PAKISTAN AND Other vs PUBLIC AT LARGE AND Other

1. JUSTICE MUHAMMAD AnAL ZULLAH (CHAIRMAN).-The controversy in these appeals relates to the provisions of section 13(i) and (ii) of The Civil Servants Act (No. LXXI) of 1973 and similar provisions in the Cantonment as also in the Provincial Service Laws. Except for the provision in the law relating to Cantonment's service, the others have been declared by the Federal Shariat Court as against the Injunctions of Islam.

2. Section 13 reads as follows: "13. Retirement from service.-A civil servant shall retire from service -

(i) in the case of a person holding the post of Additional Secretary to the Federal Government or any equivalent or higher post, on such date as the competent authority may, in the public interest, direct;

(ii) in any other case, on such date after he has completed twenty five years of service qualifying for pension or other retirement benefits as the competent authority may, in the public interest, direct; or

(iii) where no direction is given under clause (i) or, as the case may be, under clause (ii), on the completion of the sixtieth year of his age.

3. Explanation.-In this section "competent authority" means the appoint--ing authority or a person duly authorised by the appointing authority in that behalf, not being a person lower in rank than the civil servant concerned."

4. It has been provided in sub-clause (iii) that if no direction is given under clauses (il and (ii), the retirement age of a civil servant would be on completion of sixtieth year of his age. It signifies important aspects of civil service: One: that normal age of retirement is sixty years; Two: that some civil servants (the two categories mentioned in clauses (i) and (ii)-the affected civil servants) can be retired prematurely before age of sixty; Three: this retirement can be without the consent of the civil servant--s compulsory curtailment of his normal period of service; Four: it would be without notice or right of hearing to the affected civil servant and could also be without enquiry or reasons for the finding regarding public interest; and Five: when public interest requires the curtailment of normal period of service of the affected person, it also implies that he is not fit to continue in service, except perhaps in few bona fide retrenchment cases.

5. The question arises whether such law is valid on the touchstone of the Islamic injunctions. The Court has in Pakistan v. Public at Large (PLD1986SC240), laid down the procedure and principles in this behalf. At page 255 of the Report it was observed as follows : - "In addition to the foregoing guidance from the Holy Qur'an and Sunnah itself, regarding the importance of the Sunnah in our constitutional and legal system, the main provision of the Constitu--tion itself which confers special jurisdiction on the Federal Shariat Court (Article 203-D), has made it mandatory to discover the Injunctions of Islam, both from the Holy Qur'an and the Sunnah of the Holy Prophet (s.a.w.s.). It is not permissible for the Court to ignore or attempt to ignore the Sunnah. .

6. Although as already discussed in detail, briefly stated again, the exercise by the Court will be as follows :- urdu Missing

(a) Specify the law or its particular provision which needs to be examined;

(b) Discover the Qur'anic and/or Sunnah Injunctions which can be attracted to the subject-matter of the law and state and specify the text;

(c) Where a direct text is not in conflict, but the same arises from the deductions and principles therefrom, to state so and clarify the same in the manner discussed in the preceding parts of this judgment;

(d) After due comparison, to state the exact extent of repugnancy, if there is any; of course, after expounding and interpreting the Injunctions;

(e) .

(f) .

7. In the above referred case it was held that it is within the jurisdiction of the Court to declare a law as against the Injunctions of Qur'an and Sunnah, even if it is not repugnant to the text, of the Injunction/s, if it is C in conflict with their principles and/or deductions. In this behalf the approach of the Federal Shariat Court is unexceptionable and is approved.

8. But in the present case as would be presently shown the conflict of the impugned provisions is directly with the text of Injunctions and strictly speaking it is not necessary to find out whether any principles/ deductions from the Injunctions are violated. However, after stating the conflict with some Injunctions, it would also be seen whether the conclu--sions so reached are supportable from the principles and deductions derivable from other Injunctions.

9. At this stage. The nature of the impugned provisions of law needs to be further examined vis-a-vis their effects. It is clarified that this exercise does not relate to the cases of retrenchment which have no nexus with the conduct of the civil servant.

10. The retirement is admittedly premature. Thus, it is deprivation of D right to continue up to age of sixty which the other civil servants even placed in the same categories, not to talk of the civil.

11. Servant in general, dol not suffer. Right to work in this context is very valuable, which is denied. This denial is more significant when it is visualised that in both categories, nature, experience and those placed in higher strata are normally hit these provisions. It becomes more harsh when looked at from the angle that at the relevant stage of one's life and service, he needs the job to show his ultimate worth on the one band and settle his affairs including family and children on the other.

12. The application of this law also involve element of compulsion. The civil servant is forced to retire.

13. Although n fault need be attributed and none is in fact attributed; however, the rules and practice relating thereto assume that it is not without fault o deficiency. Thus, it carries the stigma and disgrace in -the public eye.

14. Together with the aforequoted clause is to be read clause 93 of Surah 10.

15. "Nor repulse the petitioner (unheard)"

16. It has often been interpreted as relating to charity but it can also be interpreted as conferring a right to human dignity; that is why it is translated in Urdu as: This inference gets confirmed from the fact that the law itself is explicit ins informing the enquirer, whosoever may be, that the retirement is ins public interest. In other words, the continuance any further in the service of the affected officer is not in the public interest. This cannot be without a fault, deficiency etc. Thus, this type of retirement adversely affects his reputation also. And as the curtailment of service is summary and sudden, the injury to reputation is also pronounced and acts as severe blow to the self-respect and dignity of man. Further, it is known in the com--munity of the civil servants that the normal procedure for premature retirement is through an inquiry and opportunity of showing cause. When an officer is retired under the summary procedure and window of only pronouncement of "public interest" without a visible finding on facts in that behalf, it definitely operates as a penalty and thus is a penal action and the provision is penal. Otherwise too, if action is not taken under the impugned law the compulsory retirement under the normal law is a major penalty. Thus, looked at from whatever angle, the retirement under the impugned laws is a punishment, in a way denial of right to work as also right to earn and right to reputation. If that is so, it has to be seen when so construed, whether they are repugnant to the Injunctions of the Qur'an and Sunnah. As has been already observed, there are some injunctions which are directly violated by these laws when they are applied without the safeguards of notice and opportunity of hearing. They would be stated expounded and interpreted presently. In addition there are mass of Injunctions, the spirit and underlying principles whereof are also violated. They are stated in the Schedule to this judgment.

17. The first Qur'anic Verse to be noticed here is Surah-17, Verse 70. Translated into English it reads as follows "NOW, INDEED, we have conferred dignity on the children of Adam, and borne them over land and sea, and provided for them sustenance out of the good things of life, and favoured them far above most of Our creation."

18. A commentator has interpreted the clause as follows: To the similar effect is Surah 4, Verse 148, which reads as follows "Allah loveth not that evil Should be noised abroad In public speech, except Where injustice hath been Done; for Allah Is He Who heareth And knoweth all things."

19. See also Surah 49 Verse 11: "O ye who believe! Let not some men among you laugh at others: It may be that the (latter) are better than the (former): Nor let some women laugh at others: It may be that the (latter) are better than the (former): Nor defame nor be sarcastic to each other, nor call each other by (offensive) nicknames: III-seeming is a name connoting wickedness, (to be used of one) after be has believed: And those who do not desist are (indeed) doing wrong."

20. All these injunctions when expounded in the language of the Sunnah of the Holy Prophet (p. b. u. h.) would mean also as follows :- (Taken from Islam-Ka-Faujdari Nizam by Abdul Qadir Audah, translated by Sajidur Rehman Kandhalvi-Islamic Publications Limited.)

21. The foregoing narration of some of the Injunctions of the Qur'an and the Sunnah do establish beyond any shadow of doubt the right to honour and reputation is one of the inviolable rights of man in addition to other valuable rights. Can this be taken away without due process as enjoined by the Qur'an and Sunnah?

22. What is that due process can be spelled out from the other Injunctions.

23. Some are general others are specific. Here only few of them are taken from Maqalat-e-Seerat (Part-I) 9th National Seerat Conference 1984 Page 68: It is clear from various Injunctions of the Qur'an that Adal, Qist and Ihsan are the components of total and complete justice in Islam. It requires not only equal treatment between man and man but also protects P the rights of one against unfair treatment. This part of discussion is closed by quoting from the Commentary of the Holy Qur'an by A. Yusuf Ali, (S. 16 V-19) Note 21: It reads as follows "Justice is a comprehensive term, and may include all the virtues of cold philosophy. But religion asks for something warmer and more human, the doing of good deeds even where perhaps they are not strictly demanded by justice, such as returning good for ill, or obliging those who in worldly language "have no claim" on you; and of course a fortiori the fulfilling of the claims of those whose claims are recognised in social life. Similarly, the opposites are to be avoided: everything that is recognised as shameful, and every--thing that is really unjust, and any inward rebellion against God's Law or our own conscience in its most sensitive form."

24. Here it would be of advantage to city three more verses from the Holy Qur'an where in one or the other form proper/due opportunity of hearing is to be afforded, before an individual's rights are affected); (Translation by A. Yusuf Ali).

25. SURAH 4 VERSE 83 "When there comes to them Some matter touching (Public) safety or fear, They divulge it.

26. If they had only referred it To the Apostle, or to those Charged with authority Among them, the proper Investigators would have Tested it from them (direct).

27. Were it not for the Grace And Mercy of Allah unto you, All but a few of you Would have fallen Into the clutches of Satan."

28. SURAH 4 VERSE 94 "O ye who believe! When ye go abroad In the cause of Allah, Investigate carefully, And say not to anyone Who offers you a salutation: "Thou art none of a Believer!"--Coveting the perishable goods Of this life; With Allah Are profits and spoils abundant. Even thus were ye yourselves Before, till Allah conferred On you His favours: therefore Carefully investigate: For Allah is well aware Of all that ye do."

29. SURAH 49 VERSE 6COMMENTARY-F. NO. 5 OF MUHAMMAD "O ye who believe!ASAD's TRANSLATION If a wicked person comes5 i.e., verify the truth before giving To you with any news,'credence to any such report or ru-- Ascertain the truth, lestmour. The tale-bearer is characterized Ye harm people unwittingly,as "iniquitous" because the very act And afterwards becomeof spreading unsubstantiated rumours Full of repentance for( affecting the reputation of other What ye have done. Persons constitutes a spiritual offence.

30. The Shan-i-Nazool of each one of the aforequoted verses makes it clear that condemning someone without making proper inquiry has bee prohibited. The word "Tabeyyanu" in clause 94 has been rep$ated twice., It is not without significance. Some Commentators have laid great stress on it and gave it the meaning of "investigation" as also "interrogation". This purpose cannot be achieved without a notice and proper opportunity of showing cause.

