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Petitioner: MOHTARMA BENAZIR BHUTTO VS Respondent: FEDERATION OF PAKISTAN through Secretary Finance IslamabadHonorable Justice Syed Afzal HaiderBarrister Kamal Azfar
P L D 2010 Federal Shariat Court 229
P L D 2010 Federal Shariat Court 229
Present: Agha Rafiq Ahmed Khan, C. J., Syed Afzal Haider and Shahzado Shaikh, JJ
MOHTARMA BENAZIR BHUTTO and another---Petitioners
Versus
FEDERATION OF PAKISTAN through Secretary Finance Islamabad---Respondent
Shariat Petition No.1/K of 2002, decided on 15th April, 2010.
(a) Constitution of Pakistan (1973)---
----Arts. 203-D & 270-A---Power and jurisdiction of Federal Shariat Court---Scope---Fact that certain instruments were mentioned in Seventh Schedule of the Constitution in terms of Art. 270-A of the Constitution would not preclude the determination of the List on the touchstone of Art. 203-D of the Constitution to examine and decide the question whether or not the provisions under challenge were repugnant to the Injunctions of Islam as laid down in the Holy Quran and Sunnah---Such a proposition was also ascertainable from the Preamble of the Constitution.
(b) Constitution of Pakistan (1973)---
----Preamble---Oath under the Constitution---Significance---Ruling elite takes oath under the Constitution to preserve its sanctity---One who takes oath to preserve and protect the Constitution cannot break it to the detriment of entire nation; it is not like breaking the oath of an individual whose atonement is made possible by Islamic Injunctions---Constitution does not provide any expiation for the transgressors who were under oath to preserve it ; Constitution declares it to be a very serious offence.
(c) Constitution of Pakistan (1973)---
----Arts. 4 & 5---Interpretation of Arts. 4 & 5 of the Constitution---Articles 4 & 5 of the Constitution make it clear that deviation from law has not to be countenanced; this is an assurance to the people of Pakistan that people in authority shall treat them in accordance with law and each one is bound by these stipulations of the Constitution.
(d) Zulfiqar Ali Bhutto Trust and Peoples Foundation Trust (Renaming and Administration) Order [P.O. 4 of 1978]---
----Preamble---Zulifqar Ali Bhutto Trust and Peoples Foundation Trust (Renaming and Administration) (Amendment) Order [P.O. 6 of 1979], Preamble---Martial Law Order, 1979 [By Martial Law Administrator Zone No.26---Martial Law Order, 1977 [By Chief Martial Law Administrator] No.21---Constitution of Pakistan (1973), Arts. 2-A, 4, 12, 23, 24, 25 & 203-D---Trusts Act (II of 1882), Chapters III & IV---Civil Procedure Code (V of 1908), S.92---Repugnancy to Injunctions of Islam---Stipulated Presidential Orders/Martial Law Orders were violative of the Injunctions of Islam five Maqasid-e-Shariah and various Articles including Arts. 2A, 4, 23 & 25 of the Constitution; because the name of the Trust was altered; the objectives underwent a change; the administrative machinery was substituted for the original trustees; all the trustees, who were affected by the Martial Law Orders were at the time of promulgation of such Orders were women folk; the intrinsic rights of the appropriator were hacked without lawful authority and the wishes of the dedicators as regards the appointment of a Mutwalli i.e. Managing Trustee had altogether been altered and that impugned Martial Law Orders, put into effect by force, denied to the trustees, the rights and privileges available to them under Chapters III & IV of the Trusts Act, 1882 and S.92, C.P.C. without following the principles of natural justice or principles of legality--Impugned Martial Orders were consequently of no legal effect as these instruments suffered on account of infirmities---Held, all the steps taken, actions suffered, and all orders passed by any court, tribunal or any authority including Martial Law Establishment, under any of the impugned Orders were declared repugnant to the Injunctions of Islam, and thus never to have existed in the eyes of law and resultantly of no legal effect---Presumption would be that the situation that prevailed immediately before 17th October, 1977 i.e. the date of issuance of Martial Law Order No.21 of 1977 was still continuing---Martial Law Order No.21 dated 17th October, 1977; Martial Law Order No.26 dated 28th September, 1977 issued by Martial Law Administrator Zone "C"; President's Order No.4 of 1978, dated 26th March, 1978 and President's Order 6 of 1979, dated 28th February, 1979 were in entirety repugnant to the Injunctions of Islam---Present decision regarding the afore-mentioned impugned Martial Law Orders shall take effect from the date of announcement of the judgment/decision i.e. 15-4-2010.
