JUSTICE KARAM ELAHEE CHAUHAN, MEMBER--Mst. Farishta (respondent) filed an application bearing No. 3 of 1979 before a Shariat Bench of the High Court of Peshawar, under Article 203-B of the Constitution for a declaration that section 4 of the Muslim Family Laws Ordinance VIII of 1961 which was headed as "succession" and which laid down that "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 stripes receive a share equivalent to the share which such son or daughter, as the case may be, would have received if alive-" was against the Injunctions of Islam as laid down in the Holy Qur'an, and the Sunnah of the Holy Prophet and as such was invalid for the reason foresaid. The High Court by its judgment dated 1-10-1979, reported in Mst. Farishta v. The Federation of Pakistan through Ministry of Law, Islamabad PLD 1980 Pesh. 47 granted the declaration prayed for.
2. The Federation of Pakistan has come up in an appeal under Article 203-C of the Constitution against the same to this Court.
3. It may be mentioned that in the High Court a preliminary plea and objection was raised by the Federal Government, that the law aforesaid which had been impugned being a part of "Muslim Personal Law" as in force in this country to Muslims was immune from examination, because, in the Explanation attached to Article 203-B it was laid down that "in this Chapter" I.e. "Chapter 3-A", headed as "Shariat Benches of superior Courts" the (challengeable) "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." However, the High Court repelled this contention, and while so doing held :- "(a) That . The phrase 'Muslim Personal Law' referred to and was synonymous with the 'Shariat Law' of the Muslims.
(h) That as section 4 of the Muslim Family Laws Ordinance VIII of 1961 was not a provision of 'Shariat', therefore, it was not a 'Muslim Personal Law' ;
(c) And was not immune from examination by the Shariat Bench/Court ; and
(d) It was further held that the aforesaid section was against the Injunctions of Islam as laid down in the Holy Qur'an and the Sunnah of the Holy Prophet, and consequently invalid."
4. The learned Deputy Attorney-General, and the learned Assistant Advocate-General (N.-W. F. P.) submitted that the aforesaid view and finding of the High Court is not correct qua the interpretation of the phrase "Muslim Personal Law" in the peculiar and special context of Article 203-B. After hearing the learned Advocates we are of the view that the preliminary objection raised has force and the phrase "Muslim Personal Law" may have two meanings depending on the context in which it is used. In one generally and commonly understood sense, it may mean, such religious or Divine law of Muslims by which they believe to be governed as a matter of their religious faith. It is a law which a Muslim carries with him wherever he goes, and this is because, according to him, Islam is no merely a religion but a Din----imparting the sense of obedience to Allah's commandments)--and embraces a man's life from cradle to the grave. It is a whole way of life, and from that point of view, Islam, such, is a pure personal law of every Muslim.In the second sense it ma mean all such special statutory laws which apply only to the religion community known as Muslims of Pakistan, as distinct from general law of this country which apply to all classes and types of people in general. In other words by the term "Muslim Personal Law" is meant that portion of the Civil Law of Pakistan which is exclusively applied or which authorises application of certain specified law to Muslim residents of this country as a special and personal law for them. In our opinion it is in the latter sense that this phrase has been used in Explanation of Article 203-B of the Constitution and the view of the High Court as above-mentioned is not correct. Our reasons in support of our view follow hereafter.
5. It is to point out that Islamic Law derives its authority and sanction from the Holy Qur'an and the Sunnah of the Holy Prophet and from that point of view it is a Divine Law. All Laws which the Muslims acknowledge to be binding on them, as such, are their religious laws in the sense of being attributed to a Divine origin. These laws are from that concept personal laws of the Muslims, and are in certain relevant context sometimes called "Muslim Personal Law or Laws". In the process of Islamization of Laws, it is with reference to these Divine Laws, that an exercise was to be done by the Shariat Benches of the High Courts-(now by their successor Federal Shariat Court)-to find out whether any existing law conflicts therewith or not. In other words and from that perspective, it means that "Muslim Personal Law"--(in the sense of Divine Law}-is the touch-stone with which the other laws are to be tested. When, therefore, Explanation to Article 203-B states that you are not to examine the validity of "Muslim Personal Law" then if it refers to the Divine Law of the Muslim persons, in the very nature of things it makes no sense, because, in the context hereinbefore stated, as it had already been made a touch-stone for testing other laws it could not be made the subject of being tested itself and to pose a question, with reference to which touch--stone ? This shows that the meanings which are being given to the words "Muslim Personal Law" by the High Court do not fit in the context above explained and cannot be accepted.
