Constitution of Pakistan, 1973--
----Arts. 2, 199 & 227--Incorporation of inheritance mutation in revenue record in favour of legal heirs of petitioner’s husband--Excluding of name of petitioner--Deceased husband of petitioner was belongs to Fiq Jafria--Appeal before Assistant Commissioner--Dismissed--Appeal before Addl., Commissioner--Dismissed--Revision petition--Dismissed--Supreme Law--Deprivation from inheritance--Violation of injunctions of Holy Qur’an and Law--Question of--Whether widow of an issue loss deceased Shia Muslim belonging to fiqah jafria is entitled to inherit legacy of her late husband--Challenge to--According to Article 2 of Constitution of Islamic Republic of Pakistan, 1973, Islam is State Religion under Article 227 of Constitution, principles of Quran and Sunnah are declared as supreme law of this country and all provisions, rules and regulations are to be legislated/framed within precincts of Islamic principles--It can conveniently be held that revenue authorities have passed impugned orders, depriving petitioner from inheritance of her deceased husband, in violation of clear ordain/injunctions of Holy Quran as well as law laid down in this regard, as such, same not sustainable--Petition was allowed.
[Pp. 183, 184 & 191] A & B
PLD 2016 Lahore 865, PLD 1972 SC 346, 2010 SCMR 1915,
PLD 2016 Lah 865 ref.
Messrs Haroon Yazdani, Dildar Hussain and Yousaf Naseem Chandio, Advocates for Petitioner.
Mr. Asif Mehmood Cheema, Additional Advocate General alongwith Muhammad Amir Raza, ADLR and Mazhar Abbas, Tehsildar for Respondents.
Mian Shahid Iqbal, Advocate for Respondents.
Date of hearing: 9.11.2020.
PLJ 2021 Lahore 182
Present: Ch. Muhammad Iqbal, J.
AMINA KHATOON (Widow)--Petitioner
versus
MEMBER (JUDICIAL-III), BOARD OF REVENUE, PUNJAB and 7 others--Respondents
W.P. No. 37642 of 2019, decided on 9.11.2020.
Judgment
Through this writ petition, the petitioner has challenged the legality of order dated 07.02.2019, whereby the appeal of the petitioner was dismissed by the Assistant Commissioner/Collector, Jalalpur Pirwala, District Multan on the ground that she is widow of deceased Syed Ali Raza who has died issueless and as the deceased belonged to Shia sect, the petitioner (widow) is not entitled for inheritance of Syed Ali Raza, and also challenged the order dated 09.03.2019, passed by the Additional Commissioner (Consolidation), Multan Division, Multan and the order dated 09.04.2019, passed by the Member, Board of Revenue who dismissed the revision petition of the petitioner.
2. Brief facts of the case are that Syed Ali Raza, husband of the petitioner, died issueless on 18.01.2016 leaving behind the petitioner (widow) and Respondents No. 5 to 8 (brothers & sisters) as his legal heirs. Syed Ali Raza was owner of land measuring 324 Kanal 06 Maria 30 Sq. Ft. situated in Khata No. 369, 370, 371, 372, 375, 380, 386, 478 Moza Kotli Aaday, Jalalpur Pirwala District Multan and after his death, inheritance Mutation No. 8124 dated 26.05.2017 was incorporated in the revenue record in favour of the legal heirs of Syed Ali Raza excluding the name of the petitioner on the ground that the deceased Syed Ali Raza belonged to Fiqa Jafria, as such, his widow is not entitled for the inheritance of deceased. The petitioner filed appeal before the Assistant Commissioner, Jalalpur Pirwala, which was dismissed on 07.02.2019. The petitioner filed appeal before the Additional Commissioner (Revenue), Multan Division which was dismissed on 09.03.2019. Against the aforesaid orders, the petitioner filed revision petition before the Board of Revenue, which was also dismissed vide order dated 09.04.2019. Hence, this writ petition.
3. I have heard the arguments of learned counsels for the parties and have gone through the record with their able assistance.
4. According to the Article 2 of the Constitution of the Islamic Republic of Pakistan, 1973, Islam is the State Religion under Article 227 of the Constitution, the principles of Quran and Sunnah are declared as supreme law of this country and all provisions, rules and regulations are to be legislated/framed within the precincts of Islamic principles. For reference Article 227 of the Constitution of Islamic Republic of Pakistan is reproduced as under:
227. Provisions relating to the Holy Quran and Sunnah.--(1) All existing laws shall be brought in conformity with the Injunctions of Islam as laid down in the Holy Quran and Sunnah, in this Part referred to as the Injunctions of Islam, and no law shall be enacted which is repugnant to such injunctions.
1[Explanation.--In the application of this clause to the personal law of any Muslim sect, the expression “Quran and Sunnah” shall mean the Quran and Sunnah as interpreted by that sect.]