Holy Qur'an Ayat 251 Sura 2, Al-Baqra; Ayat 38 of Sura 42 Ash Shoora); Ayat 159,Sura 3 Ale Imran, Ayat 1 through 5 Sura 55,Ar-Rahman; Ayat 83 Sura 2 Al-Baqra; Ayat 110 Sura 3 Ale Imran; Ayat 67 Sura 9 Al-Tawbah; Ayat 1 through 4 Sura 96 Al-Alaq; Ayat 149 Sura 4 Al-Nisa; Ayat 1 Sura 58 Al-Mujadalah; Ayat 71 Sura 17 Bani Israel; Ayat 29 of Sura 4; Ayat 286 Sura 2 Al-Baqra; Ayat No.233 Sura 2 Al Baqra; Ayat 152 Sura 6 Al-An'am; Ayat 42 Sura 7 Al-Al'raf; Ayat 38 Sura8, Al-Anfal; Ayat 15 Sura 17, Bani Israel; Ayat 59 Sura 28 Al-Qasas;; Ayat 17 Sura 13 Al-Ra'd; Ayat 4. Sura 48 Muhammad; Muhammad Aslam Khaki v. State PLD 2010 FSC 1 and Ayat 220 Sura 2 Al-Baqra ref.
(e) Islamic Jurisprudence---
----Administration of justice---Appeal, right of---Scope---Islamic Injunctions and teachings grant to every aggrieved person the freedom to lodge protest---Every such a person has a right of representation; he is free to lodge an appeal against an order affecting him adversely and it is his right that his appeal will be adjudicated upon without inordinate delay by an independent Tribunal---Such person under no circumstances be stopped from exercising his basic rights---Principles.
Islamic Injunctions and teachings grant to every aggrieved person the freedom to lodge protest. Every aggrieved person has a right of representation. He is free to lodge an appeal against an order affecting him adversely and it is his right that his appeal will be adjudicated upon without inordinate delay by an independent tribunal. He can, under no circumstances be stopped from exercising his basic right.
There exists in the aggrieved person the unfettered right to lodge a protest or prefer an appeal before a higher authority with the object of seeking redressal of grievance. The authority hearing the appeal is under obligation to decide the same. The arbiter is required to give due weight to violation of human rights and human dignity. The authority may, where necessary, impose a penalty upon the violator of human rights. (reference Ayat No.4 of Sura 58 Al-Mujadilah). Even a law can be amended/repealed on account of a protest. The right of an individual to initiate proceedings cannot be circumscribed.
The reference to Divine attribute of Hearing and Seeing for well over four score times in Holy Qur'an shows that the right of an aggrieved person to lodge protest, appeal or representation against the wrong doer before a higher tribunal, i.e. a person other than the one whose order is to be challenged has Divine sanction. The repeated reminders by Holy Qur'an that Allah is Hearing and Seeing is, on one hand, a permission to an injured soul to initiate proceedings and on the other hand a warning to the adjudicator that Allah constantly watches the way matters are being adjudicated upon. These oft-repeated attributes of Alllah i.e. Seeing and Hearing, mentioned in the Holy Quran are designed to act as guarantees. In other words the rights and freedoms are justiciable.
The Constitution as well as legal instruments in force in Pakistan, provide ample remedies to aggrieved persons by way of appeals, revisions, reviews. The Constitution mandates that the Supreme Court, Federal Shariat Court and the High Courts shall have power to exercise original and Suo Motu jurisdiction, and thereby provide relief to aggrieved persons. The superior judiciary has, while interpreting various provisions of law held that right of appeal, representation, show-cause notice is inherent 'in Islamic teachings. An instrument, having the force of law, which purportedly denies the right of appeal etc. or which does not provide for a show-cause notice will be deemed to be violative of the Injunctions of Islam.
Islam has conferred upon human beings the freedom of expression. Grievances have to be redressed. Any bar on this right is negation of the Divine principle of human dignity.
