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Petitioner: Syed MAQSOOD SHAH BUKHARI VS Respondent: FEDERAL GOVERNMENT through Secretary M/o Law and Justice, IslamabadHonorable Justice Dr. Fida Muhammad Khan
2013 M L D 1808
[Federal Shariat Court]
Present: Dr. Fida Muhammad Khan, Rizwan Ali Dodani and Sheikh Ahmad Farooq, JJ
Syed MAQSOOD SHAH BUKHARI---Petitioner
Versus
FEDERAL GOVERNMENT through Secretary M/o Law and Justice, Islamabad---Respondent
Shariat Petition No.3/I of 2013, decided on 2nd May, 2013.
(a) Punjab Rented Premises Act (VII of 2009)-
----S. 7---Punjab Rented Premises Ordinance (XXI of 2007), S.7---West Pakistan Urban Rent Restriction Ordinance (VI of 1959), Preamble---Sindh Rented Premises Ordinance (XVII of 1979), S. 10---Cantonments Rent Restriction Act (XI of 1963), Preamble---Constitution of Pakistan, Art.203-D---Charging of rent from tenant---Repugnancy to Injunctions of Islam---Plea of petitioner, was that verse 22:78 of the Holy Qur'an made it clear that Allah Almighty had commanded human beings- male and female- to earn livelihood by doing work; that it was incumbent upon every person to keep working and eat from only what he earned himself by his own hands, therefore Islamic Shariah did not allow anyone to charge rent from his/her tenant, and that no rent was ever charged by the Holy Prophet or Rightly Guided Caliphs---Validity---According to Muslim jurists contract for rent/lease/ijarah was a valid legal contract which was duly authenticated by the Holy Qu'ran, Sunnah of the Holy Prophet and Ijma---All companions of the Holy Prophet unanimously held that ijarah was a lawful contract, and they themselves practised all lawful forms of such a contract---Plea of petitioner that without personal involvement in labour and hard work, no one was entitled to any remuneration was absolutely without force---Islamic Injunctions regarding permissibility of gift, zakat/ushr, inheritance etc. which conferred rights of ownership upon the recipients without any physical labour or contribution on his/her part were a few examples in such connection, which had duly been approved by the Holy Qur'an and Sunnah of the Holy Prophet---Present Shariat petition was devoid of force and misconceived and was accordingly dismissed.
Holy Qur'an, Verses 3:85; 3:139; 22:78; 72:21; 4;119; 43:36,37; 31:33; 40:61; 4:80; 8:13; 8:20; 2:30; 2:38; 2:39; 2:155; 42:20; 16:40; 4:40; 2:214; 6:42; 3:145; 10:37; 15:56; 16:89; 20:2; 43:10; 92:12; 13:14; 2:159 and 42:38 distinguished.
Ashfaq Ahmad v. Government of Pakistan PLD 1992 FSC 286 ref.
(b) Federal Shariat Court (Procedure) Rules, 1981--
----R. 7(2)---Constitution of Pakistan, Art. 203-D----Shariat petition---Form and contents---Challenging more than one law as being repugnant to Injunctions of Islam in a single Shariat petition---Rule 7(2) of Federal Shariat Court (Procedure) Rules, 1981, specifically provided that whenever a petitioner claimed more than one law or provision thereof to be repugnant to Injunctions of Islam, he should file a separate petition in respect of each law.
Petitioner in person.
Muhammad Nazir Abbasi, Counsel for Federation.
Ch. Saleem Murtaza Mughal, Asst. A.-G. for Punjab Government.
Mian Saadullah Jandoli, Asst. A.-G. for Khyber Pakhtunkhwa Government.
Muhammad Azam Khan Khattak, Addl. A.-G. for Balochistan.
Date of hearing: 2nd May, 2013.
JUDGMENT
DR. FIDA MUHAMMAD KHAN, J.---Petitioner Syed Maqsood Shah Bukhari has through this petition, challenged the following Laws/Acts:-
"(1) The Punjab Rented Premises Act, 2009;
(2) The Punjab Rented Premises Ordinance, 2007;
(3) The Punjab/NWFP/Balochistan Rent Restriction Ordinance, 1959;
(4) The Sindh Rented Premises Ordinance, 1979; and
(5) The Cantonments Rent Restriction Act, 1963."
According to the petitioner these laws are against the Injunctions of Islam as laid down in the Holy Qur'an and Sunnah of The Holy Prophet (S.A.W.).
