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Petitioner: M. SHAFI MUHAMMADI and others VS Respondent: ISLAMIC REPUBLIC OF PAKISTAN and
Court Name: Sindh High Court Judge(s): Ghulam Rabbani, Zahid Kurban Alavi, Shabbir Ahmed Title:M. SHAFI MUHAMMADI and others vs ISLAMIC REPUBLIC OF PAKISTAN and
JUDGMENT
Reported As: PLD 2003 Karachi 1 Result: Petitions disposed of Judgment JUDGMENT ZAHID KURBAN ALVI, J.---We propose to dispose of Constitutional Petitions No,D-412 of 1998 and No,D-1069 of 1999, through this single judgment. 2. The petitioner namely Mr. M. Shafi Muhammadi, who is a practising Advocate of this Court, through this Constitutional petition bearing No,D-412 of 1998 has prayed for the following relief against the respondent that:-- (a) the respondent has no authority to appoint any Judge in violation of the Islamic points deduced in the Judges' case and/or to act on unIslamic points in violation of the Qadiani's case with reference to the points decided by the Federal Shariat Court; (b) the respondent had no authority to appoint Rana Bhagwandas, a Hindu, in violation of Islamic concept otherwise it shall be amounting to declare the Qadiani's case to have been decided on self-made presumption; (c) the respondent had no authority to appoint Ms. Majida Razvi, J., to deal each and every kind of case including the Hudood and Qisas cases; (d) the respondent had no authority to issue notification dated 30-9-1996 to regularise the appointment of Rana Bhagwandas, J., in violation of the Islamic concept or in violation of Verse 141 of Surah Al-Nissa of the Holy Qur'an or to regularise the appointment of Majida Razvi without clarifying that she could not sit over Hudood and Qisas cases; (e) the petitioner be allowed to add/amend the petition, if necessary, after going through the comments/reply of the respondents; (f) pending that, as an ad interim relief, the respondent be directed--
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(i) not to regularise the services of any Judge already appointed in violation of the Islamic points which were highlighted in the Judges' case; (ii) and/or appoint any Judge/Judges in violation of the said points; (iii) to restrain Rana Bhagwandas from working as Judge of this Court till disposal of this case; and (iv) to restrain Ms. Majida Razvi, J., from sitting over the cases involving Hudood and Qisas matters; (g) any other relief deemed fit and proper in the circumstances of the case may also be granted; (h) cost of the petition. 3. Briefly the facts of the case, as alleged by the petitioner in Constitutional Petition No,D-412 of 1998 are that the petitioner is a national of Islamic Republic of Pakistan and a law-abiding citizen of this country with rights to be ruled by the State in accordance with law as interpreted by the Supreme Court of Pakistan. With reference to all such rights, guaranteed under the Constitution of the Islamic Republic of Pakistan, 1973 (hereinafter referred to as the "Constitution"), the Hon'ble- Supreme Court of Pakistan, disposed of a case against Qadiani Sect (Zaheeruddin v. State) reported in 1993 SCMR 1718, with the observation that a finding of the Federal Shariat Court, if the same is either not challenged in the Shariat Appellate Bench of the Supreme Court or challenged but maintained, would be binding on the Supreme Court, the Hon'ble Supreme Court had also decided the case titled as Al-Jehad Trust v. Federation of Pakistan PLD 1996 SC 324, which was related to the appointment of Judges in the Supreme Court. In this case, it was held by the Hon'ble Supreme Court that under Article 2A of the Constitution the principles and provisions set out in the Objectives Resolution reproduced in the Annexure to the Constitution have been made substantive part of the Constitution, which, inter alia, enjoins that "whereas the independence of judiciary shall be fully secured". It was also mentioned that in view of provision of clause (1) of Article 2, all existing laws shall be brought in conformity with the Injunction of Islam as laid down in the Holy Qur'an and Sunnah. The Hon'ble Bench further observed that "we will, therefore, have to examine the question of appointment of Judges' with