioners, it was observed that a suit restraining the Ahmadis, from claiming them as Muslims was not competent. The Court then posed a query that despite the said doctrinal differences the Ahmadis could not be prevented from professing that they are as good followers of Islam as any other sect and further held that the abstract question as to the status of the Ahmadis could not be determined unless it was somehow linked with any right to property or right to office. There is nothing in this judgment relevant to the issue calling for decision in these appeals.
16. This judgment need not be burdened with the definition of Muslim' as given by the learned counsel for the appellants, as this matter stands conclusively settled by the Constitution (Second Amendment) Act, 1974. Article 260(3) unequivocally defines a non-.Muslim. It shall be advantageous to refer here to the recommendations of the Special Committee of the Whole House, on the question of status in Islam of the persons who do not believe in the finality of the Prophethood of the Holy Prophet Muhammad (peace be upon him). The recommendations of the Committee are as follows :
"The Special Committee of the Whole House, assisted by its Steering Committee and Sub-Committee; having considered the resolutions before it or referred to it by the National Assembly and after perusal of the documents and examination of the witnesses,. including the heads of Sadar Anjuman-i-Ahmadia, Rabwah, and Anjuman-iAhmadia Ishaat-i-Islam, Lahore, respectively, unanimously makes the following recommendations to the National Assembly :-.
(a) That the Constitution of Pakistan be amended as follows
(1) That in Article 106(3) a reference be inserted to persons of the Qadiani Group and the Lahori Group (who call themselves Ahmadis');
(ii) That a non-Muslim may be defined in a new clause in Article 260."
The Resolution considered by the Special Committee, has already been reproduced, in the earlier part of this judgment. It is to be seen that the heads of both the Groups of the Qadiani Community were examined by the House and their concept of "Muslim" fully ascertained. I may add that in Thiraj v. Emperor (A I R 1929 Lah. 641), Zafar Ali, J. in interpreting section 497-B, Criminal Pfcx:edure Code, made reference to the report of the Select Committee, on the amending hill. Similarly, in Madho Singli v. James R. R. Skinner (A I R 1942 Lab. 243), was referred to, the Joint Parliamentary Select Committee's an the "white paper" which formed the basis of the Government of India Act, 1935. In Queen v. Kartick Chuuder Das (1 L R 14 Cal. 721), a Full Bench of the Calcutta High Court made use of the Report of the Select Committee, on the Indian Evidence Act. The Supreme Court of Pakistan in Commissioner of Income-tax v. Mst. Khatija Begum (P L D 1965 S C 472), also, while construing section 16 (3) (a)(ii) of the Income-tax Act, 1922, sought assistance from the Income-tax Enquiry Report of the Year 1936. I have referred to the recommendations of the Select Committee, which are much in the nature of its Report to the House, for the limited purposes of ascertaining the circumstances under which the Bill, of the Constitution (Second Amendment) Act, 1974 was introduced and evil sought to be remedied. 1n the face of Article 260(3), it is not open to the appellants to reagitate questions which had been considered and finally settled by the Constitutional Amendment. The matter, all the more stands fully clarified by Article 106(3), in which the Ahmadis of both the groups, have been bracketed with other non-Muslims. I may observe, that it was not Mr. Aziz Ahmad's case that the appellants as Ahmadis are not covered by Article 360(3), nor did he dispute that the fundamental doctrinal difference between the Ahmadis and the Muslims is that the former do not have an absolute and an unqualified faith in the finality of the Prophethood of Muhammad (may peace be upon him). A hat he argued was that Ahmadis are non-Muslims only for the purposes of Constitution and Law. His this argument has been dealt with, in other paragraphs of this judgment.
17. The rule of ejusdem jeneris means, that the general words succeeding the words having a specific indication, should be construed in a limited sense, with reference to the preceding words. In All Muhammad v. Mirza, Muhammad Hussain Beg (P L D 1968 Lah. 712), relying on Sutherland's Statutory Construction, it has been laid down that for application of rule of ejusdem jeneris, the following conditions must exist:
"(1) the Statute contains an enumeration by specific words;
(2) the members of the enumeration constitute a class;
(3) the class is not exhausted by the enumeration;
(4) a general term follows the enumeration ; and
(5) there is not clearly manifested an intent that the general term be given a broader meaning than the doctrine requires."
