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PLD 1990 Supreme Court 99

[Shari at Appellate Bench]


Present. Muhammad Afzal Zullah, Chairman, Nasim Hasan Shah, Shafiur Rahman, Pir
Muhammad Karam Shah and Maulana Muhammad Taqi Usmani, Members
QAZALBASH WAQF and others-- Appellants
versus
CHIEF LAND COMMISSIONER, PUNJAB, LAHORE and others--Respondents

Shariat Appeals Nos.1, 3, 4, 8, 9 and 10 of 1981, 21 of 1984 and 1 of 1987, decided on 10th August,
1989.

(a) Constitution of Pakistan (1973)--

--- Arts. 203, 203-A to 203-J --- Land Reforms Regulation, 1972 (M.L.R.115)---- Land Reforms Act (II
of 1977), Preamble --- Jurisdiction --- Federal Shariat Court and Shariat Appellate Bench of Supreme
Court have the jurisdiction and the power under Ch.ap.3-A of Part VII of the Constitution, to examine
Land Reform Regulation, 1972 and the Land Reforms Act, 1977 and to decide whether or not provisions
thereof are repugnant to Injunctions of Islam.

Per Mr. Justice Muhammad Afzal Zullah, Chairman--

Per Mr. Justice Nasim Hasan Shah, Member--

Per Mr. Justice Shariur Rahman, Member-

(b) Constitution of Pakistan (1973)--

--- Arts. 203-D, 203-F & 38 --- Punjab Tenancy Act (XVI of 1887), S.60-A --- Land Reforms
Regulation, 1972 (M.L.R.115), paras.2(7), 7,'8, 97 10,13, 15, 16, 17,19, 20 & 25 --- Land Reforms Act
(11 of 107), Ss.3, 4, 5, 6, 7 (5),'8, 9, 10, 11, 12, 13,14, 15, 16 & 17 --- Repugnancy to Injunctions of
Islam --- Provisions of Punjab Tenancy Act, 1887, Land Reforms Regulation, 1972 (M.L.R.115) and
Land Reforms, Act, 1977 are repugnant to the Injunctions of Islam to the extent indicated --- Provisions
of para. 25(3) cls. (a), (b) & (c) of Land Reforms Regulation are not repugnant to the Injuctions of Islam.

The following provisions of the Land Reforms Regulation, 1972 (M.L.R.115), Land Reforms Act, 1977
and the Punjab Tenancy Act, 1887 to the extent indicated against each, are repugnant to the Injunctions
of Islam:-

(i) Para. 2, clause (7) of the Regulation in so far as it includes Islamic Waqf for the purposes of other
paras. of the Regulation which are being held wholly or partly repugnant to Injunctions of Islam.

(ii) The whole of paragraphs 7, 8, 9, 10, 13 and 14 and consequentially Paragraph 18 of the
Land Reforms Regulation.

(iii) Paragraphs 15, 16, 19 and 20 of the Land Reforms Regulation, 1972 in so far as they
ignore the rights and obligations, the terms and conditions of the grant, license or lease, as the
case may be, in resuming the stud and livestock farms, Shikargahs and Orchards and dealing
further with them under paragraphs 19 and 20 thereof.

(iv) Paragraph 17 of the Land Reforms Regulation in so far as it relates to Wakf and all other
institutions which can validly fall within the definition of Islamic Wakf, and consequential to
that extent paragraph 21 also.

(v) Paragraph 25(l) of the Land Reforms Regulation in so far as it does not give sanctity to the
grounds of ejectment available in a valid contract between the landlord and the tenant, entered
into in accordance with the Injunctions of Islam.

(vi) Paragraph 25(3)(d) of the Land Reforms Regulation having already been declared to be
repugnant to the Injunctions of Islam in Said Kamal Shah's case PLD 1986 SC 360.

(vii) The whole of sections 3, 4, 5, 6, 7(5), 8, 9, 10 of the Land Reforms Act, 1977 and
consequentially the whole of sections 11 to 17 of the Act.

(viii) The whole of section 60-A of the Punjab Tenancy Act, 1887 in so far as it makes non-
occupancy tenancy heritable irrespective of the terms of the contract.

The question of repugnancy or otherwise of paragraphs 22, 23, 24 of the Land Reforms
Regulation was left undermined, proper and full assistance having not been received and another
decision of the Federal Shariat Court having come into field during the iterregnum.

Provisions of paragraph 25(3), Cls.(a), (b) & (c) of the Regulation are not repugnant to the
Injunctions of Islam.

The decision shall take effect on 23rd March, 1990 whereupon the provisions declared
repugnant to the Injunctions of Islam will cease to have effect.

The operation of the self-executory provisions of the Law Reforms Regulation, 1972 and the
Law Reforms Act, 1977 and the provisions ancillary thereto shall not in any manner be affected
by this decision till the aforesaid provisions cease to have effect i.e. on 23-3-1990.

Per Mr. Justice Muhammad Afzal Zullah Chairman

Sardar Ali and others v. Muhammad Ali and others PLD 1988 SC 287; Pakistan v. Public-at-
Large PLD 1986 SC 240; Pakistan and others v. Public-at-Large and others PLD 1987 SC 304;
Province of Sind v. Public-at-Large PLD 1988 sc. 138; Federation of Pakistan and others V.
Public-at-Large and others PLD 1988 SC 202; Federation of Pakistan v. The General Public
PLD 1988 SC 645; Province of North-West Frontier Province v. General Public of Pakistan
1988 SCMR 1825 and Government of North-West Frontier Province. Public-at-Large 1988
SCMR 2084 and Haji Nizam. Din's case PLD 1976 Lah. 930 ref

Per Mr. Justice Dr. Nasim Hasan Shah, Member (dissenting)---


Per Mr. Justice Sharjur Rahman, Member---

Hafiz Muhammad Amin and others v. Islamic Republic of Pakistan and others PLD 1981 FSC
23; Said Kamal's case 1986 Sc.365 bring. (Retd.) F.B. Ali v. The State PLD 1975 SC 506;
Federation of Pakistan v. Hyesons Sugar Mills Ltd. PLD 1977 SC 397; Begum Nusrat Bhutto v.
Chief of Army Staff and federation of Pakistan PLD 1977 SC 657; Union Steamship Company
of New Zealand Ltd. and another v. The Commonwealth and another (1925)36 CLR 130,
Attorney-General for Queens land v. the Attorney General for the Commonwealth and another
(1915) 20 CLR 148, Gental v. Rapps (1902) 1 KB 160 and Mir Ahmad Nawaz Khan Bugti v.
Superintendent Jail, Lyallpur PLD 1966 SC 357 ref.
Per Mr. Justice Pir Karam Shah, Member--

Per Maulana Muhammad Taqi Usmani, Member- .

(c) Words and phrases--

--“Repugnant”—Meaning.

SM- Zaffar, Senior Advocate Supreme Court and Ch.Fazal Hussain Advocate-on-Record for
Appellant (in Shariat Appeal No.1 of 1981).

Khalil Ramday, Additional Advocate-General for Respondents Nos. 1 to 3 (in Shariat Appeal
No.- 1 of 1981).

Dr. Riaz-ul-Hassan Gilani, Deputy Attorney-General and Rao Muhammad Yousaf Khan for
Respondent No. 4 in Shariat Appeal No. 1 of 1981).

Muhammad Sadiq, Advocate Supreme Court and Rana MA. Qadri, Advocate-on-Record for
Appellant (in 3hariat Appuid Nu.3 of Fim).

Dr. Riaz-ul-Hassan Gilani, deputy Attorney-General for Respondent (in Shariat Appeal No.3 of
1981).

M. Qasim Imam, Advocate-on-Record (absent) for Appellant (in Shariat Appeal No. 4 of 1981).

Dr. Riaz-ul-Hassan Gilani, Deputy Attorney-General for Respondents (in Shariat Appeal No. 4
of 1981).

Iftikhar Ali Shaikh, Senior Advocate Supreme Court for Appellant (in Shariat Appeal No.8 of
1981).

Khalil Ramday, Additional. Advocate-General and Rao M. Yousaf Khan, Advocate-on-Record


for Respondents No.1 and 2 (in Shariat Appeal No.8 of 1981).

Dr. Riaz-ul-Hassan Gilani, Deputy Attorney-General for Respondent No.3 (in Shariat Appeal
No.8 of 1981).

Iftikhar Ali Shaikh, Senior Advocate Supreme Court for Appellant (in Shariat Appeal No.9 of
1981).
Khalil Ramday, Additional. Advocate-General and Rao M. Yousaf Khan, Advocate-on-Record
for Respondents Nos. 1 and 2 (in Shariat Appeal No.9 of 1981).

Dr. Riaz-ul-Hassan Gilani Deputy Attorney-General for Respondent No. 3 (in Shariat Appeal
No. 9 of 1981).

Syed Muhammad Ayub Khan, Advocate Supreme Court and Ch.Akhtar Ali, Advocate-on-
Record for Appellant (in Shariat Appeal No.10 of 1981).

Dr.Riaz-ul-Hassan Gilani, Deputy Attorney-General for Respondents (in Shariat Appeal No.10
of 1981).

M. Sultan Khan, Advocate Supreme Court for Appellant (in Shariat Appeal No.1 of 1987).

Dr.Riaz-ul-Hassan Gilani, Deputy Attorney-General for Respondents (in Shariat Appeal No.1 of
1987).

Khalil Ramday, with M.Nawaz Abbasi Addl. Advocate-General and Rao Muhammad Yousaf
Khan, Advocate-on-Record for Appellant (in Shariat Appeal No.21 of 1984).

Nemo for Respondents (in Shariat Appeal No.21 of 1984).

Dates of hearing: 17th, 18th, 21st, 22nd, 23rd, 24th September, 1985; 3rd May, 1986; 16th, 18th
January, 1988 and 5th July, 1989.

JUDGMENT

MUHAMMAD AFZAL ZULLAH, J.-- I am in respectful agreement with Shafiur Rahman, J. on


jurisdictional question. I also agree with him regarding the conclusion on the repugnancy of the
specified provisions, with the Injunctions of Islam. But with profound respect, my reasons are
by and large based upon the relevant injunctions of Quran and Sunnah as analysed by based on
the Syed Karam Shah. And Mohammad Taqi Usmani, J. and agreed to by Pir Mohammad and
the other thus agreeing with him regarding the repugnancy of the provisions, I accept the verdict
of the majority.

However, I am of the view that the decision of this Court shall not affect those cases in which
any decisive step has been or is now taken in the ordinary normal course at any stage of the
proceedings, in the implementation of the provisions which would cease to have effect as a
result of the Court order, prior provisions to the date to be fixed therein. See for mutatis
mutandis application, the case of Sardar Ali and others v. Muhammad Ali and others (PLD 1988
Supreme Court 287).

Further I do not agree with the verdict in favour of the restrictions on partition of certain
holdings and the alienation thereof. This subject would require further examination in a properly
assisted case.

I am also of the view that while, rightly rejecting, the scheme in the impugned laws, of
purported partial implementation of Islamic mandates of equality and social justice (see
substantive Second paragraph of the objectives Resolution also), concrete alternatives with
elaborate framework have not been proposed, which might satisfy the Islamic injunctions, as
well as, the modern needs and out conditions. There was need for expressing views also on
somewhat intricate questions of Political Economy in general and Islamic Economics in
particular. I am conscious of two possible answers to this observation: one that it is for the
Islamic theoraticians, and Pakistani experts in the administration and above all the legislators to
do the needful in this field. And two, that under the constitutional mandate and relevant
provisions thereof it is not for this Court to provide this assistance to the said functionaries;
because, this Court is required only to declare a law or provision thereof as repugnant to the
Injunctions of Islam. I do agree that this could be a possible approach to this newly-create
jurisdiction; but the other point of view also, for practical reasons has force; and, the precedent
law and practice being developed in this juridical field in Pakistan is realistic/pragmatic and
helpful both for the citizen as well as the State. See the following:

(1) Pakistan v. Public-at-Large (PLD 1986 Supreme Court 240) CDA Ordinance etc.

(ii) Pakistan and others V. Public-at-large and other PLD 1987 Supreme Court 30-4) --Service
Laws.

(iii) Province of Sind v. public-at large (PLD 1988 Supreme Court 138) Sind Co-operative
Housing Authority Ordinance.

(iv) Federation of Pakistan and others v. Public-at-Large and others (PLD 1988 Supreme Court
202) --Press & Publications Ordinance.

(v) Federation of Pakistan v. The General Public (PLD 1988 Supreme Court 645) --Security
Laws.

(vi) Province of N.W.F.P v. General Public of Pakistan (1988 S C M R 11825) –N.W.F.P.


Urban Planning Ordinance.

(vii) Government of N.W.F.P. v. Public-at-Large (1988 S C M R 2084) -Punjab Local


Government Ordinance.

The reason for somewhat variant approach in this case, again speaking with respect, is different
and is based on another reality to be candidly admitted and that too by me in particular, as the
Chairman of the Bench. That sad experience is that enough proper assistance was not rendered
on the difficult issues relating to the provision for the Islamic alternatives. Despite best efforts
by the Court it could elicit only patchy response to its questionnaire; except from very few
scholars and the Islamic Research Institute, International Islamic University Islamabad. For
obvious reasons, without comparative examination with other similar responses, the same alone
could not be treated as unquestionable basis. Those who could but did not, we hope and pray,
would come forth in the future similar exercises, which in our estimate without an iota of doubt,
are very valuable for the ideological progress of our State.