reference to Islamic concept". It has further been alleged that the said "Judges' case" was discussed by the Federal Shariat Court in two other different cases. In one of the cases it was held that the Prime Minister, the President and Judges of the Federal Shariat Court were not bound to follow any of the judgment of the Supreme Court if it was found to be un- Islamic. This pronouncement of the Federal Shariat Court is also sufficient to treat Hakim Khan's case PLD 1992 SC 595 to be un-Islamic where the operative effect of Article 2A in the Constitution was declared to be without any effective character. It is alleged that instead of following this undisputed reality in the light of the Qadiani's case of two members' Bench comprising of Sajjad Ali Shah, C.J., (as he then was) and Raja Afrasiab Khan, J., issued a contempt notice to the petitioner herein, when he was Judge of the Federal Shariat Court and it was further ordered by the said Bench that certain paras. Of the order of the Federal Shariat Court should not be published in any Newspaper, Magazine, Law Journal, etc. In this way the whole Nation was put in darkness as to what had been said by the Federal Shariat Court. Soon thereafter the Federal Shariat Court declared the Judges' case to be unIslamic; that the hypocrisy of the Rulers and Members of the Chief Justices Committee with Islam by ignoring the Qadiani's case and embracing the unIslamic Judges case, with intention to obliterate the Foundation of Islamic Judicial Systam in Pakistan, claimed to be an Islamic State, has not only invited the wrath of Allah in this State in the shape of curses and crisis appearing in the form of sectarianism, bloodshed, law and order situation, poverty, earthquakes, storms alongwith diseases, draught and defeats in every field of life but, has also provided chance to the enemies to say that this is the picture of Islam in Pakistan. 4. The petitioner further alleges that under the garb of Judges' case, Justice (Retd.) Sajjad Ali Shah (as he then was C.J.) followed the first point to get persons of his own choice appointed in Sindh by ignoring the criteria which was set in the Judges' case; Rana Bhagwandas, J. Was not confirmed by the Government of Mst. Benazir Bhutto, like other Judges, but was got confirmed by the concerned
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Chief Justices after the Judges' case as per Notification dated 30-9-1996. A question arises as to whether Rana Bhagwandas, J., a Hindu, who is not a Muslim by his own belief, can keep the sacred book of the Holy Qur'an in his hand particularly in the light of the judgment in the Qadiani's case who claim to be Muslims but are not treated as Muslims by any other Muslim sect in Pakistan and the Government has failed to treat the appointment of Rana Bhagwandas to be un-Islamic, illegal and un-consututional because he would have no right to keep the Holy Qur'an in his hands to decide cases in accordance with the Islamic principles. To some extent the appointment of Ms. Majida Razvi, J., also falls within the ambit of certain important points which are not disputed by different Muslim Jurists. The petitioner has filed this Constitutional petition to treat this Country to be an Islamic State and not a State to be ruled by Muslims as in Turkey and moreover this petition has been filed not to issue any writ by Bench of a Court to another Bench of the same Court but this petition has been filed to get the Judges case implemented in all respects to get an order similar to order passed in the case of Haider Iqbal Wahnimal v. Islamic Republic of Pakistan in Constitutional Petition No,D-2110 of 1997 by this Hon'ble Court. 5. The petitioner further claimed that the President and the Prime Minister of Pakistan are bound not to follow any un-Islamic path and, therefore, they are bound to implement the Judges' cases without being black-mailed by any corner of the State. 