Human freedom has thus been guaranteed by the Creator Himself for all times to come.
Jamay Tirmazi Vol. 1, Tradition No.1363; Holy Quran Ayat 9 of Sura 33, Al-Mu'minun; Ayat 148 Sura 4 Al-Nisa, Ayat 1 Sura 58 Al-Mujadilah; Pakistan and others v. Public at Large and others PLD 1987 Supreme Court 304; Pakistan through Secretary Ministry of Defence v. the General Public PLD 1989 SC 6; In re: The Civil Servants Act, (LXXI of 1973) PLD 1984 FSC 34; Messrs Sadiq Brothers vs. Appellate Additional Commissioner, Income Tax/Wealth Tax, Rawalpindi and another 2004 PTD 122; Dr. Muhammad Aslam Khaki and others vs. Government of Punjab and others PLD 2005 FSC 3; Nahjul Balega as Khutba No.86 by Imam Ali R.A. the Forth Caliph and Ayat 257 of Sura 2, Al-Baqra ref.
(f) Islamic Jurisprudence---
----Fundamental rights---Freedom of expression---Islam has conferred upon human beings the freedom of expression---Grievances have to be redressed---Any bar on such right is negation of Divine principle of human dignity---Human freedom has thus been guaranteed by the Creator Himself for all times to come.
(g) Islamic jurisprudence---
---Administration of justice---Superamacy of rule of law---Quran contains stern warning for all those who are charged with the onerous duty of regulating the affairs of State or administering justice among people---Arbiter cannot deviate from the principles laid down in the revelations; his decisions must be in accord with the revealed rules---People should be judged by means of precepts and values ordained by Quran for human guidance.
Holy Qur'an Ayaat 44, 45, 47 of Sura 5, Al-Maida; Ayat 42 Sura 5; Ayat 105 of Sura 4 Al-Nisa, Ayat 135, Sura 4 Al-Nisa; Ayat 90 Sura 16 Al-Nahl; Ayat 8 Sura 5 Al-Maida; Ayat 152 Sura 6 Al-Anaam; Ayat 26; Sura 38, Suad; Ayat 15 Sura 42, Al-Shura; Ayat 29 Sura 7, Al-Aaraf; Ayat 42 Sura 5, Al-Maida; Ayat 9, Sura 49, Al-Hujraat; Ayat 9, Sura 55 al-Rehman; Ayat 126 Sura 16, Al-Nahl; Tradition 1962 Vol. 3, Bukhari; Khutba Hujjatual Wida; Ayat 153 Sura 6; Ayat 29 Sura 7; Ayat 135 Sura 4 and Hadith No.1363 Vol. 1,Jame Tirmazi and Ayat 50 Sura 5 Al-Maida ref.
(h) Islamic jurisprudence---
----Acquisition of property---Acquiring assets, interests, properties of others without lawful means---Mandate---Modes of acquisition of property other than the accepted customary or legally permissible methods is termed as batil which is antonym of Haq i.e. truth---Thing which causes mischief would be batil.
Al-Qur'an Ayat 188 Sura 2 Al-Baqra and Ayat 29, Sura 4, Al-Nisa ref.
(i) Islamic Jurisprudence---
---Legal capacity of an adult---Scope.
According to Islamic Jurisprudence the legal capacity of an adult is complete after he/she has attained puberty as well as Rushd. This capacity is the ability or fitness to acquire and exercise rights and to accept and perform corresponding duties and obligations. Both the capacities i.e., acceptance or acquisition of rights and the performance of duties is termed in Islamic Law as Ahliyyat al wajub and Ahliyyat al ada respectively. This legal capacity or Dhimma, is complete and has legal effect. It means the capacity to sue and be sued. It means the capacity to lodge protest or file an appeal as well the capacity of being called upon to answer a charge. It is a status without which an individual cannot be treated as a legal, responsible entity. It is a Divine gift and it cannot be limited by a unilateral order of any mundane authority-without recourse to Injunctions of Islam. Any such attempt would be a challenge to the Creator who conferred not only dignity upon human beings but also clothed them with legal capacity. It is on account of this legal capacity that a human being becomes a Mukallif i.e. an obligee and thus a subject of Khitab i.e. communication from his Lord. A person having legal capacity is answerable to God and no one has the authority to deny a person of the status conferred upon him by his Creator.