31. Right to property and honour, in addition to life, were also declareaj sacred which means : not only that their violation is to be punished and/or compensated but also that it is to be prevented. In this behalf while thel victim needs to be protected against the violation, the one who violates is made accountable. All this cannot be possible without a notice and opportunity of hearing. The denial of these safeguards for doing justicel would amount to Zulm and Ziaditi against oneself as also the victim.

32. Sunnah : Mishkat-ul-Masabih, An English Translation with Arabic Text of Selection of Ahadis from the Highly Voluminous Works of Bokhari, Muslim and other Traditionists of Repute, by Al-Haj Maulana Fazlul Karim, Published by Law Publishing Company, Lahore, Volume-Ii Chapter XXVI section 7-1280-Administration of Justice. Al-Hadis No. 62 at page 611 "Ali reported : The Messenger of Allah sent me to Yemen as a judge. I said : O Messenger of Allah : you are sending me while I am young in years and I have no knowledge of judgeship. He said Verily Allah will soon give guidance to your heart and make your tongue firm. When two persons come to you for decision, don't give decree in favour of the first till you hear the argument of the other, because that is more necessary that decision may become clear to you. He said : I had afterwards entertained any doubt in decisions. (Tirmizi, Abu Daud, Ibn Majah)".

33. This Command is specific to the effect that when a public authority I ; to be exercised for resolving a controversy regarding rights and liabilities In the light of this brief discussion of the few Quranic Injunctions and in view of what punishment, deprivation and disgrace a civil servant suffers by application of impugned law, can it be said that the Quranic justice visualised above would be satisfied without notice and without affording an opportunity of defence against such an action. The answer is in the negative.

34. The Quranic Commands in this behalf are also supplemented and interpreted by Sunnah Injunctions.

35. Sunnah : Commands at Hajat-ul-Wida-Supplement to Paighambar--e-Azam-wa-Akhir by Dr. Naseer Ahmad Nasir-Pages 644 and 646 the decision would not be rendered without proceedings in which the person affected is also afforded an opportunity of hearing.

36. Two illustrative cases decided by the Holy Prophet (P. B. U. H.) can be cited here with advantage

(1) Case of Hatib-bin-Abi Balta'a taken from The Translation of the Meanings of Sahih AI-Bukhari (Arabic-English) Volume-VIII by Dr. Muhammad Muhsin Khan, Islamic University, Al-Madina AI-- Munawwara, published by Kazi Publications, Ganpat Road, Lahore. Al-Hadis No. 276 at pages 182 and 183.

37. "276. Narrated 'Ali (R. U.) : Allah's Apostle (p. b. u. h.) sent me, Az-Zubair bin Al-Awwam and Abu Marthad Al-Ghanawi, and all of us were horsemen, and he said, "Proceed till you reach Rawdat Khakh where there is a woman from the pagans carrying a letter sent by Hatib-bin-Abi Balta'a to the pagans (of Mecca)." So we overtook her while she was proceeding on her camel at the same place as Allah's Apostle (p. b. u. h.) told us. We said (to her), "Where is the letter which is with you?"

38. She said, I have no letter with me." So we made her camel kneel down and searched her mount (baggage etc.) but could not find anything. My two companions said, "We do not see any letter." I said, "I know that Allah's Apostle (P. B. U. H )did not tell a lie. By Allah, if you (the lady) do not bring out the letter, I will strip you of your clothes". When she noticed that I was serious, she put her hand into the knot of her waist sheet, for she was tying a sheet round herself, and brought out the letter.

39. So we proceeded to Allah's Apostle (P. B. U. H.) with the letter. The Prophet (Y. B. U. H.) said (to Hatib), "What made you do what you have done, O. Hatib?" Hatib replied, "I have nothing except that I believe in Allah and His Apostle, and I have not changed or altered (my religion). But I wanted to do the favour to the people (pagans of Mecca) through which Allah might protect my family and my property, as there is none among your companions but has someone in Mecca through whom Allah protects his property (against harm)." The Prophet (p. b. u. h.) said, "I' atib has told you the truth, so do not say to him (anything) but good". 'Umar bin Al-Khattab said, "Verily he has betrayed Allah, His Apostle, and the believers ; Allow me to chop his neck off ;" The Prophet (P. B. U. H.) said, "O 'Umar ; What do you know ; perhaps Allah looked upon the Badr warriors and said, "Do whatever you like, for I have ordained that you will be in Paradise.' "On that 'Umar wept and said, "Allah and His Apostle know best."

(2) Case of a Lewd Woman. Taken from Maqalat-e-Seerat Part I (December 1984) 9th National Seerat Conference English Section, `Prophet Muhammad's (P. B. U. H.) System of Justice' by Dr. Muhammad Muslehuddin page 24.

40. "It is further necessary in Islamic law, that the case must be proved by the evidence of the witnesses of undeniable integrity. The Prophet (p. b. u. h.) is reported to have said about a woman against whom there was subs-.Quently liaan or sworn accusation of adultery `If I were to order lapidation without evidence, I would have ordered it in her case, because she appears lewed from her way of speech, It is obvious from the reproduced text that : Firstly, the case relates to a family matter ; and secondly, it is illustrative of the right of a wife to use the property of her husband for the expenses of the family in absence of her husband when he either has not provided for the same or has done so too miserly. Such legislation in favour of a wife in matter of maintenance if it ever comes before the Court for examination, one view worth consideration would be that under the Islamic Injunctions the wife has such a right on the property of her husband even if before the exercise thereof the husband is not questioned about the same due to his absence. It is, therefore, clearly distinguishable.

41. Case No. 2: taken from AI-Farooq, Madina Publishing Company, Karachi Vols. I and II combined page 250 et sequence. It is said that Khalid-bin-Waleed (R. U.) was administratively dealt with rather punished by Hazrat Umar (R. U.) without affording him an opportunity demeanour and from her visitors'. But without the requisite evidence, she was not punished' (Sunan Ibne Maja, Vol. II)."

42. One of the above-cited cases is within the administrative justice and the other in the criminal justice. It is common principle which governs the administration of justice in Islam that in case of liability with penal or quasi-penal consequences and or deprivation of basic rights a notice a well as an opportunity of hearing, are of absolute necessity. This by itself has to be recognised as a basic right.

43. In this context few more cases which can be treated as illustrative of the opposite view are also to be noticed Case No. 1: taken from Sunan Nisai-Urdu Translation by Dost Muhammad Shakir and Hafiz Muhammad Abdul Sattar Qadri, Hamid and Company, Lahore. Volume III, at page 473 of hearing. Shibli No'mani the author of Al-Farooq relates the incident as follows :- The whole of the text has been reproduced because it throws light on various aspects of administrative justice and propriety. It may be clarified that the demotion in the first instance and ultimate removal of Khalid-Bin-Waleed (R. U.) as a Commander relates to military appointments and discipline. Even if the case is treated as relatable to the disciplinary action against a Chief Administrator, the set up then was that it would be treated a~ 4 4onstitutign,11 remova1, as in our prosecute set up a Oovernpr is, removable. The present case does not relate to either the removal of military commanders or governors. However, it needs to be noticed that at both the occasions-- demotion as well as removal, Khalid-bin-Waleed (R. U.) was not only afforded opportunity of showing cause but also he availed of it and rendered answers to the allegations, on first occasion.

44. And on the second occasion the representative of the Caliph did afford an opportunity to him- obviously, it must have been on the directions of the Caliph to accept or deny the allegations. Be that as it may, it is very important to note that the decision by Hazrat Umar (R. U.) was not based on, as he himself later on stated in various letters obviously to vindicate the honour of Khalid-bin- Waleed (R. U.), (I. e. punitive action was not on account of) the latter's misconduct.

45. As compared to this it would be appropriate here to refer to the general practice of Hazrat Umar (R.

46. U.) with regard to the inquiry, examination and decision of complaints against public servants.

47. Amongst other reforms the Caliph introduced a system of accountability in this behalf. An Annual Conference in Mecca of Governors and other state officials and civil servants was used to be arranged wherein complaints and grievances used to be inquired into in their presence. It is also necessary to note that he tried to use the same methods in civil administra--tion as were adopted by Prophet (P. B. U. H.) and the First Caliph dealing with personal and government officials. See Administrative Development and Islamic Perspective by Muhammad Ali Buraey, Dhahran, Saudi Arabia page 252.

48. Case No. 3 : Dr. Taha' Hussain relates the case of Ibne-Abbas (R. U.) in his Book `Ali-Tarikh Aur Siasat ke Roshni main'-Urdu Translation by Abdul Hameed No'mani pages 138 to 147. It may be mentioned here that the learned Author takes note of the fact that this incident has not been noticed by all the commentators and also gave reasons for it. Be that as it may, Hazrat Ali (R. U.) had brought to the notice of Ibne-Abbas (R. U.) a complaint which was against him. Explanation was offered and charge was denied. The subsequent correspondence shows that there was no occasion for fear that he would condemn anybody without due notice and opportunity of showing cause. Therefore, it would not be correct to say that in case of Ibne-Abbas (R. U.) Hazrat Ali (R. U.) had taken any unilateral decision.

49. As against the aforenoted cases it would not be out of place to mention here some of the decided cases involving, one way or the other, some of the Prophets (P. B. U. H.). The narration is contained in the Holy Qur'an and forum of justice is that of Allah. The notable cases, amongst others, in the present context are that of Hzt. Adam (P. B. U. H.) and Hzt. Dawood (P. B. U. H.). For all the relevant verses from the Holy Qur'an, in this behalf, see the Schedule to this judgment.

50. On being mislead by Iblees, Hzt. Adam (P. R. U. H.) committed the mistake of doing the forbidden act whereupon after proper notice the Almighty Allah made him to suffer the consequences. In case of Hzt. Dawood, he was found, by Almighty Allah, lacking in fair judgment. When the case on 99 sheep, was presented to him, he without hearing the absent side had given a verdict in favour of the complainant, on which he was told about -the defect in his decision and was guided accordingly. Although other similar instances of due notice as a demand of Allah's justice pan he pited from the Holy Qur'an, but it is dot necessary. In so far as the general aspects of the proposition are concerned, the relevant verses, however, have been included in the Schedule.

51. Allah's justice, as being inclusive of due opportunity is demonstrable in another manner also. Three instances related in the Holy Qur'an are highly relevant in this context. Man, Iblees and animals were treated at par by the Almighty Allah in the rendering of justice to them. Regarding man, the example of Hzt. Adam (P. B. U. H.) and Hzt. Dawood (P. B. U. H.) have already been cited. In so far as man in general is concerned, there are numerous verses in the Holy Qur'an (refer to the Schedule) which clearly show that on the Day of Judgment everyone will be confronted with the evidence of his deeds during the present life and he would have an opportunity of denial. But the evidence and the atmosphere would be such that he would not be able to deny the strength of the evidence.

