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Petitioner: HAQ N AWAZ' and others VS Respondent: PROVINCE OF THE PUNJAB through Chief JUDGMENT
Court Name: Lahore High Court Judge(s): Mian Nazir Akhtar Title:HAQ N AWAZ' and others vs PROVINCE OF THE PUNJAB through Chief
JUDGMENT
Reported As: 1997 MLD 299 Result: Petition accepted Judgment JUDGMENT ' This judgment will dispose of Writ Petitions Nos.9487/92 and 10545/92 in which common questions of law and facts are involved. 2. The dispute relates to the mosque situated on the Northern side of the Office of the Deputy Commissioner, Lahore at the premises of District Courts, Lahore. It was demolished on 6-10-1992. At that time, Mr. Javed Mahmood was the Deputy Commissioner, Lahore who was also Chairman of the Managing Committee of the mosque. The mosque was being used for offering five times daily prayers, the Juma and Eid prayers by the members of the staff from the office of Deputy Commissioner, Lahore, the Advocates and other Muslims since long. The Provincial Government to whom the site belonged never objected to it. The site was converted into a Tharra long before the partition and was regularly used for offering five times prayers daily. After creation of Pakistan a general policy was laid down to provide mosques at the premises of District Courts in the Province of Punjab. For this purpose, the Government decided to provide free land as well as funds for construction of a Pacca mosque at the site. The mosque was constructed somewhere in the year 1961. Muslims continued to use the mosque for daily prayers, Jumma prayers and even the Eid prayers. In the year 1982 "Madrissa Hifzul Qur'an' was also established in the mosque in pursuance of a decision of the Managing Committee. In the year 1989 the District Management started renovation and reconstruction of the buildings existing at the District Court's premises. In the process, some buildings including residential quarters and shops were demolished whereupon one shopkeeper named Muhammad Boota filed Writ Petition No,4586/92 in this Court. The Court called parawise comments from the Deputy Commissioner, Lahore who stated therein that in
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continuation of development scheme the next proposal was to reshape the corner of the District Court's premises in consultation with TEPA and that it was decided to demolish the tubewell, mosque, post office and quarters and to redesign and reconstruct the same. When the lawyers and the residents of the locality learnt that the mosque was also going to be demolished, a number of delegations from the local Bar Association and the general public met the then Deputy Commissioner, Lahore (who was Chairman of the Managing Committee of the mosque). He assured them that the mosque would not be demolished. The assurance given by the Deputy Commissioner was highlighted in a number of news items published in different newspapers of Lahore on 3-10-1992. The general public and the lawyers felt satisfied with the official assurance but it turned out to be a mere farce because the mosque was razed to the ground on the night between 5th and 6th October, 1992 and Malba of the mosque was hurriedly removed from the site before dawn of the day. The news of demolition of mosque shocked the citizens who strongly condemned the action and started agitation against the Deputy Commissioner and other persons responsible for demolishing the mosque. The members of the District Bar Association also protested. Kh. Muhammad Sharif Advocate, Ex-President of the District Bar Association, Lahore and Councillor of the area alongwith a number of other advocates sent a telegram of the following contents to the Chief Minister, Punjab and others:- "We the undersigned advocates and ex office-bearers of the Lahore District Bar Association highly protest and condemn the un-Islamic and illegal act of the Deputy Commissioner, Lahore for demolishing the District Courts' mosque of more than 75 years old wherein at least 150 students were studying Qur'an and Fiqah. This un-Islamic and illegal act of the Deputy Commissioner, Lahore is not only liable to be condemned but also amounts to conspiracy against the present Government and it has made it clear that he has joined hands with anti-Government elements to create law and order situation. You are requested to take serious notice of the same and immediate necessary action against the D.C., Lahore, otherwise the present Government will be in great trouble." (A copy of the telegram is available at page 21 of File No,3 from the Office of Deputy Commissioner, Lahore). An organization known as Movement for Protection and Construction of Jamia