6. The brief facts of the Constitutional Petition No,D-1069 of 1999, as narrated in the petition, are as follows:-- "That the petitioner namely M/s. Saka Enterprises had filed three Income Tax Appeals against the order of the Income Tax Appellate Tribunal, Karachi, in this Court vide I.T.As. Nos.212 of 1998, 213 of 1998 and 214 of 1998, respectively. The said appeals were fixed before a Division Bench headed by Mr. Justice Rana Bhagwandas and Mr. Justice Sabihuddin Ahmed. The said appeals were heard by the said D.B. Only on one common issue, although the three appeals involved different issues for the assessm ent of three years i,e, 198283, 1983-84 and 1984-8. The appeals were dismissed in limine through a short order mentioning therein that reasons to be recorded later on but no detailed order was passed. The learned Division Bench headed by Mr. Justice Rana Bhagwandas, who being a Hindu by faith, was not qualified to be a Judge of this Hon'ble Court and was not competent to condemn the petitioner in three appeals and so there was no Division Bench as required under section 136 of the Income Tax Ordinance, 1979 and the incompetent Bench burdened the petitioner/assessee with heavy income-tax in the three appeals without proper hearing, on law and on fact involved and was guilty of misconduct, therefore, there was complete denial of due process of law as enshrined in Articles 4 and 9 of the Constitution of Pakistan and extreme violation of justice as laid down in Qur'an and Sunnah of the Holy Prophet (p.b.u.h.). It has further been alleged that a person, who has been selected as a Judge of High Court, must be a Muslim by faith because if he is a non-Muslim then he cannot adopt, recite or chant Shaair-e- Islam as held in 1993 SCMR 1718 and must have the qualities as laid down by the Hon'ble Supreme Court in PLD 1996 SC 423. It is further urged in the petition that Mr. Rana Bhagwandas, who being a Hindu by faith, is infidel (Kafir) and his appointment as a Judge of High Court of Sindh is against the provisions of Constitution of Islamic Republic of Pakistan, he being not qualified to be a Judge, all his decisions from the date of appointment as Judge of the High Court of Sindh are void without jurisdiction, hence coram non judice and he is again guilty of misconduct. His appointment and the notification issued in this regard are both void and invalid. 7 The petitioners have made following prayers in Constitutional Petition No,D-1069 of 1999:-- (a) To hold Mr. Rana Bhagwandas not qualified to be a Judge of the High Court of Sindh. (b) Declare that his appointment by the President of Pakistan and notified in the official Gazette is void and invalid.
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(c) Declare that the short order passed by him on 18-11-1998 in three Income Tax Appeals being there no D.B. Is of no legal effect. 8. We have heard the petitioner in person in Constitutional Petition No,D-412 of 1998, M/s. Abdul Hafeez Pirzada, Abid S. Zuberi, Khalid Jawed Khan and Yawar Farooqui, Advocates, on behalf of the respondents and M/s. Aminuddin Ansari, Ghulam Qadir Jatoi, for the petitioners in Constitutional Petition No,D-1069 of 1999 and M/s. Abdul Hafeez Pirzada, Syed Tariq Ali, Standing Counsel, for the respondents and have gone through the documents available on record. 9. It may also be pertinent to state that during pendency of the petitions several Miscellaneous applications were filed; (i) Mr. Khawaja Mansoor Ahmad, Advocate, has moved C.M.A. 4733 of 1999 in Constitutional Petition No,D-412 of 1998 and C.M.A. 4736 of 1999 in Constitional Petition No,D-1069 of 1999, both under Order I, rule 10 read with Sindh Bar Council may be impleaded as one of the respondents in this petition as being necessary and proper party for determination of all the questions involved in the petition. It has been contended by Mr. Khawaja Mansoor, Advocate, that he is Vice-Chairman of the Sindh Bar Councils, which is a statutory body of Lawyers, constituted under the Legal Practitioners and Bar Councils Act, 1973 (Act XXXV of 1973) and more than ten thousand Advocates have so far been enrolled as advocates of the High Court and Subordinate Courts in the Province of Sindh, without any discrimination of their religion, caste, colour, creed or sex which include Muslims, Hindus, Christians and Parsis, etc. The Sindh Bar Council, under the statute, owes its duty to protect and safeguard the rights, interests and privileges of Advocates and so also to the Courts