1. ' AFTAB HUSSAIN, C. J.-The comments from the public were invited in regard to the above- mentioned Acts by a Notice dated 15-7-1982 published in the various newspapers of the country.
2. Neither the Ulema nor the members of the Bar Association nor the Bar Councils reacted to this Notice. Only Mr. Abdul Karim Langah, Civil Judge, Islamabad sent his comments.
3. The Trade Marks Act V, 1940: ' Mr. Langah was of the view that there is -iothing in this Act against the Injunction of Islam.
4. The question is whether a Trade Mark or for the matter of that, a patent or a copyright is property which may be assignable and transferable.
5. ' The concept of a Trade Mark, patent etc. Originated after the Industrial Revolution in Europe when inventions and large scale production started. It is, therefore, not possible to find any precedent in Shariah. However, the definition of property would be relevant.
6. ' The definition of ownership and property has assumed greater importance ever since the most primitive law because as Potter said in the Historical Introduction to English Law, 3rd Edition, p. 242 that "Observation shows that almost the first thing a young child learns to say is that's mine", and this must not all be put down to the degrading influence of civilization. The child could not always justify his claim in law. It must be the duty of law to define what is property and what are the rights a person may enjoy over it. This is not the simple proposition that it seems to be at first sight. The history of property betrays at every turn the problems which arise from a gradual growth in men's ideas about the nature of property rights. "Thus ownership of thing is something most coveted amongst mankind in all societies and culture. It is for this reason that in some definitions of mal (property) by Muslim Jurists the emphasis is on 'what is desired by man' or anything to which man inclines.
7. ' Up to the 18th or 19th century in most laws ownership was limited to corporeal objects or 'things' and the ownership of the thing extended ts) the absolute enjoyment of the substance thereof and its right of disposal to the exclusion of others. (See Prussian Civil Code (1974) Section 1 Pt. 1 Tit. 8 ; French Civil Code (1804) Article 544; Austrian Civil Code (181 I), Section 354; German Civil Code (1900), Section 903 ; Swis Civil Code (1912), Section 641 ; Civil Code of Calefornia (1872), Section 654).
8. ' The juristic definitions were also similar as will be clear from the definitions given below and reproduced from 'Jurisprudence' by Roscoe Pound, Vol. 5, pp. 122-123: Aubry et Rau : "The right in virtue of which a thing is subjected in a perpetual and exclusive fashion to the action and to the will of a person".
9. Garies : "Legal control over a thing in the totality of its connections".
10. Holmes : "The owner is allowed to exclude all and is accountable to no one".
11. Dernburg : "The right of ownership is the right of general dominion (Herrschaft) over the corporeal thing. It secures, according to its definition, every power over the thing which according to nature and law are possible."
12. Holland : "Proprietary rights are extensions of the power of persons over the physical world The essence of all such rights lies not so much in the enjoyment of the thing as in the legal power of excluding others from interfering with the enjoyment of it The relations between him and other people whom he excludes from the thing"
13. ' In the definitions of Darn Berg and Holland the words 'corporeal' and `physical' are specifically used. Thus generally ownership was limited to corporeal objects. One of the notable feature of these definitions, as pointed out by Roscoe Pound, is that "The differences between the definitions in the eighteenth and nineteenth century Codes and those of the present century "are that the former make no reservations from the power of control of the owner over their thing owned whereas the latter recognize legal limitations of the owner's powers and rights of other persons other than the owner."
14. ' The initial concept of property was of tangible and perceptible property of which possession was demonstrable and provable by the evidence of eyewitnesses. In Roman Law before the Justinian era the most prominent distinction was between "res madcap" which were transferable at civil law only by a formal ritual act: and res neck madcap, which were transferable by delivery. Res madcap were, roughly, land, slaves and cattle" (Roman Law and Common Law by Buckland and McNairy, 2nd Edition, pp. 60-61 which was the most valuable property to a primitive people. In the Justinian law this classification was substituted by movable and immovable and this is the categorization which is found in the law of Scandinavian Countries, the Germanic law as well as the French Law. In English Law the main classification was of real property and personal property or in other words, choses in possession and choses in action.
15. ' However, this classification in the Common Law is roughly equivalent to the civil law notions of movable and immovable.
16. ' The object of property right in Roman Law was classified as either "corporeal" or "incorporeal".
17. Corporeal was a term descriptive of such things as have an objective, material existence ; perceptible by the senses of sight and touch ; possessing a real body. Corporeal property was the property which could affect the senses and could be seen and handled, as opposed to incorporeal property, which cannot be seen or handled, and exist only in contemplation though they might have monetary value. Thus, a house is corporeal, but the annual rent payable for its occupation is an example of incorporeal.