Note of these conditions obtain in the instant case. The reliance on this doctrine by the learned counsel is misconceived. There is no warrant for the proposition that in Article 260(3) the term "law" is used in a narrow sense, to apply only to the laws framed for the purposes of the Constitution.
18. In Niaz Ahmad v. Province of Sind, Article 245 of the Constitution was called in question and its validity assailed on the plea that it was repugnant to Islamic Law. In this context the submission made at the bar was that since Article 2 provides that Islam be the religion of Pakistan, the term law' figuring in Article 4, must be read to include Islamic Law. This argument was repelled by the Court, to hold that the term law' was to be given limited meanings. In the course of the judgment reference was also made to the dictum of the Supreme Court in Federation of Pakistan v. United Sugar Mills Limited (P L D 1977 S C 397), which on its turn approved the majority view to the same effect in F. D. Ali v. The State (P L D 1975 S C 506). Aftab Hussain, J. in Abdur Rehman Mobashir's case, rejected the argument that in Article 260(3), the' word law' includes the 'law' of Sharah' and after considering some case-law on the subject maintained :
" . . . . . . There are thus cases in which an extended meaning is given
' to the word 'law' but this goes only to the extent of interpreting the term as meaning not only 'positive law' but also judicial principles laid down from time to time by the Superior Courts and the accepted forms of legal process and judicial norms obtaining in Pakistan. It does not go to the extent of displacing the codified law by norms of Fiqh or principles or injunctions of the Holy Qur'an and Sunnah. All the authorities of the Supreme Court, therefore, go against the contention of the learned counsel for the respondents . . . . . . . . ."
I, am, therefore, not inclined to differ with the appellants' learned counsel that the word law' in Article 260(3) includes only the codified law and not the Shariat Law.
19. This finding, however, is not of much help to the appellants. They have challenged the alienation made by Mst. Amina Bibi in favour of the respondent, under the customary law. As observed above their case is that she was a limited owner and on termination of her limited estate, the property devolved on the appellant, as heirs of the last male-holder and consequently they also sued for possession. The limited estate in respect of immovable property held by a female, was terminated by section 3 of the West Pakistan Muslim Personal Law (Shariat) Application Act, 1962. Section 2 of the Act, has replaced custom by the Muslim Personal Law and provides in all questions regarding succession and other matters, enumerated in this section, in cases, where the parties are Muslim, the rule of decision shall be the Muslim Personal Law (Shariat). The combined affect sections 2 and 3 of the Act, was that the succession to the property earlier governed by custom on notional termination of the limited estate opened and came to be governed by the Muslims Personal Law. The heirs of a last male-holder were thus conferred with the right to file a suit for possession and through it challenge any alienation, made by the limited owner, in the course of time, in violation of the law which governed it. After the enforcement of the West Pakistan Muslim Personal Law (Shariat) Application Act, as amended from time to time, the Muslims in the matter of succession are governed by their personal law. It is thus through an Act of Legislature that Shariat Law in respect of inheritance and certain other matters, to which reference need not be made here, has been applied. To this extent the term law' a used in iArticle 260(3) would include Shariat Law and in this respect the authority to apply such law by the Courts, is derived from legislative enactment.
20. At this stage, I may point out to another argument of Mr. Aziz Ahmad, that even as Ahmadis, the appellants are not excluded from inheritance. He referred to the Verses 11 and 12 of Surah IV in the Holy Qur'an to urge that consanguinity and not religious equanimity, is the foundation of succession. According to the learned counsel, the rule that change in religion is an impediment to succession was adopted as a measure of political expediency during wars between Muslims and non-Muslims.
21. This contention of the appellants' learned counsel shall be examined now. Section 2 of the West Pakistan Muslim Personal Law (Shariat) Application Act, 1962, in so far as it is relevant for the purpose of this case is reproduced below:
"Notwithstanding any custom or usage, in all questions regarding succession (whether testate or intestate) . . . . . . . . the rule of decision, subject to the provisions of any enactment, for the time being in force shall be the Muslim Personal Law (Shariat) in cases where the parties are Muslims."
The word "Shariat" has been used as synonymous for Muslim Personal Law. Broadly speaking, the term 'Shariat' means the Islamic Code. Apart from the Holy Qur'an, the acts, practice and "Ahadith" of Prophet Muhammad (peace be upon him), are indeed the primary source of law in Islam. From the Holy Qur'an itself the binding force of the traditions o Prophet Muhammad is quite evident. In Verse 20, Surah VIII it is stated:
"Oh Ye Who Believel Obey Allah and His messenger, and turn not away from him when ye hear (him speak)."
