' ABDUL HAKEEM KHAN, C. J.-Mst. Farishta has moved this petition under Article 203-B of the Constitution for a declaration that section 4 of the Muslim Family Laws Ordinance, 1961 providing for inheritance of predeceased son or daughter, if any, living at the time the succession opens, is repugnant to the Injunctions of Islam.
2. Notices to the Secretary, Ministry of Law and Attorney-General were issued on 2-6-1979 and they were further asked to arrange for representation by our order dated 4-7-1979. Later on 14-7-1979 a decision was taken that the matter shall be taken up for final hearing on 8th and 9th of September 1979 and Federal Law Secretary and Attorney-General were apprised of this. On that very date it was decided that the matter being of great importance and somewhat ticklish we will need the assistance of Mr. Khalid M. Ishaq and Doctor Tanzilur Rahman, Advocates, Karachi.
3. We heard Mr. Mahfooz Khan, the learned counsel for the petitioner and Mr. Inayat Elahi Khan, Advocate-General on the 8th and 9th of September 1979; Mr. Ghulam Mustafa, Advocate, Abbottabad nominated by the Advocate-General for further assistance on .22-9-1979; Mr. Khalid M.
Ishaq and Doctor Tanzilur Rahman on 23-9-1979. We indeed appreciate the assistance given to us and would like to add that Mr. Khalid M. Ishaq and Doctor Tanzilur Rahman by their learned exposition of the law have rendered us invaluable assistance.
4. Section 4 of the Muslim Family Laws Ordinance reads : ' Succession.-In the event of the death of any son or daughter of the propositus before the opening of succession, the children of such son or daughter, if any, living at the time the succession opens, shall per strips receive a share equivalent to the share which such son or daughter, as the case may be, would have received if alive.
5. There are three important points on which the fate of this petition hinges. The first and the foremost that falls for determination in this petition is: ' Whether the explanation to Article 203-B will bar the jurisdiction of this Bench to go into the matter inasmuch as the provision is a part and parcel of Muslim Personal Law.
' Second point that will require determination is as to whether the text of the Holy Qur'an itself excludes the children of a predeceased son in the presence of a son.
' Third, as to whether there is the Sunna of the Holy Prophet (may the blessings of Allah be upon him), which is in conflict with the provision contained in section 4 reproduced above.
6. Needless to say that contention of Mr. Ghulam Mustafa that since Muslim Family Laws Ordinance, 1961, whereby section 4 has been brought into the Muslim Law has been given a protection by Article 8(3) (b) of the Constitution, the jurisdiction of this Bench shall not extend to its examination with a view to determine its repugnancy to the Injunctions of Islam, has not impressed us, for it conveniently overlooks that Chapter 3-A, relating to Shariat Benches of the Superior Courts was added by the C. M. L. A. In pursuance of his proclamation of 5th of July 1977, read with Laws (Continuance in Force) Order, 1977 and in exercise of powers enabling him in this behalf and it was, therefore, a supra-Constitutional provision and the provision of Article 203-A therein "the provisions of this Chapter shall have effect notwithstanding anything contained in the Constitution" shall prevail.
7. Mr. Inayat Elahi Khan, the Advocate-General and Mr. Khalid M. Ishaq submitted that Family Laws Ordinance, 1961 was covered by the expression "Muslim Personal Law" as it occurs in Explanation to Article 203-B of the Constitution and, therefore, this Bench had no jurisdiction. Article 203-B (1) alongwith its Explanation reads : 203-B. Conferment of jurisdiction on High Court.-(1) A High Court may on the petition of a citizen of Pakistan or the Federal Government or a Provincial Government, examine and decide the question whether or not any law or provision of law is repugnant to the Injunctions of Islam as laid down in the Holy Qur'an and the Sunnah of the Holy Prophet, hereafter in this Chapter referred to as the Injunctions of Islam.
' Explanation.-In this Chapter, 'law' includes any custom or usage having the force of law but does not include the Constitution, Muslim Personal Law' any law relating to the procedure of any Court or tribunal or, until the expiration of three years from the commencement of this Chapter, any fiscal law, or any law relating to the collection of taxes and fees or banking or insurance practice and procedure.