As the majority has not proposed the alternatives - (i) a concrete modern scientific Islamic
Economic System and; (ii) a practical framework of Islamic Economic reforms in all major
socio-economic sectors, it would be a futile effort on I my part to do so; as it would not be able
to achieve an operative effect in this case. Be that as it may, I am of considered opinion, after
very careful study of the Injunctions of Islam and the related material which came to my notice
in this matter, that both- these needs (theory and practice) hopefully can be effectively fulfilled
by further study/work on the somewhat broad lines emerging from the questions posed by this
Court and the short answers now being rendered by me. As already observed for obvious
reasons they, subject to the afore expressed hope, would not be treated as decision of the Court.

The questions and answers are as follows.

I would first like to answer the Question No. 7 as the answer to it would reflect the basis for the
replies to the other questions:--

Answer: The Verse 2-(219) forming the pivot of this question and one of the main pillars of
Islamic economics, needs to be quoted in full. In English simple translation it reads:--

"And they ask thee as to what they should spend. Say the surplus. Thus Allah makes clear his
signs to you that you may ponder, over this world and hereafter."

"Whatever you can spare" S.A.A. Maududi; and M. Asad.

This Command requires judicious interpretation in the light of the basic Islamic rights including
the one relating to property as also the other rights referred to herein.

There is no doubt that in the contextual aspect this command was to dissuade the believers from
spending what one required for own 'needs'; and also to 'spend' for Allah's sake out of the
'surplus', beyond the needs. It was effect that what falls within the needs must not be given away
-- it should be out of the surplus. It could be whole of surplus but could definitely be less.

This Quranic injunction has been elaborately dealt with in the Sunnah Injunctions. I would
hesitate to agree with those who consider that this command, it was only for conditions of
famine. Even if its timing has such relevance, is one of the firm commands of permanent
character in the field of Islamic Economics. It was revealed to supplement those commands of
Allah, which had by then been well received; namely, that spending in Allah's ways is a great
act of piety with promise of His rewards and well-being in both worlds. In the then newly-
created zeal but perhaps mistaken, believers had started over spending in Allah's name not
caring even for their own needs. Then questions arose and were answered as above. The practice
and the sayings of the Prophet (P.B.U.H.) before and after this command fully support this view.
Thus it is obvious that the command is: not to the effect that the whole of what is surplus must
be given away; but that the, spending' is to be out of it.

Besides the foregoing context and background of the practical application during those times,
the intrinsic content of the command also is to the same effect. What is to be spent in Allah's
name must first be determined on the touchstone of ones needs. When the need is determined
and kept aside, out of what is left as surplus is to be 'spent' on others. In other words if it would
have been commanded as a mandate to spend the whole of surplus it would have become a need
itself. And had then to be included in the need part of earning wealth. It is not so. It remains
always a surplus, never falling in the need'.

This not only leads to but also gets confirmed by the definition of the 'need' given by the
Prophet (P.B.U.H.), during the practical application. Concisely stated it is that what one requires
for himself and his household, besides of course compulsory recoveries in the nature of Zakat
etc. As the 'Surplus' was beyond all that, therefore its spending was left entirely to the
'discretion' of the individual. This also throws light on the scope of the words 'need' and 'surplus!
The foregoing approach is in line with the well-accepted interpretation of this Verse by
Abdullah-bin-Abbas R.U. acknowledged in the Tafsir Bin Harir Vol. 2 Page 68; also, relied
upon in the opinion of Mohammad Taqi Usmani,

There is another aspect of this Verse. It invites man to ponder further treating it as the sign, to
start with. Immense number of situations were to arise for its application. Without the freedom
to use ones discretion in the exercise of pondering' the effort would be fruitless. 'Afv' the all
important word used the Verse also amongst others means 'easiness' effortless and 'comfort' If
the sense meant by the Quran namely more than the need' or 'surplus', is supplemented by the
aforementioned sense, perhaps the Verse would carry more implications than what is normally
understood. It would then mean, no compulsion regarding the 'surplus'. It was also adopted by
the Holy Prophet (P.B.U.H) in many Sunnah injunctions on this subject. Be, that as it may even
what has been said above leaves enough scope for changing conditions, for the time being and
from time to time, for the determination of the need and the surplus. The word in the command
Tatafaqqaroon requires a lot more to be done in further continuous study.

As already stated the Verse was revealed in answer to persistent questions from the believers
about the scope of 'spending' in Allah's Way. Its language while assuming this as a fact, conveys
an obvious and clear command that while the spending has to be from the surplus and not from
what is required for the individual's own needs, he cannot get away with the whole of the
surplus. Something tangible though in accordance with his own assessment and judgment of his
circumstances, has to be spent out of the surplus. It would be so required also in the compliance
of many other Verses on the subject of 'Spending'. While dealing with similar subject in the case
of Haji Nizam (PLD 1976 Lah. 930) some of those injunctions were considered. The poor and
the needy, it was observed therein, have a special right of maintenance against the affluent
relations. And this right, could be enforced even in Courts of law, of course after further overall
consideration of the subject of After further study it is now well understood as to why, while
treating the needy around an affluent person having also right over his riches, their share or the
measure of this right was left undetermined, unlike the treatment of inheritance and other rights.
The afore discussed Verse 219 of Surah Baqra had left the measure of spending of the surplus to
his discretionary field. The is non availability of the right to property in Islam prevents its taking
away from him by force, even the surplus. yet the needy was held entitled to it. In what way?
The answer lies in what has been already visualised. That is out of the surplus, though created
by him, yet being a parcel of the bounty of Allah, in some portion it has to be spent on his needy
creation. If he spends more, he earns more in piety and His rewards. If less, he gets less in that
eternal commodity. To think otherwise in the terms of mandates as to when and how to spend, it
seems is not visualised. Except for the guidance in some injunctions, for the use of one's
discretion, man was left with freedom of thought and action.

This leads to another very important Verse on the subject under discussion. Verse (7) of Surah
59-Alhashr contains in principle the position of wealth; namely that it should not remain with
and circulate amongst the rich people only. (SAA. Maududi; A. Yusuf Ali). To the similar effect
are some other Verses including 16 V. 71 which is interpreted by A. Yousaf Ali and S. Abul
Aala Maudoodi differently than by Mohammad Asad. All, however, imply that wealth should
circulate not only amongst the rich people but it shall have to circulate also amongst others so as
to achieve the highest well-being of the maximum. The context and the language are clear
enough to indicate that Quran did not intend restricting the circulation of the wealth amongst the
affluent only.

No doubt the right to property did not permit it to be taken away from them, but measures were
needed to make it circulate amongst others also; as many and as much as possible. Thus without
the slicing away or appropriation of property or even for that matter taking away the entire
surplus earnings, the intention was to create more total wealth in the community so as to make it
available to the greatest possible number. Leveling up of all without leveling down of the
affluent, was the aim. This gets support from various injunctions desiring that man should live
good life on this planet taking as much as possible from Allah's bounty. Particularly in reference
are also the commands in Surah Al-Araf where admonition had to be given against expanding
the sphere of prohibitions See also 14-(32-34); 45(12,13); 53-(38-43); 53-(48) and other verses
on the subject of bounties made available to man and his getting the same by 'seeking' from Him
and 'striving' for them.

Some more commands in the context of surplus and its spending as also wealth and its
circulation worth noticing are in Verses 9-(34-35) read with 9-(103) and 3 - 180 which speak of
severe punishment for hoarders of wealth in the form of Gold and Silver and who do not purify
it by spending it in Allah's way; as such spending keeps it purified. One way of looking at these
commands is to link them up with the Verses relating to circulation of wealth. It can be so
because every type of wealth liable to Zakat passes out of the hands of its owner within 40
years. And as it passes out to the others at the rate of 2-1/2 % every year therefore Zakat
completes the circulation. But I would hesitate to think in that direction only. There are other
injunctions including those of Sunnah which do not approve this method of circulation. The apt
one is: wealth is not to be kept in such a manner so as to let it be eaten away by Zakat alone. It
may be observed that all concepts of Zakat, spending in Allah's Way, and inheritance etc. as
well as those of National development and strength will be impossible if every ounce of 'Gold',
'Silver' and every Rupee that is left surplus after days or months/year's earning is spent" away --
Quran does not approve it, as it leads to destitution which is prohibited. See 17-(29). It has also
to be put to productive use for 'Creating greater wealth for direct and indirect use of the greater
numbers. In any way leaving aside the "hoarding", even the withholding of the wealth from
circulation is not liked either. It has to be put to use for producing more national wealth. All,
these are inter linked rings of God's bounty; namely sustenance and wealth of every type,
including means of production, is to be treated by work and more work and maximum
exploitation of the bounties of Allah-- Though! He command that in addition, it has to be 'asked'
from Him; meaning that the spiritual element also, is included. This would lead to bigger
surpluses; which in its turn, it seems to be the aim of Islamic economics. It should and would
not only eradicate poverty but also improve living standards of individuals and the strength of
the State. Not only this but more wealth and further surplus when accumulated in one State, it
should be utilized for glory of Islam, elsewhere, and for mankind.

This expression 'glory of Islam' should not cause raising of so called modernists' eye-brows nor
it treated as a mere cliche. it is considered as one of the laudible objects of a Muslim State and
thus has been safeguarded by our constitution, which is no less modern, than any other. See Art.
19, wherein an important Fundamental right enforceable by the Constitution, is controlled,
amongst others by the needs for the "glory of Islam". This when read together with both parts of
Art. 40, make it obligatory on our State to work for it. It is all in accord with the Islamic
Injunctions. No real achievement can be made in this field without economic power which has
to come by creating maximum nation wealth and surpluses and their circulation amongst the
maximum number by their involvement ii- creating them.

The increase in the national economic power is a catching phenomenon. Forces of progress and
stagnation react on each other. And where peace and other favourable conditions prevail, the
latter arc subdued and progress is achieved. Allah and His Nature do not favour stagnation.
Islam adopts this attitude in human affairs also and favours a strong and powerful State in the
comity of Nations. Its aims must be the optimum well-being of its citizens, as also, of itself first
to be achieved and maintained. Not only this, but it should also be able to help and protect
others, including legitimate interests of non-Muslims' as well. See 22 V. (40) and 8 V. (60).
These and other injunctions and precedents do not visualize an Islamic State as an economic
wreck or even a weakling. It is assumed as vibrant and rich with internal high level of
prosperity, happiness and peace. And while meaning no harm to others, with a potential and
image of power for the achievement, preservation and protection of the former, as well as, for
the glory of Islam. This in turn, is achieved to the maximum only, by service to Muslims, non-
Muslims indeed and international community. The Verse cited in Question No. 7 and the related
Verses including those about circulation of wealth cannot be interpreted nor were they
interpreted by the Prophet (P.B.U.H.) and his companions, in such a manner so as to advance
the marxist theories nor Capitalistic. Islam taken, note of the nature of man as created by Allah
with all I failings; but at the same time, with immense basic goodness, including altruistic
elements, without which Islamic system cannot be visualized-- it is neither totally controlled nor
totally free one.

State ownership of means of production and/or other type of State managed economy through
nationalization does not always work. It is a fact of history that in the times earlier to advent of
Islam the experiment of Socialist system of ownership/management of means of production,
was prevalent in then State consisting of the South-Western part of Arabian peninsula; where
once Queen Shiba ruled; of whom, there is some mention in the Quran. The existence of
socialistic thought in the Greek Philosophy since Plato was also not unknown The conditions in
the Arabian society were also favourable in a thus fertile la for experimentation at least of this
so-called fast vehicle of economic strength But the Quran and the Prophet (P.B.U.H.) did not
adopt it as a philosophy. The discovery and demonstration of the weaknesses in it, (it is full of
besides so good-points) during this century by the States which have, immense human a
material resources, are eye-openers. Our own recent exercise in this field thou in a selected
sector and scale, but with full trappings of law and its enforcement has miserably failed. Our
Governments themselves, are reversing them in the Industrial Sector. The land question only,
has come to Courts. These failure should, instead of dismaying us, be treated as data-bank of
experience for a forward looking modern State trying to implement the rules of Islamic
economics/social justice. Our Geographical and other conditions do not, for the time being,
permit a revolution for this change. But the revolutionary primary steps can be taken to
ultimately implement the Islamic mandates and aims namely:

Citizens' equality in richness and good living-- the first step. Wherein is eradicate poverty and
the first achievement therein (and test whereof) will be ability of everybody to 'spend' on
oneself, his household and in the way All This is the command of Allah and each citizen is
himself to make effort also enable himself to do so; so as to achieve His other blessings as well.
But equality in poverty in any form, is rejected by Islam: as was opined by and demonstrate
during the rule of Umar (R.U);

Secondly, msximisation of wealth and surpluses so as to raise the standards of living of the
people by its circulation amongst them to the maximum as already discussed by leveling them
up without the, others being leveled down And thus to make an economically powerful
nation/State working in turn through the strength of its men and material, for the further well-
being of its citizens, also for achieving and maintaining an International position of strength for
it self and for the glory of Islam , as discussed above.