18. ' In legal system of the French family, the distinction between movable and immovable rested on physical notions of movability and inherent characteristics of things. The division into corporeal and incorporeal is recognized in legal systems of French family. A thing is corporeal if it is perceivable by any of the senses while incorporeal are rights that were received by intellect. Under the Germanic Civil Code, however, and in the Codes modeled after it, incorporeal objects, "though part of a person's patrimony" are not governed by the law of property, ownership and other proprietary objects which are limited only to corporeal objects (Encyclopaedia Britanica on Property).
19. ' In the Common Law of England the main distinction is between real property and personal property though Austin defined things as such permanent objects not being persons as are sensible or perceptible through the senses-permanent objects in the sense that they are perceptible repeatedly (Jurisprudence by Paton, p. 456).
20. ' The real property being an interest in land, corresponds to immovable property but personal property, broadly speaking, means everything which is the subject of ownership, not falling within the denomination of real estate (Black's Law Dictionary, p. 1096).
21. ' The distinction between real and personal property arises from the fact that, as stated by Paton (A Textbook of Jurisprudence, 3rd Edition, p. 464) : "English law looked not to the claim, but to result of the action if judgment was for the recovery of a specific res the action was real if the judgment was for damages only it was personal. A real action in English law, then, is one in which a res may be specifically recovered. But, by an historical accident, land was the only res that could be specifically recovered, for in the case of movables the defendant might choose between returning the chattel and paying damages hence land came to be described as real property, movables as personal property."
22. ' Keeping in view the distinction in the result of the action the old English Law was that all things are either in possession or in action. In all cases where the possession could be obtained through Court the real property came to be known as choses in possession while movables or personal property was called choses in action.
23. ' It has already been seen that the term property or proprietary rights or ownership were limited to things which according to some definitions was nothing but corporeal. But in certain laws certain rights are also known as incorporeal things. In common law incorporeal things have a limited connotation. Thus, according to Blackstone Commentary, Vol. 2, p. 21 : "Incorporeal hereditaments are principally of ten sorts advowsons, tithes, commons, was, offices, dignities, franchises, corrodes or pensions annuities and rents."
24. ' See The History of English Law by Pollock and Maitland, Vol. 2, p.
124. But virtually all of them are in one way or the other connected with some interest in land (Ibid., pp. 144, 148).
25. ' For the first time Salmond widened the definition "so as to include other incorporeal things". He defined it as including all legal rights of whatever description, proprietary rights, (dominium and status) in rem which would also include a patent or copyright. According to him : "All property is, as we have already seen, either corporeal or incorporeal. Corporeal property is the right of ownership in material things ; incorporeal property is any other proprietary right in rem.
26. Incorporeal property is itself of two kinds, namely (1) jura in re aliena or encumbrances, whether over material or immaterial things (for example leases, mortgages, and servitudes), and (2) jura in re propria over immaterial things (for example, patents, copyrights and trade-marks)" (Salmond on Jurisprudence, p. 110, 12th Edition).
27. ' This is a vast improvement upon the law of property in which according to the earlier concept incorporeal property consisted of only matters which somehow or, other were attached to or connected with land. However, Paton is one of those jurists who perhaps does not agree with the widening of the definition of incorporeal. He says : "The distinction between land, houses and things under the land (which are corporeal) and such things as rents (which are incorporeal) may be a convenient one but tends to confuse".
28. (Jurisprudence, p. 458).
29. At p. 459 he says : "Once we speak of ownership of things which are not corporeal, where are we to stop ? My reputation is in a broad sense but it would be straining language to say that I own that incorporeal res. It is perhaps a pity that the word 'ownership' was not confined to corporeal things and another term used where incorporeal res are concerned."
30. ' He however, says that in primitive law, some of the few forms of individual property are myths, ceremonies and chants a primitive anticipation of copyright (ibid, p. 460) and includes patent rights and copyrights in the category of choses in action (p. 461) . At p. 483 he says :- "What some modern writers call intellectual property has become more important in modern times. The extensive advertising and persuasive salesmanship of modern business has made increasingly valuable such forms of property as copyrights, patents and property in designs."
31. ' The present day definition is much wider and consists of an aggregate of rights which are guaranteed and protected. It has been held by the Courts in U. S. A. To be all-embracing so as to include within its definition every physical object, intangible benefit and prerogative susceptible of ownership, possession or disposition though its meaning may be restricted by the context of a particular statute. In this broad and complex sense property also signifies any valuable right or interest which is considered as a source or element of wealth. The line is no longer drawn between the wealth consisting of tangible property or incorporeal or intangible property only to the extent of primarily some interest in land. It also includes the fruit of one's brain whether it be in the field of invention or science. Thus, it includes good will of a business earned by a particular person or firm or body whether corporate or not ; thus extending its scope to trade mark, trade name patents and designs, copyright as well as good will : ' Eric v. Walsh, 61 A. 2d 1, (4) ; 135 Conn. 85 ' Todeva v. Oliver Iron Min 5 N. W. 2d 782 (788) ; 232 Minn.
