1. SHAFIUR RAHMAN, J.--The appellant challenges under Article 203-F of the Constitution the judgment of the Federal Shariat Court dated 5-11-1984 whereby his petition under Article 203-D of the Constitution seeking a declaration that certain entries of Wajibul Arz prepared at the Settlement in the years 1871-1872, 1904-1905, 1947-1949 for Village Bhooja, Tehsil and District Mansehra were repugnant to injunctions of Islam as laid down in the Holy Qur'an and the Sunnah of the Holy Prophet, was dismissed.
2. According to the appellant Wajibul Arz of Village Bhooja was prepared at the first Settlement in 1871-1872, and it contained certain entries, in particular, conditions Nos. 1 and 3, which were repeated in the subsequent settlements. The appellant, considering these entries to be a record of custom and usage having the force of law challenged them on the ground that these were repugnant to Injunctions of Islam as laid down in the Holy Qur'an and the Sunnah of the Holy Prophet. The recitals which were impugned were the following:- "Condition No. 1.-- (i) Limiting the sharing of Malikana to ancestral shares of the original settlers/owners only.
(ii) Prohibition and limitations on owners and tenants to bring under cultivation that portion of the Shamilat land which is not adjacent to their respective holding.
(iii) Limiting the partibility of Shamilat land to the ancestral shares of original settlers /owners.
3. Condition No. 3.-- Restrictions in perpetuity on distribution of income received from sale of trees on Shamilat land particularly its equal division among three Tarafs and further division into six Jora for each Taraf.
4. This challenge by the appellant was based on the following view taken of the Injunctions of Islam.-- "A careful study of the following verses of Holy Qur'an in respect of ownership of land would show that the ownership of entire land vests in Allah. Man on this earth can derive benefit out of it for a specified period--during the span of his life. But cannot become its owner for ever. Therefore, the concept of ownership of land by individual is void being against the Injunctions of Islam."
5. Without examining whether the impugned recitals of the Wajibul Arz qualified as custom or usage having the force of law, the Federal Shariat Court held that "it is to be presumed that this must have been made as usual by the mutual agreement of both the parties at the time of Settlement.
6. Whether this agreement was arrived at on the basis of any custom is immaterial". Invoking the principle of law of silence the Federal Shariat Court held as follows:- "It is thus derived from this Islamic principle that the silence of a person in a matter whether he had the chance to approachfor getting his right amounts to his consent since if he had any grievance, he would have gone for its redress to the Court. The silence of the petitioners in this case for such a long period brings their case within the scope of (by mutual agreement) in Verse 4:29."
7. Finally, with regard to ownership of land the Federal Shariat Court held as follows:- "It may also be mentioned here that the practice of absentee landlord has been prevalent in the periods of Holy Prophet, Khulafa-e-Rashideen and later Muslim Governments and communities all over the world. The majority of the jurists of all schools of thought are unanimous on the point that Muzaraatwhich is a contract between landlord and peasant on specific share in the crop in which the sowing, protecting, irrigating, cutting etc. Of the crop is the wholly responsibility of the peasant, is admissible in Shariah. (Al-Mughni Ibne-e-Qudama, After hearing Mr. Ghulam Mustafa Awan, Advocate, the learned counsel for the appellant and Mian M. Ajmal, Assistant Advocate-General for the Government of N.-W.F.P. We are clear that principles of law of silenceare not at all attracted to the proceedings under Article 203-D of the Constitution for it is not a discretionary jurisdiction. The Federal Shariat Court is possessed of a constitutional power coupled with a legal duty to examine and decide, even of its own motion, the question whether or not any law or provision of law is repugnant to the Injunctions of Islam, as laid down in the Holy Qur'an and the Sunnah of the Holy Prophet. The previous conduct of the appellant as such in the specified proceedings does not and cannot, in the circumstances, play a decisive role. Even otherwise, the principles of law of silence are not attracted to, the facts of the case too because the jurisdiction invoked and the test sought to be applied for judging the repugnancy of the impugned entries came into existence for the first time on 2nd December, 1978 by President's Order 22. Of 1978.
8. A petition instituted in 1984 cannot be said to be hit by principle of law of silence.
9. As regards the substance of the controversy requiring adjudication a reference to the petition under Article 203-D of the Constitution filed by the appellant shows that in Ground (b) the appellant had referred to a number of verses of the Holy Quran in support of his contention that man could not claim ownership of land. These find no consideration or reference in the judgment of the Federal Shariat Court and instead the prevalent practice of absentee landlord in the periods of Holy Prophet and Khulafa-e-Rashideen, the views of the majority of the Jurists and the codified law contained in Majelle have been made the basis of the decision. As the constitutional mandate with regard to this jurisdiction refers to Holy Qur'an and the Sunnah of the Holy Prophet, the learned Federal Shariat Court even while making a reference to the codified law of Mejelle and the views of the Jurists and the practice prevalent must have tested all of them on the yardstick provided in the Constitution, namely, the Holy Qur'an and the Sunnah of the Holy Prophet. That test having not been applied nor considered the decision does not satisfy the requirement of the Constitution. We had an occasion in the case of Pakistan v. Public At Large PLD 1986 SC 240 to emphasize this aspect of the requirement of the Constitution for exercising the jurisdiction.