Verse 7 of Surah LIX commands:
". . And whatsoever the messenger given you, take it. And whatsoever he forbidden, abstain (from it) . . . . . ."
Further a reference to Verse 80 of Surah IV will provide:-
"Whoso obeyth the messenger, obeyth Allah."
22. It is in the preamble of the Constitution that it is the will of the people of this country to establish an order:
".......Wherein the Muslims shall be enabled to order their lives in the individual and collective spheres in accordance with the teachings and requirements of Islam as set out in the Holy Qur'an and Sunnah . . . . . . . ."
Part IX of the Constitution deals with "Islamic Provisions" and Article 227 included in this part, requires that all existing laws shall be brought inconformity with the Islamic Injunctions as laid down in Holy Qur'an and Sunnah'. 'Sunnah' means what was said, done and agreed to by the Holy Prophet (peace be upon him). It has already been held that the Shariat Law in so far as it is adopted under section 2 of the West Pakistan Muslim Personal Law (Shariat) Application Act, 1962, falls within the purview of Article 26013).
23. There should be no doubt, if in a particular matter, there is no manifest revelation in the Holy Qur'an, the dicta of the Holy Prophet Muhammad (peace be upon him) will be the binding authority. There are-two 'Ahadith' of undoubted accuracy, of the Holy Prophet, regarding the exclusion between Muslims and non-Muslims, which are as under:
"(i) . . . From Umr-Bin-Shuaib--per his father, "The Prophet of God said, That persons of different religions cannot inherit from each other" (Ibn Majah, Abu Daud and Tirmizi).
(ii) From Asama-Bin-2aid The Prophet of God said, "No Muslims can inherit from a non-Muslim, nor a non-Muslim from a Muslim." (Trimizi, Bukhari, Abu Daud, Muslim, Ibn Majah and also in the Muwatta) . . . . . . ."
24. Reference may also be made to some other authoritative works on the issue that under Islamic Law despite, consanguinity between Propositus and the person claiming the inheritance, differences in their faith is a disqualification for succession. In AI-Sirajiyyah (reprinted from the translation of Sir William Johns) by Almaric Rumsey at page 14 it is stated that impediment to succession are four. Differences in religion has been described, at Serial No. 3 as one of such impediments. The foot-note at the same page reads:
"There is no succession either way between Moslem and a non-Moslem."
Similarly in Muhammadan Jurisprudence by Sir Abdur Rahim at page 344, the same cause i. e. the differences in religion is mentioned as one of the grounds for exclusion from inheritance. This issue has also been discussed a little in detail, in -. Ce- Urdu translation by the great Muslim Jurist Syed Amir Ali, at page 872 of Vol. IV, it is mentioned that a Muslim cannot be an heir of an infidel and similarly an infidel cannot inherit the estate of a Muslim. Further support for this view, can be drawn from "Muhammadan Law" by Syed Amir Ali, Vol. 11, page 82, wherein it is stated:-
......... those who profess a different faith from Islam have no title to the inheritance of a deceased Musulman. So that if a Musulman die leaving behind him an heir who does not profess the Islamic faith, he is debarred from inheriting, even though he be nearest to the deceased. For example, if a man die leaving behind him a son who is a non-Moslem, and a grandson who is a Moslem, the son would be evicted from the succession, and the grandson would take the inheritance to the absolute exclusion of his father . . . . . . . . ."
25. The question of inheritance not much different from the one raised in these appeals was considered in Farooq Leivers v. Adelaide Bridget Mary (P L D 1958 Lah. 431), by a learned Single Judge of this Court who on the basis of some case-law and other authorities observed-.
...... "It will thus be seen that the effect of conversion to Islam brings about a complete change as regards the right of inheritance. His non Moslem relations howsoever near relations they may be are completely debarred from succeeding to the estate of the convert. Although the act of conversion is unilateral, but the legal, consequences which flow fi omit directly affect the rights of others, which but for the conversion, they are entitled to enforce under their own personal law "
The Rangoon High Court in Chidambaram v. Ma Nyein: Me and others (A I R 1928 Rang. .179), referred to in Farooq Leiver's case held that 'law' which governs inheritance to a person's estate, is the 'law' to which he himself was subject at the time of his death and accordingly a Hindu wife was found disentitled to inherit any part of the estate of her husband who died as a Muslim.