6. When confronted with the above situation, learned counsel for the respondent, submitted that exclusion of "Muslim Personal Law" in the Explanation meant exclusion from scrutiny of that portion of Divine Law--(Muslim Personal Law)-which was already being applied to certain specified matters (of Muslims) like succession, marriage, dower, divorce etc. Under the relevant statutory sanction in that behalf, and that, it were those types of laws alone which would fall under the aforesaid exception. The argument does not meet the point made above, because, exclusion of Divine Law-(or as the High Court called it Shariat or Shariat law)-from examination as a whole, or vis-a-vis certain specified matters in part, will not make any improvement in the situation in which we are, for the reason that the Muslim Personal Law in the sense under suggestion even otherwise is not to be tested and rather these are the other laws which are to be tested with its reference. It is here where the argument raised cannot stand scrutiny and fails.
7. Here we would like to place Article 203-B and Article 227 in juxta--position to highlight the point further :- Articles 203-A and 203-B Article 227 Chapter 3-A Part IX-Islamic Provisions "203-A. Shariat Benches of Superior"227. Provisions relating to the Courts."-Provisions of Chapter to override Holly Qur'an and Sunnah.--(1) other provisions of the Constitution. The All existing laws shall be provisions of this Chapter shall have effect brought in conformity with notwithstanding anything contained in the the Injunctions of Islam as Constitution. Laid down in the Holy Qur'an 203-B. Conferment of jurisdiction on and Sunnah, in this Part High Court.-(1) A High Court may, on the referred to as the Injunctions petition of a citizen of Pakistan or the of Islam, and no law shall be Federal Government or a Provincial enacted which is repugnant to Government, examine and decide the such Injunctions. question whether or not any law or provi.(2) Effect shall be given to the sion of law is repugnant to the Injunctions provisions of clause (1) only of !Slam as laid down in the Holy Qur'anin the manner provided in and the Sunnah of the Holy Prophet, this Part. hereafter in this Chapter referred to as the(3) Nothing in this Part shall Injunctions of Islam affect the personal laws of Explanation.-In this Chapter, "law"non-Muslim citizens or their includes any custom or usage having the status as citizens. 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. -
8. Now a comparison of the above two Articles will show that in both of them Divine Law i.e. .
Injunctions of Islam as laid down in the Holy Qur'an and the Sunnah occupy the pivotal position with reference to which old laws are to be overhauled and making of future laws is to be controlled.
