SALAHUDDIN PANHWAR, J.--- Through instant petition, petitioner seeks letter of administration under section 278 of Succession Act, 1925 regarding assets left by deceased Shaikh Abdul Ghaffar.
2. As per paragraph-7 of the main petition, legal heirs are as under: S.No. Name of Legal HeirsAge Relationship
1. Ms. Sultana begum64 years Petitioner (widow of deceased)
2. Saad Saeed(Sic) yearsSon of predeceased daughter
3. Fahad Saeedyears Son of predeceased daughter
4. Mst. Aisha Zafar37 years Widow of son
5. Faraha Zafar19 years Daughter of son
6. Maheen Zafar17 years Daughter of son
7. Aleena Zafar13 years Daughter of Son 4 to 7 resident of House No. 323- 325-Cm Allama Iqbal Road, Block 2, PECH Society, Karachi
3. It is contended that daughter of deceased, namely, Tasneem Masood passed away during life time of the deceased Shaikh Abdul Ghaffar, therefore, her (predeceased) sons namely Saad Saeed and Fahad Saeed are not legally entitled to receive the shares in the properties in view of judgment of Federal Shariat Court reported as Ghulam Asghar v. State (PLD 2000 FSC 1) whereby section of Muslim Family Laws Ordinance, 1961 was declared against the injunction of Islam. Whereas learned counsel for the petitioner contends that such order passed by Federal Shariat Court has been assailed in apex Court, therefore, in view of Fazeelat Jan v. Sikandar (PLD 2003 SC 475) and Jamroz Khan v. Aamir Khan and others (2013 CLC 542) predeceased sons are also entitled to their share.
4. Heard the respective sides and have gone through record.
5. No doubt, it is matter of record that Mst. Tasneem expired in 1992 whereas deceased Abdul Ghaffar expired on 12.09.2015 hence status of Mst. Tasneem (one of daughters of Abdul Ghaffar) is predeceased'. Equally, the declaration of section 4 of Muslim Family Laws Ordinance, 1961 as repugnant to injunction of Islam by Federal Shariat Court is also a matter of fact. Section 4 of Muslim Family Laws Ordinance, 1961 was declared against the injunction of Islam. At this point, it is material to add here that application of such decision of Federal Shariat Court is subject to Article 203-D of Constitution which reads:-- "Provided that no such decision shall be deemed to take effect before the expiration of the period within which an appeal therefrom may be preferred to the Supreme Court or, where an appeal has been so preferred, before the disposal of such appeal."
Since, the judgment of the Federal Shariat Court, referred by the counsel for the respondents, has been challenged before Apex Court therefore, in view of Article. 203-D of the Constitution, the said judgment shall become operative after disposal of the said appeal hence till such time those, entitled for benefit of section 4 of the Muslim Family Laws Ordinance, shall continue enjoying fruit thereof which clearly entitles the grand children for receiving the share which their mother would have inherited, had she been alive, so has been held by august Supreme Court of. Pakistan in many cases.
6. In view of the facts and circumstances of the case narrated above, instant SMA is allowed. Nazir shall ensure that all legal heirs as stated above have received their share.