There is thus ample authority for the rule that under Shariat, there -is a prohibition against the succession to the estate of a Muslim by his descendant who is a non-Muslim. The appellants being non-Muslims, are completely excluded from the inheritance of Jalal deceased.
26. I will now take another point urged on behalf of the appellants. It was contended that there is no material on the record as to what religion was professed by Jalal and consequently, it could not be taken for granted that he died as a Muslim.
27. This argument does not take note of the evidence on the record. Appellant No. I in cross-examination expressly stated that he was not aware whether or not Jalal was. an 'Ahmadi'. He is nephew of Jalal deceased.
Had Jalal been an Ahmadi', the appellant would have unhesitatingly admitted that the deceased shared his religious view. In Pathana v. Mst. Wasi and another (1), it has been laid down:
......... In the Indo-Pak Sub-continent there is the initial presumption that a Muslim is governed by Hanafi Law, unless the contrary is established by good evidence . . , . . . . . . . . : '
It may also be observed that both the learned Courts below, as a matter of inferences, from the evidence on the record, treated Jalal as a Muslim' and the appellants did not object to it at any stage. This ground, therefore, cannot be entertained in second appeal.
28. It has also been argued on behalf of the appellants that clause (3) was added to Article 260 by means of the Constitution (Second Amendment) Act, 1974, with effect from 17th September, 1974, and whereas succession to the estate of Jalal deceased opened on termination of the limited interest of Mst. Amina Dibi, on enforcement of the West Pakistan Muslim Personal Law (Shariat) Application Act, 1962 legally, the property in dispute devolved on the appellants then. The argument thus was, that the succession did not remain in abeyance and the appellants acquired a vested right, of which they could not to be deprived under the Constitutional Amendment enforced subsequently.
29. While construing Article 260(3), according to the well-established rule of construction of the statute and the Constitutional Provisions, it will be the duty of the Court to find out the real aim, scope and object of amending Act. According to the Maxwell on Interpretation of Statutes, 10th Edition, page 18:-
" . . . . . . To arrive at the the real meaning, it is always necessary to get, an exact conception of the aim, scope, and object of the whole Act to consider, according to Lord Coke. (P L D 1965 S, C 134) What was the law before the Act was passed; (2) What was the mischief or defect for which the law had not provided; (3) What remedy Parliament has appointed; and (4). The reason of the remedy . . . . . . . . ."
As stated earlier the Muslims of the Sub-Continent have all along been agitating that Qadianis be declared non-Muslims. It was in obedience to the demand of the Muslim Ummah that the Constitution was amended for this purpose. It is to be noticed that be who does not believe in the absolute and unqualified Prophethood of Muhammad (peace be upon him), has always been outside the fold of Islam. As such the Constitution (Second Amendment) Act, 1974, simply affirmed and declared the position as it existed under shariat.The amending Act is thus a declaratory Act . It was also held so by this Court in Abdur Rehman Mobashlr v. Amir All Shah. A declaratory Act is that which declares what the law has always been. Coleridge, C. J., said in Jones and another v. Betmett ((1890) 63 L T 705), that:
"A declaratory Act means to declare the law, that which has always been the law, and there having been doubts which have arisen, Parliament declare what law is, and enacts that it shall continue what it then is .......
In this connection the Maxwell on Interpretation of Statutes, 10th Edition at page 213 provides:
" . . . . ... If a statute is in its nature a declaratory Act, the argument that it must not be construed so as to take away previous rights is not applicable . . . . "
Similarly in Craies on Statute Law, 7tlr Edition at page 586 it is laid down:-
" . . . . . . .For modern purpose a declaratory Act should be defined as an Act- to remove doubts existing as to the common law, or the meaning or affect of any statute. Such acts are usefully held to be retrospective . . . . . , . . . .
The reported case-law also fortifies this view. In Mst..Faza1 Begum v. Hakim Ali (A I R 1941 Lab. 22) it has been held that a declaratory Act is retrospectively in operation, In Sheamiaatha v.. Rama Natha (A I R 1943 Mad. 573) and Mst. Rashid Bibi v. Tufail Muhammad (A I R 1941 Lah. 291) also support this proposition. When a law operates retrospectively it can take away even the vested rights.
In the instant case, however, as observed above, the appellants being nonMuslims, tberd was no question of devolution of the property on them. Thus it cannot be said that they acquired any vested right of which they were denuded by the Amending Act.