52. Here it may be explained that in the exercise of judgment making there are always three main elements : the maker of the judgment, the party/s about whom the judgment is made and the matter substance of the judgment. As the maker of the judgment in the case under discussion would be Almighty Himself, therefore, it is futile to imagine that be would be making wrong judgment. In any case, man would be made aware of the accusation. And notwithstanding the reality it being question of principle, Allah Almighty has bestowed the right on man to be aware of what he is being punished for. Something can be said about the fact that when made aware, man would have an opportunity of offering an explanation or making a plea of guilty or denial. In other words, there would be an opportunity of making a plea regarding accusation. But mostly the opportunity when availed of would result in the plea of admission as the evidence would be strong and overwhelming.

53. Next instance is that of Iblees. He was scolded for having misled Hzt. Adam (P. B. U. H.) into disobedience of Allah's Commad. Although, it had all happened in the presence of the Judge (Almighty Allah), the accused (Iblees) and Hzt. Adam (P. B. U. H.); and, may be, upon the now prevailing judicial norms, it could be said that there was no need for an inquiry ; yet Allah Almighty called upon Iblees to explain his conduct. It was after hearing the explanation from him which was not found tenable, that he was condemned and punished for all times to come.

54. The third instance relates to demonstration of Islamic justice even when the delinquent involved is an animal. The case relates to the reign of Hzt. Suleman (P. B. U. H.) when Hudhud was found amiss in the perfor--mance of some dnties. It may be mentioned here that in the context of Hzt.

55. Suleman's (P. B. U. H.) dominion over Mulk, man and animals, the bird was performing the functions of a state servant. It is clearly stated in the Qur'an that Hzt. Suleman (P. B. U. H.) did not render judgment in the matter till, according to him, the bird was summoned and heard in an opportunity of showing cause against the accusation.

56. A critic may say that these instances do not apply to the present case in strict sense. True, there may not be any direct application but they do reveal the philosophy underlying Allah's justice. Man having been born in the image of Allah cannot be permitted, in matters of judgment, to do injustice. There are innumerable Commands in the Qur'an and Sunnah, in this behalf. And what is justice or injustice and how it should be rendered, man has been guided through the instances narrated above and others. It will be a folly to treat them as mere stories or just having a value of past time. This view gets further strengthened by the fact that the Holy Prophet (P. B. U. H.) left with us the Sunnah Injunctions already noticed which in turn have to be expounded and interpreted in accordance with the guiding principles and cases contained in the Holy Qur'an. Thus, it is the combined reading and interpretation of both the Qur'an and Sunnah that the best possible results with regard to the understanding of the Injunctions can be achieved.

57. It has been argued from the government-side that the State when exercising disciplinary powers over its employees, is in reality discharging functions as representative of Almightly Allah and this being public power, is exercised in .Public interest. It should be immune from the ordinary rules of rendering justice as the public interest could not be sacrificed for the sake of the individual. It is the same old theory of divine prerogative which has been given up even in the West. The Qur'an and Sunnah and the principle underlying the same which this Court is bound to follow cannot support any such theory. Allah in His Supreme Wisdom hasdeclared that : "If anyone slew a person it would be as if he slew the whole people. And if anyone saved a life it would as if he saved the life of the whole people."

58. Therefore, generally speaking, exceptions which are deducible from the Qur'an and Sunnah apart, the rights of any individual cannot be , sacrificed on the mere assumption that it is in public interest. On the contrary it is also in public interest as is visualised by the Islamic Injunc--tions that justice in the Islamic sense be meted out to the individual. That will serve the public interest in more than one way and in addition the observance of the Islamic Injunctions, in this behalf, would attract the benefactions of Almighty Allah.

59. Actually the action in public interest, is in essence, the discharge of a public trust which (in an Islamic polity) was explained by this Court, is the well-known case of Miss Asma Jilani v. The Government of the Punjab and another (PLD 1972 SC 139as follows :- "P.

182. The basic concept underlying this unalterable principle of sovereignty is that the entire body politic becomes a trustee for the discharge of sovereign functions. Since in a complex society every citizen cannot personally participate in the performance of the trust, the body politic appoints State functionaries to discharge these functions on its behalf and for its benefit, and has the right to remove the functionary so appointed by it if he goes against the law of the legal sovereign, or commits any other breach of trust or fails to discharge his obligations under a trust. The functional Head of the State is chosen by the community and has to be assisted by a Council which must hold its meetings in public view and remain accountable to public. It is under this system that the Government becomes a Government of laws and not of men, for, no one is above the law. It is this that led Von Hammer, a renowned orientalist, to remark that under the Islamic system "the law rules through the utterance of justice, and the power of the Governor carries out the utterance of it."

60. "P. 235. We should, therefore, turn more appropriately to Islamic Jurisprudence for the definition of `law'. One method of defining `law', is to know its source. In Shari'at laws have divine origin.

61. They are contained in the Holy Qur'an, and Hadith, namely, precepts a sources are Ijma'; Consensus and juristic deductions including Q!y h nd actions of the Holy Prophet (peace be upon him). The otaser: Analogy, Istihsan or Juristic Equity, Public Good, Istidlal ; Reason and ljtihad ; Juristic Exposition.

62. While Juristic Deductions are judge-made laws, Ijma' is based on the doctrine of Imam Shafi'i that "the voice of the people is the voice of God", and is the most fruitful source of law-making in Shariat."

63. It is true that in sub-para. (iii) at page 254 of our decision in Pakistan v. Public (PLD 1986 SC 240we approved the use of Rules of Masalahl and Urf amongst others and it might have been of advantage to examine them in the present context. But it is not necessary to do so because the controversy can be resolved by direct resort to the Qur'an andl Sunnah. However, the commentaries on Urf Am, including by Imam Abu Hanifa, might be relevant. (See Hayat of Hze. Abu Hanifa by Muhammad Abu Zabar, translated by Ghulam Ahmad Hurari, published by Malik Sons, Tajran Kutab, Faisalabad, and Islamic Legal Philosophy by Muhammad Khalid Masud, Islamic Rese*rch Institute, Islamabad, on doctrine of Masalah.)

64. It was also argued that the impugned provisions of law amount to a contract between the Government and the:' civil servant and thus they involve his consent. In fact, it is not in the nature of a free consent between free agents. On the one hand, State power is projected in the form of the Statute and on the other, the civil servant has no choice of a bargain on these provisions when joining the service. He cannot get it changed. In this sense it is distinguishable from a true "contract appoint--ment", by the Government which, of course, would be dealt with differently. This assumption is supported by the language of the provision. The retire--ment has to be in "public interest". This element needs determination of a factual nature in each case. There is no, question of consent by the affected person that his retirement would in fact be in public interest. In this behalf, there is no difference between retirement due to misconduct `and retirement due to public interest. In either case, there has to be a determination and finding of fact. If in one there cannot be assumed any consent, it cannot be assumed in the other also. Thus, if the law provide safeguards against unjust retirements, it will not be the negation of the Quranic provision on contract and consent.

65. Similarly, the arguments based on the relationship of master and servant in matter of unilateral removal without notice; as also, the husband and wife, on the; question of unilateral action on the part of the husband in connection with talag, are untenable, as they are clearly distinguishable.

66. Moreover, it may be explained that the controversy regarding the relative rights of each party in these two instances and the law if any relating thereto are not before the Court for examination in this case.. e. g. It might need consideration whether 'Talaq', which is a permitted act but abhorable also , can be pronounced without justifiable cause. I It is, there--fore, not necessary and proper to make any further comment on this argu--ment advanced from the side of the appellants.

67. In the 'light of the foregoing discussion the conclusion yawn is that Q the impugned provision of law as they stand at present are against the Injunctions of Islam contained in the Qur'an and Sunnah as explained above. The next question is whether the only way out to remove the repugnancy is the total repeal of those provisions or their amendment or repeal and re-enactment, would serve the purpose. The latter course would also be possible by introducing the minimum safeguards providing, of course, also the exceptions permissible under the Islamic Injunctions. Another possibility can also be visualised that the procedure of retirement after due notice under the impugned provisions be prescribed in the rules.

68. All this would also apply to Cantonments' employees involved in Shariat Appeal No. 14 of 1984.

69. There is no valid reason for creating any distinction between these and the civil servants covered by the Civil Servant Acts. The Cantonment Boards are the institutions acting in con--nection with the affairs of the Federation. Moreover, they are such local authorities who are subject to even the writ jurisdiction of the High Courts. Their employees perform public service. For purpose of the questions involved in this case relating to, the application of the Injunctions of Islam to the Rules of service of the j employees of Cantonment Boards, which admittedly fall within the definition of law for this purpose, the case of those employees cannot be treated differently.

70. It is however, clarified that the other provisions of those laws including the rules made thereunder are not in question, in these appeals. There--fore, the treatment of other public or civil servants including temporary, ad hoc or those purely on contract, the military employees, the state functionaries like the Governors, private and company employees etc. Or for that matter treatment of exceptional cases including those of emergency, and/or state security, by verious provisions of laws and rules is not involved in these appeals. This decision;; therefore, will be restricted to question) of retirement of civil servants of two categories mentioned in the opening part of this judgment. It is also clarified that when a new law is made regarding these employees it will be open for the law-makers to make provision for exceptional cases, permissible by the Injunctions of Islam including the Qur'an and Sunnah together with the principles..

71. With the above clarifications Appeals No. 6 of 1983, No. 15, 19 and 34 of 1984 and No. 1 of 1985, are dismissed and Shariat Appeal No. 14 of 1984 allowed with the direction that the relevant provisions be repealed with option of re-enactment or amendment so as to make provisions for the issuance of proper show-cause notice followed by opportunity of showing cause: against the relevant retirement, with option to make special provisions including those relating to exceptional cases as already indicated. The appellants in cases other than Shariat Appeal No. 14 of 1984 shall pay the; costs of those who appeared to oppose them at the rate of Rs. 3,000 per individual. The appellant in Shariat Appeal No. 14 of 1984 shall be paid Rs. 3,000 as costs by the respondents therein.

