DR. SYED MUHAMMAD ANWER, J.---Through this Shariat Petition, Messrs Najaat Welfare Foundation prayed that Paragraphs 59, 80, 82, 85, 114, 278 and 348 of the Principles of Muhammaden Law (authored by Dinshah Fardunji Mullah) may be declared as repugnant to the injunctions of Islam, as laid down in the Holy Qur'an and Sunnah on the following grounds: i. that there is no codified or enacted law relating to the Inheritance of Muslim residents of Pakistan. ii. Principles of Muhammaden Law written by Dinshah Fardunji Mulla, is not a statutory law but its continuous, unaltered, uninterrupted, uniform and constant practice has attributed it a force of law, which comes under the definition Clause of Article 203B(c) of the Constitution of Islamic Republic of Pakistan, 1973; hence it is within the jurisdiction of this Hon'ble Court to declare it as repugnant to the injunctions of Islam. The whole chapters though are not contradictory to the provisions of the Islamic Laws but some of them are in contradiction to the injunctions of Islam.
2. The petitioner also claimed that there is no enacted law of inheritance except Principles of Muhammaden Law by D.F. Mulla, which is being referred for all inheritance matters. Even the Appellate Courts of Pakistan had referred those Principles for resolving the intricate questions of inheritance. Hence this needs to have proper legislation.
3. He has also claimed in his petition that entire Islamic Law regarding inheritance is in Arabic and there is no substitute of Arabic Language to achieve the exact sense and meanings that it delivers. Therefore, it is necessary to have enactment on the subject and there is no law in Pakistan which states any punishment for depriving anyone from legal inheritance.
4. In response to the petition, the Federal Government (respondent No.1) through Secretary , Ministry of Law and Justice responded that the book i.e. Principles of Muhammaden Law (authored by Dinshah Fardunji Mulla) is only used as reference book and is not a statutory law applicable in Pakistan. However , section 2 of the West Pakistan Muslim Personal (Shariat) Application Act, 1962 is applicable in Pakistan, with respect to the above mentioned issue of inheritance etc. which is reproduced under: "Notwithstanding any custom or usage, in all questions regarding succession (whe ther testate or intestate) special property of females, betrothal, marriage, divorce, dower , adoption, guardianship. Minority , Legitimacy or bastardy , family relations, waqfs, trust and trust properties, the rule of decision subject to the provisions of any enactment for the time being in force, shall be the Muslim Personal (Shariat) Act, 1962 in cases where the parties are Muslims"
The respondent No.1 also challenged the jurisdiction of this Court on the above said reason that it (D.F. Mulla's book), is just a reference book and not a statutory law, hence is not a challengeable in this Court. The powers, jurisdiction and functions of the Federal Shariat Court has been provided in Article 203-D(1) of the Constitution, which is reproduced below .
"203-D. Powers, jurisdiction and functions of the Court.--(1) The Court may, either of its own motion or 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 provisi on of law is repugnant to the Injunctions of Islam, as laid down in the Holy Quran and Sunnah of the Holy Prophet, hereinafter referred to as the Injunctions of Islam."
If something is in the said book is proved to be different from the Quran and Sunnah that would be invalid since the main source of Shariat are the Quran and Sunnah.
5. The Respondent No. 3, Secretary of Law, Sindh also replied on the same line on which the petition is replied by respondent No.1 which is as follows: "2. That these chapters incorporated by the said Book are neither statutory provisions enacted by the Act of Parliament nor these have any force of law. Thus, these chapters don't fall within the definition of law as envisaged under Article 203-B of the Constitution of Islamic Republic of Pakistan, 1973. Therefore, the instant petition is not maintainable and is liable to be dismissed.
3. That even otherwise, the questions pertaining to inheritance, succession, betrothal, marriage, divorce, adoption, legacy , gifts, etc. fall under the ambit of Muslim Personal Law by virtue of section 2 of West Pakistan Muslim Personal (Shariat) Act, 1962. However under Article 203-B of the Constitution of Islamic Republic of Pakistan, 1973, the Muslim Personal Law has been excluded from the definition of "Law". Therefore, the instant petition is not maintainable and is liable to be dismissed."
6. The petitioner has earlier challenged a paragraph 63 of D.F Mulla's book "Principles of Mohammedan Law" on the ground being repugnant to the injunctions of the Islam through a Shariat Petition No.13/1/2013 which was clubbed with another Shariat Petition No.6/I/ 2013 and both were dismissed on 15.2.2016 being misconceived.