and people at large to protect their Constitutional and legal rights. He has also stated that the present petitions have been filed with mala fide intention and on personal prejudice and to tarnish the image of judiciary and every institution of Pakistan not only in the eyes of People of Pakistan but in the comity of nations. He stressed for dismissal of both the Constitutional Petitions. (ii) Mr. Nariandas C. Motiani, Advocate, has also filed an application under Order I, rule 10 read with section 151, C.P.C. In Constitutional Petition No,D-412 of 1998, stating therein that the, petitioner has filed Constitutional Petition No,D-412 of 1998 to challenge the appointment of Mr. Justice Rana Bhagwandas, to act as a Judge of the High Court of Sindh, which is going to affect not only Mr. Justice Rana Bhagwandas personally but all the Hindus and other members of minority communities like Charistians, Parsis, Sikhs, Budhists, Qadianis and others for years to come. The questions involve the interpretation of Articles 25 and 27 of the Constitution, which, respectively relate to the equality of all the citizens and to the prohibition against discrimination in the matter of appointment. He has, therefore, prayed that the intervener, namely, Kishan Chand son of Kundomal Parwani, a sitting member of the National Assembly of Pakistan, may be joined as one of the respondents in the interest of justice. In the supporting affidavit he has stated that the challenge of appointment of Mr. Justice Rana Bhagwandas at belated stage is mala fide and suffer from laches. Even the petitioner, it is added, is not an aggrieved person and he has no locus standi. The appointment of Mr. Justice Rana Bhagwandas was in terms of Article 193, clause (2), therefore, no proceedings in nature of quo warranto can lie against the Judge of High Court. There is no embargo in the Constitution that a person from minority community cannot be a Judge of superior Court. In the case of Mr. M.L. Shahani, a Hindu by faith, the point arose when he was appointed as an Advocate-General of Sindh and his selection was challenged in this Hon'ble High Court and the Hon'ble High Court was pleased to dismiss the writ petition. He also seeks dismissal of the petition as the same had been tiled with mala fide intention and to only tarnish the image of the judiciary. (iii) Through C.M.A. 4735 of 1999 in Constitutional Petition No,D-412 of 1998 and C.M.A. 4739 of 1999 in Constitutional Petition No,D-1069 of 1999, both under Order I, rule 10, C.P.C., Syed Iqbal Haider, has prayed to implead him as necessary party as the matter is of a great public importance and he
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wants to assist this Court for dispensation of justice. He has stated that in the Constitution of the Islamic Republic of Pakistan rights of minorities have been fully secured and guaranteed. (iv) The Secretary, Sindh High Court Bar Association, Mr. Gulzar Ahmad son of Noor Muhammad, has filed C.M.A. No,4804 of 1999 under Order I, rule 10 read with section 151, C.P.C. In Constitutional Petition No,D-412 of 1998 with the prayer that the Secretary, S.H.C.B.A. May be impleaded as interested party for effectively determining and adjudicating upon all the questions involved in the aforementioned petition. It is stated that the S.H.C.B.A. Is duty bound legally and morally to protect and safeguard the privileges, rights and interest of Advocates, and in connection therewith owes responsibility to the Courts as well as the public at large to protect the Constitutional and legal rights. It is alleged that the filing of the petition is motivated with malice and on personal prejudice and is aimed at to tarnish the image of judiciary. (v) Mr. Ned Keshav, Advocate of this Court, has filed an application under Order I, rule 10, C.P.C. In Constititional Petition No,D-1069 of 1999 implead him as necessary party as the questions involved in the petition would directly affect the rights of the minority population of this country generally and particularly the rights of the applicant. He is a Hindu practising Advocate of the High Court and his stance is that any adverse decision would deprive him to be appointed as Judge of this