KRARM ELAHHB CHAUHAN (MEMBER).-The appellant filed an applica--petition under Article 203-B of the Constitution before a Shariat Bench of the High Court of Sind, at Karachi, submitting that the timing which is (alleg--edly) finally worked out by various private or other similar sectors or quarters concerned for giving Azan for morning prayers, and termination of Sehri (during the month of Ramazan-(in Karachi)--on the basis of a chart issued by "Government of Pakistan"
Pakistan Meteorological Department, Regional Meteorological Centre, Karachi Airport", indicating the "Time of beginning of morning Astronomical Twilight" being against the dictates of the Holy Qur'an and the Sunnah hereinafter referred to as the Fundamental or Basic Texts is invalid and may be so declared by the Court. Here it may be clarified that the objection is not against the "time of the beginning of morning astrono--mical twilight" as indicated in the aforesaid chart itself, but against the alleged individual working out of the consequent time for "Azan" and "Sehri" by private Imams in their mosques, or by Radio, Pakistan or other similar private sectors or quarters including those who blow sirens of various types or trumpets for that purpose, etc.
2. The petition was dismissed by the Shariat Bench on 18-7-1979, on the short ground that the jurisdiction of the Bench being limited under Article 203-B of the Constitution, the petition filed before it was not maintainable inasmu ch as it did not point out any grievance against any law or any custom or usage having the force of law as contemplated in the provision aforesaid.
3. The appellant has come up in an appeal under Article 203-C against the aforesaid order to this Court, and his main plea was that he had in his original petition challenged a "custom and usage having the force of law" but the Shariat Bench erred in holding otherwise and in the circumstances the order of the High Court was not correct. He further submitted that as the aforesaid practice, according to him, was being adopted under orders of the Federal Government, therefore, from that point of view constituted a sort of rule, which was being given or had the force of law, to be followed by the people concerned and its validity could consequently competently be challenged by him.
4. Taking up the point whether the basic petition filed by the petitioner appellant in the Shariat Bench of the High Court was maintainable or not the appellant who argued his case in person referred to Article 203-B of the Constitution which so far as relevant reads as follows :- "Article 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 Quran 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
5. The appellant argued that the "time of the beginning of morning astronomical twilight"
(hereinafter referred to as twilight time) as given in the chart was, quite all right and he had no objection against it and nor would he urge that the actual time of the beginning of morning astronomical twilight" was different from the one as given in the aforesaid chart particularly when be had no data or apparatus to diff6r from or take exception to the same. However, clarifying his position and his case, he submitted, that the aforesaid twilight time was actually, what he would call Subah-i-Kazib' and after fourteen to eighteen minutes thereafter would come what is generally known as "Subah-i-Sadiq. He submitted that the sehri time according to the Basic Texts was upto Subah-i-Sadiq and that the same was the time for the morning Azan, with the result, that. If any private Maulvies, Imams, Khatibs, Mo'azzans or institution like Radio Pakistan, or siren or trumpet blowing Agencies or persons or groups of persons, gave Azan or declared or announced close of the sehri exactly at the time of twilight given in the chart, the said action of the aforesaid was against the Basic Texts, and ought to be stopped by declaring the same-(to use his terminology)- as un-Islamic, clarifying that sehri should be closed and morning Azan should be given fourteen to eighteen minutes after the aforesaid twilight time. He also submitted that by closing the sehri earlier, the mussalmans of the localities concerned were being deprived of fourteen to eighteen minutes period upto or during which they could still eat for keeping a fast. As regards the actually holding of morning prayers, there was no objection that they were being held before or after time, because the said prayers are, as is well known, generally held quite some time after the aforesaid Azan by which time in any case Subah-i-Sadiq, is properly set on, though, if any private individuals, it was contended, offered their prayers quite immediately or contemporaneously with the blowing of the sirens or giving of Azan the said custom, usage or practice would also be premature if they did not wait for fourteen to eighteen minutes after the aforesaid.