32. 422.
33. ' Waring V. Dunlea. D C N C Co.,26 F. Supp. 338 (340)
34. ' Button v. Hikes, 176 S W 2d 112 (115, 117) 296 Ky. 163 ; 150 A L R 779.
35. ' Bogan v. Wiley, 202 p. 2d 824, (827) ; 90 Cal. App. 2d 88.
36. ' Department of Insurance v. Motors Ins. Corpn. Ind. 138 N E 2d 157 (163).
37. ' Button v. Drake, 195 S W 2d 66 (68, 69) ; 302 Ky. 517 ; 167 A L R 1046.
38. ' Downing v. Municipal Court of City and County of San Francisco, 198 p. 2d 293 (926, 927) ; 88 Cal.
39. App. 2d 345.
40. ' It is, thus, extended to anything or right which is valuable and is considered primarily as a source of wealth. See Button v. Drake, 167 A L R 1046, 195 S W (2nd Ed) 66-69.
41. ' In AIR 1951 SC 41 Das J. Of the Supreme Court of India while discussing the concept of property in Article 31 of the Indian Constitution said by reference to Weaver in his book on Constitution Law, p.
42. 374 that "property is ownership. It consists of the free enjoyment of one's acquisition without control or diminution save by the law of the land. It consists not merely of ownership and possession but in the unrestricted right of use and disposal. Anything which destroys any of these elements to that extent destroys the property itself. The right of property is a natural right and neither the Federal Government, nor the State Government can deprive its owners of it or its possession except by the due process of law".
43. ' He says : "Property includes not only real estate and personal property, but also incorporeal rights such as patents, copyrights, leases, accounts and choses in action and every other thing of an exchangeable value which one may have."
44. ' Mr. A. K. Brohi in his book Fundamental Law of Pakistan applied this definition to Article 15 of the Constitution of Islamic Republic of Pakistan 1956.
45. ' Verse 46 of Chapter XVIII of the Koran is as follows : {{URDUN TEXT}} (Wealth and children are an ornament of life of the world. But the good deeds which endure are better in thy Lord's sight for reward, and better in respect of hope).
46. ' There is a tradition of the holy Prophet that {{URDU TEXT}} "everything belonging to a Muslim is prohibited to another Muslim whether it is blood, property or reputation". We are not concerned here with reputation except to the extent of good will in property, or with life or liberty of a person.
47. What is relevant is the definition of what is property (mal) which it has been the effort of the jurists to define.
48. ' According to Al-Khashful Kabir, property is a thing which one desires and which can be stored to meet the future requirements. The criteria for determining whether a thing is property is that it is treated by the mankind as property (JU) and a thing of value. In Sharia the value of a thing depends on its being useful i. e. If it can be utilized. There are certain things which are 'mar (property) on account of their capacity for utilizations despite the fact that they are valueless, e. g. a grain of wheat although it is fit for utilization but being extremely small in quantity it can have no value for the people at large. Similarly a thing may have value for the people but it cannot be utilized or used it can also not be treated to be a property e. g. Liquor {{URDU TEXT}} or swine.
49. ' According to Al-Hawi, Al-Qudsi property means a thing (and not human beings) which is made for the public welfare and can be stored and utilised at option. (Albahrurraiq by Ibne Nujaim, Vol. 5, p. 277).
50. ' According to Hashiyattutahtavi Aladdurril Mukhtar, Vol. 3, p. 3 (as well as Al-Qamus-ul-Moheet) it is one of the conditions of property that people may desire it or incline towards it and if there is no inclination e. g. The sale of liquor to a Muslim, it will not be treated as property, there cannot be a subject-matter of contract. It is stated by Hafiz-ud-Din in 'Kunz' that sale is the voluntary exchange of property with property.
51. ' Tahtavi has reproduced the above definition of 'mai' (property) and has also referred to the one in 'Al-Bahrurraiq' but has added on the authority of Talvih that usufruct is only ownership and not property because ownership is when a thing is utilised in any manner one likes but the ingredient of property is that it may be stored for future utilisation. Generally ownership, proprietary right or other rights in property or in any of its interest are complementary concepts, but Tahtavi distinguished between them.
52. ' According to Imam Abu Hanifa the valuability of a thing makes it a property but Imam Shafie adds usufruct or benefit too to this definition.
53. ' In Raddul Mukhtar (Arabic version) by Ibne Abideen Shami, Vol. 4, p. 3, after referring to the definition from "Albahrurraiq" mentioned above, it is further stated that in the case of such prohibited thing as liquor, it is not possible to make it a thing worthy of sale because it cannot be the object to convert it into money. The object of sale is to acquire benefit from thing not from its price. It is for this reason that the saleable property must be existence at the time of its sale. The existence of its price in this respect is immaterial and is not one of the conditions.