' There can be no two opinions that if Muslim Family Laws Ordinance is included in the expression "Muslim Personal Law" this Bench will have no jurisdiction. But the all-important question is whether it is so included. Our attention was invited to the provisions of West Pakistan Muslim Personal Law (Shariat) Application Act, 1962 section 2 whereof uses the expression "Muslim Personal Law" and it was added that since succession whether (testate or intestate), is a subject which shall be determined in accordance with Muslim Personal Law, Muslim Family Laws Ordinance which has amended that Personal Law shall be taken to be a part and parcel of the Muslim Personal Personal Law. We are not impressed by this argument, for in the preamble as also in the body of the Act after the expression "Muslim Personal Law" the word "Shariat" was added in sections 1, 2,
5. This was not casual. Rather a reference to the titles of the earlier statutes mentioned in the section relating to repeal and savings will show that five statutes holding field before it had also elaborated the expression by adding the word "Shariat" in the case of four and as far as fifth is concerned, the expression "Muslim Personal Law" was prefaced with the expression "Shariat". The titles of the laws have been mentioned at Nos. (c), (d), (e), (f) and (g) of clause (I) of the section and those read:
(c) The Muslim Personal Law (Shariat) Application Act, 1937, in its application to West Pakistan;
(d) The North-West Frontier Province Muslim Personal Law (Shariat) Application Act, 1935;
(e) The Punjab Muslim Personal Law (Shariat) Application Act, 1948;
(f) The Muslim Personal Law (Shariat) Application (Sind Amendment) Act, 1950;
(g) The Bahawalpur State Shariat (Muslim Personal Law) Application Act, 1951.
' In our view the expression "Shariat" was put into the enactments to demonstrate that Muslim Personal Law as known to the Shariat itself had been brought about by the repealing enactments and this was the intention of Muslim Personal Law (Shariat) Application Act, 1962 as well In the conclusion that the law amended by an enactment or custom was treated as separate class so to speak, something foreign to the Shariat itself we are further reinforced by the fact that in section 2 of the West Pakistan enactment after the words "the rule of decision" and before the word "shall" the following occurred : ' Subject to the provisions of any enactment for the time being in force.
' It will follow that provisions of Muslim Personal Law were made to yield to statute law and this could not be on the hypothesis that no sooner a law affecting Shariat was brought on the statute book, it became Muslim Personal Law. In our view an inroad into the Muslim Personal Law as applied by the West Pakistan enactment had been already made and can in future be made by a recourse to legislation, but it will be difficult for us to subscribe to the view that such a legislation, though it might be affecting the Muslim Personal Law in its fundamental points, would become a part and parcel of Muslim Personal Law, that is to say, Shariat. Those who brought about the amendment in the Constitution could not be unaware of the existing state of the statute and the legislation that preceded it and, therefore, the irresistible conclusion that follows is that the expression "Muslim Personal Law" was used as synonymous to Shariat and for the exclusion whereof there were and still remain weighty reasons. If the Shariat Benches are to reopen established propositions of Shariat, then they will be opening the Pandora's box. Instead of implementing the will of the law-giver that Shariat should be applied, they would be frustrating that intention and anxiety. We are of the considered view that all that the expression "Muslim Personal Law" does convey is the said law as known to Shariat and not legislative enactments which overrule that law in so far as the subject to which that was applicable. A thing not known to Shariat cannot be brought into the Shariat by legislation, even though it has got the force of law.
The Legislature was free to provide for the son of a predeceased son as they did in section 4 of the Family Laws Ordinance, but the question is whether that provision which they made was a provision of Shariat. Had it been so, what was the need of enacting the same. If we were to agree with the view projected by the learned Advocate-General and later somewhat half-heartedly argued by Mr. Khalid M. Ishaq, we will be lending our support to the proposition that adoption can be made valid by a statute at any time and thereafter it would become impossible to question its validity with reference to the Injunctions of Islam. Our apprehensions are that if we were to agree to this proposition, then a future Legislature might give validity to a marriage between members of the same sex and provide for succession, marriages and divorce of such spouses. Certainly such shocking deviations would not become part and parcel of the Muslim Personal Law and it appears to us, so will be the case with any other enactment relating to subjects to which Muslim Personal Law is applicable if that enactment is inconsistent with or repugnant to the Muslim Personal Law.
