1. MUHAMMAD AFZAL ZULLAH, J.-This appeal has called in question judgment dated 5th April, 1980, of the Shariat Bench of the Sind High Court, whereby a Shariat Petition relating to the arrangements in connection with the games of hockey and cricket, played by the women, was dismissed as without competence.
2. The office report with regard to this appeal being time-barred, on proper scrutiny, has not been found correct. There is no objection from the respondents' side in this behalf. We treat it as within time.
3. The prayer made in the petition filed before the Shariat Bench was that the statutes and rules framed by the Government of Pakistan for game, of hockey and cricket played by women in Pakistan and the mode of arranging tournaments thereof, are against the Holy Qur'an and the Sunuah of the Holy Prophet, therefore, necessary declaration and direction be issued for their annulment.
4. It has been noted in the impugned judgment that the appellants were asked to particularise the provisions of law or rules which were sought to be brought under challenge, but they did not do so.
5. Instead, reliance was placed upon the factum that such games are being organized in the country at different levels and the Central Government must have framed some rules and regulations in respect thereof. On merits, it was urged before the Shariat Bench that the games of hockey and cricket by the Muslim women had become common practice and custom in the country; that the manner in which they are played in the gaze of general public, including men, was un-Islamic and further that the dress of the participants therein was not in conformity with the Injunction of Islam.
6. As the petition was being dismissed on the ground of incompetency, the learned Judges refrained from expressing any opinion on the point "whether these games played by women are in conflict with the principles of Islam or not." They, however, felt inclined to make an observation that the appellants' desire of having some rules made for regulating the sports of women could be fulfilled by approaching the Government of Pakistan which could make a law regulating "the sports of women in accordance with the Islamic principles."
7. Mr. Saeedullah Kazmi, one of the appellants, himself argued the appeal before us. On previous hearing a question arose (which war, also posed by the Shariat Bench to the appellants), namely whether there is any law, rule, direction or mandate which regulated the games of hockey and cricket, by women. The appellant replied that it was not within his power to obtain the relevant material in this behalf, the same being not available in the market. The learned Deputy Attorney- General, however, made a reference to the statute law in this behalf, namely, Sports (Development and Control) Ordinance (XVI of 1962). PLD 1962 Central Statutes 225. It is provided in section 3 of the said Ordinance that the: Central Government may, for the purposes of promoting and developing uniform standards of competition in sports in Pakistan and also for regulating and controlling the same on national basis, constitute one or more boards. As there was nothing available with the appellant, nor could he rely upon any rules or regulations framed by the Government, or the Sports Control Board, we had asked the learned Deputy Attorney-- General to produce the relevant material in this behalf. The case was adjourned for today. Request was also sent to Mr. Khalid M. Ishaque, Advocate, who is on the panel of our juris-consults, to assist the Court.
8. A Government directive relating to women's sports dated 15th March, 1980, which is based on and elaborates an earlier directive contained in the order of the President' dated 17th January, 1980, has been produced by the learned Deputy Attorney-General. In these directives the concerned' authorities were asked to initiate action for the implementation of the', decision taken by the Government which, inter alia, include that no tournament of women sports should be open to general public and that' girls and women should be encouraged to watch games/sports and they' should be allowed to do so as spectators without invitation and further that the women participating in sports must wear shalwar and kameez, or full track suit, and further that this would also apply to non-Muslim sports women. There are other directions, but for the purposes of deciding this appeal it is not necessary to refer to them.
9. The appellant, while stating. The purpose of filing the Shariat Petition, explained-
(1) that the women not properly dressed should not be permitted toy participate in the tournaments arranged for these games in Pakistan; and
(2) that arrangements should be such that the general public involving male members, should not be able to watch these games when played by women.
10. The appellant, however, maintained a consistent position taken on the previous hearing that it will not be objectionable if the games by women are arranged in proper manner at proper places; for example, at the play--grounds within four walls of women educational institutions.
11. Faced with the directive of the President, referred to above which seems to have met in pith and substance both the points raised from the appellants' side, a new objection was raised (which of course was not the of the Shariat Petition) that the President's directive had, while laying down the rules for the organization of the women sports, not made any provision prohibiting the women of Pakistan from playing these games when necessary arrangements in accordance with the directive have not been made by the concerned authorities.
12. After hearing the appellant at a considerable length we are satisfied that in so far as its purpose is concerned, the Shariat Petition has fructified. And the so-called prohibition for women now being sought by the appellant which, according to him, has not been provided for in the said directive, I t implied in somewhat mandatory directions to the concerned authorities. In this view of the matter, the appeal merits dismissal as having become infructuous.