54. ' This is the same concept as is attributed to Imam Abu Haneefa that the property right is in a thing and not in its usufruct or benefit. In Badai Wal Sanai, Vol. 5, p. 140, examples of ma! (property) are given in view of its use being prohibited or permitted in Sharia but no specific definition appears in it.
55. ' On account of this view it is observed in Muhammadan Jurisprudence by Abdur Rahim that in order to be a property the thing must be tangible and corporeal (p. 263). Anwar Ahmad Qadri in his book "Islamic Jurisprudence" has relied upon the same definition of Abdur Rahim (pp. 171-172). It may be stated that according to Abdur Rahim (p. 262) the concept of 'milk' (ownership) can also extend to what is connected with the physical object namely usufruct (manfiat) either in the shape of produce or a physical object or of labour and services of men but as is clear from the above source material, this is only the Shafie view and not that of Hanafis' according to whom property is something corporeal and tangible. The statement in Chapter-VI of Muhammadan Jurisprudence by A. Rahim appears to have been partly taken from the Hanafi Jurisprudence and partly from Shafie Jurisprudence without discussing the sources of either 'milk' (ownership) or 'me (property).
56. ' In Mujelle the words 'milk' and `mar are defined in sections 125 and 126 respectively. According to section 125 'milk' (ownership) is a thing of which a man becomes owner. It is immaterial whether it be the thing itself or its usufruct. 'Mal' is defined as something which is desired by a man (or to the acquisition of which he inclines) or it may be possible to store it for future use at option. It is immaterial whether it be movable or immoveable. Since the articles use of which is prohibited are not within the definition of property, the word 'Mal Mutaqavvim' is defined in section 127 as being either a property use of which or benefit from which is permissible by law to enjoy the property which may be gathered and brought in one's possession. An illustration of this latter category is that fish will remain Ghair Mutaqavvim' (without value) for so long as it is in the river or sea and once caught it becomes mal-i-mutaqavvim' (valuable property).
57. ' According to Ibne Aseer property is what can be subject to ownership in gold and silver. He then applies this definition to everything which can be purchased or acquired and can be owned among the things material. In Arabia it was applied to camels because they formed the bulk of the nation's property and for this reason it had become a maxim there that such and such person has become wealthy or some other person has given to him his property.
58. ' From this the jurists concluded that whatever can possibly be owned by a man and can be availed of and used by him in the usual way is property. But Imam Shafie said that a saleable thing which can fetch price is included in the definition of 'mar (property) and if someone destroys it he is liable to (reparation) (Al Amwal Wa Nazarya-i-Aqd by Dr. Musa Yousuf, p. 162).
59. ' The view of Imam Shafie and Imam Abu Hanifa was then discussed by Dr. Musa Yousuf to the effect that the usufruct of any object of any material value whether corporeal or personal e.g. The right of residence a house or riding buses and cars which cannot be practically possessed or protected are not property according to Hanafi view but they are property according to other jurists like Shafies and Hamblies who included usufruct or benefit also within the definition of property since they are obtained from corporeal property like houses and vehicles which can be protected and possessed. He approved of this definition because the object is not really the corporeality of the property but the benefit derived from it and this is also in accordance with the usage and customs among people. This according to his opinion also corresponds to contemporary law. (Ibid).
60. ' Dr. Yusuf Musa has relied upon Sharh-i-Qanun-ul-Madani-ul-Jadid by Dr. Muhammad Kamil Mursi, Vol. I, p.
13. It is said in that book that property in the legal sense is what is valuable. It is immaterial whether it is corporeal or personal or consists of rights like (intellectual) ownership of things literary or pertaining to art or industry.
61. ' Everything from which benefit can be derived is property provided that the acquisition of benefit therefrom is not prohibited in Sharia and this is how property has been defined by Dr. Yousuf Musa that ownership is the possession of a thing which can be possessed and utilized without interrefence by others and from which benefit may be obtained without any prohibition in Sharia.
62. ' It is further stated in the above book that it is necessary that the property should be such as may be owned, thus, excluding that (a) which cannot be owned privately e.g. Land and everything which is specified as being for public use e.g. Roads, bridges, forts, railway lines, public libraries and museums and such other things etc. And (b) what cannot be owned on account of Sharia orders e.g. Land which is waif, property belonging to the public exchequer {{URDU TEXT}} or to the Ministry of Finance (which cannot be utilized except under orders of a competent authority). In all other things which are susceptible of being owned permanently, ownership also extends to usufruct of the property owned e.g. The crops of the land, the building over the land and rent of the property which is let out. ((bid., p. 161).