There is going to be a revulsion to the induction of a foreign body and this is precisely the question with which we are concerned in this case. For the reason we are clear in our mind that anything which is not a part and parcel of Muslim Personal Law (Shariat) as the words within brackets are commonly understood that would not become a part and parcel of that law merely because that it has been added into it by legislation. It is our duty to sift grain from the chaff and to throw out the latter in exercise of our Constitutional jurisdiction under Article 203-B. No sooner we hold that the provisions of section 4 of the Muslim Family Laws Ordinance are repugnant to the Injunctions of Islam, it will become difficult for anybody to say, that it is a provision of Muslim Personal Law (Shariat).
8. The Verses of the Holy Qur'an on the subject of inheritance are available in Sura Nissa (Fourth Sura) and the last Verse of Sura Anfal (Eighth Sura) has also an important bearing on the question of succession.
9. The bulk of the Qur'anic law is contained in Verses 7 to 14 of the Fourth Sura heareinafter called first citation and those read : {{ARABIC TEXT}}
10. Another Verse of the Fourth Sura hereinafter called second citation, which has got bearing on the question of succession is Verse No, 33 and the same reads : {{ARABIC TEXT}}
11. The Injunctions contained in the first citation were supplemented by Verse 176 of the Fourth Sura hereinafter called the third citation and the same reads : {{ARABIC TEXT}}
12. Another Verse reference to which will be helpful is Verse 75 of Sura Anfal (Eighth Sura) hereinafter called the Fourth citation and the same reads : {{ARABIC TEXT}}
13. To facilitate the appreciation of the argument that has commended itself to us we should like to give the translation with explanatory notes of the above-mentioned citations from by Maulana Abul A'ala Maudoodi and translation only by A. Yusaf Ali: ' First Citation : {{URDU TEXT}} ' First Citation : {{URDU TEXT}} {{URDU TEXT}} ' Second Citation {{URDU TEXT}} ' NOTES {{URDU TEXT}} ' Third Citation NOTES {{URDU TEXT}} {{URDU TEXT}} Fourth Citation {{URDU TEXT}} ' The Holy Qur'an Text Translation by A. Yusaf All : '
' First Citation : From what is left by parents ' And those nearest related ' There is a share for men ' And a share for women, ' Whether the property be small or large,--a determinate share. But if at the time of division Other relatives, or orphans, ' Or poor, are present, ' Feed them out of the (property), And speak to them ' Words of kindness and justice.
9. Let those (disposing of an estate) Have the same fear in their minds As they would have for their own If they had left a helpless family behind: Let them fear Allah, and speak Words of appropriate (comfort).
10. Those who unjustly ' Eat up the property ' Of orphans, eat up ' A Fire into their own ' Bodies: they will soon ' Be enduring a blazing Fire!
' Section 2
11. Allah (thus) directs you ' As regards your children's ' (Inheritance): to the male, ' A portion equal to that ' Of two females: if only ' Daughters, two or more, ' Their share is two-thirds ' Of the inheritance; ' If only one, her share ' Is a half.
' For parents, a sixth share ' Of the inheritance to each, ' If the deceased left children; ' If no children, and the parents ' Are the (only) heirs, the mother ' Has a third; if the deceased ' Left brothers (or sisters), ' The mother has a sixth.
' (The distribution in all cases ' Is) after the payment ' Of legacies and debts.
' Ye know not whether 'Your parents or your children ' Are nearest to you ' In benefit. These are Settled portions ordained By Allah; and Allah is All-Knowing, All-Wise.
12. In what your wives leave, ' Your share is a half, ' If they leave no child; ' But if they leave a child, ' Ye get a fourth; after payment ' Of legacies and debts.
' In what ye leave, ' Their share is a fourth, ' If ye leave no child; ' But if ye leave a child, ' They get an eighth; after payment ' Of legacies and debts.
' If the man or woman ' Whose inheritance is in question, ' Has left neither ascendants nor descendants, ' But has left a brother ' Or a sister, each one of the two ' Gets a sixth; but if more ' Than two, they share in a third; ' After payment of legacies ' And debts; so that no loss ' Is caused (to anyone).
' Thus is it ordained by Allah; ' And Allah is All-knowing, ' Most Forbearing.
13. Those are limits ' Set by Allah: those who Obey Allah and His Apostle Will be admitted to Gardens With rivers flowing beneath, To bide therein it or ever) And that will be The Supreme achievement.
14. But those who disobey Allah and His Apostle And transgress His limits Will be admitted.
' To a Fire, to abide therein: And they shall have A humiliating punishment.