72. SCHEDULE TO THE JUDGMENT PART I = SELECTED VERSES FROM THE HOLY QUR,AN ;:'

73. TRANSLATION BY A. YUSUF ALI Sura No 7 Verse 21-25 ; Sura No. 38 Verse 71-85 ; Sura No. 7, Verse 1.1-12 ; Sura No. 7 Verse 21-23 ; Sura No. 38, Verse 17-26 ; Sura No. 12, Verse 51 ; Sura No. 12, Verse 55-56 ; Sura No. 27, Verse 20-21-22 ; Sura No. 1 Sura No. II Verse 134 ; Sura No. II Verse 141 ; Sura No. II Verse 178 ; Sura No. II Verse 213 ; Sura No. 4 Verse 41-42 ; Sura No. 4 Verse 58-59 ; Sura No. 4 Verse 83 ; Sura No. 4 Verse 86 ; Sura No. 4 Verse 94 ; Sura No. 4 Verse 105 ; Sura No. 4 Verse 115 ; Sura No. 4 Verse 135 ; Sura No. 4 Verse 148 ; Sura No. 5 Verse 9 ; Sura No. 5 Verse 42 ; Sura No. 5 Verse 47 ; Sura No. 5 Verse 45-46 ; Sura No. 5 Verse 48 ; Sura No. 5 Verse 116 ; Sura No. 6 Verse 116 ; Sura No. 6 Verse 131-32 ; Sura No. 6 Verse 152 ; Sura No. 6 Verse .160 ; Sura No. 6 Verse 161 ; Sura No. 7 Verse 8 ; Sura No. 7 Verse 29 ; S ura No. 7 Verse 42 ; Sura No. 7 Verse 85 ; Sura No. 7 Verse 157 ; Sura No. 14 Verse 51 ; Sura No. 14 Verse 33-34 ; Sura No. 16 Verse 90 ; Sura No. 16 Verse 111 ; Sura No. 16 Verse 126 ; Sura No. 17 Verse 13 to 16 ; Sura No. 17 Verse 15-16 ; Sura No. 17 Verse 70 ; Sura No. 24 Verse 4 ; Sura No. 24 Verse 11 ; Sura No. 24 Verse 12 ; Sura No. 24 Verse 13 ; Sura No. 24 Verse 15 ; Sura No. 24 Verse 16 ; Sura No. 24 Verse 17 ; Sura No. 24 Verse 18 ; Sura No. 24 Verse 24 ; Sura No. 24 Verse 48 to 51 ; Sura No. 28 Verse 26-27 ; Sura No. 28 Verse 27 ; Sura No. 28 Verse 59 ; Sura No. 28 Verse 84 ; Sura No. 28 Verse 46 ; Sura No. 28 Verse 46 ; Sura No. 34 Verse 25 ; Sura No. 34 Verse 33 : Sura No. 39 Verse 69; Sura No. 41 Verse 46-47 ; Sura No. 49 Verse 6 ; Sura No. 49 Verse 10 to 13 ; Sura No. 50 Verse 22-21 ; Sura No. 52 Verse 21 ; Sura No. 55 Verse 7 to 9 ; Sura No. 60 Verse 8 ; Sura No. 65 Verse 7 ; Sura No. 69 Verse 30 ; Sura No. 75 Verse 13 to 15 ; Sura No. 76 Verse 4-3 ; Sura No. 81 Verse 8-9 and Sura No. 82 Verse 10-11.

74. SCHEDULE PART II SUNNA H OF THE HOLY PROPHET (P. B. U. H.) WITH RELEVANT SOURCES PART III MAG-ALAT-E-SEERAT PART-I 9TH NATIONAL SEERAT CONFERENCE, 6-7 DECEMBER, 1984 Page 24. "If I were to order lapidation without evidence, I would have ordered it in her case, because she appears lewed from her way of speech, demeanour and from her visitors'. But without the requisite evidence, she was not punished' (Sunan Ibne Maja, Vol-II)."

75. Page 25. "The Prophet (p. b. u. h.) said to his cousin Ali when he was appointed as the Governor of Yemen : `O Ali, people will come to you for justice. If two contestants come to you for decision, do not rule for the one, before you have equally heard the other. It is more proper for truth to become evidence to you and for you to know what is right' (Tirmidhi)."

76. The Prophet (p. b. u. h.) said (People are like the teeth of a comb) (Address at the last Haj or Hajjatulwida').

77. "No Arab has any superiority or excellence over a non-Arab and no red-coloured man has any superiority or excellence over any black coloured man, save in respect of piety and fear of Allah."

78. "No Arab has any superiority over a non-Arab, nor any non-Arab over an Arab nor any white man over a black man, nor a black man over a white man, save in respect of piety and fear of Allah."

79. "By Allah if Fatima daughter of Muhammad (p. b. u. h.) had committed theft, I would have certainly cut off her hand (agreed)."

80. "The famous tradition of the Prophet has it that when Hazrat Mo'az bin Jabel was appointed as the Governor and the Chief Judge of Yemen he asked hint how would be proceeded to decide matters coming before him for decision. According to the Injunctions of the Holy Qur'an replied he what if no such injunctions is available ; inquired the Prophet ? That accordin* to the Sunnah replied Hazrat Ma'an. But suppose no such Sunnah is available, again inquired the Prophet. In that case I shall exert (Ijtahad) and apply myself submitted Hazrat Ma'az. You are so right confirmed the Prophet. (Islami Siyasat by Maulana Gauhar Rahman Darul Uloom Tafheemul Quran Mardar., Second Edition Page 379)."

81. There is yet another tradition of the Holy Prophet (p. b. u. h.) which has come down to us from Hazrat Ali. He inquired from the Prophet what if we are faced with a situation which cannot be answered by referring to the direction or guidance in the Holy Qur'an or Sunnah. "Then consult and go by the advice of those who are experts in Shariah instructed the Prophet (Majmae Zavaid, as quoted by Maulana Gouhar Rahman in his Islami Siyasat, page 285)."

82. NASIM HASAN SHAH, J.-This judgment will dispose of Shariat Appeal No. 6 of 1983 ; Shariat Appeals Nos. 14, 15, 19 and 34 of 1984 and Shariat Appeal No. 1 of 1985, as all of them involve similar questions of law.

83. In Shariat Appeal No. 6 of 1983 Pakistan v. Public at Large, the question involved is whether subsections (i) and (ii) of section 13 of the Civil Servants Act (LXXI of 1973) whereunder the Federal Government is authorised to retire a person holding the post of (i) an Additional Secretary, or (ii) any civil servant who has completed twenty-five years of qualifying service for pension are repugnant to the Injunction of Islam ?

84. The Federal Shariat Court vide judgment dated 26-9-1983 found that both the above-mentioned provisions are repugnant to the Injunctions of Islam and accordingly has, directed that both the said provisions be repealed.

85. The provisions of section 13 of the Civil Servants Act (LXXI of 1973) which have been found to be repugnant to the Injunctions of Islam are couched in the following terms :- "S. 13-Retirement from service.-A civil servant shall retire from service-

(i) in the case of a person holding the post of Additional Secretary to the Federal Government or any equivalent or higher post, on such date as the competent authority may, in the public interest, direct ;

(ii) in any other case, on such date after he has completed twenty-five years of service qualifying for pension or other retirement benefits as the competent authority may, in the public interest; direct.

86. As regards the remaining five appeals, three of them, namely, Shariat Appeals Nos. 15, 19, 34 of 1984 pertain to the corresponding provisions of the four Provincial Laws, namely, section 12 of the Punjab Civil Servants Act (VIII of 1974) ; Section 13 of the Sind Civil Servants Act (XIV of 1973) ; Section 13 of.

87. The Baluchistan Civil Servants Act (IX of 1974) ; Section 13 of the N.-W. F. P. Civil Servants Act (XVIII of 1973), while the fourth appeal viz. Shariat Appeal No. 14 of 1984 pertains to the corresponding provisions framed under the Cantonment Act (II of 1924). The abovementioned five enactments, it may be mentioned, were examined suo motu by the Federal Shariat Court along with the service laws pertaining to certain Statutory Corporations like WAPDA and the Universities. In the judgment dated 27-3-1984 rendered by the Federal Shariat Court in these matters, the earlier opinion expressed by it with regard to the corresponding provisions contained in the Civil Servants Act of 1973 were reiterated so far as the four provincial laws are concerned. However, the Federal Shariat Court found that the corresponding provisions of the Cantonment Act, the Water and Power Development Authority Act and of the Universities Acts were not repugnant to the Injunctions of Islam. Shariat Appeals Nos. 15, 19 and 34 of 1984 and Shariat Appeal No. 1 of 1985 have been preferred before us by the four Provincial Governments while Shariat Appeal No. 14 of 1984 has been filed by an employee. Of a Cantonment Board, namely, Muhammad Ramzan Qureshi.

88. The appeal of Muhammad Ramzan Qureshi calls in question the vires of sub-rule (3) to rule 44 of the Pakistan Cantonment Servants Rules, 1954 (as added by S. R. U. No. 909(1) framed under the Canton--ments Act and published in the Pakistan Gazette, Extraordinary, dated 20th of September, 1982. This rule provides that :- "The Director may, in the public interest, compulsorily retire a cantonment servant on any date after he has completed twenty-five years of service qualifying for pension or other retirement benefits."

89. As for the appeals by the four Provincial Governments, the provision involved in Shariat Appeal No. 19 of 1984 Province of Punjab v. Hassan Ali Qureshi is section 12 of the Punjab Civil Servants Act, 1974. This runs as follows:- "Section 12. Retirement from service. -A civil servant shall retire from service-

(i) in the case of a person holding a post equivalent to the post of Additional Secretary to Government of Pakistan or a higher post on such date, as the competent authority may, in the public interest, direct ;

(ii) in any other case, on such date, after he has completed twenty-five years of service, qualifying for pension or other retirement benefits, as the competent authority may, in the public interest, direct ; or

(iii) where no direction is given under clause (i) or clause (ii) on the completion of the sixtieth year at his age.

90. Explanation.-In this section `competent authority' means the appoint--ing authority or a person duly authorised by the appointing authority in that behalf, not being a person lower in rank to the civil servant concerned."

91. While in Shariat Appeal No. 34 of 1984 Province of Baluchistan etc. v. Public at Large, section 13 of the Baluchistan Civil Servants Act, 1974, is involved. This provision is similarly worded as section 12 of the Punjab Act. In Shariat Appeal No. 15 of 1984 Province of Sind etc. v. Public at Large, the provisions of section 13 of the Sind Civil Servants Act, 1973, require consideration ; while the subject- matter of Shariat Appeal No. 1 of 1985 Government of N.-W. F. P. Etc. v. Federal Shariat Court etc. Is again section 13 of the N.-W. F. P. Civil Servants Act, 1973. The provi--sions of section 13 of both the last mentioned two Acts are worded differently from the provision made in section 12 of the Punjab Act and section 13 of the Baluchistan Act. The difference is that while the Provincial Governments in the last two mentioned Provinces are empowered to retire a civil servant after twenty-five years service qualifying for pension and may also retire a person holding a post of an Additional Secretary or equivalent or higher post, the provincial Governments of Sind and N.-W. F. P. Do not possess the power to retire a person holding a post of an Additional Secretary or above but can only retire a civil servant after 25 years service qualifying for pension.

92. In the first mentioned appeal, namely, Pakistan v. Public at Large (Shariat Appeal No. 6 of 1983), the judgment of the Federal Shariat Court has been challenged mainly on the following two grounds :-

(1) that neither of the two clauses of section 13 of the Civil Servants Act violate any express Injunctions of Islam. Hence the Federal Shariat Court was not justified in striking them down ; and

(2) that the entire infra-structure of the civil servant is the prerogative of the Government and as such the Government is not debarred from making any provision with regard to the tenure of civil servants including a provision for retiring them even before the normal age of superannuation or in other stated circumstances.