63. ' Ownership is `tam' (absolute or perfect) and `naqis' (imperfect). Perfect ownership is of a corporeal property as well as of its usufruct, and imperfect ownership is the right to usufruct only when the main property is owned by some other person or the ownership of the property is without the right of enjoyment of its usufruct.. It is necessary for 'milk tam' (perfect ownership) that the owner should have the liberty of use of earning benefit from it and of having a right of its full possession. Imperfect ownership is for example, the right of residence in a particular house. The right of lease or licence also form a category of ownership and they are included in `milkiat naqis'
64. (imperfect ownership). The right to take water, a right of way or the right of easement are also included in 'milk naqis' (Imperfect ownership) (/bid, 167, 168).. Although these rights are mainly attached to the property owned by others.
65. ' It may be reiterated that according to Hanafies the benefits or usufruct even from the tangible property are not included in the definition of mal (property). Consequently what is called imperfect ownership cannot be included in property or ownership.
66. ' It is important to note that the later Hanafies have modified this view so as to include atleast the following categories of income or usufruct in the definition of mal (property)
67. (0 The acquisition of benefit by the tresspasser of the property over which he has trespassed.
68. (ii)the acquisition of benefit by another person from the property owned by an orphan and
(iii) all other categories of utilisation of property by misappropriation or trespass.
69. ' These jurists consider such usufruct to be property so as to enable the real owner to claim damages for the usufruct from the trespasser.
70. ' Abdur Rehman Sabooni in his book Al Madkahl Li Dirasat it Tashrie it Islam, Vol. 2, pp. 451-454 illustrates the statement what is desired by man in the definition of mal as elusive of medicines and poisons which are not desired by man.
71. ' This is too rigid a view since the desire of a man is liable to change from time to time. Many ills are now cured by use of certain poisons in life saving medicines. Similarly the liquor is not only an important ingredient of some lifesaving medicines but has also to be used for industrial and scientific purposes. Its use and trade is also permitted to the non-Muslims. In these circumstances particularly when the use of liquor is permitted for the above mentioned reasons it cannot be said that they are not included in the term `property.' In a mixed society of Muslims and non-Muslims drinking of liquor and eating of swine fish may be permitted to the latter, although it is prohibited for Muslims. It cannot be said that it is not 'mal' since in law the definition cannot be made to vary for different group of the society. The distinction between what is prohibited to one and what is permitted to others will serve the Sharia purposes.
72. ' Saloon says that the definition of the jurists is rather limited than the definition of the mal {{URDU TEXT}}or property in the contemporary law which includes all rights value of which is assessable in terms of money e.g. Personal rights in record to ownership of literary, artistic works or industrial inventions. But this view is fallacious since it does not appear to take into account the much wider definition of Imam Shafle that everything is mal which fetches value if it is sold and if it is destroyed it raises a liability for (reparation). If the trade mark, trade name, copyright or registered patent or design are used without authority by a person other than the 'intellectual owner' it also will be included in the expression {{URDU TEXT}} (i,e, in case of destruction there is liability of reparation).
73. ' This view finds ample support from Fiqhul Zakat by Yousuf Qurzai, Vol. 1, p. 125 where it is said that the modern jurists have inferred from the opinion of Shafies, Malkies and Hanblies that the right of an author (copyright) the rights emerging from inventions (patents and designs) and other analogous rights (reference appears to be to trade mark trade name, goodwill and passing off) are property.
74. ' At the end it would be worthwhile to make a reference to the Civil Law of Jordan in respect of categories of rights. It is said in section 67 that rights may concern tangible property or property rights pertaining to intel lacteal and incorporeal rights. {{URDU TEXT}} It is unnecessary to discuss personal rights and rights pertaining to tangible property. The relevant section is section 71 in which incorporeal rights are defined as rights accruing in immaterial things {{URDU TEXT}} and in this are included the rights of authors, inventors, artists, trade names and trademarks and such other incorporeal rights.
75. ' In Imdad-ul-Fatawa, Vol. 3, p. 119, there is a fatwa (verdict) of Maulana Ashraf Ali Thanvi. A query was put to him that a son desired that the name of the shop in Calcutta may be given to him exclusively and the Press may be given to the other son. The father wished to distribute his property equally amongst his sons. Whether such a division as required by his sons would not be contrary to Sharia?
76. ' In answer it was stated that though the trade name was a mere right which according to Sharia was not mutaqavvim (valuable) and it is not legal to take its price as it is not legal to sell ones right of pre-emption but Allama Shami had supported the sale of some such rights on the authority of Hamvi. Allama Shami referred to Hamvi and said that if a person gives by will the ownership of his slave to one person and makes another person entitled to service of the slave it is permissible in Sharia for the owner of services to sell by compromise his rights to the other person entitled merely to the body of the slave.
77. ' Allama Shami also distinguished such a case from the case of sale of right of pre-emption (which is illegal). The name of the factory is similar to such a right and it appeare to be legal though it may be against piety but at the time of necessity even in piety it will not be objectionable.