The action of Chief Martial Administrator whereby he denied through a special Order the petitioners their rights to supervise and control the Trust without recourse to the provisions of law, and thus the act of issuance of Martial Law Order debarring the courts of Pakistan from providing legal remedy to the petitioners is violative of the principle of Legal Capacity. Extraordinary Power of an individual is death knell of human freedom. Absolute power vests in Allah Almighty alone.
(j) Islamic Jurisprudence---
----Principle of Adam Harj i.e. removal of hardship---Avoidance of hardship is a salient feature of the Islamic teachings.
Al-Qur'an Ayat 6 Sura 5 al-Ma'idah and Ayat 78, Sura 22 Al-Hajj ref.
(k) Islamic Jurisprudence---
----Principle of Taiseer i.e. ease has provided necessary means to encourage flexibility and development of law for the solution of ever increasing human problems.
Al-Qur'an Ayat 184 Sura 2 Al-Baqra; Ayat 185, Sura 2, Al-Baqra; Ayat 196, Sura 2, Al-Baqra; Ayat 280 Sura 2, Al-Baqra; Ayat 92, Sura 4,Al-Nisa; Ayat 157,Sura 7,Al-A'raf; Ayat 4 Sura 58, Al-Mujadalah; Ayaat 19, 20, Sura 80, Abasa; Ayat 55 Sura 39, Al-Zumr.
(l) Islamic Jurisprudence---
----Principle of Takhfeef i.e. reduction of burden---Allah wants to lighten your burdens, for man was created weak.
Al-Qur'an Ayat 28, Sura 4, Al-Nisa and Tradition No.630 Vol.5, Bukhari ref.
(m) Islamic Jurisprudence---
----Trust---Even a revolutionary change of government will not alter the existing right of a trustee to continue retaining the legal office of trusteeship which office shall remain with the progeny of the trustee till eternity.
(n) Constitution of Pakistan (1973)---
----Art. 203 & Seventh Schedule---Jurisdiction of Federal Shariat Court---Scope---Federal Shariat Court has the jurisdiction to examine any legal instrument on the touchstone of Injunctions of Islam---Principles.
(o) Islamic Jurisprudence---
----Legislation---Beneficent legislation---No legislation or even an executive order which is not for the benefit of people can hold field---Principles.
Al-Qur'an Ayat 17 Sura 13, Al-Ra'd and Ayat 4, Sura 48 Muhammad ref.
(p) Islamic Jurisprudence---
----Administration of justice---Legislation---If the law giver or the arbiter happens to be a person who is either personally aggrieved by the opposite party or who has played a successful part in bringing about a change in the government through revolution or conquest to the determent of the opposite party, he shall then neither be an arbiter in the cause of his opponents nor shall he pass any order to the detriment of his adversaries.
Al-Qur'an Ayat 17 Sura 13, Al-Ra'd and Ayat 4, Sura 48 Muhammad ref.
(q) Constitution of Pakistan (1973)---
----Part. VII, Ch.3-A [Arts. 203-A to 203-J]---Shariat Appellate Bench of the Supreme Court and the Federal Shariat Court have the jurisdiction and powers to examine Martial Law Regulations and to decide whether or not the provisions thereof are repugnant to the Injunctions of Islam.
Qazalbash Waqf and others v. Chief Land Commissioner, Punjab Lahore and others reported as PLD 1990 SC 99 ref.
(r) Constitution of Pakistan (1973)---
----Art. 203-D---Repugnancy to Injunctions of Islam---Powers of Federal Shariat Court---Scope---Law of limitation---Applicability---Significant feature of the jurisdiction of Federal Shariat Court in that law of limitation does no apply to such proceedings.
Al-Qur'an Ayaat 62 and 63 fo Sura 4, Al-Nisa and Ayat 114 of Sura 11 Hud ref.
(s) Constitution of Pakistan (1973)---
----Art. 203-D---Examination of laws by the Federal Shariat Court--Primary object illustrated.
Barrister Kamal Azfar, Syed Riaz-ul-Hassan Gillani, Advocate, Sardar Zulqarnain, Advocate and Rafey Altaf, Advocate for Petitioners.