7. Although the earlier decision of this court is sufficient for dismissal of this petition qua points which are common in this petition and the two Petitions Nos. (13/1/2013) and (6/1/2013) decided earlier by this court on 15-02-2016; but we consider it relevant and appropriate to examine some other points which the petitioner has raised in the instant petition. In addition, we also consider it necessary to further dilate on the misconception of the Petitioner regarding the book of D.F . Mulla because to some extent it is a common misconception in the legal fraternity .
8. In the colonial India between the eighteenth and twentieth centuries under the East India Company and British rule a genre of legal literature was developed, which was generally named as Anglo-Mohammedan law due to many political, social, cultural and religious reasons. This term was used as a term of convenience to distinguish this law from English and Islamic law. Gradually the term "Muhammadan law" became more popular than "Anglo- Muhammadan law". (Ref: Article titled Anglo Muhammadan Law by Dr. Khalid Masud in Encyclopedia of Islam, pub.
Brill and Abdullah Yusuf Ali, preface to 1928 edition of Wilson's Anglo-Muhammadan Law).
9. The book titled, The Principles of Muhammadan Law by D.F Mulla, first published in 1905, was and one of the most popular books among this class and category of legal literature but it was not the only one. Some other notable books which were compiled or written before it and some after it were equally used by the courts and academia. Some of these are as follows:
1. Faiz Badrudin Tyabji, Principles of Muhammadan Law: An Essay at a Complete Statement of the Personal Law Applicable to Muslims in British India, Butterworth, 1919.
2. Sir Roland Knyvet Wilson, Anglo-Muhammadan Law: A Digest Preceded by a Historical and Descriptive Introduction of the Special Rules now Applicable to Muhammadans as Such by the Civil Courts of British India: with Full References to Modern and Ancient Authorities., W . Thacker and Company , 1903.
3. Shama Churun Sircar , The Muhammadan Law: Being a Digest of the Law Applicable Especially to the Sunnis of India, Thacker , 1873.
4. Roland Knyvet Wilson, An Introduction to the Study of Anglo-. Muhammadan Law , 1894.
5. Faiz Hassan Badrudin Tyabji, Muhammadan Law: The Personal Law of Muslims, 1940.
6. Mr . Justice Abdur Rahim, The Principles of Muhammadan Jurisprudence , Madras 191 1.
7. Syed Ameer Ali Muhammadan Law , 2 volumes Calcutta 1892.
8. Neil B.E. Baillie, A Digest of Moohamadan Law (chiefly translation from Fatawa Alamgiri) 2 V olumes 1874.
9. Sir W .H. Macnaghten, Principles and Precedents Moohammadan Law , Calcutta 1825.
10. Sir R.K. Wilson An Introduction to the Study of Anglo-Muhammadan Law , 1894.
11. Sir William Jones Al Sirajiyyah or the Muhammadan Law of Inheritance Culcutta 1792.
There are many books which are normally included in "the Anglo-Muhammadan Law" classification, above mentioned are some famous books which are commonly used for easy reference even today . All those translators and compilers of legal manuals or books were deeply entrenched in the colonial system, being either imperial and colonial officials or members of the legal elite of Colonial India. For example, W.H. Macnaghten was a court registrar in the service of the East India Company in Bengal, N.E. Baillie was the Assistant Secretary to the Indian Law Commission and an attorney to the Supreme Court of Judicature at Fort William in Bengal, Syed Ameer Ali was a lawyer and judge in Calcutta, while Faiz Badruddin Tyabji was a lawyer and judge in Bombay and D.F. Mulla was lawyer in Bombay . Some of the authors of the Anglo Muhammadan literature were Muslims but they were not trained in the Islamic legal tradition, having been educated in England or at the very least, subject to an English legal syllabus. Their efforts coincided with the overall efforts of the British colonial masters of that time to appease the Muslim subjects of the sub-continent. Although translators sometimes clearly stated that the texts were actually commentaries on law. Such as Neil B.E. Baillie's "A Digest of Muhammadan Law". Despite such acknowledgements these legal texts quickly earned an authoritative status in colon ial courts which regarded these texts as the final word on topic of Muslim personal law discussed in those books. These texts, were in other words, made to stand alone without reference to other commentaries. This practice was contrary to Islamic tradition of referring to various sources, especially parallel commentaries, in the process of adjudication. In contrast, legal practitioners in the British colonial regime rarely went beyond colonial sanctioned texts to examine the Quran, Hadith or other legal texts not prescribed by their predecessors. Even Muslim members of the colonial elite such as Faiz Tyabji and Syed Ameer Ali merely replicated patterns of colonial codifications in their own volumes in the early twentieth century since they were not trained in usul al-fiqh (Principles of Islamic Jurisprudence) or they consciously avoided challenging British legal lexicon.