Court and the members of the whole Hindu community who are otherwise qualified to be appointed as Judge of this Hon'ble Court. He states that bare reading of the petition clearly reflects that the petitioner has filed the present petition just to gain some financial benefits and has taken a very serious, sensitive issue without realising the consequences thereof. It is stated that Article 2A of the Constitution has given equal rights to the minority of this country which cannot be taken away by making such misconceived grounds as taken by the petitioner. He has alleged that the concept of the terms "equality before law" and "equal protection of law" are not of so recent origin in jurisprudence and from a comparative study of legal history and jurisprudence, it is found that the concept of equality before law and principle of equal protection of law were for the first time given and firmly practised by the Holy Prophet (p.b.u.h.), therefore, even under Islam, discrimination is not permitted in any circumstances. He has strenuously urged that the petition is not maintainable and is liable to be dismissed. (vi) Through C.M.A. 4395 of 1999, under Order I, rule 10, C.P.C. Filed in Constitutional Petition No,D- 4395 of 1999, Mr. Abdul Rauf Khan, practising Advocate of this Court, prayed that he may be allowed to be impleaded as one of the respondents in the petition. He has stated that he is a retired member of Armed Forces of Pakistan and the above-referred petition has direct bearing on the Court Martial proceedings in the Armed Forces of Pakistan. He has further stated that it is not necessary that only the Muslim will be the Judge of High Court/Supreme Court. He has also stated that the petition which is in conflict to the Article 193(2) of the Constitution, 1973, should be dismissed. 10. It has been argued in both the Constitutional petitions that it is known to a person of common sense that a person has to use the Holy Qur'an, the Ahadith of the Holy Prophet (p.b.u.h.) to interpret any provision of law in accordance with Islam, therefore, question arises as to whether Rana Bhagwandas, J., a Hindu, who is not a Muslim by his own belief, can keep the sacred book of the Holy Qur'an in his hand particularly in the light of the judgment in the Qadiani's case. As to appointment of Ms. Majida Razvi, J., it was also challenged and it was said that her appointment falls within the ambit of certain important (prohibitions) not disputed by different Muslim Jurists and stressed that a lady cannot be a Judge in Hudood and Qisas cases. It has been finally argued that the "Judges' case" be implemented in all respects to get an order similar to the order passed in an unreported case of Haider Iqbal Wahnimal v. Islamic Republic of Pakistan in Constitutional Petition No,D-2110 of 1997, by this Hon'ble Court. It was requested that a direction be given to the
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respondent to enforce the Judges' case by appointing Judges in accordance with the Islamic concept. 11. Besides above, Mr. Abdul Qadir Jatoi, learned counsel for petitioner in Constitutional Petition No,1069 of 1998 also referred to Article 194 of the Constitution of the Islamic Republic of Pakistan, 1973 as well as the oath appearing in Third Schedule. He has stated that first of all a Judge who is supposed to take oath is required to recite Bismillah E-Rehman E-Rahim; secondly Judge of the High Court is also to recite on oath that he will preserve, protect and defend the Constitution of the Islamic Republic of Pakistan. The recitation of Bismillah in oath is virtually the factor related to Islamic faith, belief in the Almighty Allah, all the Prophets and all the books sent by Almighty Allah and to believe the angles as well as Doomsday. A Muslim cannot deny or cannot be an unbeliever of the above factors being a Momin. He has pin-pointed the famous "Judges' case' of Al-Jehad Trust v. Federation of Pakistan reported in PLD 1996 SC 324 and alleged that in the said judgment the Hon'ble Supreme Court had observed that the country is not a secular State but it is an Islamic Republic of Pakistan as per clause (1) of Article 2 of the Constitution, 1973 and that Islam is the