' Second Citation
33. To (benefit) everyone, ' We have appointed - ' Sharers and heirs ' To property left ' By parents and relatives. To those also, to whom ' Your right hand was pledged, ' Give their due portion: ' For truly Allah is witness To all things.
' Third Citation
176. They ask thee ' For a legal decision, ' Say: Allah directs (thus)
' About those who leave ' No descendants or ascendants ' As heirs. If it is a man ' That dies, leaving a sister ' But no child, she shall ' Have half the inheritance: ' If (such a deceased was)
' A woman, who left no child, ' Her brother takes her inheritance : ' If there are two sisters, ' They shall have two-thirds ' Of the inheritance ' (Between them): if there are ' Brothers and sisters (they share), ' The male having twice ' The share of the female.
' Thus doth Allah make clear ' To you (His law), lest ' Ye err. And Allah ' Hath knowledge of all things.
' Fourth Citation
75. And those who ' Accept Faith subsequently, ' And adopt exile, ' And fight for the Faith ' In your company,-- ' They are of you.
' But kindred by blood ' Have prior rights ' Against each other ' In the Book of Allah.
' Verily Allah is well acquainted ' With all things.
14. If we advert to first citation, it will appear that the seventh Verse therein ordains that for men and women a share has been ordained by Almighty in what is left by their parents and relations.
The Eighth Verse commends giving reliefs to orphans and destitutes when they are present when inheritance is being divided and it is [further added that nice words should be spoken to them.
Nineth and Tenth Verses do not concern inheritance but they exhort the people to fear God for they may themselves leave behind weak progeny and that they should not appropriate the property of orphans wrongfully. In Verse 11 general law with respect to shares of rival sexes of the progeny have been laid, namely, that a male's share should be equal to that of two females; if there are two or more females, they shall get 2/3rd, and if one, she will get half. Furthermore, each of the parents shall get 1/6th if there is an issue, and if not and the heirs are his parents, then the mother shall get 1/3rd, but if the deceased has got brothers, then the mother shall get 1/6th and of course all these shares are after the disposal of the bequeathed property and payment of debts. The part of the Verse which will require a serious attention of the interpreters is the last one wherein it is observed : ' You do not know who is nearer to you out of your fathers and sons in giving benefits. This has been ordained by Allah and He is All-knowing and All Wise.
It will be seen that the aforementioned part of the Verse reminds us that our knowledge regarding who is nearer to us from the view point of benefit or is going to benefit us more is indeed limited and it is, therefore, that we should submit ourselves to the shares ordained by God, for He is All- Knowing and All Wise. It will follow that those who begin to question the dictates of Allah and interpret them by giving their own reasoning regarding the usefulness of this or that heir in a way question the knowledge or wisdom of Allah who has specified the shares already indicated. This and Verse 8 will also expose that need of this or that heir is not at all a consideration that determines ones entitlements. The reason why the word {{URDU TEXT}} has been used recalls to us that in Hindu law inheritance goes by the extent of the benefits that a heir can confer upon the deceased and that during "{{URDU TEXT}}" when might was right and things were settled by physical force males were given preference over the females, inasmuch as they were considered to be more useful and as such nearer to the deceased. This was precisely the reason why females were excluded by all powerful male relations. In Verse 12 shares in the inheritance of wives and husbands have been indicated and it is further provided that if a person dies without leaving a father or son and has got a brother or sister, each shall get 1/6th share and if they are more than one, then they will share 1/3rd. Towards the end of the Verse it has been explained once again that this is the Order of God and He is All-Knowing and All-Forbearing, that is to say, while making this provision he has not been hard. Rather he has been indulgent. Verse 13 clarifies what has been laid down earlier were the limits of God and the one who obeys God and His Prophet (May the Blessings of Allah be upon him)-The word `Prophet' in this context is significant, he will be entering the Heavens and that is a great success. In Verse 14 the matter has been elaborated further when it is said: ' Whosoever disobeys God and His Prophet and transgresses the limits laid down by him, he shall be sent to Hell and that is a degrading chastisement.