Rizwan Ahmed Siddiqui, Deputy Attorney-Geneal, Aamir Raza Naqvi, Deputy Attorney-General, Muhammad Ashraf Khan Mughal, Deputy Attorney-General, Sardar Abdul Majeed, Advocate, Muhammad Nazir Abbasi, Standing Counsel, Tariq Ali, Advocate, Fareed-ul-Hassan, A.A.G, Sindh, Syed Sajid Ali, Joint Admn Officer Pak P.W.D. Ministry of Housing and Works, Karachi, Khalid Tepu Rana, Solicitor, Muhammad Arif Chaudhary, Federal Inspector of Drugs, M/o Health, Muhammad Aslam Shaikh, Joint Admn Officer M/O Housing and Works and Ihsan Karim, Audit Officer, Auditor General Office for Federal Government.
Dr. Sajid-ur-Rehman Siddiqui for Jurisconsult.
Dates of hearing: 23-10-2007, 12-2-2008, 26-3-2008, 9-4-208, 22-10-2008, 20-11-208, 6-1-2009, 13-1-2009, 11-3-2009, 10-4-2009, 7-4-2010.
JUDGMENT
SYED AFZAL HAIDER, J. - This petition was moved in this Court in March, 2002. It remained dormant till pre-admission notice was issued to the Federal Government on 23-10-2007. The petition was heard at Karachi and Islamabad on 11 occasions. Lastly it was heard at the principle seat of this Court on 15-4-2010 when a short order allowing the petition was announced after the contending parties had concluded their arguments. This judgment proceeds to give reasons for the said short order whereby the instant petition was accepted and the impugned Martial Law Orders were declared repugnant to the Injunctions of Islam.
FACTUAL BACKGROUND
2. Begum Nusrat Bhutto, widow of late Prime Minister Zulfiqar Ali Bhutto along with her daughter Mohtarama Benazir Bhutto, the twice elected Prime Minister of Pakistan and her son Mir Murtaza Bhutto founded a Trust with the name and title of "Peoples Foundation" on 8th August, 1974. It was duly registered as required by law. The three founders were the trustees while petitioner No.1 was also Chairperson of the Trust.
3. The said Trust was established with clear-cut objectives as indicated in the Deed attached to the petition. The affairs of the Trust were being managed smoothly by the Trustees who were performing their stipulated rights and obligation in accordance with the procedure laid down in the Deed. The Trustees in due course received donations including a contribution from the Head of State of United Arab Emirates to advance the purposes of the trust.
4. The petitioners, in paragraphs 06 through 14 of the Shariat Petition have detailed the background of the misery that befell them and their Trust on account of promulgation of Martial Law Orders and the consequents efforts they undertook to seek redress from 1977 October onwards. The said paragraphs are being reproduced verbatim:-
"6. That the Trustees were exercising their obligations freely and correctly. With untiring efforts the Trustees succeeded in building a People's Foundation building from the funds donated from time to time. A modern press known as the Peoples Foundation Trust was established. One newspaper and one periodical was being printed in the said press for the Trust and countless other publications also availed of the said press. The accounts of the Trust were duly audited to the satisfaction of the concerned authorities. All payments were made by cheque and received by cheque with supporting vouchers. The CBR extended the annual permission under section 15-D of the Income Tax Act, 1922 being satisfied with the correctness of the accounts and operations of the Trust. No allegation of breach of Trust on the part of the Trustees was ever made nor could have been made.
7. That the petitioners have certain statutory duties and obligations as are prescribed in the Trust Act, 1882 with regard to the Trust. The manner of discharge is also prescribed in the Trust Deed. Furthermore, in case any person wishes to proceed against the Trust with regard to inquiries into its accounts or the removal of Trustees the procedure prescribed in section 92 of the Code of Civil Procedure has to be followed and the permission of the Advocate-General obtained.
8. General Zia-ul-Haq led a coup dated on 5th July, 1977. The Bank accounts of the Trust and its associates with UBL and National Bank of Pakistan were frozen under MLO 26 issued by the MLA Zone C, on 28th September, 1977.
"Copies of MLO 21 of CMLA and MLO 26 of Zone C are annexed hereto and marked as Annexure "C & D".