However, Article 227 is to be enforced through the Council of Islamic Ideo--logy, whereas Article 203-B is to be enforced through Courts. In Article 227 the scope and sphere of Council of Islamic Ideology is very wide whereas in Article 203-B, the jurisdiction of the Courts is limited both in point of time and also as regards certain subjects mentioned therein. To come nearer to the point in hand, Article 203-B excludes from its purview examination of "Muslim Personal Law", whereas, there is no such exclusion from the purview of the Council of Islamic Ideology. Allowing both these Articles to operate in their respective spheres, the conclusion is inevitable that all such laws which appeal to Muslims in their capacity as Muslims, whether these are statutory laws, o are applied under sanction of a statute, are left to be dealt with by the Council of Islamic Ideology and are not to be gone into by Courts and this is what the phrase "Muslim Personal Law" for the purpose of it exclusion in the context means. In other words, the aforesaid phrase doe not mean the pure religious laws of the Muslims, but means-(if we can s put it)-the special law administered as "Muslim" or under the denomination "Muslim" to Pakistani Muslims which may sometimes be' different from the corresponding portions of pure "Muslim Laws" as administered in certain Muslim States unaffected by the non-Islamic Legislation or juristic influence. In Article 203-8 the emphasis is on the law in force or enforced here as "Muslim" and not to the Ideal Law which should be enforced in future to Muslims, because, that which is not in force (as yet) even otherwise cannot be subjected to any examination before a Shariat Court. It is only in the way above highlighted, that you can find out, what is the precise law which in this respect has been excluded, because, strictly speaking "Muslim Personal Law" remaining the pivotal law in both the Articles, the law which is then excluded from jurisdiction of Shariat Courts is that type of law which in Pakistan applies to Muslims whether by way of a statute itself or whether by or under sanction of a statute, for otherwise, the plea of excluding the same law with reference to which you are to adjudge the other laws does not fit in. "Muslim Personal Law" in this special context, therefore, means such codified or legislated law which is been applied to Muslim residents of Pakistan as or with the denominatio "Muslim" which governs their person as such and as Distinct from general law of the land which applies to everybody.
9. Learned counsel for the respondents submitted that if the words "Muslim Personal Law" are held to indicate all such law or laws which in this country apply to Muslims as a separate class, then tomorrow, if any such provision is introduced in a statute which is against the Injunctions of the Holy Qur'an and the Sunnah, then will that be called or covered by the term "Muslim Personal Law", and will that law in the view we have taken be immune from scrutiny by Shariat Courts ? The question is not what is the "Muslim Personal Law" of the Muslims in the .Divine sense of that law, but as to what is the law for the time being in force which applies and has been applied to Muslims alone as a class and as a special law. If it has been so applied, it will fall within the set of those laws which apply to the class of people known as Muslims and in the resultant sense will be "Muslim Personal Law" for them. This law will not be challengeable before the Shariat Courts and the wrong, if any, don by that law, will be remedied by the Council of Islamic Ideology. The point in this way is not of giving validity to any such law but only of examining as to through which forum, institution, agencies, or media it is to be remedied. This should not cause any stir, because, there are other laws also like laws of procedure of a tribunal or Courts, fiscal laws, banking laws, taxation laws and insurance laws etc. Which have been kept outside the jurisdiction of Shariat Courts. Merely, because jurisdiction has not been given to such Courts to examine their validity, it does not mean, that they become "Muslim Personal Laws" of Muslims in their Divine sense, and all that it means is, that to remedy them, it will be the Council of Islamic Ideology which will deliver the goods in their own way, and not the Shariat Courts. Recent example is of doing away (partly) with practice of "usury" (by banks) which otherwise being a fiscal banking law and practice was outside the jurisdiction of Shariat Courts but then the State on the advice of the Council of Islamic Ideology has partly done away with it to the extent mentioned in the relevant circumstances. Another example is of the Zakat and Ushr (Organisation) Ordinance XXIX of 1979 which applied to Muslims, but which was later on repealed and replaced by the State through Zakat and Ushr Ordinance XVIII of 1980, as it is well known, after consultation with the Council of Islamic Ideology and others concerned in the matter and not through the Shariat Courts The conclusion, therefore,--(to excuse repetition)-is that the phrase "Muslim Personal Law" has two meanings. One meaning is, that it refers to the Divine and religious law of the community known as Muslims of Pakistan Second meaning is that it consists of all such special laws and statutes denominated as "Muslim" which in Pakistan apply to Muslims alone as distinct from the general laws which apply to all types of people resident in Pakistan. The exclusion in the Explanation to Article 203-B of the Constitution is of the second type of laws and not the former, as the former are already immune and constitute the touch-stone with reference to which the other laws are to be examined. Section 4 of the Mush Family Laws Ordinance VIII of ?961 being in that sense a part of the law applicable to Muslims and in that context being "Muslim Personal Law", its scrutiny is outside the jurisdiction of the Shariat Courts and finding of the High Court to the contrary is not correct.