I think necessary here to refer to misunderstanding linked with faith in some, quarters' tamely,
that in an Islamic Society the existence of a poor sector of society is so ordained-- a pessimistic
view. This type of stoic thinking, to some, may amount to (Shirk); denial of Allah's powers and
promises, which in turn is (Haram). The injunctions cited in this behalf for example S 4. (29,30,
31-32) (See also 6 - 165) (SAA. Maududi; A. Yusuf Ali; M. Asad; S. Abdid Qadir (No. 166)
wherein the existence of disparity in status has been mentioned as a reality and at the same time
believers are told not to long for the same, are not being correctly interpreted, understood and
applied. In the same Verse each person has been conferred the right to have and hold what he
can ,earn, for which Allah's benefaction and bounty should also be asked for. There is neither
any clash inter se with the other Verses nor it leads to a despondent note for the poor. The Quran
assumes a poor man becoming the richest in the realm with all the trappings including the
recognition of his Status and Fazeelat as mentioned in this Verse. Of course in all this exercise
the principle in S. 53 V. (39); namely implying to each according to his, will have to be kept in
view. To the similar effect is, (32-33). All these Verses (229-32); 6.165; 53.39; (32-33) and
other related ones, together with the Sunnah Injunction's, throw full light on the questions of
disparities in status and property and assignment of functions and work. They in other words
mean All are not Rulers and Rich: but every one can become so. In the foregoing context the
questions of labour and capital as well as effort and opportunity can also be dealt with. All these
Verses and those relating to wealth; its circulation; surplus; its spending hoarding and its
punishment: good life and its needs: exploitation of God Given Gifts in materials and
capabilities; all important relationship between effort and its results: capacity and load, have to
be, considered top-ether. They imply: that in the system the present poor can be tomorrow's rich.
When he is rich he is not to hoard, but is to spend, circulate and invest so as to create the
maximum wealth and surpluses. When this is done opportunities shall certainly be available; but
only for those who want to exploit. Still some would he left without opportunity not because it is
not there but because they cannot avail it on account of latent or patent disability where under
they cannot carry any more burden. Those cases, which in view of the bounty/plenty on earth
Allah has bestowed, will be rare. They, of course even those who are social rejects, are the
responsibility of the, near and dear one and community. State in so far as their basic sustenance
is concerned.

In the foregoing context another aspect needs to be examined. In 6-- V. (165); where, in addition
to ordinary disparity, it seems the hierarchical gradation of status visualized" The existence
of economic for continuous upward movement of social well-being, can also be seen. After
mentioning this reality which is in the inherent nature of all creation, regarding human beings,
Allah did not top this movement at that. Here again I do not agree with the fatalistic
interpretation in this behalf to the effect that it was willed so, for some individuals/groups to
remain under the others. It is not so. The second half of the same part of the Verse refers to the
real Islamic intent, theory and its practical application, in a very condensed form. It is to the
effect that these, disparities are there but not without change. The injunction contains the
command that the disparities are there so that. Both the high and the low are being tested may be
also for future questioning in the next world. Quran is full of positive guidelines for those in
higher social/economic sectors as well in the lower ones. In this Verse all of them are being
addressed in the foregoing context. All these Verses while on the one hand, command and goad
those in the lower classes to improve their status -- for example, 53 V (39). And on the other
hand, those in the higher sectors, are told to spend in Allah's Way for those in the lower sectors
and also to help them improve their position/status, by circulation of their, wealth by various
means including maximising through lawful means-- say investment etc. All the Verses dealing
with the afore discussed subjects can also be found in the general list of relevant subjects in
concordance of Quran. When critically analysed they give a graphic picture of what Allah meant
by in 6. V (165). It can be visualized in the form of trial in which tests, questioning, charges all
are involved. The same if relevant qua individuals, can also be applied by intendment, reference
and extension. mutatis, mutandis. to the households, families, Mohallahs, tribes, communities,
nationalities, nations/states. Islam is firm in this command (53 V. (39) that Allah helps those
who help themselves. The picture, which thus develops is of grades and graph, in which Allah
has willed an upward movement of status (6. V. 165). Therefore in Islamic economics. in the
ordinary human life is there to only one way-- of Ievelling up. There is no downward movement
not even for expediency sake. The question of Islamic Zaroorat is in itself, a vast subject apart.

Answer: No doubt wealth of all kinds including means of production when amassed even by
lawful means, if not utilized for ones own needs and those of family, the community. the State
and the Ummah in accordance with the Islamic injunctions, would incur the liability to severe
punishment on the day of judgment. But all form of alienations, business transactions, gift,
Meher, Shufa, inheritance. Want Zakat, Usher and Islamic Taxation etc., would be meaningless,
without permission to acquire and retain wealth. Similarly commands about how to spend
"Surplus/s", and "circulation" of wealth amongst those who do not have it, would become
ineffective if any additional limits on acquiring and retaining it (except the condition of lawful
means) are imposed. Indeed there is none in Islam -and the practice followed during the
Prophet's (P.B.U.H.) time supports this theory. Thus the answer is in the negative.

Answer: The entire subject of political economy in Islam is woven around the concept of
FALAH. 'It consists of both fundamentals and procedures. Main amongst others are FALAH in
both the worlds as a fundamental; and acceptance of basic right to seek and obtain justice in all
spheres of activity, as the major procedural framework. The true application of this
procedural fundamental in Islam is that even an unwilling citizen should be forced to avail this
right to seek and obtain justice. When this is done the corresponding liabilities in every sphere
of life would start being honoured, voluntarily. It leads to the minimum interference by the State
except to provide effective machinery for education and consciousness about the
rights/liabilities, and their exercise/performance, also as a duty. Falah in both worlds,
particularly next one, cannot be achieved by nationalization and compulsory appropriations,
as a philosophy. As a rule Islam prohibits these methods. As an exception for what strictly is
“ZAROORAT" in Islam it is permitted but very rarely-- that too for the minimum period to tide
over specific “ZAROORAT". Thus the answer is in the negative.

Answer: subject to answer No. 2 the answer here also is to the qualified negative. However in
case of exception visualised there in while compensation is a must it is only one of the several
alternatives. One being, that the property be returned after utilization for the 'ZAROORAT, with
compensation for use' and occupation

Answer: As has been assumed in the above answer to questions No. 3 and 4 depending upon
time and place, it is not prohibited by Islam. But the law and procedure has to be such as to , the
other is that similar property be offered another is that a settlement be reached with consent.
Where the, 'ZAROORAT' or 'ZARAR' are Permanent and or imminent and compensation in
cash is the only alternative its payment can be postponed, for example, till after a sudden war,
Answer: As already stated it will be possible only in cases 'ZAROORAT'. State and public
purpose would also have to be defined in the light of the various shades of Islamic
"ZROORAT/ZARAR”. As to the limitations on such acquisition, the answer is in the
affirmative with the qualification that would be necessary on this subject due to modern needs
of State .leave always a clear liberty for those who want Jo-.achieve the same object voluntarily
so as not to lose the right to seek and obtain 'FALAH' in the next world.
Answer: The reply to this question again is limited by time and place. However, poverty can be
equated with a disease of the polity. Not to eradicate it is a contravention of a duty both at
individual/family and community/State levels. For example in the Quran the word ( 07 ) (HAQ)
is used for sustenance, against the affluent, in favour of poor relations, in the same family. A
scholar in answer to the question has stated the same concept as follows:-

"According to teachings of Islam, the primary duty to discharge the obligations created by the
covenant with Allah is individual to every Muslim (Q. 5. 105). They may freely aid each other
in this enterprise (Q. 5.2),but no ones personal duties can be wholly passed on to another, or by
the same token taken up by another (0.17.15). In other words the State or to be more exact, the
Ruling Agencies may act in aid of an individual, but cannot replace him. Doing good through a
bureaucracy hired as a general service cannot meet all the requirements of the complex Quranic
approach to welfare. The family unit, and the blood relations have priority in the welfare that
any person provides (Q. 8.75). Even the manner in which these services be provided is
prescribed (Q. 2.262). One of the most devasting side effects of State provided welfare is the
general indifference it produces in the members of the community towards the fact of human
suffering. A very large part of the useless old people are so, not merely because they are old but
because they are discarded, and suffer from utter loneliness. A kind word says Quran is better
than a generous deed followed by harsh words (Q. 2.263)."

State provided welfare can never be an adequate substitute for family (0.4.1). By insisting on
State providing welfare we deprive the needy of the most sought for quality of human kindness
and sympathy on the one hand, and for those who can give, the opportunity to lift themselves
spiritually by giving away voluntarily. The problems do not end here. Inadequate performance
in the field of welfare brings in many problems in trail. First people become reluctant in paying
taxes. The Governments press hard for collecting that which is due in law. People hide their
wealth, or spend it on high living before the tax-collector reaches them."

"Health, Education and Welfare are, the experience in the West has shown, bottomless pits so
far as requirements. in terms of funds are concerned. Once a government starts on this path the
pressure, for more and more funds is ever mounting. The democratic process adds fuel to fire.
Votes are obtained on the promise of ever-improving and more widespread welfare. The
resulting tensions and problems are common knowledge, Building up of an Islamic economy
will require a different more broad-based approach."

A framework can be devised to enable adjustment of rights and liabilities in this behalf on
voluntary basis. But disagreeing with the scholar I am of the view that they should also be
enforcible through Courts if the voluntary duty suffers neglect. (See also discussion on this
subject in Haji Nizam's case (PLD 1976 Lah. 930). It is said that Zakat and Ushar collected only
partially in Pakistan, is enough to eradicate poverty. If not, bare sustenance is the basic right of
every individual in Islam-- even those who are discarded by the society. In addition to Zakat and
Ushar which are already a subject of legislation in Pakistan, Taxation can also be resorted to
only if the amount so collected is found insufficient for the same object; namely, of sustenance
to the poor. Agriculture and Land, cannot be exempted from such taxation on any Islamic
principle. It is, however, clarified that raising of standards so as to enable the citizens to afford,
the Islamic SPENDING, should in this context be kept apart from the provision for sustenance
to the poor. Because, regardless of his effort in this behalf sustenance is a basic right guaranteed
by Islam; while raising of the standards so as to enable oneself to "SPEND', cannot be without
individual's effort.
Regarding enforcement of good deeds in other spheres of life through legislation when they also
relate to corresponding rights, say in the spheres of law and order, traffic, communications,
education and other similar fields, laws can be enacted to compel compliance. Similarly in
matters of defence oriented State necessities, Taxation laws and other laws can be made. In
short Islamic need for legislation would have to be determined and established, before
encroaching upon the fields of freedoms guaranteed by Islam, case to case. The so called
Welfare Legislation already commented upon has failed in all well-known prevalent systems--
Marxist, Socialist and Capitalist with varying degrees, to achieve the desired results. This has
been discovered after experimentation for not decades but more than half a century-- and at
what cost? The reverse thinking has already started in these systems on the questions of welfare.
However, the evaluation of the experiment is still continuing around the world. Some scholars
even hold the view that besides failure in its objectives such legislation has proved and is
proving counter-productive. They also have a strong lobby indeed and new alternatives are
being studied. The Islamic principles of economics have not so far been experimented. At least
deeper study for practical application, is the need of the day.

The Labour Legislation, which admittedly in this part of the world only looks after vocal and
fortunate sect or of society the Urban labour (which is also a strong political element) has, by,
and large, so far ignored more than 70 per cent of the rural population. It mostly consists of the
poor, self-employed, and the small peasant proprietors. This unfortunate rural sector including
womenfolk are living a life of toil mixed with poverty and lots of misery; both, social and
economic. The comment on prevalent labour legislation; therefore, would not be different from
what has been stated about general welfare legislation. The inevitable vast industrialisation
with. rosy picture for labour gets blurred by the very fast pace of automation-- both in
agriculture and industry. Automation by the end of the century, is going to level down the urban
favourites also to the state of their rural brethren. In the United States the agricultural sector
supplying the needs of the country as well as of some parts of the outside world, it is stated
absorbs only 3.5 per cent of the total available force. It is due to modern methods and
management together with automation. Be that as it may, another industrial revolution reducing
the labour class to the minimum percentage can be seen not in the very distant future turn of the
century may also be the turning point in this behalf. Therefore, the conditions of the poor would
be still worse than they were in the beginning of this century! which brought about violent and
other revolutions during the century. Hence, unless a silent revolution is brought about on the
basis of Islamic economic principles at least in our lands, we might face a counter productive
revolution (even if not violent) engineered by force of mixed values and motives. These
principles, it seems, shall have to be put to experimentation in the coming century whether we
do it or not. But we must ask ourselves a question here. Is it not our duty to do so, as a mandate.
The answer is source in the affirmative. Very well planned legislation in this field of Islamic
political economy would be needed to educate, create general consciousness and guide people
towards universal change in the life style of everybody with a view to: Bringing up the “have
nots ” towards the level of 'have s' without infringing an of the basic rights guaranteed by Islam.
Right to earn, acquire and hold wealth and the rights to social justice, human dignity-- in. body,
soul and mind, amongst other rights have all been guaranteed in Islam (See case on Security
Laws P L D 1988 Supreme Court 645 -- Shariat A.B.). And above all is the right so guaranteed
of obtaining justice (See the case on legislation regarding Ahmadis Practices P.L.D. 1987
Supreme Court 167 - Sh. A.B.). When all these rights are to be adjusted interest in the socio
economic. field two absolutely unavoidable' results 'would emerge:

(i) Mandatory levelling up with no levelling down;


and

(ii) Equality, not in poverty and misery but in total well-being and happiness.