9. That a petition was filed in the Honourable High Court of Sindh bearing No. 501- of 1977 which was heard and disposed of on 27th February, 1985.
Copy of the said amended petition alongwith judgment passed thereon are enclosed hereto and marked as Annexure "E & F".
10. That while the said petition was pending hearing before this Honourable Court, the Chief Martial Law Administrator respondent No.4 on 1740-1977 issued Martial Law Order 21 which runs as follows:-
"1. The Board of Trustees of the People's Foundation Trust and the Board of Directors of every institution connected therewith shall stand suspended forthwith and every member of the said Board of Directors of every such institution shall cease to function as such.
2. All powers and functions of the Board of Trustees and of the Board of Directors of every institution referred to in paragraph 1 shall vest in and be exercised and performed by the Chief Martial Law Administrator by such other person or body of persons as may be appointed by him in this behalf."
11. That during the pendency of the said petition before the Honourable High Court of Sindh, General Zia-ul-Haq, issued President's Order No.4 titled as Zulfiqar Ali Bhutto Trust and People's Foundation Trust (Re-naming and Administration) Order 1978, which runs as under:
"In pursuance of the proclamation of the fifth day of July, 1977, read with the Laws (Continuance in Force) Order 1977 (CMLA Order No.1 of 1977), and in exercise of all powers enabling him in that behalf the President is pleased to make the following Order:
1. Short title and commencement.--(1) This Order may be called the Zulfikar Ali Bhutto Trust and Peoples Foundation Trust (Re-naming and Administration) Order 1978.
(2) It shall come into force at once.
2. Order to override other laws etc:-
This order shall have effect notwithstanding anything contained in any other law for the time being in force or in Zulfikar Ali Bhutto Trust Deed of the sixth day of November, 1973, or the Peoples Foundation Trust Deed of the ninth day of August, 1974.
3. Re-naming etc. of Zulfikar Ali Bhutto Trust:
i). The Zulfikar Ali Bhutto Trust shall be known as the "Sheikh Zayed Bin Sultan Al-Nahyn Trust" and the deed of the said trust dated the sixth day of November, 1973, shall stand amended accordingly.
ii). All the powers and functions of the Board of Trustees of the aforesaid trust and of the Board of Directors of every institution connected therewith shall vest in and be exercised or performed by a Board of Trustees composed of such persons as the President may from time to time appoint.
4. Re-naming, etc. of Peoples Foundation Trust-
(i) The Peoples Foundation Trust shall be known as the "Sheikh Sultan Trust" and the deed of the said trust dated the 9th day of August, 1974, shall stand amended accordingly.
(ii) All the powers and functions of the Board of Trustees of the aforesaid trust and of the Board of Directors of every institution connected therewith shall vest in and be exercised or performed by a Board of Trustees composed of such persons as the President may from time to time appoint.
A copy of the P.O. No.4 of 1978 is annexed and marked as Annexure "G".
12. That thereafter the President's Order No.6 of 1979 was issued altering the objects of the Trust which is contrary to the injunctions of Islam as also the Trust Act 1882.
A copy of the P.O. No.6 of 1979 is annexed and marked as Annexure "H".
13. That the MLO 21 of 1977 of CMLA and MLO 26 of Zone C and P.O. No.4 of 1978 and P.O. No.6 of 1977 and the abovesaid action of the Martial Law Authorities are mala fide in fact and in law and are repugnant to the Injunctions of Islam Law as per the law enunciated by the Shariat Appellate Bench of the Honourable Supreme Court of Pakistan in the case of Qazalbash Waqf v. Chief Land Commissioner Punjab, PLD 1990 SC 99.
14. That the respondent has destroyed the entity of the Peoples Foundation Trust and its allied institutions and confiscated the properties and assets of the Trust. The respondent is missing, misappropriating the funds and the assets of the Trust and applying its income for purposes other than those stipulated in the Trust Deed."
PETITIONER'S PLEA
5. The learned counsel for the petitioners inter alia contended that:
i. Martial Law Order No 21 issued by Chief Martial Law Administrator dated 17th October, 1977 (printed on page 453 of PLD 1977 volume 5 Statutes Part);
ii. Martial Law Order issued by Martial Law Administrator Zone "C" (Province of…
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