It has already been observed that the commands of the Prophet (May the blessings of Allah be upon him) have to be obeyed and for obedience reward and for disobedience chastisement is going to follow. The conclusion is, therefore, irresistible that those who confine themselves to the text of the Holy Qur'an alone are violating the Injunctions of the Holy Qur'an when they exclude the consideration of the Hadees of the Holy Prophet in the matter of inheritance. A warning has been given that whosoever transgresses His limits, that is to say, the shares which He has already specified should be ready for a degrading punishment. These Injunctions of Qur'an make us extremely wary and we cannot conceive far a single moment of transgressing the limits of Allah as laid down in the Qur'an. Verse 33, i. e., Second citation will show that God has indicated right holders with respect to every property left by parents and relations and as far as promises are concerned, those have to be met during the lifetime. In the Fourth citation i,e,, Verse 176, "{{URDU TEXT}}" has been clarified but towards the end it has been explained the God was elaborating all this so that we should not be led astray and again God says that He is All-Knowing. As far as the Fourth citation, I e. Last Verse of Sura Anfal it concerned, that indicates that inheritance is to go by blood relationship and that some of them have been preferred in the Book of God over others for He is All-Knowing.
15. It is not disputed and we think rightly that the words "{{URDU TEXT}}" occurring in various froms in the above citations are the expressions of widest possible amplitude. So to speak they not only include immediate parents, children, father and mother, but also parents of the parents how high so ever and children of the sons or issues how low so ever. _That is to say these expressions not only have restricted meaning but extended meanings as well. It can also be said that the said expressions apart from the real meanings have been used metaphorically. Mr. Ghulam Mustafa, however, expressed his reservations as to whether or not the word {{URDU TEXT}} as used in the citation is included in the expression {{ARABIC TEXT}} and in this behalf his argument was that the first expression is followed by a conjunctive "J" and it reads : "{{ARABIC TEXT}}", He elaborated that if {{ARABIC TEXT}} included {{ARABIC TEXT}} the letter "{{URDU TEXT}} " would not have been there. We have given careful consideration to this argument and are of the opinion that though generally conjunctive is used to indicate a genus or category not included in the earlier expression but it does not always so happen and those who are familiar with the principles of interpretation that prevail in our Courts, know it fully well that word "and" is sometime used where more appropriate word would have been "or". As a matter of fact it is the context which gives the meaning of a particular word and when we take into consideration that the principles of interpretation of Holy Qur'an namely, "{{URDU TEXT}}" and "{{ARABIC TEXT}}" will also support us, we become all the more clear in mind that the context here would show that even in the case of "{{ARABIC TEXT}}" they should be {{URDU TEXT}} of a particular claimant whether he be male or female. In this we are further fortified by the following observations on pages 310 to 313 under the heading {{URDU TEXT}} Volume II by Maulana Mufti Muhammad Shafi, wherein it has been also indicated that the expression "{{ARABIC TEXT}}" in its generality includes descendants and parents but the word " {{ARABIC TEXT}}" has been used to emphasize its importance. The learned Mufti says: {{URDU TEXT}}
15. Mr. Ghulam Mustafa also argued that Verse 8 of the First citation provided for a share of the orphans but this is plainly untenable, for it does not specify any share for the orphan much less orphan grand-child and all that it says is that a portion should be given to them and kind words should be spoken to them. This, as has been pointed out, by Doctor Tanzilur Rahman, is and not an Injunction whereby an orphan grand-child stands provided. It may be added that the word {{ARABIC TEXT}} used in Verse 7 and the word {{ARABIC TEXT}} used in Verse 8 are not synonymous.