10. The perception of the petitioner , about the book of D.F. Mulla that its continuous, unaltered, uninterrupted, uniform and constant practice has attributed it a force of law hence it comes under the definition of Clause (c) of Article 203-B of the Constitution of Islamic Republic of Pakistan , is wrong for the following reasons: Firstly; D.F. Mulla edited many editions of his book during his lifetime by incorporating the developments made by the judicial pronouncements and various legislative measures. For example the 8th Edition of his book contained 16 Chapters while the 10th edition contained 19 Chapters. D.F. Mulla did acknowledge that he largely relied upon the translation of Hedaya by Hamilton and translation of Fatawa Alamgiri by Baillie. Hence, relying on secondary sources by D.F. Mulla is itself a question mark on the validity of the opinion contained therein and on the understanding of the Islamic Law by him. Mulla in addition to the incorporation of precedents of the higher judiciary incorporated the changes required due to the promulgation of new enactments like Mussalman Wakf Validation Act, 1913 and "Mussalman Wakf Validation Act, 1930", this process of edition continued even after the death of Mulla by the editors of the subsequent editions on his book due to introduction and promulgation of the new laws in the area of Muslim Personal law like for example the "Dissolution of Muslim Marriages Act, 1939". Like any other reference book its updating and rectifications was a fundamental requirement. This demonstrates that the book of Mulla kept on changing according to the changing requirements. Hence the understanding of the petitioner about the consistency and the continuity of the Mulla's book is incorrect. The Book titled the "Principles of Muhammadan Law" authored by D.F. Mulla was first published in 1905; then, it was edited at least ten times by its author before his death in 1935. Even after the death of its author , it was edited number of times by different editors. If we compare the first edition of 1905 with the updated editions being published in Pakistan, generally under the title of "Mulla's Principles of Muhammadan Law" by different publishers and also those editions, which were published in India under the same title after the death of D.F. Mulla. One can find many changes by way of amendments in the numbered paragraphs, addition of new paragraphs, deletion of some old paragraph s and even alteration of wording within the paragraphs for example: i. The total number of chapters in the First Edition of 1905 were 13 while the current edition of the same book contained 19 chapters and many appendices. ii. The total number of paragraphs in the First Edition, which were numbered to give the sense that each paragraph contains some principles of Islamic law , was 228 but now it contains 375 paragraphs. iii. The scheme of the book has also been shuffled and reshuf fled many times since it first published as the sequence of its chapter have been arranged and rearranged many times. iv. The book is written and presented in such a way that a presumption attached to it is that each of its numbered paragraph contains some principle of Islamic law, which were mostly translated or copied by the author D.F. Mulla from the English translation of Hedaya, Sirajiyya, Fatawa Alamgiri and some other works of English authors like Neil. B.E. Baillie and Sir Roland Knyvett Wilson, etc., as acknowledged by the author (D.F. Mulla) in the prefatory note of his book as: "I have fallen back upon the translations of the Hedaya and the Fatawa Alamgiri, with such modifications as were necessary or proper for the requirements of modern law".......... "This work is in the main modelled on the plan of Sir Roland Wilson's excellent Digest of Anglo Muhammadan Law ..." Despite the scheme and arrangement as explained by the author in the prefatory , there are some paragraphs which are based on the rulings or judgme nts of some Indian High Courts like High Court of Bombay and Calcutta, etc, which are though judicial precedents but in no way can be called as principles of Muslim B Personal Law (For example paragraphs 322 and 333 (3) are based on judgments of Bombay High Court. Similarly some of the paragraphs are opinions of other English authors (for example paragraphs 333, 334 and 336(v)(ii) are based on opinion of Baillie.
Some paragraphs in the book are based on customary laws prevalent in some territories of India predominantly Muslim population of a specific area of India. Such customary practices cannot be generalized as an Islamic principle for Muslims generally and more specifically they have no relation whatsoever with the Muslim population of Pakistan For example Para-172 which reads as: "172. Gift by a Muhammedan governed by Marumakkatyam law to a tawazhi.-A tawazhi consists of a mother and all her children and descendants in the female line. It is a corporate unit, and capable of holding property as such.