93. While Muhammad Ramzan Qureshi (employee of the Cantonment Board) has, in Shariat Appeal No. 14 of 1984, challenged the judgment of the Federal Shariat Court submitting that the Federal Shariat Court in deciding his case did not discuss the question why the newly-added provisions of sub-rule (3) of rule 44 of the Pakistan Cantonment Service Rules, 1954 were not invalid although they were identical in effect to the provisions of section 13 of the Civil Servants Act (LXXI of 1973) which the Federal Shariat Court found to be repugnant to the Injunctions of Islam by merely making a reference to its earlier decision Daryab Yousaf Qureshi v. Chairman, WAPDA (PLD1983FSC17and observing that service of the Canton--ment Board as constituted under the Authority of Cantonment Act, 1924, which was a Local Authority, stood on the same footing as service under the WAPDA and the Universities, which are statutory Corporations and that their employees are not entitled to the same safeguards as are available to civil servants under the Federal and Provincial Laws except the safe--guards laid down in the case of Daryab Qureshi. This finding of the Federal Shariat Court is criticised on the ground that the term "Law" has been defined in clause (c) of Article 203-B to include any custom or usage having the force of law except the Constitution, any Fiscal Law, Muslim Personal Law, or any law relating to the procedure of any Court or Tribunal or any law relating to the levy and collection of taxes and fees or banking or insurance practice and procedure. This definition would include, in its ambit, the Cantonment Act, 1924 and the rules framed thereunder. The said rules being statutory rules have, for all intents and purposes, the force of law. Accordingly, the Federal Shariat Court which had already held that the similar provisions of section 13 of Civil Servants Act are repugnant to the Injunctions of Islam should have on the same reasoning found subsection (1) of rule 44 of the Cantonment Servants Act, 1954 also to be contrary to the Injunctions of Islam. The judgment of the Federal Shariat Court, therefore, suffers from a self-contradiction and is thus liable to interference by this Court.

94. In support of the appeal filed by the Federal Government and the Provincial Governments lengthy arguments were addressed by Syed Riazul Hassan Gilani, Deputy Attorney-General and Mr. Khalil Ramday, Addi--tional Advocate-General, Punjab ; while some retired civil servants and even a serving civll servant addressed us in support of the judgment of the Federal Shariat Court in so far as its finding with regard to-the impugned provisions of the Federal Civil Servants Act and the Provincial Service Laws are concerned.

95. Mr. Khalil Ramday, in support of the appeal filed by the Province of the Punjab (Shariat Appeal No. 19 of 1984), drew our attention to Article 203-D of the Constitution which confers on the Federal Shariat Court the jurisdiction to examine whether any existing law is repugnant to the Injunctions of Islam and provide that the Court can :- " . . Examine and decide the question whether or not any law or provision of law is repugnant to the Injunction of Islam as laid down in the Holy Qur'an and the Sunnah of the Holy Prophet (p. b. u. h.). . . . . . . . . ." and submitted that the Article as worded allows any law or a provision of law to be examined and tested only as against any Injunction of Islam as laid down in the Holy Qur'an or the Sunnah of the Holy Prophet (p.b.u.h.). Thus, the Federal Shariat Court can declare a law or a provision of law as un-Islamic only if it finds that the same is violative of any Injunction of Islam as discernible only from these two sources of Islam, namely, the Holy Qur'an and the Sunnab. Accordingly, even if a law or a provi--sion of -a lave is inconsistent with a principle or the spirit of Islam, as these are not "injunctions"-because an injunction means 3n "authoritative or emphatic order" (Shorter Oxford Dictionary), the Court would not have the jurisdiction to declare such a provision of law to be un- Islamic.

96. Elaborating his submission further Mr. Ramday submitted that in the absence of any clear injunction to the contrary, in the Holy Qur'an or the Sunnah of the Holy Prophet any law or provision of law even if it is inconsistent with any principle of Islam that may have been enunciated through 1jma or Qiyas or any other source or mode cannot be declared to be repugnant to the Injunctions of Islam because, according to Mr. Ramday, all sources other than the Holy Qur'an and the Sunnah are controversial and the validity of these sources is seriously disputed by various schools of thought. Consequently, the legislator, in his wisdom, has confined the testing of laws only on the basis of agreed, undisputed and accepted sources. Mr. Ramday further submitted that the jurisdiction of the Federal Shariat Court is not Islamisation of laws i.e. To make laws according to the principles of Islam-because this is the exclusive domain of the legislature and the Islamic Ideology Council its function is only to declare whether any existing law is or is not in conformity with the injunctions of Qur'an and the Sunnah. If the impugned provisions of law are examined in this context it will be seen .As that they are not in conflict either with the Holy Qur'an or the Sunnah in so far as there is no reference to the terms and conditions of service of civil servants in the Holy Qur'an or in the Sunnah of the Holy Prophet, a fact which is admitted by the Federal Shariat Court itself in para. 48 of the judgment. Hence the question of inconsistency with the injunctions of the Holy Qur'an and the Sunnah did not arise.

97. Mr. Ramday further submitted that Islam is a Code for all times and for all societies. Accordingly, such matters like the terms and conditions of service of civil servants have. Not been prescribed by Allah because the conditions and requirements of his people in such like matters keep altering with the times and He left such like matters to the decision of Ulul Amar, but with the proviso that his decisions should not be inconsistent with the commands of Allahrand the Rasool. Hence in the absence of any injunction of Allah and the Rasool on the subject, the Federal Shariat. Court had no jurisdiction to declare the provisions of law in question to be repugnant to the Injunctions of Islam.

98. Mr. Ramday further submitted that the basic rule prescribed by the Holy Qur'an is that the Muslims must follow Allah and thereafter the Holy Prophet and after that the Ulul Amar with the rider that the commands of Ulul Amar shall not be inconsistent with the commands of Allah and the Rasool if any, on the subject. The reason for this is that the requirement of any given society change with the times and also that what is proper for one society may not be equally appropriate for another.

99. Therefore, the Almighty in His infinite wisdom provided only very few basic and fundamental 'Dos' and `Don'ts' and left the rest to be decided by the Ulul Amar according to the, requirements of the given time and of a given society. This Islamic foundation of the chain of command is followed even by Western jurists when they said that the legislature possesses greater knowledge of the needs and the circum--stances and the rule laid down by it should not be interfered with by the Courts of law ; see for instance Louisville Gas & Electric Co. v. Uell Coleman (1) and Ram Krishna Dalmia's case (2). Ulul Amar in the modern state is not just one individual but a combination of the legislature, the executive and the judiciary. Therefore, in any matter where the field has been left open by Allah and the Rasool, the legislature (Ulul Amar) is at liberty to give any command i.e. make any law which it deems best for the people and the Ulul Amar (legislature) is the best and the sole judge of the requirement and the circumstances. Consequently, the Civil Servants Act, 1973 and the provisions of law relating to civil servants having been framed by the appropriate legislature must be accepted as being most appropriate for the requirements of the society at the present time.

100. Moreover, there is much wisdom behind the rules prescribed by the legislature which were found to be repugnant to the Injunctions of Islam by the Federal Shariat Court. Thus, so far as retirement after completion of 25 years of service is concerned, the provision has existed in the sub-- continent since before the year 1925 and exists both in India and Pakistan even today. Therefore, besides providing a continuous check on an employee's performance and acting as a deterrent from becoming slack, the provision can be sustained even on the basis of URF (Custom) as having been universally followed for over 60 years.

101. So far as the retirement of Secretaries is concerned, the civil servants of this category are in the inner-most circle of the executive involved in the framing and execution of policies. At this level, the Ulul Amar in the executive must act as one team. Supposing the thinking and the views of a person at Secretary's level are absolutely opposed to the views of the people at the helm of affairs, then it will be difficult for them to work together. Thus, for instance, if the Government of the day has absolute Islamic views and wishes to implement Islam in all respects but the Secre--tary has socialistic or communistic views-which is no crime or offence ---it will not be possible for the two to work harmoniously. However, no action can be taken against the Secretary under the Efficiency and Discipline Rules and he cannot be removed from service for his views. Hence there is necessity to relieve people at such level of their duties if their thinking is not in line with the policies of the Ulul Amar. Supposing also that the employee is honest and is not guilty of any misconduct but is over

(1) 277 U S 32(2) AIR 1958 SC538 e Punctilious or over fastidious. He cannot be removed from service under the Efficiency and Discipline Rules but his retention therein would not serve either. Therefore, the need to have power to retire such a person. See Farzand Ali's case (PLD 1970 SC 98). To avoid such problems a test could be provided for an employee for his further continuance in service and if the Legislature (Ulul Amar) has fir ed it at 25 years of service, then there is nothing unreasonable therein. Mr. Ramday also submitted that laws made by Ulul Amar can be un-Islamic only if they are found to be inconsistent with the commands of Allah and the Rasool but they certainly cannot be termed as un-Islamic only because they are found to be less desirable from the Islamic point of view. For instance keeping a beard may be more desirable in Islam, as per the Sunnah of the Holy Prophet (p. b. u. h.). But it does not mean that a person, who does not keep a beard, is un-Islamic or a Kafir.

102. Mr. Ramday also submitted that the judgment of the Federal Shariat Court was self-contradictory.

103. In the impugned judgment the provisions of WAPDA Act of 1958 and the provisions of various other Acts relating to Universities, Cantonment Boards and other Statutory Corporations which were even harsher than the impugned provisions of the civil servants Acts had been found to be valid as against the much milder provisions con--tained in the various Civil Servants Acts. This was a contradiction in terms. If the learned Federal Shariat Court was convinced of the sound--ness of its findings in respect of civil servants, then the same findings should have been adopted in the case of employees of WAPDA, the Universities, Cantonment Boards and the employees of other Statutory Corporation. The distinction drawn by the Federal Shariat Court between the two sets of employees was imaginary and unreal. In fact and in reality, there was hardly any distinction between an employee of the Government and an employee of a Statutory Corporation which was managed, run, administer--ed and financed by the Government. The WAPDA, Cantonment Boards, Universities etc. Were all performing important Governmental functions and the duties being performed by their employees were as important as the duties being performed by the employees of any Department of the Government. Further assignment of such important public functions to such orgnisations instead of Government Departments was not because the duties being performed by them were unimportant but because of certain technical and legal reasons as pointed in Muhammad Amir v. Province of Punjab (PLD 1984 Lah. 295 According to Mr. Ramday, the contradiction in the judgment of the Federal Shariat Court was evident from the fact that the Holy Quran and the Sunnah did not provide anywhere that security of service will be given only to those who are defined as `Civil Servants' in various Civil Servants Acts and to none-else, even if the other employees were also being paid out of public funds and were performing equally important Governmental functions. Moreover, prior to 1973, the position might have been different as the Constitution provided certain guarantees to the civil servants but thereafter both the civil servants and the employees of statutory bodies were governed by their respective statutes and were at par in that respect. From this point of view also the distinction drawn between civil servants and the employees of WAPDA and the Universities etc. Was not tenable.