78. ' Mufti Kifayatullah has gone a step further (vide Kifayat-ul-Mufti. Vol. 8, pp. 117-118). He says that in business, usage of the name of the firm or factory has a special significance particularly when the firm exists for the last 100 years and has acquired a reputation for honesty in business. There is no doubt that a person can give any name to his factory but this he can do only if it does not cause any damage to others. If by use of a permissible right damages are caused, the permissibility ceases.
79. ' The opinion of Mufti Kifayatullah is based upon the maxim {{URDU TEXT}}"(neither damage may be caused to another person nor another person should sustain an injury). On the other hand the order is as given in another maxim {{URDU TEXT}} (The injury or damages should be repelled as far as possible). This opinion is about a trade name which has earned such a goodwill that customers usually identify the name of the property sold with the firm which has actually been using that name for a long period. If the customer who has come to identify the things sold by a factory, of a particular name and purchases under misconception property manufactured by another factory of the same name, it may not only amount to deception but to taking undue advantage of increasing one's business among customers who may purchase under the apprehension that it is the property of the firm of which they are customers or reducing the business of that later firm. In these circumstances if the firm name is not legally protected it would amount to approval of deception as well as of causing loss to another person. This is not permissible because Sharia does not allow either.
80. ' Some adverse views may also be reproduced and commented upon on the question of copyright, In Fatwa-e-Rashidia, p. 498 it is said that the right of authorship is not a property which may be a subject of sale or gift. In support of this it is said that it is not permissible to accept any consideration for acquisition of a mere right ( {{URDU TEXT}} ' Mufti Mohammad Shafi wrote detailed answer on this point (see Fatawai Deoband, Vol. 2, pp. 834 to 838) and in addition to the above principle of a mere right he said that by allowing the publication of a book by other persons without authorisation the incentive to fix a high price for the publication is deadened and as such instead of causing damage it is mere beneficial not to protect copyright. He dilated in several pages upon this principle only.
81. ' In an Aricle by Dr. Ahmad Al Hijji Kurdi, published in a Journal Hudal Islam of Jordan in the year 1979 the protection of copyright is opposed on the ground firstly that it is not permissible for those having knowledge to sell their knowledge. The author of the article then says that there may be for situations in which this question may be pertinent ; (1) the author may give his book after its completion to some publisher, (2) he may write the book after entering into a contract with the Publisher and on settled terms, (3) the author may himself publish the book and give it for sale to others, (4) the author may not only published his own book but also sell it himself.
82. ' In the first case the Publisher will treat the right of the author (for the purpose of purchase) as the right of the sellers of paper or ink and the right of the book binder as regards charges of binding etc. Once the contract of sale is affected the draft of the book will be owned by the Publisher and if the author demands the price of the next edition even though there be a condition in his favour in the first contract, the demand or the condition would be void since the author will be entitled to that price which is agreed upon in the first contract.
83. ' In the second situation the position of the author is that of a labourer and he can get only the agreed wages and any condition about wages of the compensation of the second addition would be ultra vices.
84. ' In the third situation the publisher is in the position of a labourer and it will not be permissible for the author and the publisher to settle the wages on the basis of percentage of the books sold. In support of this he relies upon the opinion of Imam Malik in Mowatta, p. 426 that if a person asks another to sell his property on condition that he will get commission on each Dinar, this is not correct because any reduction of value in the price of the goods would reduce the commission also and this amounts to fraud because he is not in a position to know as to what would be his wages.
85. ' In the 4th situation the right of author being a mere right (Haqq-iMujarrad), it is analogous to the sale of a right of pre-emption and is not permissible.
86. ' It will be clear from the opinion of Shami relied upon in Imdadul Fatawa that the instance of right of pre-emption on which is based the principle of Haqq-e-Mujarrad (a mere right), not being transferable, was distinguishable. Mufti Muhammad Shafi has taken into consideration only the competition in the sale of books but he has completely ignored the loss of the person who has actually after considerable intellectual exercise and loss of time written the book. On the other hand he would like to give advantage of the incomparable efforts of the author to those who do not participate in those efforts. The unauhorised publishers have been given the advantage to earn as much as possible at the expense of the poor author.
87. ' In the article of Dr. Ahmad Al Hijji Kurdi all benefits are given to the Publisher and even condition of payment for the second Edition is held to be void although according to the Qur'an all persons have been directed to keep their contracts and promises and there is no Sharia ground to depart from this principle in the' case of a contract between an author and a publisher.
88. ' The objective of making knowledge available gratis may be a laudable object but the question is whether it is practicable and any incentive is left for a person to write books and to impart his knowledge to others. This principle is very good for the holy Qur'an, Fiqh and Ahadis and their corn- menthes but how many ate there in this world who spead even such knowledge without any consideration. In fact on account of the impossibility of achievement of such object it has been made permissible for an Imam or a religious teacher to work on salary. (Darrul Mukhtar, Volume IV, page 34).