(2) Effect shall be given to the provisions of clause (1) only in the manner provided in this Part.
(3) Nothing in this Part shall affect the personal laws of non-Muslim citizens or their status as citizens.
5. In this case, only question involved is that whether the widow of an issueless deceased Shia Muslim belonging to Fiqah Jafria is entitled to inherit the legacy of her late husband? In this regard, manifest guidance is contained in Holy Quran in Ayat No. 12 of Surah An-Nisa, which is as under:
ترجمہ: اور تمہارے لیے نصف ہے جو چھوڑ جائیں تمھاری بیویاں بشرطیکہ نہ ہو ان کی اولاد اور اگر ہو ان کی اولاد تو تمھارے لیے چوتھائی ہے اس سے جو وہ چھوڑ جائیں (یہ تقسیم) اس وصیت کے پورا کرنے کے بعد ہے جو وہ کر جائیں اور قرض ادا کرنے کے بعد اور تمھاری بیویوں کا چوتھا حصہ ہے اس سے جو تم چھوڑو بشرطیکہ نہ ہو تمھاری اولاد اور اگر ہو تمھاری اولاد تو ان کا آٹھوان حصہ ہے اس سے جو تم پیچھے چھوڑ جائو (یہ تقسیم) اس وصیت کو پورا کرنے کے بعد ہے جو تم نے کی ہو اور (تمھارا) قرض ادا کرنے کے بعد۔ اور اگر ہو وہ شخص جس کی میراث تقسیم کی جانے والی ہے کلالہ وہ مرد ہو یا عورت اور اسکا بھائی یا بہن ہو تو ہر ایک کے لیے ان میں سے چھٹا حصہ ہے اور اگر وہ بہن بھائی ایک سے زیادہ ہوں تو سب شریک ہیں تہائی میں (یہ تقسیم) وصیت پوری کرنے کے بعد ہے جو کی گئی ہے اور قرض ادا کرنے کے بعد بشرطیکہ اس سے نقصان نہ پہنچایا گیا ہو۔ (یہ نظام وراثت) حکم ہے اللہ کی طرف سے اور اللہ تعالیٰ سب کچھ جاننے والا بڑا بردبار ہے۔ (ضیاء القران: پیر محمد کرم شاہ)
And unto you belongeth a half of that which your wives leave, if they have no child; but if they have a child then unto you the fourth of that which they leave, after any legacy they may have bequeathed, or debt (they may have contracted, hath been paid). And unto them belongeth the fourth of that which ye leave if ye have no child, but if ye have a child then the eighth of that which ye leave, after any legacy ye may have bequeathed, or debt (ye may have contracted, hath been paid). And if a man or a woman have a distant heir (having left neither parent nor child), and he (or she) have a brother or a sister (only on the mother’s side) then to each of them twain (the brother and the sister) the sixth, and if they be more than two, then they shall be sharers in the third, after any legacy that may have been bequeathed or debt (contracted) not injuring (the heirs by willing away more than a third of the heritage) hath been paid. A commandment from Allah. Allah is Knower, Indulgent, (translation by Muhammad Pickthall)
Almighty Allah, in the afore-referred Ayat, has settled this issue that if an issueless male Muslim dies, his widow would be entitled to 1/4th share from his legacy. This Court has already resolved this controversy in a landmark judgment cited as Khalida Shamim Akhtar (PLD 2016 Lahore 865) wherein the judgment cited as Syed Muhammad Munir (representation by 10 heirs) and another vs. Abu Nasar, Member (Judicial) Board of Revenue, Punjab, Lahore and 7 others (PLD 1972 SC 346) and Muhammad Bashir and others vs. Mst. Latifa Bibi through LRs. (2010 SCMR 1915) were discussed in detail and it was settled that the widow of an issueless male Muslim deceased is entitled to inherit 1/4th share from the leftover estate of her husband. Relevant portion of the judgment (PLD 2016 Lahore 865) is reproduced as under:
4. Keeping in view the importance of the question, emerged in this petition and the fact that, a particular class is being deprived from a right of inheritance, and the fact that the Legislature, despite the fact that, it was expected from it even in 1972 to take such legislative measures in order to settle the issue, has not taken any such steps, a public notice was ordered to be issued on 05.05.2016, inviting any segment of life to render assistance to the Court in this regard, particularly, Shia Ulema.
In response, Allama Syed Iftikhar Hussain Naqvi Najafi, a sitting Member of Council of Islamic Ideology, Government of Pakistan, appeared and rendered assistance. He has also referred his own collection on this point titled “Kitah-e-Meeras”; Volume-3, Chapter-9 whereof deals with the matter of inheritance of husband or wife.