6. The reply of the learned Deputy Attorney-General, the learned Assistant Advocate-General
(Sind) and the learned Assistant Advocate --General (Punjab), was that if the appellant found no mistake in the "beginning of the morning astronomical twilight time" as published by the Meteorological Department of the Government in the aforesaid chart, then obviously, there existed no grievance against any action of the Government or any law of the land in that respect, and the grievance if any, existed against the voluntary individual action of any Maulvis, Imams, Mo'azzans, Radio Pakistan or siren or trumpet blowing institutions or people or groups of people, etc. Who according to the appellant were not understanding the chart time correctly and allegedly did not wait for fourteen to eighteen minutes to start their aforesaid activities. Such an alleged action of any individuals, it was submitted by the respondent's counsel, would not mean that the action constituted "a law, or custom or usage having the force of law" within the meanings of the Explanation to sub-clause (1) of Article 203-B of the Consti--tution as reproduced above, inasmuch as those who were like minded with the appellant could ignore the same with impunity and follow their own claimed timetable on the subject, when conversely, there was no law which compelled them to follow, if we can generally put it, the aforesaid siren time, etc. It was further submitted that the matter pertained to personal actions of certain individuals on which there was another school of thought as well which held the view that assuming without conceding that in a particular area the Azan was given and siren to close the sehri was blown a little earlier than any exact requisite relevant time even then there was nothing wrong in it, because, it was an act to remain on safe side of being in time, rather than taking a chance of giving the Azan or closing the sehri late, particularly when the "twilight time" in its very nature was such which was not likely to be found out by everybody with the minutes exactitude due to weather variations in various localities may be of the same city. The learned Advocates also pointed out that so far as the Government was concerned it had not issued any directions to the Radio Pakistan to give Azan or blow sehri siren at any exact particular time and that it was all their own arrangement. The learned Deputy Attorney- General placed a written statement on record clarifying that the Government has not issued any order or direction of any kind on the subject. This explanation of the Government in our view well disposes of that part of the objection of the appellantmentioned in para. 3 above wherein he tried to involve the Government in all this affair. We hold accordingly.
7. We have heard the appellant and the learned counsel for the respondent at length but we must say, that in our opinion the High C our e was justified in holding that the petitioner did not purport to claim declaration regarding un-Islamic nature of any" law or any custom or usage having the force of law". We give our reasons as follows :-
8. After attending to the submissions of the appellant, we think, with due respect to him, that there exists some misunderstanding on his part in proper comprehension of the phrase "any law or custom or usage having the force of law". If the whole context of Article 203-B is kept in view, it will b clear, that the said Article purports to allow a challenge to and against laws, which are in force in the country and not against individual activities simpli--citor, whether secular or religious of any person or class of persons. It is common ground that the attack in this case is not against any statute, or if w can say so, any statutory law, rules, bye-laws, regulations, orders or schemes, etc. And all that the appellant challenges is, what according to him, is an allege action of a few persons who give Azan or proclaim termination of Sehri in the manner above mentioned in Karachi in the month of Ramazan. The mistake lies in not comprehending that it is not merely any and every act done or practice followed by a few number of persons which is challengeable before a Shariat Bench, but it should be such act or acts, practice or practices which are of the nature and status of "custom or usage" which "custom o usage" should (further) have "the force of law", so that it is that law validity whereof can be judged with reference to the Injunctions of Islam and no the private deeds or doings of any or every individual. To challenge the individual deeds or doings aforesaid there may be other remedies available to persons aggrieved in the law of the land before appropriate forums, but the present Article does not deal with them and is limited and confined to the examination of the validity of laws and laws alone whether those laws are statutory laws or are in the form of custom or usage. Having the force of law. This distinction must be kept in mind and should not be confused or mixed up, if we can say so, with any alleged individual wrongs (or wrongs of the individuals) as distinct from alleged wrongs of Legislature in enforcing or allowing to operate laws which are against the Injunction of Islam irrespective of the nature of the source of the challenged laws as mentioned earlier, subject of course to one rider, and that is that the challaned laws should not be such examination whereof is excluded in the Explanation to Article 203-B itself. Subject to this clarification all that is needed to bring a case under Article 203-B is that the challenge should be to the laws and laws alone an to nothing else. This is further clear from clause (2) of Article 203-B which shows that the judgment to be passed or relief to be granted in such cases will inertly be of a declaratory character and the Shariat Bench Court will not be competent to grant any further or different relief in that respect.