Therefore, where a Muhammedan who follows the Marumakkatyam law, makes a gift of property to his wife and all her children constituting a tawazhi, withou t any expression of intention as to how they are to hold and enjoy it, the gift will be deemed to be a gift to the tawazhi, and the donees will take the proper ty subject to the incidents of an ordinary tawad or tawazhi property , one of which is impartibility . But when the gift is to the wife and her children by him, to the exclusion of her children by a former husband, the gift cannot be deem ed to be one to a tawazhi, and the donees will take the property as tenants-in-common in equal shares with power to alienate their respective interests." vi. At some instance it appears that it is a mere legal cross-reference book when it refers to some other enactments, for example paragraph 225 contains the reference of enactments relating to administration of trust which apply to W akf also. Para 225 is reproduced as under: "225. Enactments relating to administration of trust, which apply to Wakfs also.--- The following is a list of enactments which provide for the protection, enforcement and administration of public endowments:--
(i) Of ficial Trustees (Act II of 1913)
(ii) Charitable Endowments Act VI of 1890, sections 2, 3, 4, 5, 6 and 8.
(iii) Religious Endowments Act (XX of 1863), section 14.
(iv) The Code of Civil Procedure, 1908, sections 92-93.
(v) Charitable and Religious Trusts Act (XIV of 1920)." vii. At times it contains suggestions for the Court the manner to decide an issue which in no way can be binding upon any Court of Pakistan. Para 204 is reproduced herein below: "204. Appointment of Mutawalli.---(1) The founder of the Wakf has power to appoint the first Mutawalli, and to lay down a scheme for the administration of the trust and for succession to the office of Mutawalli. He may nominate the successors by name, or indicate the class together with their qualifications, from whom the Mutawalli may be appointed, and may invest the Mutawalli with power to nominate a successor after his death or relinquishment of office.
(2) If any person appointed as Mutawalli dies, or refuses to act in the trust, or is removed by the Court, or if the office of Mutawalli otherwise becomes vacant, and there is no provision in the deed of Wakf regarding succession to the of fice, a new Mutawalli may be appointed.
(a) by the founder of the W akf;
(b) by his executor (if any);
(c) if there be no executor , the Mutawali for the time being may, subject to the provisions of section 205 below , appoint a successor on his death-bed;
(d) if no such appointment is made, the Court may appoint a Mutawalli. In making the appointment the Court will have regard to the following rules:-
(i) the Court should not disregard the directions of the founder except for the manifest benefit of the endowment;
(ii) the Court should not appoint a stranger , so long as there is any member of the founder's family in existence qualified to hold the of fice;
(iii) where there is a contest between a lineal descendant of the founder and one who is not a lineal descendant, the Court is not bound to appoint the lineal descendant, but has a discretion in the matter , and may in the exercise of that discretion appoint the other claimant to be Mutawalli." [ Emphisis added] Secondly ; The very title of the work "Mohammedan Law" contains a term "Mohammedan" this term is often criticized by Muslims of the sub-continent which was and is alien to Muslims in the context in which it was used by the compiler of the work i.e., D.F. Mulla. M. Hidayatullah, the Chief Justice of India has stated in the Preface of his book Mulla's Principle of Moharnmadan Law (16th edition 1968) as "The name of the book "Mahomedan Law" has been retained but I may say that this expression was coined by the English, Islam ic law was not Mahomed's Law.
The expressions 'Mahomedan' and 'Mahomedanism' are not correct and, in a sense, are even objectionable. The proper expressions are Islamic Law and Muslim Law. The Pakistani Courts have shown preference for these two expressions and writers on the subject prefer one or the other of the two latter expressions." Modern Muslims dislike the terms Mohammedan and Mohammedanism, which seem to them to carry the implication of worship of Mohammed, as Christian and Christianity imply the worship of Christ. Although the work itself is a result of hard work but mere using a 'misnomer' for referring it in its title made the whole effort bit controversial amongst the population for which it was compiled by its compiler . According to Merriam. Webster Dictionary it was first used in English in 1681 whereas the Oxford English Dictionary cites 1663 as the first recorded usage of the English term.
According to Cambridge Dictionary this word "Mohammedan" was previously often used for "Muslim" in English, but Muslims consider it offensive because it suggests that they worship Mohammed rather than Allah. Apparently , there is no conspiracy behind its use as suggested by some. The English word is derived from New Latin Mahometanus, from Medieval Latin Mahometus, Muhammad. Perhaps it is an example of existing gulf and misunderstanding between the major cultures and religions of the world that existed in eighteenth and nineteenth centuries which dispersed and dispelled with globalization. Now, the term 'Mohammedan' has been largely superseded by Muslim or Islamic. Moham medan was commonly used in English and other European languages literature until at least the mid-1960s. The term Muslim is more commonly used today at the wake of globalization, and the term Mohammedan is widely considered archaic or in some cases even offensive. The American Heritage Dictionary of the English Language, Fourth Edition (2000) annotates the term as "offensive" Muhammadan and Mohammedan are based on the name of the Prophet Mohammed (S.A.W), and both are considered offensive [Kenneth G. Wilson, The Columbia Guid e to Standard American English, p. 291]. The Oxford English Dictionary has "its use is now widely seen as depreciatory or offensive", referring to English Today "The term Mohammedan [...] is considered offensive or pejorative to most Muslims since it makes human beings central in their religion, a position which only Allah may occupy". With this felonious feeling associated with the title of any scholarly work makes it dif ficult to place it at any higher place.