5. During arguments, from both the sides, case-laws titled Syed Muhammad Munir (represented by 10 heirs) and another vs. Abu Nasar, Member (Judicial) Board of Revenue, Punjab, Lahore and 7 others (PLD 1972 Supreme Court 346) and also Muhammad Bashir and others vs. Mst. Latifa Bibi through LRs (2010 SCMR 1915) have been referred and relied upon in order to reach to a just conclusion; therefore, I am going to summarize the above noted case-laws.
In Syed Muhammad Munir’s case (supra), some collection of different Authors, including Syed Ameer Ali, Tyabji, K.P. Saxena, Shama Churun Sircar and Allama Mufti Syed Tyeb Agha Musavi Jazairi, the Hon’ble Supreme Court of Pakistan reached to the conclusion that, the rule, which was being acted in Shia Sect for inheritance purpose to the effect that, a “childless widow” would not inherit her husband in immovable property, has been taken as the force behind as of “Ijma “ and it was left to be taken-up by the Legislature, after consulting Shia community, if a change is desired to be made in such rule. In the same judgment, it has been noted that, such question was raised some times back in the West Pakistan Legislative Assembly, but no amendment was made in relevant law as it was opposed by Shia community and in such connection, Allama Mufti Syed Tyeb Agha Musavi Jazairi seriously controverted the argument that Shia rule was against the text of Holy Qur’an by maintaining in a pamphlet entitled “Beevi Ki Meeras”.
Ayat No. 12 of Sura Al-Nisa can be quoted in this respect, which has been translated in English by S.V. Mir Ahmed Ali:-
“And for them shall be a fourth of what ye leave if ye have no issue, and if ye have an issue then for them (shall be) the eighth of what ye leave after paying the bequest ye had bequeathed and the debt”.
In Muhammad Bashir’s case (supra), although the Hon’ble Supreme Court of Pakistan has commented upon the history and background of division of Muslims in different sects by maintaining that, it is not necessary that a “Mussalman” must either be a Sunni or a Shia and it may well be that he is free from all sectarian feelings, sentiments and faith. It was also maintained that, it cannot be overlooked that, in the first 150 years of the history of Islam, sects were unknown. In fact, the four Schools of Law viz. Hanafi, Maliki, Shafi and Hanbali, were founded in the second century Hijra. The position, therefore, is crystallized that the formation or division of the Muslim population in the world among several sects took place long after the revelation and death of the Prophet (Peace Be Upon Him). After digging out such history, the Hon’ble Supreme Court, thus, found itself unable to hold that, every “Mussalman” must either be a Shia or a Sunni.
However, such question of competence of a “childless widow” to inherit her Shia husband, has not been answered even in Muhammad Bashir’s case.
6. The Quranic Command, as reflected herein-above, in Verse No. 12 of Surah Nisa has completely been ignored in the case, in hand, rather a totally contrary view is being preferred.
The main sources of Shariat are; Holy Qur’an, Sunnah, Ijma and Qias and the Hon’ble Federal Shariat Court in case titled “Muhammad Nasrullah Khan vs. The Federation of Pakistan and another” (Shariat Petition No. 06/1 of 2013) has held that, if something in any Book is proved to be different from Quran and Sunnah, that would be invalid.
Muhammadan Law by D.F.Mullah, not only in the present case, but other cases also is oftenly quoted for a reference. The Hon’ble Federal Shariat Court, in the referred judgment, has held that, said law is in fact only a reference book and not a statutory law applicable in Pakistan, in the sense that the legislature has not enacted the same. It is just an option of the Court to consult the same on the basis of equity and refer to the principles mentioned in paragraphs of the said book, at times, and that too casually in some matters only. Moreover, the rules quoted in Muhammadan Law are not at all applicable, if in the opinion of the Court, they are found opposed to justice, equity and good conscience. These rules are not even referred to in situations directly covered by the Holy Quran or Surmah or by binding Ijma and Qias.
7. According to Para-113 of Muhammadan Law by D.F. Mulla, a childless widow takes no share in her husband’s lands, but she is entitled to her one-fourth share in the value of trees and buildings standing thereon, as well as in his movable property including debts due to him though they may be secured by a usufructuary mortgage or otherwise.
This Para is in complete negation of Ayat No. 12 of Sura Al-Nisa, whereby a childless widow is entitled to 1/4th share from the leftover estate of her husband. The legislation has not declared Muhammadan Law as codified one.