Mosque, District Courts, Lahore was also formed to protest against the demolition of the mosque and have it reconstructed at its original site. It sent petitions to the then Prime Minister of Pakistan and other high officials. (A copy of the petition is contained at pages 39 to 41 in File No,3, from the Office of Deputy Commissioner, Lahore). Among other things it was stated therein:--- {{URDU TEXT}} ' It was also mentioned therein that the Indian Radio had made comments regarding the controversy of Babri Mosque with reference to the demolition of the mosque located at District Courts, Lahore. At the end of the petition the then Prime Minister was reminded that he had built the house of a poor man with his own hands (Note: The scene was often telecast on the PTV), hence he should come forward to reconstruct the Jamia Mosque of District Courts at its original site. However, no effective step was taken by the Provincial and the Central Governments in the matter. Only a letter was written by Maulana Abdus Sattar Khan Niazi, the then Federal Minister for Religious Affairs, Government of Pakistan to the Commissioner, Lahore Division, Lahore, in which he expressed grief over demolition of the mosque. He also stated therein that before demolishing the mosque the Deputy Commissioner should have consulted the Ministry for Religious Affairs. He added that the mosque be reconstructed at the same site as required by the Islamic Sharia. However, the needful was not done. (Copy of the letter is annexed at page 103 of File No,3 from the Office of Deputy Commissioner, Lahore). 3. The Indian Press and the electronic media is said to have highlighted the demolition of the Lahore mosque to incense the extremist Hindus to execute their plan of destroying the historic
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Babri Mosque. Accordingly, the said mosque was razed to the ground on 6-12-1992, just two months after demolition of the Lahore mosque. The news of demolition of the Babri Mosque came as a stunning shock to the Muslims throughout the world who raised a chorus of condemnation against it. The then Prime Minister of Pakistan Mian Muhammad Nawaz Sharif (now Leader of Opposition) strongly condemned the desecration and destruction of the Babri Mosque in these words: "This abhorrent act of extreme fanaticism deserves to be strongly condemned by all civilised countries, especially those which oppose religious intolerance and extremism and uphold humah rights". Likewise, the present Prime Minister of Pakistan Mohtarma Benazir Bhutto (the then Leader of Opposition) described the event of razing of Babri Mosque by Hindu extremists as tragic and a day of mourning for Muslims the world over". She added, "This act of savagery has not only deeply hurt Muslims' sentiments but raised fundamental questions about India's proclaimed commitment to secularism. It is now imperative for Islamabad to respond to this barberic act in a manner that reflects the anger and anguish of all Muslims". ("The News" Lahore Edition dated 7-12-1992). Unfortunately, Islamabad failed to rise equal to the task, both in the matter of destruction of the Babri Mosque as well as demolition of the Lahore mosque. 4. The present writ petition was filed on 7-10-1992 for declaring the demolition and shifting of the disputed mosque as being illegal, without lawful authority and of no legal effect and for a direction to the respondents to reconstruct the mosque at its original site. 5. The writ petition came up for hearing on 11-10-1992 when the learned Additional Advocate- General appeared in the Court and was allowed time to submit a report and parawise comments on behalf of the Deputy Commissioner, Lahore, respondent No,2, which were submitted on 18-10- 1992. Paras. 2, 5 and 6 of the report contain material averments and are reproduced below for ready reference:--- "2. The members of the staff, officers and the Mosque Committee demanded that with the development of District Courts Compound, existing building of mosque does not fit in and as such demanded that a new well-designed mosque should be constructed which should be fully air- conditioned, centrally heated, fitted with modern sound system, equipped with all arrangements to provide hot water in winter and cold drinking water in summer. They unanimously resolved and decided that the existing mosque should be demolished and instead a new mosque be constructed. 5. It has been established that the area under the demolished mosque was neither purchased by anybody nor the Government had transferred it to any person. No "wakf" was thus created of any land for constructing mosque in the District Courts. The area under the premises of the mosque was owned by the Government. Under these circumstances, the mosque can be relocated which is being done after getting the land transferred in the name of District Mosque Committee. 