True this system of 'FALAH' in Islam requires vigorous spiritual involvement as one of its
essential elements; with regard to which it is sometime said that the State cannot enforce
religious virtues by legislation. However, we also call and treat Islam as a (DEEN), containing
amongst others mundane rules of State craft. (In this behalf also see Haji Nizam's case (PLD
1976 La h. 930), regarding the interpretation of the word religion used in our Constitution).
Hence, to introduce a dynamic new system and to sustain it for some time legislation even if a
necessary evil, would have to be restored to; but after habit formation and change to Islamic
ethos on these issues this type of legislation, it is hoped, would wither away. We have
successfully entered upon this stage (of withering away) in some subjects, Islamization,
including that of Inheritance- indeed a vast one.. It is admitted. position that there is no
legislation on the substantive law of Inheritance except Section 4 of the Family Laws
Ordinance, 1961 which also. remains under constant scrutiny. And thus, this very wide and
important field of law falls within the field unoccupied by statutory legislation, except of course
the procedural one and that relating to transition from customary to Islamic law of Inheritance. It
is not a small thing that people in Pakistan follow the substantive law of inheritance voluntarily
and the Courts are needed to aid, only in a low percentage of disputes in this field. Accordingly,
if legislation is resorted to for introducing the Islamic economic system, by. Passage of time its
substantive part is likely to wither away as unnecessary and the procedural one night continue to
help the people through aid of the Courts. Thus the answer to this question (No. 6) is in a
qualified affirmative.

Answer: These precedents have very ably been analysed by Muhammad' Taqi Usmani, J. I have
no further comment to make except that Oven in case of acquisition for a I mosque and that too
Masjid-i-Nabvi, the question. of .compensation and consent did arise. They support the afore
expressed views in answer to other questions regarding acquisition, nationalization, and
compensation.

Answer: This subject also, with reference to the concepts of Zaroorat, Zarar etc. as in Islam, has
been properly dealt with by Muhammad Taqi Usman J. and in the other answers herein.

Answer: Same as answer to question No. 9. 1 would however add that the laws dealing with
Wakf properties, keeping in view their special character, have to be kept separate, with the
object of ensuring the objects of the wakf, case to case.

Answer: The acquisition, saving and retaining of wealth is permissible.

"Hoarding" is prohibited, when the main purposes in this behalf are not being served; I namely,
spending on ones' own needs, spending in Allah's Way out of the surplus and taking measures
like investment, so as to achieve circulation, amongst others also. Thus the answer is in the
affirmative.

Answer: As the answer to question No. 11 is in the, affirmative, this question.

Answer: The schemes so far made have not achieved the desired results. One reason may be that
people generally arc not satisfied that there schemes are free from elements of Riba. Be that as it
may, they have been copied from systems which, do not emanate from Islamic philosophy.
Experts, should devise new A methods of projecting Islamic principles in the whole structure of
the economy. Patih work, has not succeeded. The purposes indicated in this question for saving
are however, in accord with Islamic injunctions. Quran and Sunnah laid great stress on
acquisition of economic power and defence capability.

Answer: As already discussed the element of piety And rewards in the next world, in addition to
the blessings in this world, have been co-related with the act of 'spending' in Allah's Way. Any
legislation in this field which does not take care of this element, is most likely to prove
ineffective, rather, some times even counter productive. The laws in this, behalf should be based
on Islamic philosophy. For example they should be so made that citizens instead of concealing
wealth, should keep it, in such a manner that everybody including State should be aware of it
though display as such engenders jealousy. It is to be avoided. I agree with the, assumption in
the question that laws 'not made in the afore suggested way, would deprive the citizen of the
blessings of Allah, in his own thinking at least.

Answer: The reply assumed in the first part of the question. is correct. It is rather ideal.
However, for introducing the change in every thing . including thought and habits, legislation,
substantive and procedural would be needed in the beginning. Its need will get automatically
reduced by the success of the new system. Procedural laws might continue for a longer period
than the substantive ones. As to Ibadat, it will definitely mean interference. Hence the
legislation will have to acknowledge and/adjust voluntary acts in this field; which might only be
aided. In the Zakat and Ushar Ordinance, as amended, this principle, to an extent, has been
followed.

Answer: I do not agree with the view that leaving something in the inheritance for the heirs, is
not a desired objective in Islamic Economic. There are well-known Islamic Injunctions to the
contrary. The object is not un- Islamic nor undesirable. However, leaving inheritance by the
process of such "hoarding!' which is declared (Haram) in Islam, cannot, be supported. The
Marxist theory as applied in the two major Communist experiments, does not give any
importance at all to this concept. It is against nature as well; and, as discussed else where in this
judgment, has proved counter-productive.

Answer: This question has already been discussed in the answer to question No.7. No hard and
fast definition would be necessary at this stage. It depends upon time and place and historical
and geographical factors. In some Sunnah injunctions it. is stated, the need of one's own family
is included in his need it would be possible to expand the definition so as to include the needs
connected with circulation of wealth and for purpose of development also. In that case surplus'
may also have to be defined.

Answer: Sufficient comments have already been made on this subject. Equality in Islam does
not mean equality in poverty. The optimum in Islam is achieved in an upward movement.
wherein levelling down is not visualised. Islam supports a good life on this planet. It is to be
'filled' and not just 'Passed'. Without economic well-being in the optimum level there will be no
filling. Of course it has to be under Islamic philosophy.

Answer: Acquisition of wealth without limit; spending out of the surplus in Allah's Way;
circulation of wealth amongst maximum number in addition to those who hold it; no miserly
acts; no hoarding so as to thwart spending and circulation; and maximisation of wealth for the
good of the community and the State have already been discussed. Further details are not needed
in this case.
Answer: Sustenance, maintenance and subsistence would, require definition in accordance with
Islamic rules of economics. In my view the lowest level which is often described as poverty
where even food and clothing is a need (not met with otherwise)-- it is the basic right in Islam to
be supplied, as already held by me, even to the social rejects. This Islamic basic human right, it
has already been discussed, is enforcible in an Islamic State. The Courts can be entrusted this
function. May be, as an experiment, first it may be assigned to Local Councils. For example
under the Family Laws Ordinance, they can deal with maintenance cases even if not brought
before the Court. The questions of opportunity and work are vast, besides being complex and
are not being answered in this case.

Answer: No new Court need be created. The. present system of Local Councils' arbitration plus
the Civil Courts and Family Courts, under the supervision of the Federal Shariat Court can cope
with the work; provided there J is a well thought out framework of procedural laws.

Answer: The word 'Fundamental' used with 'right' gives a connotation; which might not fit in
every basic human right guaranteed by Islam. In the wider K context, there is no limit to the
opportunities vis-a-vis, the bounties of Allah. In K this context it would not be against the
injunctions of Islam to make it a Fundamental right, but it might create some serious difficulties
if it is made enforcible against the State without further qualifications.

Answer: (Asaish), (Araish), for satisfaction of aesthetic sense (without (Numaish) and
(Taish) and (Ma'ash) are permitted in Islam, when the 'surplus' and 'circulation' are dealt with in
accordance with the Islamic principles discussed above, by the person concerned.

Answer: While I agree with the assumption made in the first part of the question, it is not
possible in this case, to give a framework asked for in this question. As already observed, proper
assistance not having been rendered in this behalf, no further answer is necessary in this case.
Except that the principles have already been discussed.

Answer: Question of Income tax might be coming before the Court as an independent case.
Regarding the departments to be created for enforcement of Islamic concepts of (Falah) and
(Kfalat), I would suggest assigning them to those existing departments, which have shed of
sufficient load work. due to social and other changes, without shedding of the expenditure; as
also, to those which relate to the social uplift and/or justice. As to (Moashi lhtisab) I would
reproduce here a passage from the Monograph. The problem Building an interest free economy
by Khalid M. Ishaq.

"Human society in general and the Ummah in particular is established on the principle of mutual
aid and a universal duty to produce more than one's needs. The tender's demand is ultimately
based on the threat that he could have withheld the capital, and the result would be that the
worker (i.e. the borrower) would have no tools or raw material to work with to create a surplus.
The claimed right to withhold is conceded in the Western capitalist system. Communism
recognizing the radical distortion caused by unjustified claim, cures the ravages of this claimed
right to withhold capital from circulation by denying individual's rights to ownership of such
capital. Quran neither concedes the capitalist claim o owners of wealth to a right to withhold and
hoard their wealth, nor does it accept the Communist option. It takes the stand that the true
owner of all things as created is Allah. Human being hate temporary dominion over parts of the
creation under conditions prescribed by Him. Quran permits private ownership but regulates all
the conditions of earning. Retain in and spending. It warns of severe chastisement all those who
count and hoard wealth: and characterizes as great sinners those who claim that because they
have earned their wealth, they are entitled to do with it what they want (Q. 11.87). Quran
categorically rejects the claimed rights that a person can spend or hoard wealth at his complete
discretion. Once a right to withhold earnings from circulation is conceded a thousand ways of
explanation open. Need for tools and raw material is unavoidable for a person to become
productive. When withholding is wide-spread, or capital is available only at a price a person
who cannot save his capacity for work in desperation makes an unequal contract to share the
surplus that he produces and whose value he is entitled to retain. The parasites prosper, under
threat of withdrawal of cooperation. Islam demands from the Muslims to put in circulation
whatever is in surplus with them (0.59.7): not by reckless consumerism but by way of ref way
of help or investment (0. 17.26). Not for sheer display (0. 2.264) in a manner leading to Jealousy
in others (Q. 28.79 It also tells the Muslims plainly, that others have rights in their wealth (Q.
51.19 that they are in fact trustees in regard to all their talents (Q. 41.22) and wealth (Q. 3.186):
each shall have to be accounted for. Zakat requires of each individual that he produce a surplus,
because he would be able to participate in the process of 'purification through sharing' only
when a person has produced a surplus to give or to provide others from. Savings must not be
withheld from circulation, because circulation assures increase of goods and services for use.
Easy access to capital assures everyone's productivity. Increase in a I round productivity. and
security for one's savings assures constant in prices."

The foregoing answers, it is further clarified, may not be treated as the final view either. The
subject needed more to the point assistance, from experts having different points of view on all
the aspects of Islamic theory and its practical framework in the modern Pakistan context. In a
properly assisted case we might make further exercise, in these fields. However, the concerned
State agencies, are at liberty to proceed with the necessary processes in the socio-economic field
without waiting for such a case or its results; of course, in accordance with the Injunctions of
Islam, which is also a mandate in our Constitutional set up.

NASIM HASAN SHAH, J-- I have carefully studied the draft of the very learned judgment
prepared by my learned brother Maulana Muhammad Taqi Usmani, J. However, since my
approach to the problem is rather different from the approach adopted by my learned brother I
venture to give my own opinion in my own words.

As rightly pointed out by my learned brother, the fundamental question involved in these
appeals is to ascertain what is the concept of wealth (including property) in Islam, namely,
whether under Islam any individual can be considered to be its absolute owner of a property or
whether his rights over it are limited in any way

This question has been considered by Maulana Mufti Muhammad Shafi in a Paper presented by
him before the International Islamic Conference at Rawalpindi held on February 13, 1968. His
address was in Urdu but a translation thereof by Mr. Muhammad Hasan Askari Karrar Hussain
is available which has been published by Begum Aisha Bawany Wakf.

The learned Mufti Sahib has explained the real nature of Wealth and Property in the following
words:

"The other fundamental principle which has a great importance with regard to the problem of
the distribution of wealth is that, according to the elucidation of the Holy Quran itself, "wealth"
in all its possible forms is a thing created by Allah, and is, in principle, His "property". The right
of property over a thing which accrues to man is delegated to him by Allah. The Holy Quran
explicitly says:--

"Give to them from the property of Allah which He has bestowed upon you". (24:33)

Why this should be so I has also been explained by the Holy Quran in another place. All that a
man can do is to invest his labour into this endeavour to be fruitful and actually productive. Man
can do no more than sow the seed in the soil, but to bring out a seedling from the seed and make
the seeding grow into a tree is the work of some one other than man. The Holy Quran says-

"Have you considered what you till? Is it you yourselves who make it grow, or is it we who
make it grow?" (56:63,64)

"Have they not seen that, among the things made by Our own hands, We have created cattle for
them and thus they acquired the right of property over them". (36:71) All these verses throw
ample light on the fundamental point that "wealth", no matter what its form, is in principle "the
property' of Allah, and it is He who has bestowed upon man the right to exploit it. So, Allah has
the right to demand that man should subordinate his exploitation of this wealth to the
commandments of Allah.

Thus, man has the "right of property" over the things he exploits, but this right is not absolute or
arbitrary or boundless it carries alongwith it certain limitations and restrictions which have been
imposed by the real owner of the "wealth".

The above extract clearly brings out the real nature of wealth. There can be no doubt that
according to Islam, all wealth belongs to Allah---

"Unto Allah belongeth whatsoever is in the heavens and whatsoever is in the earth. He forgiveth
whom He will, and punisheth whom He will, Allah is forgiving, Merciful". (3:129)

Thus absolute ownership of all wealth possessed by man is Allah's and that man is only a trustee
of whatever he possesses and is not its absolute owner."