R. S. A. No. 986/1979
30. I shall now take up R. 5. A. No. 986/79. Mr. Aftab Iqbal Chaudbry, Advocate who argued the case on behalf of the appellant (Mst. Niamat Bibi), has taken up the stand that Mst. Amine Bibi acquired the land through a will, on the basis whereof Mutation No. 865 was sanctioned in her favour on 25-6-1943. Alternadvely, it was urged that the alienation was made through a gift in lieu off services rendered by her to Jalal deceased, and thus it would be presumed to be an absolute gift and, therefore, on extinction of her line or for that matter termination of her limited interest, the land would not revert to the reversioners. The learned counsel referred to the proceedings recorded by the Revenue Officer in, sanctioning mutation No. 865, to contend that the reversionars including the respondents (appellants in R. S. A. No. 977/79), were present and objected to the sanction of the mutation bait their objection was turned down. The submission was that the respondents were posted with the knowledge of transfer of his property by latal deceased to his daughter Mst. Amine Bibi, they were bound to assail this mutation as well, for laying down a foundation for a decree for possession. It was urged that the period of limitation would commence from 25-6-1943 when the mutation was sanctioned and not from the date of subsequent gift made by Mst. Amine Bibi to the appellant. It was thus submitted that the suit was hopelessly barred by time.
31. Under the customary law there is not much difference between powe to alienate the ancestral property by a gift Inter vivos and the power t transfer it by a will. Whether the transaction in favour of Mst.'Amina Bibi was gift or was made under a will, is thus not of much significance. It may be observed that the attempt to describe the alienation as a will and alternatively a gift for services rendered to tile donor, has been made for the first, time at the second appeal stage. No serious notice of these contentions can, therefore, be taken. The mutation dated 25-6-1943 itself suggests that is was a "Khanadamadi" gift in consonance with the custom of the Gujra District. This inference finds support from Para. 16 of the Customary Law of Gujrat District by Capt. Davis, published in the year 1892 which runs under :
"Custom of ghar jawai.--The general custom which appears. to have been established by the above cases; taken in connection with the entry in the Rivaj-i-am, is. that among Muhammadans of the Gujrat District, with certain special exceptions, to be hereafter mentioned, a sonles proprietor has power to transfer, during his lifetime, his property by gift to his married daughter. But to make such a gift valid, the daughter and her husband must after marriage reside in the donor's house, and must be put in possession of the land. In such case a written (feed-ofgift does not appear necessary, nor is the consent of the coliaterals obligatory, though in the absence of a deed, it would be necessary to show that the intention of the proprietor was to establish her daughter husband as khanadamadi' . . . . . ."
In the Customary Law of the Gujrat District by H. S. Williamson, 19.22 Revised Edition, under answer' to question No. 130, it is stated that :
"Among Gujjars of the Kharian Tehsil, gifts to daughters whose husband are residents with the donors arc valid by custom."
The parties to the appeal belong to Kharian Tehsil and are Gujjar by caste. It is thus obvious that the gift made by Jalal to his daughter was "khans damadi" gift. The purpose of such a gift as recognised by custom, is t benefit a daughter and her male issues and on exhaustion,, of her male line, the property reverts.to the donor and his male - heirs. Faqira and others v. Mst. Ghulam Maryam (A I R 1928 Lah. 117) and Mst. Bhagh Bhari v. Fateh Khan (P L D 1960-Lah. 1216) are the authorities for this proposition . The latter report relatess. to Gujjar Tribe of Gujrat District.
Mst. Amine Bibi who is issueless thus held the, . land merely for life and her limited interest was terminated by section 3 of the West Pakistan Muslim Personal Law (Shariat) Application Act, 1962.
32. It is to be noticed that. mutation dated '25-6-1943 does not make mention of the presence of the appellants at the time of its attestation by the Revenue Officer. 1n any case as it was a "khanadamadi" gift. It would be subject to the incident of the customary law, and, therefore, the respondents being the male descendents of Jalal, would have been the ultimate beneficiaries but for their 'religion. It was not necessary for them to have thrown a challenge to this gift. The view of the learned Courts below in this respect is sot open to any exception.