6. The site of the demolished mosque shall not be converted for any other use including fountain, office building, car parking or any other purpose. The place would be clearly demarcated and would be decorated with grass, flowers and plants in order to maintain its sacrosanct nature." ' On facts, it was stated in para. 6 of the parawise comments:--- "It was in pursuance of this demand of the staff that TEPA was consulted and where after old mosque was demolished and design of the new mosque was got prepared by Mr. Nayyar Ali Dadda, the well-known architect of the court." ' In para. 7 it was stated:--- "The mosque has been demolished with a complete consensus of the staff, officers, Mosque Committee and Imam Masjid." ' The petitioners submitted rejoinder to the report/parawise comments of respondent No,2 and attached a large number of documents showing grant of free land by the Government, permission
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to construct a mosque and allocation of funds by the Government to complete the mosque. The writ petition was admitted for regular hearing on 28-3-1994. The Provincial Government did not submit any written statement to controvert the facts stated in the petition or the documents relied upon by the petitioner. Hence, the Government respondent No,1, would be deemed to have admitted the correctness of the facts and the documents placed on record by the petitioner. The learned A.A.-G. Prayed that the comments submitted by the Deputy Commissioner be treated as his written statement because he did not desire to add anything else. 6. Malik Allah Yar, learned counsel for the petitioners urged that originally the disputed place was in the shape of a plot which was being used by Muslims from times immemorial for offering prayers. Subsequently, it was converted into a Thara before the partition and Muslims continued to use it for offering five times daily prayers. After partition, a mosque was constructed with express permission of the Government. The Government had laid down a policy to provide free land in the premises attached to Government buildings in the Province of the Punjab and financial assistance for the construction of mosques. Funds were also allocated by the Government to construct the mosque in dispute. It amounted to express permission by the Government and created a valid Wakf that once the property became Wakf it could not be used for any other purpose; that mosque being house of Allah becomes a sacred place and deserves highest respect by all Muslims; that the site of the mosque could not be changed and the respondents were under an obligation to reconstruct the mosque at the same place and that by demolishing the mosque the respondents and all other persons engaged in the demolition of the mosque had committed an offence under section 295, P.P.C. For which a criminal case be ordered to he registered against them. He referred to a number of verses of the Holy Qur'an and traditions of the Holy Prophet ( s.a.w.s.) regarding the status and exhalted position of mosques. In support of his contentions the learned counsel referred to extracts from the following books:--- (i) Kifayat-ul-Mufti. (ii) Fazaail-i-Masjid. (iii) Moarif-ul-Hadith. (iv) Fatawa-i-Usmani. (v) Fatawa-i-Nazaria. (vi) Fatawa-i-Rashidia. (vii) Fatawa-i-Rizvia. (viii) Fatawa-i-Mazharia. ' He also referred to the following judgments: (i) Umar Din and others v. Mst. Aihsan and others (AIR 1921 Lahore 303) (ii) Masjid Shahid Ganj and others v. Shromani Gurdwara Parbandak Committee, Amritsar (AIR 1938 Lahore 369). (iii) Ballabh Das and another v. Nur Muhammad and another (NLR 1991 SD 317). (iv) Anjuman Masjid-i-Farooqia and 3 others v. Mst. Fazal Begum and 3 others (1991 SCMR 2112). (v) Muhammad Yasin v. Rahmat Ilahi (NLR 1994 SD 442). The learned counsel strenuously urged that the mosque was demolished as a result of some deep conspiracy to support the move of the extremist Hindus in the matter of demolition of the Babri Mosque. 7. On one date of hearing, almost at the fag-end of the day, Dr. Khalid Ranjha, Advocate also addressed the Court on behalf of the petitioners briefly. He urged that once it was established that the mosque was lawfully constructed, then the other question of shifting the mosque offered no difficulty because shifting of the premises of a mosque was not recognised under the Islamic Law. The case was adjourned to enable him to assist the Court fully but on the next date of hearing, he merely stated that he had nothing else to add.