89. ' Anyhow if it is the duty of a person to impart knowledge without consideration I do'nt see why this duty should be for the author only and not for the Publisher, but is there any Publisher in this world who would publish books of knowledge without any expectations of profit? The obvious answer is in the negative.
90. ' Islam is a practical religion which allows its adherents to live the best life in this world, if he discharges the duties made obligatory in the Qur'an and the Sunnah of the holy Prophet, acts according to the injunctions of Allah and refrains from doing anything which is prohibited. It appears that all these opinions are based upon the limited definition of mal (property) in Hanfi Jurisprudence.
91. ' The opinion of Imam Malik only means that the labourer should be certain of the amount of wages, it is not however essential that a person should know such wages in a lumpsum. It is also a mathod of identification of wages to fix the commission on the sale of one book on a particular price and making it certain that whatever number of books he sells he would be able to multiply the amount of commission with the number of books sold. We are not, therefore, in agreement with the above views which do not take into consideration all the aspects of the maxim " {{URDU TEXT}} ' The authorship of books by use of one's own intellect which may be termed as intellectual inventions or inventions of a thing by a person by use of his own scientific knowledge or capability cannot be allowed to be copied by another person or to be sold even the name of such author or inventor. A person may have a right to name his merchandise in any manner he likes or name his business premises as he likes but he cannot do it so as to cause deception to the customers or to take illegal advantage of a good-will earned by another person and to cause loss by such devices, there is no reason why the production which is a result of use of particular intellect or knowledge of any person should be allowed to be utilized by another man to the disadvantage of the former.
92. These are the new categories of rights which have come into existence on account of the inventions of the printing press and the industrial revolution which gave an incentive to the writing and publication and production of books at a mass scale and to the valuable invention, necessary for industrialization. The definition given by different jurists of Islam does not amanate from the Qur'an and Sunnah as clearly stated by Sabooni in Almadkhal li Dirasat-ul-Tashri-ul-Islami, Vol. 2, p.
455. The definition of what is mal had to be considered on account of the commandment in the holy Qur'an and the tradition from the holy Prophet as stated above. Each jurist defined mal according to his own lights. The difference of views among the jurists were, therefore, natural.
93. However the definition cannot be static in view of the likelihood of changes in the concept in a changing world and no one opinion can bind, for all times to come.
94. It is important to note that the definition of Imam Shafie as accepted byli Malikies and Hamblies has included in the category of mal (property), every-I thing which has a money value. It was a great advance on the jurisprudence in the world of that age since for the first time only Salmond could arrive at an analogous definition. The definition of Imam Shafie coressponds to the most modern definition which is found in the precedents referred to above from the judgments of the Courts. The provisions of the Act are not repugnant to Shariah.
95. The Railways (Tansport of Goods) Act XII, 1947 : ' This Act was last amended by Ordinance V of 1973 known as the Railways (Transport of Goods)
96. Amendment Ordinance, 1973. At that time the Law was operative for a period of 26 years. This duration was extended by the Ordinance of 1973 to 31 years. It should, therefore, be deemed to have expired in 1978. However, it was formally repealed by section 2 of Federal Laws (Revision and Declaration) Ordinance, 1981.
97. The Requisitioned Land (Continuance of Powers) Act XV1I, 1947: ' The Requisitioned Land (Continuance of Powers) Act, 1947 was repealed by the Requisitioned Land (Continuance of Powers) Ordinance, 1955 which later on expired. Thereafter the West Pakistan Requisitioned Land (Continuance of Powers) Act, 1957 was enacted but it also expired as it was a Presidential Act. Finally the West Pakistan Requisitioned Land (Continuance) Act, 1958 was enforced in West Pakistan. The word West Pakistan in the title of the Act was later substituted in the Province of Punjab with the word `Punjab'.
98. ' The Presidential order of the same name i,e, the Requisitioned Land (Continuance of Powers)
99. Order, 1956 was issued for the Fedaral Capital of Karachi in 1956 but the same was repealed by the West Pakistan Requisitioned Land (Continuance) (Amendment) Ordinance of 1962, and the West Pakistan Act of 1958 was applied to the Federal Capital too.
100. ' The West Pakistan Act of 1958 provided in Section 3 that notwithstanding the repeal of various Acts and Ordinances enumerated therein all land requisitioned under the Defence of India Act, 1939 and the rules thereunder shall continue to be subject to requisition and the Provincial Government may use or deal with it in such manner as may appear to it to be expedient. The orders of requisition, therefore, remained operative and valid, in spite of the expiry of Act and Ordinance. In all the Acts, Order and Ordinance provisions were added empowering the Government to acquire the requisitioned properties. One important difference between the Ordinance A' 1955 and the Presidential Order of 1956 on the one hand and the West Pakistan Act of 1958 on the other was in respect of compensation of acquisition of requisitioned land. Under the repealed laws the value of the property could be assessed as on the date when the notice under section 5 for acquisition was given. By the Act of 1958 the criterion formula for assessment was changed and it was provided that the assessm ent shall be made in accordance with the Land Acquisition Act, 1894. The old formula was substituted by the West Pakistan Ordinance, Lill of 1959 known as West Pakistan Requisitioned Land (Continuance) (Amendment) Ordinance, 1959. Again by West Pakistan Ordinance XXXI of 1962 which as stated above repealed the Presidential Order of 1956, it was provided that in respect of any acquisition of requisitioned land under this Act, the amount of compensation payable, shall be determined in accordance with the provisions of Land Acquisition Act, 1894. Thus, the criterion enacted in the original West Pakistan Act of 1958 was restored.