8. In “Kitab-e-Meeras” Volum-3, Chapter-9 by Allama Syed Iftikhar Hussain Naqvi Najafi, even a childless widow of Fiqa-e-Jafariya, is held entitled to inherit 1/4th share from the leftover estate of her deceased husband and while appearing before this Court, he has reiterated his such version as taken in the referred book ad submitted that, Ahl-e-Tashih or Fiqa-e-Jafariya are first Muslims and cannot think of a different thinking, as have been settled by Holy Qur’an. Ayat No. 12 of Sura Al-Nisa, has been referred by Allama Syed Iftikhar Hussain Naqvi Najafi, in support of his such version. He has referred the under-mentioned collections from Fiqa-e-Jafariya on this point:
1۔ منہاج الصالحین، بحث میرات زواج و زوجہ، تالیف آیت اللہ
علی سیستانی، نجف اشرف، عراق
2۔ منہاج الصالین آیت اللہ وحید خراسانی، قم المقدسہ، ایران
3۔ توضیح المسائل آیت اللہ حافظ بشیر حسین نجفی، بحث میراث زوج و زوجہ
4۔ استفتات از حضرت آیت اللہ السید علی خامنہ ای، ایران
5۔ تحریر الوسیلہ تالیف حضرت امام خمینی بحث میراث زوج و زوجہ
6۔ منہاج الصالحین، بحث میراث الزوج و الزوجہ، آیت اللہ
السید ابو القاسم الخوائی، نجف اشرف عراق
9. The question of competence of a childless widow from Fiqa-e-Jafariya has not yet been adjudicated upon by the Judiciary and unless the Legislature, by performing its duty, legislate any codified law in this respect, it is declared that even a childless widow from Fiqa-e-Jafariya would be entitled to claim 1/4th share from the leftover estate of her husband.
10. After holding this, the judgment and decree arrived at by the learned Additional District Judge, Chakwal, on 08.06.2010 has no place to be retained as a valid judgment; therefore, same is set-aside, whereas, judgment and decree, passed by the learned trial Court on 16.12.2008 is restored and resultantly, suit of present petitioner is decreed.
11. Before parting with this judgment, this Court extends profound gratitude to Allama Syed Iftikhar Hussain Naqvi Najafi, who rendered his valuable assistance to the Court in reaching a just decision on such intricate question, which remained unanswered since decades.
12. It is expected that, the Government of Pakistan in Ministry of Law, would take legislative measures to promulgate a codified law in this regard in order to protect the rights of childless widows from Ahl-e-Tashih, in getting their due shares from the inheritance of their deceased husbands.
13. Office is directed to send a copy of this judgment to the Secretary Law, Government of Pakistan.
With these observations, this civil revision petition stands allowed.
6. The practice to deprive the females from their right of inheritance secured and guaranteed by Allah Almighty has already been deprecated by the Hon’ble Supreme Court of Pakistan in a landmark judgment, cited as Ghulam Ali and 2 others vs. Mst. Ghulam Sarwar Naqvi (PLD 1990 SC 1). Relevant part of the judgment (supra) is reproduced as under:
“…….. As is discussed in the case of Haji Nizam (approved in Mohammad Bashir ‘s case) which was also a case of clash of Islamic principles against those of other systems-a widowed daughter-in-law, seeking maintenance for her minor child against the grandfather, it is the duty of the Courts within the permissible fields, as specified therein, to enforce Islamic law and principles. This case also required similar, if not better, treatment. The scope of rights of inheritance of females (daughter in this case) is so wide and their thrust so strong that it is the duty of the Courts to protect and enforce them, even if the legislative action for this purpose of protection in accordance with Islamic Jurisprudence, is yet to take its own time.
In the rural areas where 80% of the female population resides, the inheritance rights of the females are not as protected and enforced, as Islam requires. Cases similar to this do come up even to Supreme Court. In a very large majority of them the Courts act rightly and follow the correct rules. But it is a wide guess as to how many females take the courage of initiation or continuing the legal battle with their close one in matters of inheritance, when they are being deprived. The percentage is very low indeed. Neither the Courts nor the law as at present it stands interpreted, are to be blamed. The social organizations including those in the legal field are yet to show up in the rural area. They are mostly managed by Urban volunteers. When will they be able to move out of mostly managed by Urban volunteers. When will they be able to move out of sophisticated methods of American speech/seminar system and all that goes with it, in the enlightened urban society? It is a pity that while an ubranised brother, who is labourer in a neighbouring Mill, has the protection of such mass of Labour Laws; which sometimes even Courts find it difficult properly to count-right from the definition of ‘rights’, up to the enforcement’ even in homes, through ‘Social Security’ Laws, with web of network of ‘Inspectorates’ etc. who are supposed to be helping him at every step, his unfortunate sister, who is deprived of her most valuable rights of inheritance even today by her own kith and kin—sometimes by the urbanized brother himself, is not even cognizant of all this. She is not being educated enough about her rights. Nearly four decades have passed. A new set up is needed in this behalf. Social Organizations run by women have not succeeded in rural field. They may continue for the urban areas where their utility might also be improved and upgraded. At the same time they need to be equipped with more vigorous training in the field of Islamic