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8. Nawab Saeed Ullah Khan, learned counsel for the petitioners in W.P. No,10545/92 generally adopted the arguments raised by Malik Allah Yar, Advocate and added that the mosque at the premises of District Courts, Lahore was demolished by and at the instance of Deputy Commissioner, Lahore although he had himself assured the various delegations of lawyers and the general public that it would not be demolished; that the Deputy Commissioner had acted like an enemy agent; that the mosque was demolished on 6-10-1992 and thereafter the Babri Mosque was demolished on 6-12-1992; that by asserting that a new mosque would be built at another nearby place, an argument had been provided to the enemy that the premises of any mosque could be shifted elsewhere. He submitted that this was a dangerous act done by the Government and must be undone in the light of the Injunctions of the Holy Qur'an and Sunnah of the Holy Prophet (s.a.w.s) so that sanctity of the mosques could be preserved throughout the world. 9. Mr. Muhammad Ismail Qureshi, Advocate also appeared on behalf of the petitioners and generally adopted the arguments raised by Malik Allah Yar, Advocate. He emphasised that mosque is a sacred place entitled to highest reverence and could not be shifted to any other place. If the superstructure had become old and dangerous, it could have been pulled down and a new mosque rebuilt at the same place. He submitted that in the Holy Qur'an specific references were made to four mosques i,e, Baitullah at Makkah, Masjid-e-Nabvi and Masjid-e-Quba at Madina-tul- Munawwara and Masjid-al-Aqsa at Jerusalem. He pointed out that Masjid-i-Nabvi was the first residential University of Islam as a number of companions of the Holy Prophet (s.a.w.s.) used to stay in the mosque and get education directly from the Holy Prophet (s.a.w.s.). He urged that Muslims used to protect places of worship of non-Muslims even in war but non-Muslims including Christians and Hindus were out to destroy mosques even during peace time. In this connection he referred to a Khutba of Hazrat Abu Bakr Siddique, the first Caliph after the Holy Prophet (s.a.w.s.). He urged that demolition of the mosque in the Islamic State of Pakistan must be viewed seriously and a criminal case be ordered to be registered against the culprits. 10. The learned A.A.-G. Submitted that the real controversy involved in the matter was whether the previous mosque could be demolished and thereafter shifted to another suitable site. He added that this question necessarily involved the true status of the previous mosque. He urged that the original mosque was not a Shar'ai mosque and could be demolished and a new one be constructed at another site. He further submitted that the Fatawa (juristic opinions) obtained by the petitioners were not reliable because the same were not based on any original source. He submitted that even the respondents had obtained views of Muslim scholars before demolishing the mosque and the said views favoured the action taken by the Government. He submitted that in the absence of express dedication for religious purposes mere user of the place as a mosque would not give it the status of a Shar'ai mosque. In support of his contention, he referred to the opinion of the Federal Shariat Court given in response to the letter written by the Military Secretary to the then President of Pakistan (late General Zia-ulHaq). 11. After the learned counsel for the parties concluded their arguments, the Court still needed further assistance and called four eminent Advocates namely Mian Saeed-ur-Rahman Farrukh, Dr. Riaz-ul-Hassan Gilani, Mr. Nazir Ahmad Ghazi and Malik Muhammad Nawaz, as amicus curiae. 12. Mian Saeed-ur-Rahman Farrukh, Advocate urged that the site of a mosque cannot be changed under any circumstance. He submitted that once it was admitted that an existing mosque could be demolished and instead another one built at another place then no mosque in the world would be safe. The structure, if need be, could be changed or rebuilt but the site could not be changed for any consideration whatsoever. He submitted that the facts on the record clearly established that the piece of land at the District Court premises, Lahore was dedicated by the Government free of cost on which the mosque was constructed with active help of the Government. The Deputy Commissioner was the Chairman of the Managing Committee and it did not lie in his mouth to
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assert that the mosque was constructed without permission of the Government. He pointed out that the Deputy Commissioner was conscious that the original site was mosque. That is why he has stated in the comments that sanctity of the plot would be preserved. Therefore, he was bound to reconstruct the mosque at the original site and if need be, a second mosque could be constructed at the other site now proposed in the site plan. He pointed out that the respondents first demolished the mosque on 6-10-1992 and thereafter obtained some Fatawa in mid-October, 1996 after institution of the writ petition in this Court and that too, without disclosing correct facts. Hence, the said Fatawa had no legal value. 