State religion. Under Article 2A of the Constitution, the principles and provisions set out in the Objectives Resolution reproduced in the Annexure to the Constitution have been made substantive part of the Constitution, which inter alia, enjoins that the independence of judiciary shall be fully secured. Mr. Jatoi has also referred the case of Zaheerud din v. The State 1993 SCMR 1718, wherein the Full Bench of Hon'ble Supreme Court held as under:-- "It is thus clear that the Constitution has adopted the Injunctions of Islam as contained in Qur'an and Sunnah of the Holy Prophet (p.b.u.h.) as the real and the effective law. In that view of the matter, the Injunction of Islam as contained in Qur'an and Sunnah of the Holy Prophet (p.b.u.h.) are now the positive law. The Article 2A made effective and operative the sovereignty of Almighty Allah and it is because of that Article that the, legal provisions and principles of law, as embodied in the Objectives Resolution, have become effective and operative. Therefore, every man made law must now conform to the Injunctions of Islam as contained in Qur'an and Sunnah of the Holy Prophet (p.b.u.h.). Therefore, even the Fundemental Rights as given in the Constitution must not violate norms of Islam." 12. Lastly Mr. Jatoi has argued that in the light of his submissions and the views taken by Muslim Jurists and as per law laid down by the Honourable Supreme Court of Pakistan and High Courts of Pakistan, the provisions of Articles 2A and 195 of the Constitution of Islamic Republic of Pakistan, 1973, are attracted in the matter reflecting adversely on the appointment of Mr. Rana Bhagwandas, as a Judge of High Court of Sindh, by the respondent No,1, which is illegal, without lawful authority, being against the provisions of the Constitution, 1973 and as such this petition is fully maintainable. He has prayed that the appointment of Mr. Rana Bhagwandas, as Judge of High Court of Sindh, Karachi, be declared as void, invalid and of no legal effect as he was not qualified to be a Judge of this Court. 13. To support his above contentions Mr. Jatoi has relied on the cases of Allah Dad v. Mukhtiar and others 1992 SCMR 1273, Munir Ahmed v. Additional District Judge, Kasur PLD 2001 Lah. 149, Haji Rana Muhammad Shabbir Ahmed Khan v. Federation of Pakistan and others PLD 2001 SC 18 and Sardar Sultan Ahmed Khan v. Government of Punjab 2001 MLD 1013. 14. Besides above, Mr. Jatoi has also invited our attention to the religious books i,e, Encyclopaedia-II and Encyclopaedia-IV on Fiqh Hazrat Umar (r.a.) and Fiqh Hazrat Ali (r.a.) respectively, written by Dr. Muhammad Rawas Qilaji, Professor, University of Natural Resources and Petroleum, Zahran University, Saudi Arab, issued by Idara-e-Maarif Islami, Mansoora, Lahore, wherein qualities and abilities for a person to become a Qazi have been enumerated. He has also produced certain documents from the books of (i) Jama Tirmizi Sharif, Volume No,1, written by Moulana Badiuzzaman (r.a.), (2) Badaul Senai, authored by Allama Abu Bakar Alauddin Alkasani (r.a.), (3) Fatawas
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Alamgeer, written by Allama Moulana Syed Amir Ali (late) (r.a.). In the said books also the qualifications for a Qazi of a Court have been described. 15. Syed Tariq Ali, Federal Counsel, has filed parawise comments of Mr. Ghulam Muhammad Malik, Section Officer, Ministry of Law, Justice and Human Rights, Islamabad, and has contended that the appointments of Mr. Justice Rana Bhagwandas and Ms. Justice Majida Razvi, were made as they, for their appointments, fulfilled all the required criteria provided by Article 193 of the Constitution, which does not debar any non-Muslim to be appointed as Judge of a superior Court. Syed Tariq Ali referred to Article 25(2) of the Constitution and said that this Article provides that there should not be any discrimination on the basis of sex alone. He contended that the appointment of Mr. Justice Rana Bhagwandas, being non-Muslim, is not the first appointment but in the past too non-Muslim Judges were appointed. Learned Federal Counsel stated that the instant petitions being not maintainable…
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