33. As regards the limitation, the right to sue, accrued to the respondents on termination of limited interest of Mst. Amine Bibi, on promulgation of the West Pakistan Muslim Personal Law (Shariat) Application Act, 1962. Section 7 (2) of this Act, perversed the application of the Punjab Limitation (Custom) Act, 1920. However, subsection (2) of section 7 was omitted by Ordinance XXXLX of 1963 replaced by the West Pakistan Muslim Personal Law (Shariat) Application (Amendment) Act, 1964, with the result that the general Law of limitation became applicable. The suit for possession would thus be governed by Article 141 of the Limitation Act, and the date of enforcement of Ordinance No. XXXIX of 1963 i. e. 21-11-1963 would be the starting point of limitation. The suit having been filed on 1-3.1975 was thus within time. Similarly, the declaratory relief prayed for by the respondents, from the date of attestation of the mutation in favour of the appellant was within time. The findings of the learned Courts blow that the suit is not barred by time is thus upheld but on somewhat different reasoning.
33. It appears that alongwith the land, Mst. Amina Bibi also gifted a house in favour of the appellant. Fateh Ali respondent and his sister, namely Mst. Jannat Bibi filed a suit, challenging the gift and for possession of the house through partition on the plea that it belonged to Akbar Ali and on his demise, Mst. Amina Bibi as issueless widow was entitled to inherit only 1/4th and that the remaining 3/4th devolved on them. This suit was filed before the institution of the suit, giving rise to these two R. S. As. The appellant as well as Ms,,. Amina Bibi resisted the suit. The trial Court came to the conclusion that Akbar Ali lived with Jalal as "khanadamad" ; the house originally belonged to the latter, who transferred it by way of gift to Mst. Amina Bibi. The trial Court further held that Akbar Ali was a Sunni Muslim and the plaintiffs being Ahmadis are non-Muslims and could not inherit his estate, and thus dismissed the suit on 14-I-1976. The plaintiffs appeal also failed and the judgment and decree of the trial Court were affirmed by the learned Additional District Judge. The appellant tendered in evidence the judgment of the trial Court as Exh. D. 12. The copy of the judgment dated 14-11-1978 passed by the learned Additional District Judge was produced before me during arguments Mr. Aziz Ahmad had no objection to the reading of this document in evidence. In view of this concession, a certified copy of the judgment dated 14-11-1978 was placed on the file of R. S. A. No. 977 of 1979, in which the proceedings were recorded.
34. The learned counsel .for the appellant argued that the status of the respondents was directly and substantially in issue in the suit filed by respondent No. 2 and conclusiveiy determined ; the judgment in the previous suit would operate as res judicata for the subsequent suit and the matter already concluded could not be reagitated.
35. I am unable to accept this argument. , One of the essential prerequisites. for the application of the principle of res judicata is that the parties, in the former suit and the subsequent suit should be the same. I is to be noticed that Muhammad Ashraf respondent was not a party t the previous suit. The copies of the pleadings in the previous suit have also not been produced. It is thus not possible to hold as to whether the matter as to the determination of the respondents' status as non-Muslims, was directly and substantially in issue or was dealt with only collaterally. The fact that the appellant did not raise the plea of res judicata in the written statement or before. the Courts below, would also militate against sustenance of this objection at this stage. This rule of res judicata, therefore, would not be attracted to the respondents' suit.
36. There is yet another argument of the appellants' counsel, which is fatal to the case of the respondents. It has been argued that the Courts below having found that the respondents are non-Muslims and thus ineligible to succeed to Jal11 and Akbar Ali should not have exercised their discretion in their favour and passed a declaratory decree which would be ineffective.
37. This argument is not without merit. It is well established on the strength of various judicial pronouncements that a declaratory relief under section 42 of the Specific Relief Act, is discretionary and the Court should not grant such a declaration which is likely to be rendered futile and useless.
It was held so in Sardar Ahmad v. Pakistan (P L D 1961 Kar. 232). The same view was taken in Mst. Sughran and another v. Rehmat Ali (P L D 1965 Lah. 850), Bishwanath Saran v. Mujtaba Husain (A I R 1941 Oudh 442) and Muhammad Ismail v. Patna City Municipality (A I R 1943 Pat. 34). I feel that the facts of the case, did not call for issue of a declaration in favour of the respondents which practically is of no use to them.
38. For all these reasons Appeal No. 977/79 fails and is accordingly dismissed whereas Appeal No. 986/79 succeeds, the impugned judgment and decree granting declaration in favour of the respondents are altered with the result that the suit is dismissed, leaving the parties to bear their own costs.
s. Q. Appeal dismissed.
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