13. Dr. Riaz-ul-Hassan Gillani, Advocate urged that building site is the mosque and the construction raised thereon was only meant to provide convenience for offering prayers. Once it is established that a piece of land has been dedicated by the owner for a mosque, it goes out of his ownership and becomes a mosque even without the superstructure. After dedication the nature and character of the land undergoes a change. It becomes a house of Allah on which the blessings of Allah are showered. In this connection he referred to the Verse No,1 in Chapter No,17 of the Holy Qur'an. He submitted that the "Baraka" mentioned in the Verse in respect of Al-Aqsa mosque in fact pertains to every other house of Allah. He submitted that after a premise is converted into a mosque, it becomes a sacred place and every Muslim is duty bound to preserve and maintain its sanctity. He further submitted that shifting of the premises of mosque is against the Sunnah of the Holy Prophet (s.a.w.s.). After Hijrah, the Holy Prophet (s.a.w.s.) came to the Holy Kaaba for performance of Hajj and Umra although it was in occupation of the enemy. This was done because there was absolutely no concept of shifting the mosque, hence the premises of the Holy Kaaba or Masjid-i-Nabvi or for that matter any other mosque can never be shifted. He pointed out that the book "Ibaat-ul-Matwari" written by Aala Hazrat Ahmad Raza Khan Brelvi, is an important book on the subject which may be kept in view while deciding the matter. 14. Mr. Nazir Ahmad Ghazi, Advocate, addressed arguments on various legal and factual controversies involved in the matter. He submitted that the facts borne on the record clearly showed that initially dedication of the property by the Government was implied and thereafter it became express when the Government offered free land and also contributed funds for construction of the mosque. Now, the Government was estopped by its own words and conduct from asserting that the property was not dedicated for a mosque. In this connection he placed reliance on the judgments in the following cases: (i) Massu and 27 others v. United Bank Limited and another (1990 MLD 2304); (ii) Allah Banda v. Mst. Khurshid Bibi etc. (1990 CLC 1683); and (iii) Mst. Kaneez Fatima v. Wali Muhammad and another (PLD 1993 Supreme Court 901). ' He further submitted that while submitting parawise comments, respondent No,2 had deliberately suppressed true facts and did not disclose the correspondence showing grant of free land and funds by the Government and the sanction obtained from the Lahore Corporation for construction of the mosque. This was clearly a mala fide act on the part of respondent No,2. He submitted that the Government had obtained Fatawa after demolishing the mosque without disclosing all the relevant facts, hence the same had no value in the eye of law. He submitted that the original site had lawfully become mosque which could not be demolished or shifted to another place. He urged that by virtue of the provisions of Articles, 2, 2A, 20 and 31 of the Constitution of Pakistan and the Enforcement of Shari'ah Act, 1991, all State functionaries were bound to act in accordance with the Islamic Shari'ah and preserve and maintain mosques. In this connection he relied on the cases "Zaheer-ud-Din and others v. The State and others" (1993 SCMR 1718) and Zahid Farooq and another v. Anjuman Jamia. Masjid and 4 others (1995 SCMR 1584). He also referred to "Tafseer-i- Kabeer" by Fakhar-ud-Din Razi, Al-Durrul Mukhtar, Al-Mughni, Hedaya, Bahr-ur-Raiq and Fiqh Al- Sunnah to urge that once the owner allows a place to be used for offering prayers and the place is
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actually used for the said purpose, then the owner cannot subsequently assert that the mosque was not lawfully constructed. He submitted that the general repute that a place is mosque or Wakf strongly weighs in favour of the view that it is lawful mosque or wakf. If in each case documents showing express dedication are required, then the old Wakfs or mosques could not be preserved because documents are not available in case of old mosques or Wakfs. He strenuously urged that the mosque is a sacred place and its sanctity ought to be preserved by every Muslim. Referring to the Traditions of the Holy Prophet (s.a.w.s.) he submitted that on the Day of Judgment when everything in the universe would be destroyed, mosques would be taken to paradise (Jannah). He urged that by demolishing the mosque the respondents had intentionally insulted the religion of Islam and thus committed an offence under sections 295, 295-A and 297 of the P.P.C. For which a criminal case be ordered to be registered against the culprits 15. Malik Muhammad Nawaz, Advocate submitted that the mosque had come into being before the creation of Pakistan and the respondents had absolutely no right or justification to demolish it even with the apparently laudable object of building another mosque at some distance; that the freedom of worship guaranteed under Article 20 of the Constitution of Pakistan has been violated because by demolishing the mosque the respondents have deprived the staff, the lawyers and general Muslims from offering prayers in the mosque; that the respondents were perhaps interested in demolishing the mosque and did not take steps for construction of another mosque; that it was falsely stated in the comments that map of the new mosque had been prepared by the famous architect Nayyar Ali Dada and that its sanction had been obtained; that no such plan was either prepared by Nayyer Ali Dada or got approved by the respondents; that by virtue of Enforcement of Shari'ah Act, 1991 the State functionaries were also bound to submit completely to the Injunctions of Holy Qur'an and Sunnah of the Holy Prophet (s.a.w.s.) that the concept of the shifting of the mosque, if accepted, then…
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