9. Coming to the word "custom" in legal terminology, as laid down in Abdul Hussein Khan v. Sona Dero (1) it is a rule which in a particular family or in a particular District has from long usage obtained the force of law. This was reiterated in Mahomed Ibrahim Rowther v. Shaik Ibrahim Rowther and others (2). In Hamerton v. Honey (3) Jessel (Master of the Roils (Chancery Division) with great clarity highlighted the characteristics and incidents of custom and the type of evidence requisite for its proof and held that custom is a usage by virtue of which certain persons belonging to certain class in a certain locality are entitled to exercise certain rights against certain other persons of the same locality. In short it is a local common law. It is common law because it is not a statute law. It is local law because it is the law of a particular place as distinguished from the general common law. According to Austin (See Austin's Jurisprudence, Vol. 1, p. 23).1 It is a rule of conduct which governs to be observed spontaneously or note in pursuance of a law set by a political superior. Custom, according to Wharton's Law Lexicon, is an unwritten law established by long usage and! Consent of our ancestors. The relevant case-law and views of the jurists show that its requisites are that (i) it must have been used for a long time; (ii) it should be continuous unaltered, uninterrupted, uniform and constant, (iii peaceable and acquiesced in; (iv) reasonable;
(v) certain and definite ; (vi compulsory and not left to the option of every person whether he will follow it or not, (vii) consistent with other customs for one custom be set up in opposition to an other ; (viii) springing from conscious acts of legal necessity, (a must not be opposed to morality or public policy and (x) must not be expressly forbidden by the Legislature. If the action or practice complained of in this case is tested on these principles, then it will be evident, that it does not fulfil the requirements of being a "custom" or to be more precise "law of customs". It lacks in its nature of being compulsory, inasmuch as, it has been conceded before us, that it is not necessary that the aforesaid timing should be ~ followed by everyone and the appellant in this respects submitted, that he and a large group of persons like him or like minded with him, are in fact not following it, because, they think that it is not obligatory or binding on them as it is not a law and has not the force of law for them., If this is so, then on the argument advanced itself, the case does not fall within the scope of Article 203-B.
10. As regards the "usage" it differs from custom in the sense that it need not be as old and nor it need possess as much uniformity or notoriety as custom. It includes what people are now or recently in the habit of doing in a particular place. It may be that this particular habit is only of a very recent origin, or it may be one which has existed for a very long time. If it be one which is regularly and ordinarily practised there is usage It may be of various types like (a) usages of trade,
(b) usages of agriculture, (c) mercantile usages, (d) usages of a family ; and (e) tenets of any body of men. Which expression includes any dogmas held in truth by any class of men, etc. It also differs from mere practice of a particular individual or institution inasmuch as "usage" may have the force of law but this is not the status of a mere practice. No doubt in most extensive meanings "usage" some times may include both custom and prescription, but in its narrow signification; it refers to a general habit, mode or course of procedure. Usage when proved or admitted has the force of law L. Ram Ll10 Shah v. L. Kansh/ Ram A; I .R 1936 Lah. 649subject to what has been held above by us.
(1) I L R 45 Cal. 450 (P C) (2) AIR 1922 P C 59
(3) (1875-76) 26 W R 603
11. Having seen what are the meanings of the words "custom" and "usage" and as it will be further, highlighted, the next thing to be kept in view is that before any "custom" or usage" is challenged under Article 203-B, it is essential that it should be such a "custom" or "usage:" as is "having the force of.- law". However, the Article aforesaid does not say what constitutes the "force of law". In this context, therefore, .Reference may have to be made to the treatises of jurisprudence: Holland in his Jurisprudence 10th Edn., page 40 while improving upon the definition of word "law" as given by Austin states that "'law is a general rule of external human conduct enforced by a sovereign political authority." The enforcement by a sovereign political authority in a modern state means enforcement by courts of justice. As Salmond put it "law is the body of principles rerognised and enforced by the State in the administration- of justice". Hence the answer to the question whether any rule of conduct has the force of law is to be found in the fact, whether it is enforced by the courts of law (See Willoughby Constitutional Law (1929) (2nd Edition) Vol. I, page 1 ; Wade c and - Phillips, Constitutional Law (6th Edition) (page 3). Again the words "having the force of law" make it clear, that it is not all executive orders that come within the Explanation attached to Article 203-B. It is only those which have the force of law that are so included. Viz. Statutory Rules, Acts, Orders--- By-laws, Regulation, etc. This is on the principle treat the courts are not bound to enforce an executive order which interferes with the rights of an individual unless there is some authority of law behind it. (See Blackpool Corporation v. Locker (2). For further enlightenment as regards the term -"law" (which should be interpreted with reference to the text of each case)- ample case-law of this Court already exists on the subject which can be studied with advantage. See Government o West Pakistan v. Begum Agha Abdul Karim Shorish Kashmiri (3) (at page 31)), Miss Asma Jilani v.
