IQBAL HAMEEDUR RAHMAN-CJ. Through instant Shariat Petition the petitioner challenges section 176A of the Pakistan Army Act, 1952 whereby she prayed that:-
2. The petitioner in her petition submitted that during service of Pakistan Army if an officer on account of illness dies issueless then group insurance, death pension, family pension, other government and GMH privileges are granted under section 176A of the Pakistan Army Act, 1952 as a gift to widow of deceased government officer or official instead of being distributed as 'Tarka' among legal heirs including parents and dependent brothers and sisters.
3. The pre-admission notice was issued to the respondent on 14.03.2023. During pendency of the instant Shariat Petition the petitioner died on 02.12.2023. Sisters of the petitioner namely Farhana and Sabina Basheer through a joint application produced death certificate of petitioner-Ms. Naheeda Bashir and also submitted that they do not intend to proceed the instant Shariat Petition and requested for closure of the instant petition.
4. Since the Shariat Petition cannot be rejected solely on the ground of the absence of the petitioner, his/her counsel or juris-consult, similarly, petition shall not be abated by reason of death of the petitioner as per Rule 15 of the Federal Shariat Court (Procedure) Rules, 1981, therefore, we would like to decide the instant petition on merits.
5. We have given anxious consideration to the facts mentioned in the instant petition. The similar nature of claim has already been decided in our judgment reported as PLD 1991 SC 731 titled------ --------- wherein it has been held that: In another judgment passed by this Court in Shariat Petition No.9/I of 2021 titled "Zartashi Nadia and another vs. Federation of Pakistan through Ministry of Finance, Islamabad and others" , wherein it has been held that:- "Pensionary benefits do not fall within the definition of Tarka nor can be treated as 'Tarka'. The law stands settled that for the purpose of entitlement to pensionary benefits, the Employer is at liberty to define the family."
While deciding Shariat Petition No.6/R of 1980 titled "Mirza Muhammad Amin etc vs. Government of Pakistan", it has been held that:- "Death Gratuity is not gratuity which would be payable to the employee in case of retirement but as clarified in Memo 223/WB/R/65 dated 18.09.65 issued by the Ministry of Defence of the Government of Pakistan is the gratuity admissible to widows of officers....who are killed in action or die of wounds received in action. This was extended interalia to Officers of the three forces who, otherwise than through their own serious negligence or misconduct, are killed or die of injuries sustained while on flying duty, or while being carried on duty in aircraft under proper authority "vide memo JCS/JSA/A/1501/1/1/121/PCII/500/D15/71 dated 8.4.1971 issued by the Ministry of Defence. Being payable on account of an after death it is not property of the deceased but is a gift or bounty of the State to his widow. Consequently it is also not heritable. This was conceded by the learned counsel for the petitioner too. The petition is dismissed."
6. So far as declaration of policy of pension, gratuity and other privileges are concerned, this relief claimed by petitioner is in personam which being beyond the jurisdiction conferred upon this Court under the Article 203 D of the Constitution of the Islamic Republic of Pakistan, 1973, cannot be granted.
7. In light of the above, taking into consideration our already pronounced judgments, the questions raised in the instant Shariat Petition has already been elaborately dealt and decided by this Court, therefore, we do not find any merits in this petition and the same is hereby dismissed.
Shariat Misc. Application No.11-I of 2023 As the main Shariat Petition is dismissed, so this Shariat Miscellaneous Application No.11/I/2023 having become infructuous is also dismissed.