First is {{ARABIC TEXT}} while the second speaks of relatives generally and quite obviously does not refer to those persons for whom share has been specified in the Holy Qur'an itself. The argument of Mr. Ghulam Mustafa that son of a predeceased son is {{ARABIC TEXT}} of his grand father for the link which connects him with the grand-father is non-existent and, therefore, in the absence of the impediment is on equal footing with the son is an argument which he has adopted from Muhammad Aslam Jirajpuri and Ghulam Ahmad Parvez. But this is in direct conflict with the Verse of the Holy Qur'an which pre-supposes that something has been left by {{ARABIC TEXT}} and {{ARABIC TEXT}}. How it can be said that a father of the predeceased son has left the estate of his father, for when he died the succession had not by then opened. There is another reason as well why we should ignore this interpretation and it can be found in the fact that the Holy Qur'an speaks of the share of {{ARABIC TEXT}} and {{ARABIC TEXT}} and it goes without saying that {{ARABIC TEXT}} and {{ARABIC TEXT}} cannot be but persons living at the time when succession opens. If the intention was to give something to the as well, the words {{ARABIC TEXT}} and {ARABIC TEXT}} would not have occurred. The conclusion becomes all the more invulnerable if we concentrate on the following in the first two citations in {{ARABIC TEXT}} by Maulana Mufti Rashid Ahmad {{ARABIC TEXT}} As has been observed by Maulana Mufti Rashid Ahmad on page 104 of his pamphlet {{ARABIC TEXT}} published by {{URDU TEXT}} the conclusion would be irresistible that inheritance was being given to the living and to the dead. It will follow that before that a person can inherit his parents or near/ ones, he should be alive and he can only get something if something has been left by this parents or near ones. In this context it may be mentioned that Verse 33 excludes disposition by covenants, for instance by adoption and says whatever has been left by parents and relations for that God has ordained rightful owners. The dictum in this Verse provides law for the residuaries and on this point there is a Hadees which will be noticed in the sequel. The last Verse of Sura Anfal should clinch the matter, for in-there it is ordained that some of the blood relations have preference over others in inheritance tinder the law of God contained in the Book (Holy Qur'an). The word used is {{ARABIC TEXT}} not {{ARABIC TEXT}} the latter word being technically applicable to distant kindred, that is to say, relations through females. It will be seen that the principle {{ARABIC TEXT}} is deducible from the Verses of the Holy Qur'an as in Sura Nissa and beyond doubt by the last words employed in Sura Anfal, that is to say, the Fourth citation. It may be mentioned that if we were to adopt the reasoning which has prevailed with Muhammad Aslam Jirajpuri and Ghulam Ahmed Parvez in so far as the expression is concerned, we may find ourselves in direct conflict with the Injunctions of the Holy Qur'an in the following case : 'A' dies leaving B a daughter and D a son of the predeceased son B. According to the Holy Qur'an {{ARABIC TEXT}} B would get half and the residue will go to the son of the predeceased son, namely, D. But if the reasoning of Muhammad Aslam Jirajpuri ' and Ghulam Ahmad Parvez is adopted, then in the absence of C, D will be treated as son. If that is going to be the case, we shall have to give effect to the Injunctions of the Holy Qur'an {{ARABIC TEXT}} and D shall get two shares.
' It will follow that we shall have to deprive daughter B of her half Qur'anic share and the same shall be reduced to 1/3rd.
16. The inconsistency in the argument of Muhammad Aslam Jirajpuri and Ghulam Ahmad Parvez will also be apparent while we take the following illustrations : ' A dies leaving a grandson C and grand-daughter, namely, E's son F. E and her father D as also her uncle B whose son C is living were dead during the lifetime of A. If A's inheritance is to be distributed in accordance with the thesis projected by Muhammad Aslam Jirajpuri and Ghulam Ahmad Parvez, C a grandson will not be getting the entire estate but he will have to share it in all probability equally with F who is a distant kindred.
17. Let us take another example: A dies leaving a son B and D, E, F, J and K, five grandsons from predeceased son C. The death of C (removal of impediment will result in making D, E, F,J and K, five in number, the sons of the deceased. Since all the sons have to share equally, B's shares will stand reduced to 1/6th.
18. Again A dies leaving B, a son and D, a grandson from predeceased son C and C's wife F. What can be the rational basis for ignoring C's wife who is entitled under the Qur'an to 1/8th in the estate of her husband C if the ratio for the distribution is that C is to be taken notionally alive at the time when the succession opens.
19. All the inconsistencies in the argument of Muhammad Aslam Jirajpuri and Ghulam Ahmad Parvez have been fully noticed and repelled by Maulana Mufti Rashid Ahmad in his book {{URDU TEXT}} published by ){{ARABIC TEXT}} opposite Maulvi Musafir-Khana, Karach {{ARABIC TEXT}} by Sayed Ghulam Ahmad Rizvi published by Anjuman Khuddam-ul-Qur'an, Lahore and by Doctor Tanzilur Rahman in his Fifth Volume of {{ARABIC TEXT}} as also in his booklet 'Islamization of Pakistan Law'.