The other fundamental principle of Islam, which must be borne in mind is that it seeks to usher
in a society based on Al-Adl Wal Ehsan.

"Al-Adl" in the context of this discussion means social balance or equilibrium, in social and
economic relations.

Keeping the above two principles in view, it follows that while absolute ownership of all wealth
is that of Allah, man is only a trustee of whatever he has and is not its absolute owner and
secondly that his rights over his property must be exercised in a way so as to bring about an
equilibrium in social and economic relations. In other words, in Islam individual freedom is
subordinated to the social responsibilities cast on man, by the ethical principles enunciated in
the Holy Quran.

A logical consequence of the concept of trusteeship is that the right to own private property
though recognised, gets severely limited because in the Islamic perspective man's freedom to
own property is only relative to the needs of the society.

"Believe in Allah and His messenger, and spend of that whereof He hath made you trustees; and
such of you as believe and spend (aright), theirs will be a great reward. (57:7)

it must also not be forgotton that man by nature, as a general rule is greedy and selfish. If left to
himself he would not do much for others in the society. The Holy Quran attests to this aspect of
man's nature.

"Say (unto them): If ye possessed the treasures of the mercy of my Lord, ye would surely hold
them back for fear of spending, for man was ever grudging. (17:100)

However, Allah's 'intention' is that everybody should be provided with a minimum of


sustenance:

"And there is not a creature in the earth but the sustenance thereof dependeth on Allah. He
knoweth its habitation and is its repository. All is in a clear record." (11:6)

The existence of hunger and abject poverty in society is entirely on U count of the doings and
actions of man. This is clearly recognised by the Holy Qaran.

And if the people of the townships had believed and kept away. from evil, surely We would
have opened for them blessings from the sky and from the earth. But (unto every messenger)
they gave the lie, and so We seized them on account of what they used to earn." (7:96)

Hence the necessity for taking steps for rectifying this social imbalance brought about by the
doings of some people.

The need for remedial action in certain situations is also emphasised in Verse 5 of surah 4 of the
holy Quran which reads:
"Give not unto the foolish (what is in) your (keeping to their) wealth, which Allah hath given
you to maintain; but feed and clothe them from it and speak kindly unto them." (Surah 4-. Verse
5)

Maulana Abul Ala Mududi in his commentaries on the Holy Quran explains this Verse as
follows:

"And of them is he who made a covenant with Allah (Saying): If He give us of His bounty We
will give alms and le-come of the righteous. (9:75)

The above verse shows that Islam emphasises the act of 'giving' as the essence of a just socio-
economic system and reflective of Allah's intention. Hence, any method devised as a means of
checking individual greed and laying out a framework wherein all members of society get a
minimum of sustenance is in accord with the injunctions of the Holy Quran and the Surnnah.
Although it is true that Islam assigns the big importance to man's altruistic behaviour, where the
act of giving is guided solely by the desire to gain Allah's pleasure.

But at the same time man innate selfishness and greed are also recognised, though not justified.
Thus, the need for taking remedial measures to correct the imbalance which man's selfish and
greedy behaviour gives birth to.

From the above discussion it is manifest that in Islam the full exercise by the owner of his
rights in his property has been appropriately subordinated to his social responsibility.
Furthermore, once the Islamic State enters upon the task of restoring the "rights" of the
"deprived" and the "oppressed" with a view to realising the ethical principles enunciated in the
Holy Quran the 'distance between the rich and the poor will be reduced. The view taken that this
dislause can be corrected through the strict enforcement of the system of Zakat, Usher and
proper adherence to the system of inheritance prescribed by Islam is true only to a point. In a
society like Pakistan, which has been raised on feudalistic capitalistic principles for
centuries to reduce the gulf between the rich and the poor and restore the social balance it would
be essential for the State to intervene to discharge its responsibilities and amongst its
responsibilities it has to ensure that the society's demand for such basic requirements as health,
education livelihood, and housing are satisfied. For enforcing the system of AI-Adal Wal Ehsan
and to ensure a social equilibrium in the society the ideal social behaviour is not egoistic self-
glorification but a commitment to ameliorating the lot of the least-privileged in the society.
Accordingly, in the situation as it presents it-self today in Pakistan even large scale State
intervention to restrain individual greed so that social welfare is maximized cannot be declared
to be against the injunctions of the Holy Quran. Accordingly, an Islamic State is not prohibited
from adopting such legal measures as contained in Martial Law Regulation 115 act of 1972 and
Act 2 of 1977 in order to bring about Adl (social equilibrium in the society). The Holy Quran is
explicit on what the individual and the society should be doing:

"Lo Allah enjoineth justice and kindness, and giving to kinsfolk, and forbiddeth lewdness and
abomination and wickedness. He exhorteth you in order that ye may take heed." (16:90)

By the same token, Islam rejects an economic order which is not based on these Divine
principles because the Islamic economic system clearly aims at reestablishing a social balance,
with a clear 'bias' in favour of the poor and the economically weak. Thus in Surah 51 Verse 19 it
is said:

"And in their wealth the beggar and outcast had due share." (51:19)

And again Almighty Allah declares in Surah 70 Verses 24 & 25

And in whose wealth there is a right acknowledged, for the beggar the destitute". (70:24-25)

The above principle is indeed a revolutionary one. What the poor must get from the wealth of
the rich is not charity but their haqq (right), of which some one including a particular social
system, may have "deprived" them. This principle is stated up even more nointedly is Surah
XXVIII Verses 5 & 6.

"And We desired to show favour unto those who were oppressed in the earth, and to make them
examples and to make them the inheritors to establish them in the earth, and to show Pharaoh
and Human a; their hosts that which they feared from them." (28:5-6)

The implementation of this Divine commandment on the economic plane would require a heavy
redistribution of income and wealth to redress the gross social and moral disequilibrium created
by the present economic system. The rich must part with excess wealth because they are not
absolute owners but only trustees and its disposal is subject to the Divine Law.

"And what aileth you that ye spend not in the way of Allah. when un to Allah belongeth the
inheritance of the heavens and the earth? Those spent and fought before the victory are not
upon a level (with the rest you). Such are greater in rank than those who spent and fought
afterwards. Unto each hath Allah promised good. And Allah is Informed of what ye do." (57:10)

Those who do not fulfil the obligations of a trustee will be punished by Allah:

"Leave Me to deal with the deniers, lords of ease and comfort (in 1 life); and do thou respite
them awhile." (73:11)

Social justice follows from Al-Adl since there can be no justice without a delicate balance
obtaining among the many social and economic forces that shape the basic structure of the
society. One of the most important elements of structure is the ownership pattern of assets. It is
for this reason that man has warned against concentration of wealth:

"That which Allah giveth as spoil unto his messenger from the people of the townships, it is for
Allah and His messenger and for the near of kin and the orphans and the needy and the
wayfarer, that it become not a commodity between the rich and among you. And whatsoever the
messenger giveth you, take it. And whatsoever he forbiddeth, abstain (from it). And keep your
duty to Allah, Lo! Allah is stern in reprisal. (59:7)

Thus, Al- Adl requires that social justice must obtain in every walk of life so that the Divine
principle of equilibrium is reflected on the plane of social existence. Man has been commanded
again and again to realize and maintain the quality of justice under all circumstances. The
second part of Allah's command i.e. Al-Ehsan requires that economic policies in an Islamic
economy have a distinct tilt towards the poor. Not only that. The process of pushing up the poor
along the scale of social hierarchy must continue until the "deprived" in the society receive their
"due share". In order to ensure that the needy and the deprived mount up the scale of social
hierarchy it is necessary to undertake land 1C reforms, confer rights of ownership upon the
tenants and to reduce the family C holdings.

It should not be forgotton that landed property if not equitably distributed becomes not only the
most important source of economic injustice but also leads social tensions and moral
degeneration in the society. It is, therefore, in furtherance of the objects of the Islamic system to
regulate and mould this institution in a manner which conforms to the Islamic concept of
trusteeship. Thus while every effort should be made to encourage the altruistic instinct in man,
the State must intervene where private initiative falls. And in view of-man's instinctive greed, to
which the Holy Quran testifies, the role of the State may have to be quite large to effectuate a
substantial transfer of privately held property to "the needy and the deprived". All such steps
will be in accord with the Divine principles Al-Adal Wal Ehsan.

'My learned brother Maulana Muhammad Taqi Usmani, J. in his erudite judgment while holding
that compulsory acquisition, of land is against the injunctions of Islam has, at the same time,
observed that in case of necessity Islam permits the doing of acts which are normally haram for
overcoming it. My learned brother has, on the authority of certain learned Fuqahs, defined
necessity as follows.

But can this definition be regarded as the last word on the subject? It should be remembered that
the message of Islam is eternal and must, therefore, always remain open to the searching
intellect of man and earlier concepts subjected to suitable modifications in the light of the
circumstances preying at any given time. On this view of the matter, elaborating the above-
mentioned concept of. necessity I would think that where the alul amar reaches the conclusion
that owing to the tremendous difference existing between the very big landlords and the petty
tenants who work on their land the condition of these tenants has become miserable and unless
their lot is bettered and agriculture made a more profitable vocation there would be a danger of
social upheaval and political unrest and there is dire political necessity and it is in the supreme
national interest to take suitable remedial steps to prevent such a disaster; he would be justified
in taking all necessary steps to obviate it. The question whether such a necessity exists and what
steps should be taken which will be suitable and necessary in this behalf would also be a matter
for the alul amar to decide.

In the instant case, the alul Amar came to the conclusion that it was in the supreme national
interest to improve the economic well-being of the peasantry and that this could be done by
making agriculture a profitable vocation and preventing concentration of landed property in a
few hands. He, therefore, in order to achieve this objective decided to promulgate the Land
Reforms Regulation 1972 (MLR 115) as is clear from its preamble, namely:

"Whether Islam enjoins equitable distribution of wealth and economic powers and abhors their
concentration in a few hands;

And whereas it is in the supreme national interest to improve the economic well-being of the
peasantry, by making agriculture a profitable vocation."

This Regulation attempted to secure these objectives by prescribing a ceiling of 150 acres of
irrigated land and 300 acres of un irrigated land or any area equal to .15,000 P.I. Units as the
maximum holding that a land-owner could own and decreed the resumption of all land owned
by a land-owner in excess of this maximum limit without compensation and directed the
distribution of the Ian so resumed to tenants and small owners without charge. It further
redefined the contractual conditions between landlords and tenants, including protection against
eviction.

As these provisions did not produce the desired results a fresh law was passed by the National
Assembly of Pakistan to provide for further land reforms. Its preamble states:

"Whereas it is in the supreme national interest to bring about a more equitable distribution of
wealth by carrying out further land reforms:

And whereas Clause (1) of Article 253 of the Constitution of the Islamic Republic of Pakistan
provides that Parliament may by law restrict the maximum limits as to property or any class
thereof which may be owned, held, possessed or controlled by any person."

This law was called the Land Reforms Act, 11977 (Act 11 of 1977) and was enacted on 9th
January, 1977. This Act had three significant features. It reduced the ceiling to 100 acres of
irrigated land; it allowed compensation to the landowners (in the form of bonds) and it made
provision for distribution of the resumed land among landless tenants and small land-owners
without charge or payment.

The above law namely Act 11 of 1977 was enacted by the National Assembly of Pakistan which
consisted of the elected representatives of the community and practically all of them were
Muslims. The problem of unrest amongst the "deprived" classes in the community was before
them and by consultation among themselves they made an attempt to solve it by enacting the
Land Reforms Act (Act 11 of 1977). This enacted in my humble view, appears to be a step to
enforce the Injunctions of 'Islam and was taken strictly in accordance with its commands namely
that the believers shall transact their communal business in consultation among themselves:

For all these reasons, even though. I agree with my learned brethren that the Federal Shariat
Court and the Shariat Appellate Bench of the Supreme Court has the jurisdiction and the power
'under Chapter 3-A of Part VII of the G Constitution, to examine the Land Reforms Regulation,
1972 and the Land G Reforms Act of 1977 for ascertaining whether its provisions are repugnant
to the G Injunctions of Islam but being of the opinion that on the merits of the case the view of
the majority of the Federal Shariat, Court that the impugned laws, are no repugnant to the
Injunctions of Islam, is correct I would dismiss these appeals, leaving the parties to bear their
own costs.

Shariat Appeals No. 1. 3.4. & 9. 10 of *1981, 21 of 1984 and PL107.

SHAFI.UR RAHMAN, J-- I had the privilege and the benefit of reading the original and also the
revised draft, judgments prepared by my learned brothers Dr. Justice Nasim Hasan Shah and
Mr. Justice Maulana Muhammad Taqi Usmani. My considered views on the subject under
examination are as follows-.--

All these eight appeals under Article 203-F of the Constitution of the Islamic Republic of
Pakistan, 1973, arise out of a majority decision of the Fe Shariat Court disposing of a number of
Petitions before it of which the judge has been published as Hafiz Muhammad Ameen etc. v
Islamic Republic Pakistan and others (PLD 1981 F S C 23). The question raised in all appeals
concerns the repugnance of the various provisions of the Land Re Regulations of 1972 (M L R
115 of 1972) (hereinafter referred to a Regulation) and Land Reforms Act, 1977 (Act II of 1977)
(hereinafter referred to as the Act), to the Injunctions of Islam.