104. Syed Riaz-ul-Hassan Gillani, Deputy Attorney-General has submitted that the question of appointment and dismissal of civil servants is in the discretion of the competent 'authority and that no limitations or restrictions have been imposed in the Holy Qur'an and the Sunnah as to how and in what circumstances powers in this respect are to be exercised. Therefore, the Federal Shariat Court erred in holding that the provisions of sub--section (i) and subsection (ii) of section 13 of the Civil Servants Act and the corresponding provisions in the Provincial Laws empowering the retire--ment.Of persons who have completed 25 years service qualifying for pension and of Additional Secretaries and above. Were against the Injunctions of Islam.

105. In its judgment the Federal Shariat Court has accepted that neither the Qur'an nor the Sunnah of the Holy Prophet ;p.b.u.h.) have provided as such any safeguards to the civil servants against the above eventualities but it has taken the view that to hold that "the Court has jurisdiction only to find out the repugnancy from specific injunctions in the Qur'an and the Sunnah and that if no such injunction is found the law will be treated to be good is to say the least a very narrow view of the constitutional jurisdiction of this Court. Specific laws in the Qur'an and the Sunnah are not many but the principle laid down therein embrace everything inter alla in the field of legislation. In view of the absence of specific provision pertaining to a particular matter it becomes Court's duty to discover and find out whether a particular legislation is not repugnant to the principle laid down in or emanating from the Qur'an and the Sunnah". Explaining their point of view further it was added that "the repugnancy nancy is to be discovered inter alia not only against a specific provision (~l ojl;s, Ibarat-ul-Nas) but also what is described by the jurists and commentators of the Holy Qur'an as (Dalalat-un-Nas, Isharat- un-Nas, Iqtada-un-Nas), that is something which emanates from the Verse by necessary intendment".

106. Proceeding further the Court observed :- "In addition a number of laws have been evolved by the use of Qiyas or analogy from the injunctions in Holy Qur'an and the Sunnah of the Holy Prophet (peace be upon him). Principles and rules evolved from the Qur'an and the Sunnah are equally binding and no law can be in accord with the Qur'an or the Sunnah which is repugnant to such principles. Thus, one of the main principles is the principle of Adl on which the whole superstructure of Islamic Polity is founded. The word FASADis an antonym of Adl. The principle of legislation should, therefore, be to advance ADL and to frustrate Fasad Ol-j) or mischief. Any legislation which does not advance what should be advanced in Islam and does not frustrate what should be frustrated cannot enjoy the sanctity of being in accord with the Qur'an and the Sunnah."

107. After laying down the above principle the Federal Shariat Court examined the question whether the impugned provisions did or did not tend to advance AN (J.Ac) and to frustrate FASAD. In this con-- nection, the question was discussed whether classification was permissible an Islam and held that although classification per se was not forbidden in Islam but the classification must stand the test of "reasonableness and intelligibility" and that the "classification must have a reasonable relation to the object or the purpose sought to be achieved by the impugned legisla--tion". It was further observed that "the power of the legislation should be exercised in a manner that the chances of oppression and discrimination" are reduced as far as possible. Another question discussed was how the "State service" should be organised and the opinion was expressed that while State service is subject to the rules of security of tenure and protection against removal and dismissal, service other than State service is based upon a contractual relationship where these safeguards are not essential. It was observed that :- "All legislation should create conditions that every civil servant may be in a position to refuse to obey an order which is contrary to Sharia without fear of earning bad reports which may ultimately and in his premature retirement. A person in authority, however, lowly placed has the right to order Maroof and to restrain from Munkar. He has a duty to act with Adl and to remove Fasad (mischief).

108. In fact it is a maxim that removal of mischief is pre--ferable to and better than the acquisition of benefits."

109. The above concept was further explained in these words :- "A civil servant is required to act as a servant of the State and not virtually as a servant of even the Head of the State, Governor or any other appointing or competent authority. This being so no constitutional Government can be allowed to act in a manner which may jeopardize the legal exercise of power by a public servant. A fortiori no opportunity can be provided in an Islamic State to any one to curb the urge and instinct of others to disobey his arbitrary, dishonest and orders which are contrary to Sharia. Security of tenure of a civil servant can be an incentive to him for discharging his duties honestly, constitutionally and according to Sharia. On the other hand any apprehension in his mind against this security is liable to breed in him what is known as servility to the boss. This is something which may make him corrupt. Security, therefore, tends towards the advancement of the welfare of the society and elimination from it of the main source of mischief, i. e. corruption ; servility is likely to endanger his independence of action and make his actions subservient to the wishes of the boss, howsoever, unlaw--ful and un-Islamic they may be. All process of law making is within the scope of Verses i. e. Q. 22 : 41 and Q. 4 : 59."

110. Coming to the question of removal of civil servants it was observed :- "If the Head of State wants to remove his subordinate, he can do so only if he entertains some doubts about him because it is the rule that the retention of such a person is likely to create mischief and does not advance welfare or benefit. It is immaterial whether the incumbent is a holder of (general authority) or (special authority). However, if there be no such cause, there are 3 alternatives. The first alternative is that he may remove him to substitute him with a person of lower qualifications. This is not permissible since therein lies the loss of public interest in view of the superiority of his qualifications and it is not open to the Imam to act against public interest. The second alternative is to remove him for appointing in his place a better person. This certainly advances public interest or interest of the Muslims and is permis--sible. The third alternative is that the man to be appointed holds similar qualifications as the one who is to be removed. Some of the jurists permit it on ground of use of discretion among two equal but others consider it to be unlawful. Such a replacement is not permissible according to this opinion."

111. In this view of the matter the Court opined :- "The rule, therefore, is that the authority cannot pass an order of removal of the executor except for cause. If the Waliul Amar (person in authority) removes any office holder from the office for cause, it is permissible ; but if it is not for cause, it is not permitted. Removal is not permitted except for cause."

112. Coming to the question of the discretion of the authorities the Court held "The discretion of the authorities is not to be exercised arbitrarily if the power pertains to the rights of Allah the persons in authority are bound to act according to the requirements of public interest.

113. If denial of exercise of authority be in public interest, it must be denied but if it be in public interest to act upon it, it must be acted upon. This is a rule which was made at a time when there were no written laws nor any guiding principles were statutorily set down. Now-a-days the power can be exercised by the highest authority only if it is conferred by legislation. It is, therefore, the duty of the Legislature to lay down principle which may check the misuse of the power."

114. To prevent misuse of power the need for providing an opportunity of hearing before taking action against the civil servant was emphasised and in this connection it was observed :- "It appears odd that while a civil servant is given full opportunity of being heard if disciplinary action is required to be taken on inter alia the same grounds, he is denied that opportunity completely if action is taken under section 12, subsections (1) and (2). Both actions separate him from the office and if it is necessary to spare a civil servant the agony of stigmatization, there is no reason why he may be left open to that evil by clothing those grounds with the garb of retirement in the public interest. Pension or other retire--ment benefits cannot be a compensation for the stigma he is bound to suffer. There is another disparity also. Section 13 of the Punjab Act provides that a retired civil servant shall not be re-employed in the Government unless such re- employment is necessary in the public interest. The public interest in this section has an altogether different connotation but his re-employment in Government cannot be allowed because he was retired in the public interest on charges of having outlived his utility on grounds of inefficiency, corruption and subversion. His retirement becomes a disqualification for him. And if public interest can be served by his re-employment, obviously his retirement in public interest was wrong."

115. Since removal of civil servant can only be ordered for a cause, for this reason also it would be necessary to give the person affected an opportunity of being heard, because "cause" cannot be decided by a competent authority in the secrecy of his office because the object is to minimise rather to eliminate mischief or possibility of corruption and arbitrariness.

116. The conclusion was expressed thus :- "Section 12(i) and (ii) of the Punjab Act and corresponding sections of the Frovincial laws are, therefore, repugnant to the Qur'an and the Sunnah. These sections are violative of the principle of Musawat (equality before law) also as there appears to be no reasonable classification of Additional Secretaries or persons of equal of higher ranks on the . One hand and other employees of lower ranks on the other. The denial of security of service was really a subject to make the holder of this office subordinate to the will of the person in authority in respective of whether his order is in accord with Sharia or contrary to it. The interest of legislation cannot be served without making it necessary to issue notice to the employee to show cause against retirement."

117. Ultimately the following directions were issued :- "We, therefore, direct the Government of the Punjab to repeal the provisions of section 12(i) and (ii) of the Punjab Civil Servants Act, 1974, by 30th September, 1984. Similarly we direct the Government of N.-W. F. P., Sind and Baluchistan to repeal by the same date the provisions of section 13(i) in each of the N.-W. F. P. Civil Servants Act, 1973, and Sind Civil Servants Act, 1973, and section 13(i) and (ii) of Baluchistan Civil Servants Act, 1974, respectively. Consequential amendments will be made in other parts of the same sections."

118. A close analysis of the judgment of the Federal Shariat Court shows that the impugned provisions have ultimately been declared to be repugnant to the Injunctions of Islam mainly because they did not provide for a prior opportunity of showing cause against the action of premature retire--ment or retirement of Officers of the rank of Additional Secretaries and above by the competent authority under subsections (1) and (2) of sec--tion 13 of Civil Servants Act, 1973 and the corresponding provisions of the Provincial Civil Service Laws. In other words the defects pointed out for holding these provisions as repugnant to the Injunctions of Islam were removable according to the Federal Shariat Court if the "cause" for which the action was being taken under the impugned provisions was communicated to the person affected and they were afforded an opportunity, of hearing before the adverse action was actually taken. The conclusions arrived at by the Federal Shariat Court really are that (i) the provision whereunder civil servants can be retired after 25 years service qualifying for pension is bad because this provision is liable to oppression/abuse (mischief); (ii) the provision enabling the Federal Govern--ment and the Governments of Punjab and Baluchistan to retire Officers holding posts of Additional Secretaries and above is bad because it militates the concept of equality inasmuch as a similar provision is not contained in the Sind and N.-W. F. P. Acts; and (iii) if an opportunity was provided to the persons affected to show cause before the adverse action was taken against them most of the mischief liable to be caused by the existence of these provisions could be avoided.

119. The fault, thus, is not so much in the provisions themselves but in the possibility if these provisions being misused and becoming instru--ments of "oppression" and "tyranny". Hence these provisions should be repealed.