13. The learned Shariat Bench dismissed the appellants' petition as without competence. It is proper that the reason recorded in this behalf in the impugned judgment should be examined independently of what has been stated in the earlier part of this judgment. The learned Judges observed as follows:- "We are afraid that we have no jurisdiction to entertain such a petition in view of the provisions of Article 203-B of the Constitution of Islamic Republic of Pakistan, which merely authorized the Shariat Bench of High Court to examine and decide the question whether or not any law or provision of law is repugnant to the injunction of Islam as laid down in the Holy Qur'an and Sunnah of the Holy Prophet. It would be thus apparent that it is only a law or provision of law which can be examined and decided upon by this Bench and not the actions of certain individuals whether of the Government or of public bodies which can be adversely commented upon by this Bench. In respect of our specific enquiry the petitioner could not point out any such rule or regulation, which have been framed by the Government of Pakistan, and which had the force of law in respect of such sports, and therefore, prima facie the petitioner has no case for declaration."
14. And after dealing with the definition of the word "law", the learned Judges further observed: "From the above definition and meaning of law it is apparent that there should be something certain and capable of being enforced before it can be regarded as law and no such provision has been shown to us and there is a general reference to the holding of games played by women in the country. We are afraid that we cannot regard the action of the playing of the games by women as law or equivalent to law or having the force of law. So far there is no such usage or custom shown to us in existence which can be ascertained with any certainty. Even the dresses of the games are not shown to be prescribed any where which could be brought under challenge before us. . . There is no law which we are called upon to declare as un-Islamic."
15. With regard to the contention that the holding of tournaments in) these games should be treated as a custom in the country and the same should be declared as against the Injunctions of Islam, the learned Judges held that the custom which is referred to in Article 203-B of the Constitution is a custom which has the force of law and, therefore, such a rule of human conduct which the citizens are bound to obey.
16. The appellant has reiterated the position taken before the Shariat Bench; firstly, that the Government and/or the Sports Control Board must have framed formal rules regulating the games of hockey and cricket by women, otherwise tournaments in this behalf could not have been arranged; and, secondly, that even if the appellant has not been able to furnish any positive proof regarding the existence of such rules, the "custom and usage" of women in Pakistan playing these games should be treated as having the force of law.
17. The learned Deputy Attorney-General, while opposing the appeal, relied on various precedents and treatises on the questions relating to the definitions of law, custom and usage. We have noted the same in our judgment in Saeedullah Kazmi v Government of Pakistan (1), (Shariat Appeal No. K-1 of 1980), in which same questions were involved and were argued by the same appellant. They need not be repeated here. According to the learned Deputy Attorney-General there is no such rule or regulation having the force of law which has been brought under challenge from the appellants' side, and indeed none has been relied upon. The Shariat Bench, accordingly, rightly refused to issue the declaration/direction sought for! The same would apply to custom and usage because the essential qualification in that behalf is that they should have the force of law.
18. Mr. Khalid M. Ishaque, Jurisconsult, stated that he made full prepara--petition to assist the Court on the question of pardah in so far as it relates to the playing of games by women; but he agreed with the learned Deputy Attorney --General that in absence of any positive direction from the Government or the Sports Control Board, or any other material, having the force of law which could be treated as contrary to the Injunctions of Islam, the Shariat Bench was justified in refusing the relief prayed for. With regard to the Sports (Development and Control) Ordinance (XVI of 1962), he expressed the opinion that it was only an enabling law whereunder rules could be framed for regulating the sports. There is nothing in the Ordinance itself which could be termed as against any Injunction of Islam.
19. For reasons recorded in our judgment in the earlier cited Shariat Appeal, namely Shariat, Appeal No. K-1 of 1980, which fully apply to the instant case as well, the so-called custom and/or usage relating to the games of hockey and cricket played by women in Pakistan, do not have the force of law. No law, rule or regulation having the force of law was relied upon before the Shariat Bench so that the same could be declared as against the Injunctions of Islam. In these circumstances, its refusal toy, issue the declaration and direction sought for in the Shariat Petition was unexceptionable. And as stated in the earlier part of this judgment, if there was any direction by any authority, the same would be deemed to have been annulled by the directive of the President, referred to above. However, in view of our decision on the question that neither any law nor any custom or usage having the force of law needed to be declared as repugnant to the Injunctions of Islam, it is not necessary to decide whether the aforesaid directive of the President can itself be treated as law.
20. This appeal has no force and is, accordingly, dismissed.