101. ' The West Pakistan Act is the only Act which now holds the field in respect of land, requisitioned under the Defence of India Act of 1939 and the rules made thereunder.
102. We have gone through the West Pakistan Act of 1958 which is known as the West Pakistan Requisitioned Land (Continuance of Powers) Act, 1958. We find nothing in this Act which may be said to be repugnant to Shariah. We have also seen similar Act known as Requisition of Land (Continuance of c Powers) Act, 1977 which deals with the validation of lands requisitioned in the Indo-Pak. War of 1971 and their requisition In the Act also there is nothing repugnant to the Shariah.
103. We may, however, make it clear that we reserve or right to consider, whether the formula of assessm ent of compensation as on the date of issuance of notice under section 4 of the Land Acquisition Act is not repugnant to the holy Qur'an and the Sunnah. This question shall be considered at the time of examination of the above Act.
104. ' The Deputy Commander-in-Chief (Powers) Ordinance XXII, 1942.
105. ' This Ordinance was repealed by Ordinance VI of 1971 known as Commander-in-Chief (Delegation of Powers) Ordinance, 1971.
106. ' The Coal Mines Labor Welfare Fund Act-XXXII, 1947.
107. ' This Act was repealed by Excise Duty on Mineral Labour Welfare Act, 1967 which we have gone through.
108. ' The Public Debt Act-XVIII, 1944.
109. ' The Foreign Exchange Regulation Act -VII, 1947.
110. ' The Capital Issues (Continuance of Control) Act-XXIX.
111. 1947.
112. ' The Excise Duty on Mineral Labour Welfare Act, 1957.
113. ' The Post Office National Savings Certificates Ordinance-XLII, 1944.
114. The learned counsel for the State did not raise any objection to the jurisdiction of this Court on the ground that they were fiscal laws. He stated that there were some provisions in each Act which could not be deemed to be covered by word 'fiscal' under Article 203-B. In view of this we have gone through these Acts. We find nothing in them which may be said to be in any way repugnant to the Shariah.
115. ' The Railways (Transport of Goods) (Amendment) Ordinance-XII, 1973.
116. ' The Commander-in-Chief (Delegation of Powers) Ordinance-XXII, 1971. The Excise Duty on Mineral Labour Welfare ' Act, 1967.
117. ' There is nothing in these Acts which may be said to be repugnant to Shariah.
118. ' The following Acts have been seen by us and have been found to be intra vires of Sharjah :-
(1) The Coconut Committee Act-X, 1944.
(2) The Oil Seeds Committee Act-IX, 1946.
(3) The Merchant Seamen (Litigation) Act-XXI, 1946.
(4) The Foreigrers Act-XXXI, 1946.
(5) The Prevention of Corruption Act---II, 1947.
(6) The Armed Forces (Emergency Duties) Act-XV, 1947.
(7) The War Injuries Ordinance VII, 1941.
(8) The Motor Vehicles (Drivers) Ordinance V, 1942.
(9) The Enemy Agents Ordinance 1, 1943.
(10) The Standard Time (Interpretation of References) Ordinance VI 1943.
(11) The Cotton Cloth and Yarn (Contracts) Ordinance II, 1944.
(12) The Railways Stores (Unlawful Possession) Ordinance XIX, 1944.
(13) The Public Health (Emergency Provision) Ordinance XXI, 1944.
(14) The Criminal Law Amendment Ordinance XXXVIIT, 1944.
119. PLD 1983 Federal Shariat Court 140 {{URDU TEXT}} ' Motion Pictures Ordinance (XLIII of 1979) and Censorship of Films Rules, 1980 read with Constitution of Pakistan (1973), Art. 203- Censorship of Films Rules, 1980 j Motion Pictures Ordinance, 1979 {{URDU TEXT}} (Adults only) 4)144 IV. Immorality and Obscenity
(a) glorifies adultery, promiscuousness lustful passion, lewdness or excessive drinking ;
(b) presents scene of rape, sexual act or perversion abortion and childbirth etc. ;
(c) contains dialogues, songs, speeches, jokes, or gestures which are obviously vulgar obscene or indecent. displays the living Haman figure in the nude or in indecorous clothing in an obviously licentious manner with the intent to provoke lustful passion revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.