120. But we do not think that this is a sound reason for holding the provisions to be invalid. Only because a provision can be used in an, oppressive or capricious manner or is capable of being misused does no mean that the provision itself becomes invalid. The impugned provision are not per se bad because so far as retirement after completion of 25 years of service is concerned such a provision has existed in the sub--continent since before the year 1925 and can be considered a salutary provision for providing a check on an employee's performance and being acting as a deterrent from his becoming slack. So far as the provision relating to the retirement of Additional Secretaries and Secretaries, is concerned this too may be useful for getting rid of civil servants who have outlived their utility but have nevertheless attained high positions on account of their seniority and action against them is not otherwise possible under the normal Efficiency and Discipline Rules.

121. However, where the action is taken whimsically or capriciously or on account of mala fide and in bad faitb, under these porvisions, against a competent and efficient civil servant remedies exist in law for challenging such an action both under the writ jurisdiction as well as by appeal to the Service Tribunal.

122. So far as the argument that such a provision impairs the sense of security of the civil servant and may force him to do anything which an unscrupulous superior may desire of him; the other view can be that absolute security could also lead to undesirable results and make the civil servant totally disinterested in his work in the belief that he cannot be touched until the age of 60 years, unless some actual misconduct is proved against him, which is not easy. As a balance has to be struck between ensuring security and efficiency and this balance has been devised by the legislature in the form of the impugned provisions, which is not Unreason--able. In any case, if an employee has been wronged for not acting in accordance with the wishes of his unscrupulous superior then judicial forums are available to him such as the Service Tribunal where be can challenge the unjustifiable action taken against him and he can bring his grievance right upto the level of the Supreme Court. This should be enough consolation to a civil servant who works honestly and if he I indeed a God-fearing individual he should not be more afraid of hi immediate superior than of his ultimate superior, namely, Almighty Allah.

123. Thus, it will lead us nowhere, nor will it be profitable if the validity of the impugned provisions are sought to be tested on grounds of reason--ableness and fairness, about which concepts differ and conflicting views can be entertained. The sole test that should guide us, therefore, for seeing whether the impugned provisions are bad is the test of repugnancy with the Qur'an and Sunnah. In other words what we have to see is only whether they are in fact repugnant to the Qur'an or the Sunnah. Indeed this is really what the Constitution requires the Federal Shariat Court to do.

124. The Federal Shariat Court under Article 203-D(1) is empowered to "examine and decide 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, hereinafter referred to as the Injunctions of Islam" and according to sub-Article (2) of Article 203-D "If the Court decides that any law or provision of law is repugnant to the Injunction of Islam, it shall set out in its decision:---

(a) the reasons for its holding that opinion; and

(b) the extent to which such law or provision is so repugnant; and specify the day on which the decision shall take effect".

125. Thus, under the Constitution, a law can be declared repugnant to the Injunctions of Islam only if it is repugnant to any injunction laid down in the Holy Qur'an or is against the Sunnah of the Holy Prophet and reasons have to be given for arriving at this conclusion. Moreover,, the extent to which the law is found to be so repugnant has also to be clearly indicated. The view expressed by the Federal Shariat Court! That in the absence of any specific injunction of the Holy Qur'an or the Sunnah of the Holy Prophet, the Court can still declare a law to be bad on account of its repugnancy to the principles laid down in or emanating from the Holy Qur'an and the Sunnah, though correct theoretically as held by this Court in Pakistan etc. v. Public at large etc. (PLD 1986SC240does not appear' to us to have been correctly applied to the facts of this case. The law in question in this case was enacted by the National Assembly of Pakistan in 1973 and was a law made by a representative body of Muslims. Such a law should not be declared to be un-Islamic lightly and only because the views about its propriety and reasonableness are not in confirmity with or are not shared by another body of Muslims, sitting as members of a Court. Accordingly unless it can be shown definitely that the body of Muslim sitting in the legislature have enacted something which is forbidden by Almighty Allah in the Holy Qur'an or by the Sunnah of the Holy Prophet or of some principle emanating by necessarv intendment therefrom no Court can declare such an enactment to be un-Islamic. The question of the reasonableness of a law or the possibilitv that it is likely to be unjustly observed in practice is a matter which can be examined by the superior Courts in exercise of their jurisdiction to enforce Fundamental Rights which, inter alia, guarantees equality of citizens under Article 25 of the Constitution. Furthermore, as pointed out already the Service Tribunals can, in exercise of the appellate powers conferred upon them, under section 4 of the different Service Laws, also examine whether the action taken against a civil servant under the impugned provision has been taken improperly.

126. The learned counsel and the other gentleman who appeared before us, were, therefore, asked to refer us to the Verses of the Holy Qur'an or to the Sunnah of the Holy Prophet relevant to the questions being considered by us. After hearing all of them we are satisfied that the observations of the learned Federal Shariat Court that there is no direct injunction either in the Holy Qur'an or the Sunnah of the Holy Prophet relating to the matter of terms and conditions of service of civil servants is correct. No doubt some Verses of the Holy Qur'an were cited to the effect that the Almighty enquired from Iblis why he had not bowed down to Adam and to the Verse that every man will be informed on the day of the judgment the reason why he has been punished. However, no Verse was cited to show that it was necessary to issue a show-cause notice before imposing any punishment or penalty.

127. The Verses of the Holy Qur'an on which reliance was placed were Verses 11 to 13 of Sura VII, which read:- TRANSLATION 11.It is We Who created you And gave you shape; Then We bade the angels Bow down to Adam, and they Bowed down; not so Iblis; He refused to be of those Who bow down.

TRANSLATION

12. (Allah) said: "What prevented Thee from bowing down When I commanded thee?

128. He said: "I am better Than he: Thou didst create Me from fire and him from clay."

129. TRANSLATION 13.(Allah) said: "Get thee down From this: it is not For thee to be arrogant, Here get out, for thou Art of the meanest (of creatures)"

130. And Verses 13 and 14 of Surah 17, which read:-- TRANSLATION 13.Every man's fate We have fastened On his own neck: On the Day of Judgment We shall bring out For him a scroll, Which he will see Spread open.

131. TRANSLATION 14.(It will be said to him:) "Read thine (own) record: Sufficient is thy soul This day to make out An account against thee."

132. But these Verses do not show that Almighty Allah has ordained that before taking any action adverse to any person he must be issued a show-1 cause notice.

133. Again, this principle is also not established from the Sunnah of the Holy Prophet (p. b. u. h.). On the other hand, the following extract from Shah Wali Ullah seems to point to the contrary:- Thus, although it is not possible to contend that the Holy Qur'an ordains that it is necessary to issue show-cause notice to a person before condemning him and, therefore, the competent authority, acting in good faith, can take the action of prematurely retiring a civil servant as provided for in subsections (i) and (ii) of section 13 of Civil Servants Act and the corresponding provisions of the Provincial Service Laws, but I feel that on the basis of the Verses of the Holy Qur'an cited above it can fairly be submitted that the principle emanating from the Verses, cited above, and the practice of the Almighty Allah which is evidenced therefrom entitles a civil servant to be informed of the reasons/grounds wherefor his retirement has been directed in "public interest". He should be told' why the action has becn taken against him and in the words of God Almighty be asked to read his own record which has been responsible for the fate that has befallen him. Furthermore, since an appeal is competent before the Service Tribunals against. The action taken against him, the affected civil servant will be in a better position to challenge the order passed against him in case he feels that he has not been dealt with justly and fairly.

134. I further feel that no difference exists in this respect between the cases of civil servants who are in the employ of the Government and employees of the Statutory Corporation like WAPDA, Cantonment Boards..1 Universities etc. I would, therefore, agree with the submissions on this point made by Mr. Khalil Ramday, Additional Advocate-General (Punjab).

135. Hence the employees of all such organization must also be intimated the reasons/grounds for their premature retirement which may be ordered under provisions similar to those under which the civil servants are liable to be retired.

136. In this view of the matter an amendment will. Be necessary in the sense indicated above in the provisions impugned before us. Accordingly, a proviso may be added to the impugned provisions to the effect that in case where a direction is made to retire an employee from service under the aforesaid provisions the said person will be intimated the grounds/I reasons for the action taken against him which will be duly specified in the order of his retirement.

137. The upshot is that all the six appeals succeed and are allowed, subject, however, to the direction given above. It is further ordered that the above direction/decision shall be carried into effect by the appellants in Shariat Appeal No. 6 of 1983; the appellants in Shariat Appeals Nos. 15, 19 and 34 of 1984 and the appellant in Shariat Appeal No. 1 of 1985 as also by respondent No. 1 in Shariat Appeal No. 14 of 1984 within 90 days of the announcement of this judgment.

138. SHAFIUR RAHMAN, J.-I have had the benefit of the original draft as well as the revised draft judgment prepared by my learned brother Dr. Justice Nasim Hasan Shah and the opinion recorded by another learned brother Mr. Justice Maulana Taqi Usmani. I consider it necessary to record my conclusions and reasons separately.

139. There is a provision, section 4 of the Civil Servants Act, 1973, which reads as hereunder :- "4. Tenure of office of civil servants.--Every civil servant shall hold office during the pleasure of the President."

140. Similar provision exists in all the Provincial Civil Servant Acts, except that of the Punjab. It is a provision which had its precedent in Article 216 of the Interim Constitution, 1972 ; Article 176 of 1962 Constitution ; Article 180 of the 1956 Constitution ; section 240 of Government of India Act, 1935, section 96-B of Government of India Act, 1915 introduced in 1919. It can truly be said to be our heritage of the colonial past.

141. Section 4 of the Civil Servant Acts has, at its back, Article 240 of the present Constitution which is in the following words - "240. Subjeet to the Constitution, the appointments to and the conditions of service of persons in the service of Pakistan shall be determined :--

(a) in the case of the services of the Federation, posts in connection with the affairs of the Federation and All-Pakistan Services, by or under Act of Majlis-e-Shoora (Parliament); and

(b) in the case of the services of a Province and posts in connection with the affairs of a Province, by or under Act of the Provincial Assembly.

142. Explanation.-In this Article, `All-Pakistan Service' means a service common to the Federation and the Provinces, which was in existence immediately before the commencing day or which may be created by Act of Majlis-e-Shoora (Parliament),"

143. Such a constitutional and statutory base has prompted the Federal Government and also the Sind Government to take up the position that "infrastructure of Civil Service is inherently a prerogative of every Government."

144. Indeed, if this power or prerogative, and the tenure at its .Pleasure, is conceded to the designated authorities, as it has been by the Federal Shariat Court in the impugned judgment, for no fault has been found with it, then no limitation can be placed on its exercise and the subject can admit of no debate or controversy and cannot be a subject-matter of adjudication in Courts in proceedings like the one before us.