10. At this stage it is necessary to note down the various principles--(the approach is not to be considered exhaustive)-for classification of statutes. The main divisions generally recognised are made with reference to-
(a) the time when the Acts were passed ;
(b) their extent ;
(c) their contents and subject-matter ;
(d) their object ; and
(e) their duration.
As regards (a), classification with reference to the "date" of an Act is sometimes relevant for its construction and application, and as it is not involved in the present case we need not detain ourselves over it.
As regards (b), classification with reference to the extent and the operation of an Act is relevant for finding out the area or the territory where the law is to operate e.g. Local law or territorial law or whether it is a general law which applies to the whole community unlimited both in the area and as regards individuals in its effect. It is also relevant to examine whether it is a special Act applicable only to a particular class of persons or is general Act applicable to all. Similarly it is helpful for finding whether it is a personal law applicable to a particular community or again a general law.
The subject whether an Act is prospective or retrospeative will also fall under this head.
As regards (c) classification by "contents and subject-matter" is also well-known, and as a matter of fact, is adopted in the Explanation to Article 203-B while making reference to "any law relating to procedure of any Court of Tribunal", "fiscal laws", any law relating to the collection of fees or "banking or "insurance" practice and procedure", which are excluded from the jurisdiction of the Shariat Courts.
Similarly, as regards (d) the classification may be with reference to the "subject" of the law as for example "Relief" and "Welfare Legislation" Reformatory Legislation or Acts. Again statutes for instance, may be declaratory, obligatory, procedural, repealing or validating etc. By virtue of the object they aim to achieve.
As 'regards (e) classification with reference to "duration" refers to temporary, transitory or emergency legislation. From that point of view there may be certain enactments which can be called permanent or perpetual.
Modern classification.-According to modern classification Acts are classified as (i) Public or Private
(ii) General or Local and Personal. "Crates on Statute Law" (1971) Edition, page 57 states that "The classification of Acts into general Acts and local and personal Acts is a classification of Acts according to the extent of their operation. Bowen L. J. In Queen v. London County Council (1893) 2 Q B D 454, thus described the difference between general. Acts and local and personal Acts : "A General Act prima facie is that which applies to the whole community. In the-natural meaning of the term it means an Act of Parliament which is unlimited both in its area and, as regards the individual in its effects ; And as opposed to that you get statutes which may well be public because of the importance of the subjects with which they deal and their general interest to the community, but which are limited in respect of area-a limitation which makes them local-or limited in respect of individuals or person-a limitation which makes -them personal. "General" ; and not "public", he earlier says, is opposed to "local and personal" ; and the division therefore lies between public and general Acts on the one side, and public local and personal Acts on the other". And we may add that personal law of an individual is the law of his personal statute, and in this case since section 4 of Muslim Family Laws Ordinance VIII of 1961 applies to specific class of individuals viz. Muslims, with reference to their status as such and the denomination of the Ordinance also being "Muslim", therefore, from that point of view, it is their "Muslim Personal Law" which is thus applicable to them in Pakistan in the special context explained above in detail.
11. Examined in the light of the above discussion it is clear and we hold that section 4 of the Muslim Family Laws Ordinance VIII of 1961 is special statutory provision which is intended to be applied only to Muslim of Pakistan as a class by itself, and from that point of view, constitutes personal law for the Muslims, i.e. Muslim Personal Law in the sense above explained, with the result, that its scrutiny was outside the jurisdic--petition of the High Court and the judgment and order of that Court, holding t the contrary, is not correct and is liable to be set aside. In this vie of the matter we are also not in a position to deal with the merits o the validity or invalidity of the impugned provision, as our jurisdiction is equally limited to the extent authorised by Article 203-B of the Constitution which lays down that such types of laws are not to be scrutinized there--under. Holding accordingly, we accept this appeal and without expressing any opinion on the merits of the case or the law challenged herein, set aside the order of the High Court as being without jurisdiction, leaving the parties to bear their own costs.