The appellants in all these appeals except one are private individuals/land owners who have
been affected by these statutory instruments with regard to their ownership and possession over
land. One Appeal (S Appeal No. 1 of 1981) is, by a Wakf known as 'Qazilbash Waqf which has
treated as a person for the purposes of Land Reforms, and its holding has been adjusted in the
same manner and to the same extent as that of an individual land owner..

Though it is not necessary to narrate the factual background of each these appeals separately,
the brief facts of the two appeals will adequately illustrate the wide range of the controversy. In
Shariat Appeal No. 3 of 198 Ali is the appellant. He owned originally 900 acres of agricultural
land in village Tangi Nasirzai, Tehsil Charsada, District Peshawar. In 1972 Land Refer had to
surrender 600, acres leaving a balance of 300 acres. His uncle died and he inherited 60 acres
which were resumed being in excess of the ceiling 1977 Land Reforms he had to surrender 200
acres more and was left with 100 acres only. In 1979 his wife died and he inherited 50 acres but
he had to surrender it. In this background, he challenged paras 7, 8, 13, 18, 23 and 30 of M L R
1972 and Section 3, 4, 5, 6, 8, 9, 10, 11, 13, 14, 15 and 17 of Act II . or 1977.

In Shariat Appeal No. 1/1981 Qazilbash Waqf was created in the years 1892 with 40 square of
land equal to 1,020 acres irrigated land in the suburbs of Lahore. On the promulgation of the
Regulation 8-30 acres were resumed without compensation. On the promulgation of Act in
1077, another 88 acres resumed awarding a compensation at the rate of Rs. 30 per P.I.U.

The contention before the Federal Shariat Court was that accord to Quran and Sunnah of the
Holy Prophet (p.b.u.h.) an individual is free to a as much property by honest and fair means as
he is capable of. No ceiling placed on his property. Similarly, freedom of contract is recognized
and non can ' be prevented from alienating voluntarily his property and the alienation cant be set
at naught by any statutory provision. Para 7 of the Regulation in so as it declares "all
alientations, encumbrances on land made after the 20th of Dec 1971 to be void" was repugnant
to the injunctions of Islam. The limit on the holding (Para 8 of the Regulation), the restriction on
the partition of the holding and on alienation of land (Para 22 of the Regulation), the non-evict
of the tenants except on specified grounds (Para 25 of the Regulation) w challenged on the
ground of being repugnant to injunctions of Islam.

Qazilbash Waki took up the plea that as Wakf property vested in Almighty Allah it could not be
treated as a person, could not be resumed nor could the Scheme of Wakf disturbed or altered.

The Federal Shariat Court by a majority dismissed all the Petitions. With regard to the
jurisdiction of the Federal Shariat Court to examine the provisions of the Regulation and the
Act, the majority view was that the jurisdiction was barred and the grounds given in the leading
judgment for holding so have been summarised in the following words:--

"Let me now sum up the steps taken by the framers of the constitution to protect the Regulation
and any law to be framed by the Parliament in exercise of the special and extraordinary power
conferred upon it by Article 253;

(1) The Regulation was declared valid by Article 269 and the jurisdiction of all Courts to go into
its vires was ousted. It cannot be called in question in Court on any ground whatsoever.

In view of Article 268(2) it cannot be altered, repealed or amended even by the Parliament
except with the previous sanction of the President.

(3) By Article 253(2) it was declared that any law allowing a person to own or possess
beneficially an area of land greater than the area which before the date of enforcement of the
Constitution he could have lawfully owned or possessed beneficially will be invalid. The
Constitution thus provides that the Regulation shall hold the field notwithstanding the
enforcement of any law passed by the Parliament to ' increase or abolish the ceiling fixed by it.
The effect of this provision is that though the President may permit the Parliament to alter or
amend or repeal other provisions of the Regulation the grant of permission by him for passing of
an Act by the Parliament to do away with or increase the ceiling of ownership of land fixed by
the Regulation will bean exercise in futility, and this ceiling shall remain effective till it is
reduced by an Act to be passed under Article 253(l). A permanent embargo is thus placed on
increase or abolition of ceiling though there can be no Constitutional objection to its reduction.

(4) Article 8(3) protects this Regulation from being challenged on ground of its inconsistency
with or repugnancy to any Fundamental Right.

(5) Article 24 protects it against attack on ground of its violator. of any of the rights guaranteed
by that Article including right to compensation. Thus the vires of the Regulation cannot -
challenged even on ground of its being silent about payment 61 compensation.

(6) Act II of 1977 is firstly a law enacted and enforced by the Parliament by virtue of the
powers-given to the Parliament by Art. 253 and secondly its validity is protected from any
attack by Art. 24(3). The adequacy or otherwise of the compensation fixed by it cannot be
questioned in any Court vide Article 24(4).
This is a unique example of cases in which the framers of the Constitution have taken unusual,
rather extraordinary, pains to plug all the loopholes of attack on the vires of the Regulation.
They have gone to the extent of declaring even future laws invalid if they abolish or increase the
ceiling on ownership of land fixed by the Regulation.
The question arises: can the Court declare anything invalid or bad which is declared valid by the
Constitution? The answer to this question must be in the negative. But here the Court is
confronted with another difficulty which to say the least, is insurmountable. It cannot declare
any provision of the Constitution as repugnant to Islamic Injunction. Any declaration of
repugnancy with Shariah of the provisions of law placing ceiling on ownership or reducing it,
would amount to declaration of those Constitutional provisions as bad which declare those laws
either valid or untouchable."

Notwithstanding the incompetence of the Petitions, the Federal Shariat Court examined the
various provisions of the Regulation and the Act and the following conclusions were recorded in
the leading judgment accepted by the majority of the learned Judges.

"(i) Legislative action can be taken by the State to make its citizens in times of dearth share
their wealth with the poor and the needy in the community."

(ii) "Reference may also be made td the view in Islami Manshoor of All Pakistan Jamiat Ul-
Ulmai-Islam at p. 40:

"The Sharia has not fixed any maximum limit on the ownership of land but if individual
ownership of big tracts of land becomes a cause of mischief in the social-economic set up and
the social welfare programme and the religious and national interests be in jeopardy or likely to
suffer it would be open to the Government to place or fix a- limit on the ownership of land in the
light of the principles of Shariah."

This valuable opinion of the Ulema clinches the matter. I am in full agreement with these
opinions. The principle of reconciliation referred to by Shah Walliullah in the case of
expropriation of land by Hazrat Omer for purpose of Hima (grazing ground) is fully applicable
to Martial Law Regulation 115."

(iii) "There can be no doubt that the right to partition goes alongwith the right of ownership of
immovable property but for the reasons already noted the State does have the authority to
restrict the right in the larger interest of the Ummah. These restrictions have been placed to put a
stop to further fragmentation of holdings and to retain them as viable units for cultivation. It
cannot be doubted that such a step was necessary for boosting agricultural economy. In order to
further the interest of the joint owners provision has been made in para. 23 for management of
impartible joint holding as a single unit. It provides that in the event of a dispute regarding the
management the co-sharers may select one of them as manager by drawing of lots or may get a
manager appointed through the Collector of district.

This para. thus introduces the idea of co-operative farming which is necessary for stepping up
the programme of improvement in agricultural economy."

(iv) "Paragraph 24 puts a ban on sale, mortgage or gift of any portion of land which may reduce
the holding of an owner to less than a subsistence holding or an economic holding, as the case
may be, but it allows an owner to sell his entire holding. The object of this paragraph is also
similar to the object underlying paragraph 22 and as such the paragraph cannot be
declared repugnant to Islamic injunctions."

(v) "These weighty quotations establish the predominance of the State's authority over land. The
State can change the conditions of a waqf for reasons of State or public policy. According to the
opinion of Imam Malik which appears to be more in consonance with public policy, land once
reclaimed by the owner can be granted by the State to others for fresh reclamation if into turns
barren and the owner does not take any interest in making it cultivable. Abu Bakar Hussas also
appears to hold the same view. It would therefore follow that the state can impose restrictions on
the ejectment of a tenant, which would not only encourage self-cultivation as ordained by the
Prophet (p.b.u.h.), and thus discourage absentee landlordism but, also give an incentive to the
actual cultivator to derive the maximum benefit from the land under his tenancy and thus assist
in the fulfillment of the State's goal of achieving self sufficiency in the production of the food
grain."

One aspect of the judgment of the Federal Shariat Court, namely the right of the tenant to pre-
empt the sale (Para 25 of Regulation) has been the subject-matter of decision in different
appeals coming to this Court and reported as P L D 1986 S.C. 360. In that case we had occasion
to examine the effect of all these constitutional limitations and restrictions except the one
contained in Article 253 of the Constitution on the question of jurisdiction of Federal Shariat
Court to deal with such petitions. The impediment of Article 253 of Constitution is peculiar to
these appeals. As regards all other provisions of the Constitution, we had held as follows:--

"We do not think that any such bar in fact exists so far as the new Constitutional dispensation is
concerned. An entirely new power was conferred on the Specified Courts or Benches thereof. A
test of repugnancy Injunctions of Islam was prescribed. This empowerment had its own
inhibitions and limitations, and, but for these, it transcended all constitutional protections and
safeguards. For example all laws, but not the Constitution, Muslim Personal Law, any Law
relating to the procedure of any Court or Tribunal or, any fiscal law or law relating to the levy
and collection of taxes and fee or banking or insurance practice and procedure could be tested
on this standard "notwithstanding anything contained in the Constitution." To apply this test of
repugnancy to the Constitution or a provision thereof is one thing and to apply this test to any
other law, validated, continued or protected under the Constitution is another. The first is
prohibited, the second is not.

Article 269 of the Constitution declares inter alia all Martial Law Regulations "to have been
validly made by competent authority and shall not be called in question in any Court on any
ground whatsoever." In spite of such a comprehensive and complete bestowing of competency,
validity and immunity they had to be protected by express provision of Article 8(2) (b) against
their inconsistency with fundamental Rights. On the same reasoning if such laws were to be
protected against the normative test of injunctions of Islam, there had to be express provision in
similar words for them in Chapter 3-A of the Constitution. With such a categorical conferment
of power, none of the inhibitions being attracted or applicable, it cannot be said that the Court
was precluded from examining such laws directly or indirectly. The case of Meh Jabeen
Zainbunnissa, in the absence of a similar provision in Chapter 3-A as is to be found in Article
8(2)(b) of the Constitution cannot be brought in aid for implying restrictions and limitations in
the Constitutional power."

In our view, therefore, the other provisions of the Constitution noted did not offer any
impediment to the competence and the maintainability of these Petitions in the Federal Shariat
Court.

As regards the Constitutional provision contained in Article 253 of the W Constitution the
learned Federal Shariat Court held the view that it bars adjudication on such a Petition as was
filed by the appellants.

Article 253 of the Constitution is reproduced hereunder:--

"253. Maximum limits as to Property etc.--

(1) Majlis-e-Shoora (Parliament) may by law--

(a) prescribe the maximum limits as to property or any class thereof which may be owned,
held, possessed or controlled by any person; and

(b) declare that any trade, business, industry or service specified in such law shall be carried
on or owned, to the exclusion, complete or partial, of other persons, by the Federal Government
or a Provincial Government, or by a corporation controlled by any such Government.

(2) Any law which permits a person to own beneficially or possess beneficially an area of land
greater than that which, immediately before the commencing day, he could have lawfully owned
beneficially or possessed beneficially shall be invalid."

The learned counsel appearing for the appellants have generally argued that non-obstante clause
in Chapter 3-A should be given its full effect so as to subordinate every other provision of the
Constitution and the limitations on the jurisdiction, if any, should be read within the provisions
of Chapter 3-A and not outside it. The law brought for examination under Chapter 3-A was the
Regulation and the Act and not any provision of the Constitution and, therefore, the limitation
contained in clause (c) of Article 203-B does not get attracted, if indirectly constitutional
provision gets affected. What is authorised directly and expressly cannot be denied or negative
on inference or indirectly.

Mr. S.M.Zafar, Advocate, the learned counsel for the Qazilbash Waqf has contended that Article
253 is clearly a self-executory provision of the Constitution. It contains a prohibition. It contains
a penalty of invalidity. It therefore, comes into play immediately without anything further to be
done in respect of it. It is further contended by him that in clause of this Article the expression
"law" should be construed in a manner to include judicial pronouncements as well as
distinguished from the law framed by the legislative organ. If that contention prevails then a
judgment cannot be given in spite of the non-obstante clause in Chapter 3-A whereby the
holding could exceed the limit indicated therein because such judgment would be in breach of
Article 253. it is also contended that there is nothing in the Constitutional provision or otherwise
which may justify the continuance of a provision whereby no compensation is payable for the
excess resumable land on its resumption. 'It can, therefore, according to the learned counsel be
consistently laid down that compensation be provided in all cases where excess land is being
resumed under the law, and where law makes no provision for it, repugnance with the
injunctions of Islam is obvious.