Thirdly ; the appreciation and use of this book in the legal fraternity since 1905 to 1947 is different from its use after the independence of Pakistan. After independence, the superior Courts of Pakistan started viewing this book differently and all the other books of this category i.e. which are the part of Anglo-Mohammadan Legal Literature.
Though the work done by Mulla being a non-Muslim is remarkable and quite comprehensive, at least to the extent of topics of Islamic Law which are included in this book in certain way; but the very understanding of the basis of Islamic Jurisprudence is somewhat lacking. This aspect becomes evident from the very start of the book where it explains the 'Sources of Islamic Law' in paragraph 33 of his book as: "33. Sources of Muhammedan Law.---There are four sources of Muhammedan Law, namely , (1) the Koran; (2)
Hadis, that is, precepts, actions and saying of the Prophet Mohammad, not written down during his lifetime, but preserved by tradition and handed down by authorized persons; (3) Ijmaa, that is, a concurrence of opinion of the companions of Mohammad and his disciples; and (4) Qiyas being analogical deduc tions derived from a comparison of the first three sources when they did not apply to the particular case." [ Emphasis added ] The term "Source of Islamic Law" is a comprehensive term which is defined by the Supreme Court as :
(i) The First Source, The Holy Quran.---This is the first and the great legislative Code of Islam. To the writers on the Muslim Law, Qur'an is the first source of law in point of time no less than in point of importance. It is original, primary , basic and most fundamental source of the, Islamic Shariah. It is the Last Book of His revelations for entire humanity . Hence, its teachings shall ever remain the fountain of all guidance of all times, ages and people. On points and matters where there is a direc t mandate of the Holy Qur'an the same are to be decided and handled in accordance therewith.
(ii) The Second Source: The Sunnah.--(i.e. the Hadis, i.e. the precepts, actions and sayings of the Holy Prophet (may peace and blessings of God be on him) are then the second source of Islamic Law. For relationship between the Holy Qur'an and the Sunnah and for its sanction in the Holy Qur'an itself see a detailed discussion in "A Code of Muslim Personal Law" by Dr. Tanzil-ur-Rahman (at pages 3 to 9). The Sunnah may be three types namely(i)
Sunnat-ul-Qaul (LP ) i.e. -all words, counsels or precepts of the Prophet; (ii) Sunnat-ul-fieel ",,. i.e. his actions, works and daily practices ; and (iii) Sunnat-ul-tagir i.e. his silence implying a tacit approbation on his part of any individual act committed by his disciples. At this place it may be mentioned that all. the Hadis collectively can further be classified into three categories from the point of view of their inter se priority. The order of their priority is as follows :--
(1) Ahadis-i-Mutawter ( ARABIC TEXT) These are those traditions which have received universal publicity and acceptance in each one of the three periods namely (a) the period of the "Compa nions who were more righteous and had often shared the counsel of the Holy Prophet; (b) the period of the Success ors of the "Companions" known as Tabaeen; and (c) the period of their successors known as Taba-e-T abaeen (ARABIC TEXT)
(2) Ahadis-i-Mashhura (ARABIC TEXT) These are those traditions which through known publicly by a great majority of people, do not possess the character of universal frame. They carry conviction of genuineness but are reported by a limited number of "Companions" and thereafter in the two successive periods aforesaid.
(3) Ahadis-i-W ahid (ARABIC TEXT)These are those traditions which depend on isolated individuals.
(iii) The Third Source': Ijma'a (ARABIC TEXT) It is of three types, namely:
(i) Ijmaa, i.e. consensus of the "Companions." of the Holy Prophet which is universally accepted throughout the Muslim world and is unrepeatable (ii) Ijmaa of the jurists; and (iii) Ijmaa of the people, i.e. the general body of the Muslims. It is to be mentioned that in this way Ijmaa cannot be confined or limited to any particular age or country .
It is completed when the jurists, after due deliberation, come to a finding. It cannot then be questioned or challenged by an individual jurist. Ijmaa of any age may be reversed or modified by the Ijmaa of the same or subsequent age.