Government of the Punjab and another (4), Ch. Manzoor Elahi v. Federation of Pakistan etc. k5) modified in Brig. F. B. A.I v. The State (6) (at 528 etc) and held as reversed in. Federation of Pakistan v. Hyesons Sugar Mills Ltd. Karachi (7). The sum total of all this case-law, so far as relevant for this case is, that the law is that which is enforced by law .Courts. In this context coming back to custom, no doubt in early times custom was the main source of rule of conduct prevailing in the community. It has now to a large extent been superseded by statutory law. But custom has not wholly lost its law creating efficacy. This is clear as well from Article 8(1) of the present Constitution which deals with "Fundamental Rights" and states that "any custom or usage having the force of law, in so far as it is inconsistent with the rights conferred by this chapter,, shall, to the extent of such inconsistency, be void. "The phrase "custom or usage having the force o.1 law" has not been used in. This Article 8(1) alone. It existed in the corresponding Article 7(1) of the Interim (1972)
Constitution ; Article 6(1) of 1962 Constitution ; and Article 3(1) of 1956 Constitution which all dealt with Fundamental Rights. It has now beers repeated in Article 203-B of the present Constitu-- petition which is under discussion at the moment. It is well settled that no
(2) (1948) 1 K B 4.9 (369)
(3) L D 1969 SC 14(4) PLD 1972 C 139
(5) ' L D 1975 SC 66(6) PLD 1975 . C. X06
(7) P 1.; D 1977 SC 397 law can oblige a free people without their consent ; so wherever they consent and use a certain rule or method, as a law, such rule etc. Gives it the power of law and if particular" to this or that place etc. Then it is a custom o customary law of that place. Custom in this way is one of the triangles of the laws of this country-those laws being divided into `Statutory Law", "Personal Law" and "Customary Law". Pakistan is a country were there; are very man customs appropriate to certain areas as territory, families or castes a observed by the Privy Council with reference to the undivided Sub-continent Palaniappa Chetaur v. Alagan Chetti and others AIR192;2PC228Custom in one sense means simply a usual practice. In another sense it means an establish practice or usage having the force of law, ;' It is in this later sense that it is used in Article 203-B: It differs from a practice inasmuch as a ,practice ma be frequent or un-frequent, regular or irregular, but a custom does not require to be qualified by these epithets. Custom is absolute but a practice is relative. A practice may be adopted by a. Number of persons with reference to-each other but custom is always followed either by imitation or prescription. Again custom differs from habit inasmuch as custom is the frequent repetition of the same act but habit is the effect of such repetition. The phrase "custom or usage having the force of law" if examined in the light of the above discussion and context of Article 203-B, -thus means such custom or usage which forms part of the law of the land. If judged in the light of the analysis hereinbefore made it will lie clear that the actions or activities complained of by the appellant are neither "law", nor custom or usage having the force of law" and as such the petition to challenge the. Same in the High Court was totally misconceived and not maintainable.
12. When confronted with the above situation the petitioner/appellant submitted that he was under the impression, as, read by him from various newspapers etc. That the jurisdiction of the Shariat Bench Courts wail very wide. It was really, as he put it, now a matter oaf surprise to him. When he learnt during the course of bearing in this court and in the High Court: that this was not so. There is no question of surprise nor of making any satire on the subject in the aforesaid form, because, everybody who comes to a Court is supposed to know- the law and also the jurisdiction of the forum where he files his case. Ignorance x6f law is no excuse and nor can ignorance of a suitor ever extend jurisdiction 'of a Court which otherwise it does not possess' Regarding the, extent of jurisdiction of a Shariat Bench Court it should be a matter of satisfaction rather than of surprise for all concerned that jurisdiction under Article 203-B is of a very salutary and important nature inasmuch 'is whereas Courts generally cannot those- days entertain petitions for enforcement of Fundamental' Rights as given in Chapter 8 oaf the Cons--titution due to the existence of the Proclamation `of Emergency etc. But the jurisdiction to examine validity of various laws on the anvil of the Injunctions of Islam has 'been bestowed on the particular courts mentioned ,therein which is welcome process and a welcome step towards the Islamization of laws.
13. The upshot of the above discussion is that looked at from whatever angle the result remains the same, viz. That the petition filed by the petitioner appellant :,n the High Court was incompetent, and the view of the High Court as such b, unexceptionable which calls for no interference by this Court.
The appeal in the circumstances explained has no merit and is dismissed with no order as' to costs.