It is correct as observed in Said Kamal's case (PLD 1986 S C.360) that the Petitions from which
the present Appeals have arisen do not expose any constitutional provision as such to the test of
repugnancy or invalidity as is provided for in Chapter 3-A. The, provisions of the Regulation
and the Act are under challenge and they qualify as law as defined in Chapter 3-A. It is true that
if the material provisions of the Regulation and the Act are declared to be repugnant to the
injunctions of Islam in the manner as the appellants seek them, the consequences under Article
203-D, clause (3) sub-clause (b) may have in substance the effect of contravening what is
prescribed in Article 253. But then the question is whether the expression "law" in clause (2) of
Article 253 has that extensive connotation as to include judicial pronouncements as well?

There are two good reasons for limiting the connotation of law as used in this Article so as to
exclude the pronouncements of the Courts. In the first place, Article 253 deals with the power of
MaJIis-e-Shoora with regard to property, which may be held, possessed or controlled by any
person and the carrying on o; the trade, business, industry or service specified in such law and it
is after this that the provision is made that any law which permits a person to own beneficially
or possess beneficially an area of land greater than that which immediately before the
commencing day he could have lawfully owned, beneficially owned or. possessed beneficially
shall be invalid. The two clauses of this Article are coextensive with regard to the source of the
law and there is no reason to extend the connotation of law in clause (2) to judicial
pronouncements. The second reason is that in the case of Brig. (Retd.) F.B. Ali v. The State
(PLD 1975 S C 5d6), the word 'law' used in Fundamental Right No. 9 in 1973 Constitution came
up for consideration and the majority view that prevailed was that law was what is a formal
pronouncement of will of competent law-giver. This view was approved in Federation of
Pakistan v. Hyesons Sugar Mills Ltd. (PLD 1977 S C 397).

It is also correct that the constitutional provision contained in Article 253 is self-executory
because it is a complete code, accomplishes especially by its clause (2) what it aims at and is
mandatory rendering nugatory all laws inconsistent with it. The first part is enabling, the second
part is prohibitory providing the consequence also where prohibition is not honoured. But as it
remains uncontravened, for no law inconsistent with it is being framed in the process, the bar
does not operate to exercise of jurisdiction by Courts under Chapter 3-A of Part VII of the
Constitution.

I consider that for examining the repugnance of the impugned provisions of the Land Reforms
Regulation and the Act the ground of necessity as envisaged in Islam need not be invoked
because none of the parties has invoked it before us and the factual material necessary in the
contemporary social conditions has not been properly set out in any of the matters before us.
Besides, the doctrine necessity for its application has the conditions or limitations as explained
by my learned brother Mr. Justice Dr. Nasim Hasan Shah in the case of Begum Nusrat Bhutto v.
Chief of Army Staff and Federation of Pakistan (PLD 1977 S C 657 at page 757) in the
following words:--

(a) an imperative and inevitable necessity or exceptional circumstances;

(b) no other remedy to apply;

(c) the measure taken must be proportionate to the necessity; and

(d) it must be of a temporary character limited to the duration of the exceptional


circumstances."

If these be the limitations, and indeed they appear to be, then not only the contemporary socio-
economic factors have to be taken note of, relevant to the period when the impugned legislation
was enacted but also of the existence of such conditions when the question of its legality is
raised or adjudicated upon.

The invocation of this doctrine of necessity will also inevitably require periodical adjudication
by the Courts over the same matter but in the altered context.

The jurisdiction conferred on the Federal Shariat Court, and on the Shariat Appellate Bench
while hearing the appeals, is to "examine and decide the question whether or not any law or
provision. of law is repugnant to the injunctions of Islam as laid down in the Holy Quran and the
Sunnah of the Holy Prophet" (P.B.U.H). This test of repugnancy as pointed out by me in
Government of N.W.F.P. v. Said Kamal Shah (P L D 1986 S C 360 page 468) is a strong but a
very restricted test. In the case of Union Stamp ship Company of New Zealand Limited and
another v. The Commonwealth and another (1925) 36 C L R 130 at page 157 the following
observations with regard to the meaning of the repugnancy were made:-

"But still we have to find the full meaning of the word "repugnant" itself, as used in the Act.
According to the Oxford Dictionary, it has this meaning -- as its primary meaning: "contrary or
contradictory to, inconsistent or incompatible with, divergent from, standing against, something
else", but the meaning "divergent from, standing against, something else" is marked as obsolete.
No doubt the word "repugnant" is often used loosely and rhetorically-, but in considering Acts
of Parliament, the strict meaning should prima facie be applied."

In the case of The Attorney-General for, Queensland v. The Attorney-General for the
Commonwealth and another (1915) 20 C L R 148 at 168) the historical background of the word
'repugnant' was dealt with in the following words:--

"In the history of the extraordinary circumstances leading up to the passing of the Colonial Laws
Validity_ Act, its meaning was not considered doubtful by the. Imperial law officers.

The first set of questions put to them and the answers they gave are set out in Mr. Keith's
informative work, Responsible Government in the Dominions, at pp.. 404-40.

Reference to questions 2 and 3 and the answers thereto indicates that the law officers considered
"inconsistency", "repugnancy' and "contrariety' as interchangeable terms in I his connection.

I entertain the same opinion; it is supported by such cases as Gentel v. Rapps (1902) 1 K. B.,
160, at p. 166."

Keeping in view this strong but restricted meaning of the word 'repugnant', the other expressions
like "not in accordance with the injunctions of Islam", "not keeping in line with the ethos or
spirit of the Injunctions of Islam" cannot be used as tests, as substitutes, or as synonymous with
'repugnant', the word used in the Constitution, the word as construed by Courts and, understood
by legislative bodies.

In the Holy Quran we find a clear direction, a mandate directed towards the individual, that
whatever is in excess of his needs, should be given out to those who are in need of it or not
possessed of it. There is another command in the Holy Quran that the persons in authority or
power in an Islamic State shall direct to be done or get done what is mandated in the Holy
Quran. Simply because no such ceiling has actually been fixed in the Holy Quran itself or by
Prophet (Peace be upon him) would not be negating the power of the State to fix a limit on
distribution of national resources or maximum utilization of it by redistribution. A contrariety or
inconsistency would arise not by the mere absence of any such event having taken place but by
an occasion having arisen and resort to such devices having been disapproved either by the
Command in Quran or by the Sunnah of Holy Prophet (P.B.U.H.). Inferential reasoning by
jurists to find out what is more in conformity with the injunctions of Islam is altogether different
exercise than to identify and locate the repugnancy. In the latter case the test is restricted, the
field is limited, the contrariety has to be directly shown and not inferred or implied.

Coming now to the merits of the submissions, from the written arguments submitted and those
addressed at the bar to sustain the claim of the appellants there appears to me, if I may say so
with respect, certain. assumptions and misconceptions. The assumptions are two and the
misconceptions are four.

The first assumption on the part of the appellants that the relevant commands, the injunctions of
Islam, some of which have been enumerated more specifically hereunder in the judgment
though broadly on the same subject are severable from the other. On that view, one category of
such commands taken to be mandatory, universal and abiding while the other category as
directory, addressed to the individual which can await obedience and compliance till the day of
judgment arrives, the individual faces the Creator and the rewards and punishments for the
worldly deed are being handed down. In this fashion when worldly wealth is under attack, the
first category of commands is used as a shield and the second category as a weapon for
defending it.

Some of the injunctions 'of Islam of the first category ignore comprehensively taken note of by
the Federal Shariat Court and in the draft judgment prepared by my learned brother Mr. Justice
Muhammad Taqi Usmani, are reproduced hereunder alongwith the comments where relevant
and available on them:

(i) Sura Baqarah, V. 212

"As to the worldly riches Allah has full authority and power to bestow these without measures
on anyone He wills."

(ii) Sura Baqarah, V. 188

Do not usurp one another's property by unjust means nor offer it to the judges so that you may
devour knowingly and unjustly a portion of the goods of others.",

(iii) Sura Nahal, V. 71

Maulana Maududi has Commented on it as follows:--

Some of the injunctions of Islam falling in the second category referred to above are the
following:--

(i) Sura Baqarah V. 215

"The people ask, "What should we spend?" Tell them, "Whatever you spend, spend for your
parents, your relatives, orphans, the needy and the wayfarer; and whatever good you do, Allah
has knowledge of it."."
(ii) Sura Baqarah, V. 219

"And they ask, "What ought we to spend (in the way of Allah)"? Say,

"Spend whatever you can spare." Thus Allah makes His Commands to you so that you may
think about the good of both this world an Here after,

(iii) Sura Baqarah, V. 267.

"O Believers, expend in Allah's Way the best portion of the wealth have earned and of that We
have produced for you from the earth do not pick out for charity those worthless things which
you yours would only accept in disdain by connivance, if they were offered to Understand it
well that Allah does not stand in need of any whatsoever and has all the praiseworthy
attributes."

Sura Zaaryaat V. 19.

Like any organic law, more so in the case of a divine law, which supposed to hold the field for a
very long time or for all times to come injunctions of Islam have to be considered as an
integrated whole, complete exhaustive code of life and the principles of severability cannot be
applied evolving, shaping or re-shaping the society and in idealising the objectives integrating
the two categories it follows that all worldly possessions and p under injunctions of Islam are:--

(i) a trust;

(ii) to be utilized for the benefit of the person holding it in accordance the conditions
prescribed;

(iii) for the benefit of all others who may be in need of it; and

(vi) to the detriment of none.

The second assumption in the argument is that the injunctions of Islam addressed and directed to
the individuals can be lifted and transposed in their pristine form to the State-individual
relationship ignoring altogether or detaching completely the attending conditions, limitations
and restrictions accompany or qualifying those injunctions. In doing so the entirely different
character, content and amplitude of State-individual relationship is completely lost sight of the
State represents the collective will of the Ummah and has, as distinguished from the individual,
the sole responsibility of defending physically and territorially Ummah and of establishing and
advancing its collective social welfare. The individual's responsibility in the matter is not
ordinarily socialised and that of the State not individualized.

While for the individuals there are commands and injunctions galore , in the Holy Quran for the
State-individual relationship, there are only a few and tile two directly attracted to the matter
under consideration are the following:-

(i) Sura Haij, V. 41.

"There are the people who, if We give them power in the land, will establish Salat, pay the
Zakat dues, enjoin what is right and forbid what, is evil, and the final decision of all affairs is in
the hand of Allah."

Maulana Maududi has commented on it as hereunder:-

"In this one sentence, the real aim of the Islamic State and tile characteristics of those who
conduct its affairs have been stated concisely but comprehensively. Those who help Allah and
deserve His succour behave righteously, establish Salat, make arrangements for the collection of
Zakat and use their power and authority to propagate good and eradicate evil."

The propagation of good and eradication of evil brings within the power and responsibility of
the State even the directory commands.

(ii) Surah Nisa V. 59.

“O Believers, obey Allah and obey the Messenger and those entrusted with authority from
among you. Then if there arises any dispute about anything, refer it to Allah and the Messenger,
if you truly believe in Allah and the Last Day. This is the only right way and will be best in
regard to the end.-

According to Maulana Maududi this verse is the basis of the whole religious, cultural and
political system of Islam and is the first and foremost article of the constitution of an Islamic
State, and it has further been observed by him as hereunder:-

"After the first and the second allegiance, and subordinate to these the Muslims owe allegiance
to those invested with authority from among themselves. The Arabic word (those invested with
authority) is very comprehensive. it comprises all those persons who are in any way at the helm
of the affairs of the Muslims-- religious scholars thinkers, political leaders, administrators,
judges of law Courts chiefs and the like. In short, all those, who are in any way invest authority
from among the Muslims, are to be obeyed, and it is n to disturb the peace of the community life
of the Muslims by e into conflict with them, provided that (a) they are from among Muslims and
(b) they arc obedient to Allah and His Messenger. two conditions are a prerequisite for
obedience to them, and have explicitly laid down in the verse and have also been fully explained
Holy Prophet. The Holy Prophet said, "Your worst rulers are whom you hate and who hate you
and whom you curse and who you." The Companions asked, "0 Prophet of God, should we n
against such rulers?" The Holy Prophet answered, "No, as long establish Salat among you."
Some people doubt the soundness principle. They say that it fails in practical life for the simple
reason there are many aspects of life (e.g. Local Self-department, R department, Postal
department, etc. etc.) for which there a regulations at all in the Book of Allah and the Sunnah of
His messenger How then are we to rind the solution of the problems we meet such aspects of
life as concern such departments? This doubt because they do not understand the fundamental
principle of Islam allows freedom of action in all those things about which the of Allah and the
Sunnah of His Messenger are silent. What distinct a Muslim from a non-Muslim is that the latter
claims absolute but the former considers himself to be the servant of Allah and us that amount
of freedom which Islam allows him. The non-Muslim all matters in accordance with the rules
and regulations ma themselves and do not believe that they stand in need of Guidance. In
contrast to this, Muslims, first of all, turn to Allah a Messenger for guidance about everything
and abide by their de But if they do not rind any commandment therein about a certain only then
they are free to act in a manner they consider to be right very fact that the Law is silent about a
certain thing, is a proof allows freedom of action in that it particular matter."
Examining the over-all impact of the Injunctions of Islam the responsibility in the matter seems
to have been correctly formalized in principles of policy enshrined in Article 38 of the
Constitution in the following words:-

"38. Promotion of social and economic well-being of the people .--The State shall--

(a) Secure the well-being of the people, irrespective of sex, caste, creed by raising their standard
of living, by preventing the concentration of wealth and means of production and distribution in
the hands of to the detriment of general interest and by ensuring equitable adjustment of rights
between employers and employees, and landlords and tenants;

(b) provide for all citizens, within the available resources of the country, facilities for work
and adequate livelihood with reasonable rest and leisure;

(c) provide for all persons employed in the service of Pakistan or otherwise, social security by
compulsory social insurance or other means;

(d) provide basic necessities of life, such as food, clothing, housing, education and medical
relief, for all such citizens, irrespective of sex, caste, creed or race, as are permanently or
temporarily unable to earn their livelihood on account of infirmity, sickness or unemployment;

(e) reduce disparity in the income and earnings of individuals, including persons in the various
classes of the service of Pakistan; and

(f) eliminate riba as early as possible."