20. As far as Hadees is concerned, beyond dispute Sahih Bukhari is a compilation of great authority.
At page 605 of {{URDU TEXT}} published by Deeni Kutab Khana, 38, Urdu Bazar Lahore, Volume II, report from the Holy Prophet (May the blessings of Allah be upon him) along with the translation is as follows: {{ARABIC TEXT}} ' At page 607 ibid there is another report the relevant citation in Arabic and Urdu translation read as follows: {{ARABIC TEXT}} ' The tradition narrated by {{ARABIC TEXT}} appears at No, 1639 on pages 666-667 of {{URDU TEXT}} published by Qur'an Mahal, Karachi and two other narrations at Nos. 1640 to 1641 ibid. The Hadees of {{ARABIC TEXT}} is shown at No, 2910/2 page 74 of {{ARABIC TEXT}} published by {{ARABIC TEXT}} and it is indicated that it is {{ARABIC TEXT}} . Reference with advantage may also be made to {{ARABIC TEXT}} 1961 Edition, published by Nur Muhammad, Aram Bagh, Karachi page 997 where the report of {{ARABIC TEXT}} has not only been quoted but has also been explained by marginal Note 3. The Notes are by {{ARABIC TEXT}} and he gives the reasons why word has been used after the word {{ARABIC TEXT}} . He relies on Khitabi and elaborates that description has been given for a residuary who may be uncle or son of an uncle with a sister-sister does not inherit anything according to {{ARABIC TEXT}} He goes on to say that {{ARABIC TEXT}} descendants are the nearers (adjacent) and not maternal relations. He then relies on and adds that {{ARABIC TEXT}} means {{ARABIC TEXT}} the nearest of the relation who is near to the deceased through a male and not through a female. He also says that the reasons why the word {{ARABIC TEXT}} has been mentioned and females have not been mentioned can be found in the fact that in Qur'an itself share of a male has been equated to the share of two females. A reference to page 997 ibid would show that there is a Chapter entitled : {{ARABIC TEXT}} ' and on the authority {{ARABIC TEXT}} the following tradition has been quoted: {{ARABIC TEXT}} ' Zaid says--issues of the sons are equal in status to his son if there is no son besides them. Their male is like their male and their females are like their females; they inherit as they inherit and they become impediments as they would become impediments (in the first case the reference is to the issues generally and in the second to proximate issues, son or child) and child of a son would not inherit with son. Reference with advantage may also be made to page 1970 of {{ARABIC TEXT}} Volume V, by Doctor Tanzilur Rahman who relying on {{ARABIC TEXT}} says that on this there is,,,
21. Our attention was invited to {{ARABIC TEXT}} of Sirajiyyah which has been quoted alongwith translation on pages 127 and 128 of the Muslim Law of Inheritance by Al-Haj Muhammad Ullah ibn S. Jung, M. A., LL. D., published by Law Publishing Company, Lahore and it was asserted by Mr. Khalid M.
Ishaq (incidentally supporting Mr. Ghulam Mustafa who has referred us to a quotation from Jarjani in booklet {{URDU TEXT}} by Muhammad Ismail Zabih Rajorvi pages 49 to 51) that the learned author of {{ARABIC TEXT}} namely, {{ARABIC TEXT}}while commenting upon Sirajiyyah has expressed his disagreement with the proposition that a son of predeceased son does not inherit alongwith his uncle as it will appear from the underlined part on page 49 of Sharifia photostat copy Exh. H.
1. But on a careful and thorough examination by Dr. Tanzilur Rahman we had no hesitation in coming to the conclusion that Jarjani was in no doubt about the inheritance by a son's son in the presence of son. Dr. Tanzilur Rahman gave us an oral translation of the exhibit in Court and added the portion marked BB by us was unequivocal. The learned counsel elaborated that Jarjani was giving reasons in support of the principles {{ARABIC TEXT}} and that principle at No, 1 in case of {{ARABIC TEXT}} applied only where reason for inheritance was the same. To complete the record we got the relevant part of the chapter translated by Mufti Muhammad Yusaf of Darul Uloom Jamia Arabia Hadiqatul Uloom, Peshawar City and the same is Exh. H. III. The learned Mufti has explained the meaning whereso ever he thought it necessary and has added his own comments in the end.
The part of the translation which is relevant is being marked CC. It cannot be imagined for a moment that Jarjani did not agree with the author of Sirajiyyah whose observations in this respect are reflected in the following quotation and translation which we have taken from the Muslim Law of Inheritance ibid pages 124-125: {{ARABIC TEXT}} ' Translation (On Residuaries)
18. There are three kinds of residuaries by nasb: (1) residuaries in their own right, (2) residuaries in another's right, and (3) residuaries together with another.