2. The petitioner, in support of his claim, has relied on the following verses of the Holy Qur'an, 3:85, 3:139, 22:78; 72:21; 4;119, 43:36,37, 31:33, 40:61, 4:80, 8:13, 8:20, 2:30, 2:38, 2:39, 2:155, 42:20, 16:40, 4:40, 2:214, 6:42, 3:145, 10:37, 15:56, 16:89, 20:2, 43:10, 92:12, 13, 14, 2:159, 42:38.
3. The petitioner was heard in person. He contended that on careful study of Verse No. 22:78. of the Holy Qur'an, it becomes clear that Allah Almighty has commanded human beings -male and female alike - to earn livelihood by doing work. Therefore, if any person does not work, he defies the Commandments of Allah. He cited a few examples from Ibadat, like prayer and fasting, which every Muslim person has to perform himself and no one else can perform the same on his behalf. He added that these examples prove and make incumbent on every person to keep on working and eat from only what he earns himself by his own hands. Accordingly as a rule, he concluded, Islamic Shariah does not allow any body to charge rent from his/her tenant. The petitioner also referred to early history of Islamic administration, claiming that no rent was ever charged by the Holy Prophet or the Rightly Guided Caliphs. However, he did not give any authentic reference to support his contention.
4. It is pertinent to point out, at the outset, that the petitioner has not fulfilled, in his petition, requirements of the procedural rules of the Federal Shariat Court, as he has challenged more than one law in a single petition while under rule 7(2) of the FSC Procedure Rules, it has been specifically provided that: whenever a petitioner claims more than one law or provision thereof to be repugnant to the injunctions of Islam, he shall file a separate petition in respect of each law. The petitioner, therefore, by challenging more than one law in a single petition has failed to follow these rules, which having been made under the Constitution, have constitutional force.
5. Moreover, we may point out that this Court has already examined the following laws relating to rents as mentioned hereinunder:
The Punjab Urban Rent Restriction Ordinance 1959 in S.S.M.No.101/P/83. The N.-W.F.P. Rent Restriction Ordinance 1959 in S.S.M. No.28/NWFP/84, Balochistan Rent Restriction Ordinance, 1959 in S.S.M. No.22/B/94. The Sindh Rented Premises Ordinance 1979 in S.S. No.42/S/84 and the Cantonments Rent Restriction Act 1963 in S.S.M No.117/87.The Sindh Rented Premises Ordinance 1979 was also examined in, Shariat Petition 5/I/1985 and 9/L, 60/I/1990 reported in PLD 1992 FSC 286.
6. A Full Court has examined some of these laws (i.e. the Cantonments Rent Restriction Act, 1963 and the Sindh Rented Premises Ordinance 1979); in Shariat Petitions as well, vide its judgment which is reported as PLD 1992 page 286. However, appeal against the said judgment is still pending before the Hon'ble Shariat Appellate Bench of Supreme Court.
7. As for as the legality of contract of rent/lease/ijarah according to Islamic Injunctions is concerned, the Muslim jurists are unanimous on the point that this is a valid legal contract which is duly authenticated by the Holy Qur'an, Sunnah of the Holy Prophet (SAW) and Ijma'. All Companions of the Holy Prophet (SAW) unanimously hold that "ijarah" is a lawful contract. They themselves practised all lawful forms of this contract.
8. The Federal Shariat Court while examining some of these laws in Ashfaq Ahmad v. Government of Pakistan (PLD 1992 FSC 286), referred to above, has discussed the legality of the contract of Ijara and Muzarat and held:
9. On careful study of the verses relied upon by the petitioner, we have found that these verses do not at all relate to or, in any way, support the claim vehemently argued by the petitioner.
10. The logical reasoning of petitioner that without personal involvement in labour and hard work, no one is entitled to any remuneration is also absolutely without force. Islamic Injunctions regarding permissibility of gift, Zakat/Ushr, inheritance etc. which confers rights of ownership by the recipients without any physical labour or contribution on his/her part are a few examples in this connection, which have been duly approved by the Holy Qur'an and Sunnah of the Holy Prophet (SAW).
11. Hence this petition besides having the procedural incurable flaw and being without any reference to a specific Verse/Hadith, is devoid of force and misconceived. Therefore, it is dismissed in limine.
MWA/25/FSC Petition dismissed.