As regards the misconceptions the first is that any attempt to fix a ceiling of land holding
amounts to establishing a classless society and a classless society is not at all visualized by the
injunctions of Islam. In the first place there is no effort or attempt, express or implied of
establishing a classless society. On the other hand the express object of such legislation and the
effort is to reduce the difference between the two extremes, one of riches and the other of the
poverty. To reduce this gap between the extreme riches and the extreme poverty is the very
theme, the purpose and the thrust of all the injunctions of Islam, on the subject. Such is the
responsibility of the individual as well as of the State in their respective spheres.

On no reasoning can it be said that by prescribing a ceiling of one hundred acres irrigated or
equivalent of agricultural land and leaving the other wealth in the form of cash, valuable metals,
other movable and immovable properties, shares in companies and industries substantially
untouched a classless society gets established, or even an attempt in that direction is made.
Actually, it amounts to an attempt to conserve and ensure improved utilization of material
resources that is land and it can happen also in the case of water, air and minerals etc.

The second misconception is that by placing a limit or ceiling on the land holding an
opportunity is being denied or seriously curtailed to those possessed of land and its income of
giving in charity and, thereby earning for the Hereafter. No such denial is taking place because
as pointed out the other wealth has not been put under such a control and the distinction between
the rich and the poor does not cease to exist by such a measure.

The third misconception is that such a restriction on assets or wealth an individual has been
imposed for the first time. It is not so. The cash wealth the individuals have throughout the
muslim world been subjected to tax the richer paying move than the poor and much of these
taxes are spent on welfare of the poor, the destitute and those, not well provided for. Where the
cash earnings of an individual have already been subjected to such a graded, escalating cannot
be said that other wealth cannot be brought under similar control.

The fourth misconception is that such a ceiling subverts the mandatory law of inheritance
prescribed by the Injunctions of Islam. It does not because the process of inheritance is
complete and thereafter the inheritor has a choice to retain the inherited property or the other
one if there is an execs resumption is from him. The surrender is also by him after he has inherit
property.

My learned brother Mr. Justice Muhammad Taqi Usmani has referred to a Sunnah of the Holy
Prophet (P.B.U.H.) in para 87 of his draft judgment which is of great value in deducing a
principle of law. It is that transactions which have concluded and did not when concluded offend
against any law cannot be expost facto invalidated or overridden. It is just like the protection
given to an individual in criminal matters where an act done is not an offence when done cannot
be made an offence ex post facto. Further remedial action is however possible, as was done on
the advent of Islam by discontinuing prospective riba on existing and antecedent contracts. A
formally entrenched provision on the subject is found in the American Constitution (Article 1
Sections 9 and 10)to the effect that "No State shall pass any bill of attainder, expost facto law,
or law impairing the obligation of contracts." This legal proposition rinds full support from that
Sunnah of the Holy Prophet.

An argument (in converse) somewhat in similar strain and relatable to rule of law was taken
note of in the case of Mir Ahmed Nawaz Khan B Superintendent Jail, Lyalpur (P.L.D. 1966 S.C.
357 at para 361) in the follow:

"It can be urged that if a person suffers some harm on account illegal act of a public servant; that
is not a treatment of per accordance with law and Article 2 does not permit validation which was
not treatment in accordance with law, because if the allowed the protection of Article 2 will
disappear."

Putting the same proposition straight, if someone does a perfectly legal thing today, can the law
of the land framed tomorrow, or at a future date declare without violating the injunctions of
Islam, that act to be illegal when done. while prospective invalidation cannot be objected to on
no principles known to Law ex post facto invalidation can be justified or approved. The object
of such a law is to protect the wrong doer in one case and to harm the innocent other. A flagrant
violation of this salutry principle is found in para. 7 (a) of the Regulation which was enforced on
11-3-1972 but provided that:

"the transfer of any land, and the creation of any right or interest in or encumbrance on any land,
made in any manner whatsoever in respect of any area, on or after the 20th day of December,
1971, by any person holding immediately before that date an area of more than one hundred and
fifty acres of irrigated land or three hundred acres of unirrigated land or an area equivalent to
twelve thousand produce index units (calculated on the basis of classification of soil as entered
in the Revenue Records for Kharif 1969 and Rabi 1969-70), whichever shall be greater, shall be
and shall be deemed to have been owned or possessed, as the case may be, by the person by
whom it was owned or possessed immediately before that date;"
Coming now to the various provisions of the Regulations and its repugnancy to the injunctions
of Islam, the first, objection is to the definition of person contained in para. 2, clause (7) of the
Regulation. It defines person so as to include a religious, educational or charitable institution
every trust whether public or private. Para 17 of the Regulation extends the ceiling and the
surrender provisions of the Regulation to every religious, charitable and-educational society or
institution and to every trust or Waqf whether public or private. It will be incorrect to say that
Waqf cannot be classified as a juristic entity or juristic person. Ownership of Property is not the
only test for a juristic entity. Anyone capable of having a status, of dealing with others, of
entering into contracts. capable of enforcement, is a juristic person. A Wakf satisfies these
requirements.

It is true that the public Wakf with which we are dealing in the case is already directed towards
the objects which are professed objects of the .Regulation and consistent with the injunctions of
Islam its management can be controlled, guided and taken over but its welfare aspect cannot be
substituted without reasonable cause being shown as a fact. To that extent paragraph 17 appears
to be against the injunctions of Islam.

As already pointed out retrospective legislation with a view to render illegal what was legal
when done is against the injunctions of Islam, therefore, para 7 is repugnant to it. At the same
time it has served its purpose. The transactions hit by it are all past and closed.

Paras. 8, 9 and 10 fix the ceilings for various categories and various types of land and as already
pointed out it can be done as a prospective measure.

Para. 12 is procedural with regard to the declarations to be submitted and it does not affect any
vested right.

Para 3 provides for vesting of the excess land without compensation prospectively by way of
penalty for. breach of the law surrender of the excess could take place without compensation but
not while resuming the holding rendered excess by the law itself.

Paragraphs 14, 15, 16, identify resumable properties and make provision for their resumption. A
prospective provision to this effect can certainly be made and to the extent there is
retrospectivity in para 14, it is on the principle above stated repugnant to injunctions of Islam.
But then again it concerns a past and concluded matter.

Paragraphs 18 to 21 concern the mode or utilization and disposal of resumed land. As none has a
vested right in it these provisions cannot be held to suffer from any infirmity.

Paragraphs 22 to 24 identify the subsistence and the economic holding, make better provision
for their management, utilization and alienation. These provisions do not destroy or confiscate
the property but only restrict and regulate the right to manage, utilize, and alienate such
property. As it satisfies the requirements of welfare and reasonableness it cannot be declared
repugnant.

As regards para. 25, on the subject of non-evictibility of tenants except on specified grounds and
of mandatory sharing of investment in cultivation and the fixing of the maximum share of the
produce, there are two views on the subject. On one extreme is the view expressed by Dr. Israr
Ahmed in the following words:--
On the other hand we have the views of Maulana Abul A'la Maudoodi in the following words:--

In view of these two views, both tracing their source from the Holy Quran and the Sunnah of the
Holy Prophet it cannot be said that the non-evictibility of tenants except on specified grounds
and on cause shown and sharing in the enterprise is offensive to the Injunctions of Islam.

Taking up now the provisions of the Act, Section 3 of the Act by its language is prospective and
hence unexceptionable, fixing of a reasonable ceiling in the case of land being held not
repugnant to Injunctions of Islam. Section 6 also being prospective is not repugnant to
Injunctions of Islam. Section 8 is a temporary prohibition for the interregnum and is directed
towards preserving and protecting the property and is unexceptionable. Sections 9 and 10 have
two features, one prospective in so far as someone acquires land greater than the ceiling after the
enforcement of the Act and the other, somewhat retrospective touching the existing owners of
land who have land in excess of the prescribed limit since before the enforcement of the Act.
For the first category, forfeiture or surrender can be provided without even compensation
because such acquisition itself would be in breach of law competently framed. In the case of
second category, however, the compensation for surrendered excess land has to be at market
rates and not at a fixed rate of Rs. 30 per P.I.U. or at cost minus depreciation. But like other
provisions the second feature of these provisions has exhausted itself, the transactions affected
by it are past and closed and amendments for the future are neither necessary nor serviceable.
The other provisions of the Act relate to declaration, utilization etc., with which the appeals are
not directly connected.

The conclusions at which I have arrived are that:----

(i) Paragraphs 7 and 17 read with Paragraph 2 (71, of the Regulation are in entirety repugnant to
injunctions of Islam;

(ii) Paras 13 and 14 of the Regulation are repugnant to injunctions of Islam in so far as existing
owners, at the date of the commencement of the Regulations are affected by them;

(iii) Sections 2 (7), 9, 11 and 12, of the Act are partially repugnant to injunctions of Islam in so
far as they affect existing owners at the time of commencement of the Act and also deal with
Wakf Properties.

As most of the provisions found, repugnant to injunctions of Islam happen to be self-executory,


they have of their own force taken effect, accomplished the object of the legislation leaving the
mere implementation of it, to be completed on the strength of machinery provisions. Such self-
executory provisions will remain unaffected by this decision. However, those provisions which
have a prospective effect also and are not self-executory, shall get annulled from the date the
decision declaring them repugnant to the injunctions of Islam takes effect.

ORDER OF THE COURT

It is unanimously held that the Federal Shariat Court and the Shariat Appellate Bench of the
Supreme Court have the jurisdiction and the power under Chapter 3-A of Part VII of the
Constitution, to examine the Land Reforms Regulation, 1972 (hereinafter referred to as the
Regulation) and the Land Reforms Act, 1977 (hereinafter referred to as the Act) and to decide
whether or not provisions thereof are repugnant to injunctions of Islam.
2. In accordance with the opinion of the majority of the Judges separately recorded, it is held
that the following provisions of the Regulation, the Act and the Punjab Tenancy Act, 1887 to the
extent indicated against each, are repugnant to the Injunctions of Islam:--
(i) Para. 2, clause (7) of the Regulation in so far as it includes Islamic Wakf for the purposes
of other paras of the Regulation which are being held wholly or partly repugnant to injunctions
of Islam.

(ii) The whole of Paragraphs 7, 8, 9, 10, 13 and 14 and consequentially paragraph 18 of the
Regulation.

(iii) Paragraphs 15, 16, 19 and 20 in so far as they ignore the rights and obligations, the terms
and conditions of the grant licence or lease, as the case may be, in resuming the stud and
livestock farms, Shikargahs and Orchards and dealing further with them under Paragraphs 19
and 20 thereof.
Paragraph 17 of the Regulation in so far as it relates to Wakf and all other institutions which can
validly fall within the definition of Islamic Wakf, and consequential to that extent paragraph 21
also.

Paragraph 25 (1) of the Regulation in so far as it does not give sanctity to the grounds of
ejectment available in a valid contract between the landlord and the tenant, entered into in
accordance with the injunctions of Islam,

Paragraph 25 (3)(d) of the Regulation has already been declared to be repugnant to the
injunctions of Islam in Said Kamal's case (PLD 1986 S C 360). .

(vii) The whole of Sections 3, 4, 5, 6, 7(5), 8, 9, 10 and consequentially the whole of sections 11
to 17 of the Act.

(viii) The whole of section 60-A of the Punjab Tenancy Act, 1887 in so far as it makes non-
occupancy tenancy heritable irrespective of the terms of the contract.

3. The question of repugnancy or otherwise of Paragraphs 22, 23, 24 of the Regulation is left
undermined in these proceedings as the Court feels that proper and full assistance has not been
received and another decision of the Federal Shariat Court has come into the field during the
interregnum.

4. In accordance with the opinion of the majority of the Judges it is held that the provisions of
Paragraph 25(3), clauses (a),(b) and (c) of the Regulation are not repugnant to the injunctions of
Islam.

5. Shariat Appeals No. 1 of 1981, 3, 8, 9, 10 of 1981 and 1 of 1987 are allowed and Shariat
Appeal No. 4 of 1981 with the reservation contained in para 3 above and Shariat Appeal No. 21
of 1984 are partly allowed. All the parties shall bear their own costs but the appellant in Shariat
Appeal No. 1 of 1981 being a Wakf shall be entitled to claim the costs from the respondent/the
Federal Government.

6. This decision shall take effect on 23rd March, 1990 whereupon the provisions declared
repugnant to the injunctions of Islam will cease to have effect.
7. The operation of the self-executory provisions of the Regulation and the Act, and the
provisions ancillary thereto shall not in any manner be affected by this decision till the aforesaid
provisions cease to have effect i.e. on 23-3-1990.
M.BA./Q-27/S Order accordingly.