19. A residuary in his own right is every male in whose line of descent to the deceased no female intervenes and there are four classes of these: (a) the descendants of the deceased, (b) and his 'root', (c) and descendants of his father (d) and that of the grandfather, preference being given to the nearer in degree. In short, first come the deceased's descendants, i,e,, his grandsons howlowsoever, then his root i,e, his father, then his paternal grandfather i.e, his father's father how high so ever; next the descendants of his father, i,e,, full-brothers then their sons how low so ever; next the descendants of the grandfather, i,e,, his uncles, then their sons howlowsoever; the preference shall be given by the strength of relationship, that is preference is given to one having double relationship over one having single relationship, whether male or female as observed by the Prophet (on whom be peace): 'Relations by the same father and mother shall be preferred to relations by the same father only." A sister by the same father and mother, as a residuary with the daughter will be preferred to a brother or sister by the father only; and the son of the brother by the same father and mother will be preferred to the son of the consanguine brother and same is applicable in the case of paternal uncles of the deceased and also in the case of the paternal uncles of grandfather of the deceased.
' It will be difficult to deny that Jarjani's opinion was a solitary opinion. The view contained in Sirajiyyah finds full support from `Tanvirul Absar', Turn' Mukhtar' and `Raddul Muhtar', an extract whereof along with the translation by B. M. Dayal from pages 437 and 438 of Durrul Mukhtar, published by Law Publishing Company. Katchcry Road, Lahore reads: {{ARABIC TEXT}} (English Translation)
' Precedence is given to the nearest relative and then to the one nearer than the rest in the following order:-first son, then son's son, how low soever, then father, who when accompanied with one daughter or more, becomes a residuary as well as a sharer, then true grandfather, namely father's father, howhighsoever-as to mother's father, he is false grandfather and is amongst distant kindred-then father's descendants, namely, full brother then consanguine brother, then full brother's son, then consanguine brother's son howlowsoever.
22. The following observations from the {{ARABIC TEXT}} on pages 426, 427 and 429 will reinforce the view taken by the earlier Jurists: {{URDU TEXT}}
23. Amongst the Fatwas which support the proposition that son of a predeceased son would not inherit is a Fatwa of Mufti Muhammad Mazhar in {{ARABIC TEXT}} compiled by Professor Muhammad Masood Ahmad, page 211 and the Fatwa by Mufti Rashid Ahmad Ludhianvi, pages 73 to 104 of {{ARABIC TEXT}}There are many other writers who have repelled the thesis of Muhammad Aslam Jirajpuri and Ghulam Ahmad Parvez as contained in Exh. H.
111. But by far more important comment on the subject is contained in the Islamization of Pakistan Law by Doctor Tanzilur Rahman, pages 56 to 72. The learned author assisted us by oral arguments as well and be took us through the relevant parts of the preface to his book {{URDU TEXT}} Volume V, and his thesis on the subject as contained in the 37th. Chapter page 1941 to 1982. He has refuted all file arguments in favour of the continuation of section 4 of the Family Laws Ordinance and we are in entire agreement with him that section 4 is repugnant to the Injunctions of Islam. His observations: {{URDU TEXT}} ' would indicate that something new has been inducted into the Muslim Personal Law by section 4 of the Muslim Family Laws Ordinance.
24. It was suggested to us that to meet the situation in which son of a predeceased son may find himself, we should advise a recourse to compulsory will as has been provided for by the Egyptian Law but we think that the making of a will not being a compulsory duty of a muslim we will be importing something into the Shariat which may be equally indefensible. We should rather like to commend pursuasion and suggest that a child of a predeceased son may himself or through his next friend move the District Judge within is situated (of course during the lifetime of his grandfather) that he should be the local limits of whose jurisdiction the property or most of the property advised to make a will which should ensure to him what he would have got a an heir to his father had his father not died during the lifetime of his own father. The intervention of the District Judge would incidentally remind the grandfather of his duty and give relief to a son/daughter of a predeceased son in most of the cases. In case, however, the grandfather refuses and District Judge feels that due to minority or for other reasons such a son/ daughter will require maintenance, it should be possible for the State to arrange accordingly.
' To sum up we are of the considered opinion that section 4 of the Muslim Family Laws Ordinance is against the Injunctions of Islam and that it should be repealed and to relieve distress of the son/daughter of a predeceased son the legislation suggested by us may be considered. The law repealing section 4 shall come into force as from today and that we give to the Government a period of three months for necessary legislation. . revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.