145. The legal amplitude of tenure at pleasure appears clearly from the following comment on it (43 American Jurisprudence) - "Rem ovals at Will or Pleasure.-The general rule as to offices created to be filled by appointment is that if the legislature does not designate the term of the office, the appointee will hold only during the pleasure of the appointing power, and may be removed at pleasure, at any time without notice or hearing. So, too, statutes sometimes provide with respect to certain officers ibat they shall within the tenure prescribed be removable at pleasure, which of course, means without requiring any cause for such removal ......... No formal charges or hearings are as a rule required where a public officer holds only at the pleasure of his superiors, as where the provision for appointment prescribes no definite term and does not require that the removal be for cause, or where the removal depends on the exercise of personal judgment on the question whether cause for removal exists. It has been seen that the holder of a public office without a definite term holds at the pleasure of the appointing power. So, also, a grant in general terms of the power to remove public officers carries with it the right to remove at any time or in any manner deemed best, with or without notice and hearing."

146. We have to apply to this or such a provision the test of Injunctions of Islam, as laid down in the Holy Qur'an and the Sunnah of the Holy Prophet. With regard to State and its authority over individuals there are Verses 58 and 59 of Sura Nisa. Their translation is as follows :- "58. Allah doth command you to render back your Trusts To those to whom they are due ; And when ye judge Between man and man, That ye judge with justice Verily how excellent Is the teaching which He giveth you For Allah is He Who heareth And seeth all things.

59. O ye who believe Obey Allah and obey the Apostle, And those charged with authority among you. If ye differ in anything Among yourselves, refer it To Allah and His Apostls, If ye do believe in Allah And the Last Day That is best, and most suitable For final determination."

147. Maulana Maudoodi in his Tafheemul Qur'an, Volume I, page 363 com--menting on these verses remarks- Maulana Mufti Muhammad Shafi in his Mariful Qur'an Volume 2 pages 446 and 449 comments in the following words - The substance of these verses was adopted in the opening words of the .The Resolution of Pakistan in the following words - "Whereas sovereignty over the entire Universe belongs to Allah Almighty alone, and the authority which He has delegated to the State of Pakistan through its people for being exercised within the limits prescribed by Him is a sacred trust."

148. These words then became the opening words of the preamble of our first Constitution in the following words - "Whereas sovereignty over the entire Universe belongs to Allah Almighty alone, and the authority to be exercised by the people of Pakistan within the limits prescribed by Him is a sacred trust."

149. The subsequent Constitutions continued it till 1985 when by Presi--dential Order No. 14 of 1985 it was incorporated in the Constitution of 1973 as Article 2-A. The opening words now are as hereunder - "Whereas sovereignty over the entire universe belongs to Allah Almighty alone and the Authority which He has delegated to the State of Pakistan, through its people for being exercised within the limits prescribed by Him is a sacred trust."

150. The concept of Delegated Authority held in trust enshrined in Verse 58 has invariably and consistently been given an extended meaning. Addi--tionally, all authority being delegated authority and being trust, and a sacred one for that matter, must have well-defined limits on its enjoyment or exercise. In the Holy Qur'an more so, but also both in the Western and the Eastern Jurisprudence delegated authority held in trust has the following attributes :- "(i) The Authority so delegated to, and held in trust by, various functionaries of the State including its Head must be exercised so as to protect, preserve, effectuate and advance the object and purposes of the trust.

(ii) All Authority so enjoyed must be accountable at every stage, and at all times, like that of trustee, both in the heirarchical order going back to the ultimate delegator, and at the other end to the beneficiary of the trust.

(iii) In discharging the trust and in exercising this delegated authority, there should not only be substantive compliance but also procedural fairness."

151. Applying these tests, it must be held that the concept of tenure at pleasure is repugnant to the Injunctions of Islam. It must, however, be. Made clear and that this provision of the Act was not noticed, or in any case, not dealt with by the Federal Shariat Court in.The impugned judgment. Not even before us during the course of arguments its presence and legal effect was noticed. It is only when examining the legality of section 13 of the Civil Servants Act and similar provision in other Acts that of necessity and not by choice, this provision had to be taken note of and it proved to be the first hurdle, and a majoi one, in reaching section 13 of Civil Servants Act.

152. Section 13 of the Civil Servants Act enacts as follows :- "13. Retirement from service.--A civil servant shall retire from service :-

(i) in the case of a person holding the post of Additional Secretary to the Federal Government or any equivalent or higher post, on such date as the competent authority may, in the public interest, direct ;

(ii) in any other case, on such date after he has completed twenty--five years of service qualifying for pension or other retirement benefits as the competent authority may, in the public interest, direct ; or

(iii) where no direction is given under clause (1) or, as the case may be, under clause (ii), on the completion of the Sixtieth year of his age.

153. Explanation.-In this section `competent authority' means the appoint--ing authority or a person duly authorised by the appointing authority in that behalf, not being a person lower in rank than the civil servant concerned."

154. Retirement in this section amounts to termination of service with all the earned benefits, without stigma, not in any case as a measure of punishment. Does it not in its turn necessarily imply that if the other , conditions mentioned in the section are not satisfied, though public interest demands the retirement or termination .Of service of such an employee, or his removal no action can be taken against him. This makes it clear that justification for the action is not grounded so much in public interest as in holding of the post of Additional Secretary and above or on completing 25 years of service which by itself is not a very relevant factor. If we had in the past law justifying such an action on completion of twenty-- five years qualifying service, when tenure was at pleasure, it does not justify its continuance when tenure is held not to be at pleasure.

155. Why are the public offices created and continued? It is not because someone wants it or that someone is to be provided for. As stated in 42 American Jurisprudence "public offices are created for the purpose of effecting the end for which the Government has been instituted, which is the common good, and not for the profit, honour, or private interest of anyone man, family, or class of men". Public interest is the predominant factor in creation of a public office, in appointment of a person to that office and of his continuance in that office. If the public intesest requires the termination of service, retirement or removal from service, it should be possible to achieve it at any stage of service, on any post that one may be occupying. Such retirement, removal or termination should not be confined to a particular stage, age, or post. What are the objective demands of public interest concerning a particular public office and the duties relating to it should be capable of definition and description because in reviewing the action in the heirarchy itself, or outside it before the Service Tribunal or in Court, it will have to be tested objectively. Classi--fication and categorization on rational basis should be possible.

156. Misconduct has been defined (Rule 2(4) ) in Efficiency and Discipline Rules as follows :- "(4) "misconduct" means conduct prejudicial to good order or service discipline or contrary to Government Servants (Conduct) Rules, 1964 or unbecoming of an officer and a gentleman and includes any act on the part of a Government servant to bring or attempt to bring political or other outside influence directly or indirectly to bear on the Government or any Government officer in respect of any matter relating to the appointment, promotion, transfer, punishment, retirement or other conditions of service of a Govern--ment servant."

157. The grounds on which a civil servant can be proceeded against are enumerated in rule 3 in the following words : - "3. Where a Government servant, in the opinion of the authority -

(a) is inefficient or has ceased to be efficient ; or

(b) is guilty of misconduct ; or

(c) is corrupt, or may reasonably be considered corrupt because --

(i) he is, or any of his dependants or any other person through him or on his behalf is, m possession (for which he cannot reasonably account) of pecuniary resources or of property disproportionate to his known sources of income; or

(ii) he has assumed a style of living beyond his ostensible means ; or

(iii) he has a persistent reputation of being corrupt ; or

(d) is engaged, or is reasonably suspected of being engaged, in subversive activities, or is reasonably suspected of being associated with others engaged in subversive activities or is guilty of disclosure of official secrets to any unauthorised person, and his retention in service is, therefore, prejudicial to national security, the authority may impose on him one or more penalties."

158. Section 9 of the Civil Servant Act provides that in case of selection post the promotion is on the basis of "selection on merits" and on a non-selection post on the basis of "seniority-cum-fitness".

159. On page 159 of Esta Code 1983 exists the following entry - "Higher tenure posts at the centre.-Government of Pakistan have decided that it should be brought home once more to all concerned that higher tenure posts at the Centre (as well as in the Provinces) are selection posts which no officer can claim as of right."

160. In this background of laws it would appear rather uncharitable and harsh to suggest that somewhat unbalanced and eccentric civil servants do enjoy the protection in service and are allowed to attain the high position of Additional Secretaries and Secretaries on the basis of seniority and it is such officers who can be usefully got rid of through such a reserve power.

161. The scheme of the Civil Servants Act and the rules framed thereunder exhibit a more or less complete Code wherein an age of superannuation is prescribed, termination of service is possible in the case of a probationer, (section (1) (i) ) ad hoc employee or temporary employee; (section 11(3)) employee on contract (section (1) (i)), on abolition of a post, (section 11(2)).' For default, dereliction, disobedience, misconduct, corruption, subversion the following minor and major penalties are prescribed (section 4 of~ Efficiency and Discipline Rules) - "(a) Minor penalties

(i) censure ;

(ii) Withholding, for a specific period, promotion or increment, otherwise than for unfitness for promotion or financial advancement, in accordance with the rules or orders pertaining to the service or post ;

(iii) stoppage, for a specific period; at an efficiency bar in the time--scale, otherwise than for unfitness to cross such bar ;

(iv) recovery from pay of the whole or any part of any pecuniary loss caused to Government by negligence or breach of orders ;

(b) Major penalties

(i) reduction to a lower post or time-scale, or to a lower stage in a time-scale ;

(ii) compulsory retirement ;

(iii) removal from service ; and

(iv) dismissal from service.

(2) Removal from service does not, but dismissal from service does, disqualify for future employment."

162. There is no rational basis for carrying over a residual plenary power to retire or terminate employment any time after 25 years service or of those who by their efficient and long service have come to hold the post of Additional Secretary and above. On the contrary, such a reservation c of power, cuts across the entire scheme of classification and control, protection and punishment. It has the appearance of being arbitrary an subjective and this is what is repugnant to the concept of a delegated power held in trust.

163. Accountability in the exercise of power demands that it should be exercised objectively on material which is relevant and there should be afforded an opportunity at least of showing the correctness- or incorrectness, relevance or irrelevance of the material. I would not for a moment suggest adoption of any particular provision but can refer to a provision to be found in the American Civil Service Act, 1946 in the following words- "No person in the classified civil service of the United States shall be removed therefrom except for such cause as will promote the efficiency of said service and for reasons given in writing, and the person whose removal is sought shall have notice of the same and of any charges preferred against him, and be furnished with a copy thereof, and also be allowed a reasonable time for personally answering the same in writing ; and affidavits in support thereof; but no examination of witness nor any trial or hearing shall be required except in the discretion of the officer making the removal; and copies of charges, notice of hearing, answer, reasons for removal, and of the order of removal shall be made part of the records of the proper department or office, as shall also the reasons for reduc--tion in rank or compensation; and copies of the same shall be furnished to the person affected upon request, and the Civil Service Commission shall also, upon request, be furnished copies of the same."

164. Such a provision requires application of mind, verification of the material and associating the individual concerned before striking him and the record so prepared will at once be available to the reviewing authorities, be it in the heirarchy or outside it, of the fairness of the action both in substance and in form. The provision as it stands at present permits no in words but in practice hurried action on extraneous or unverified material and a leisurely and usually half-hearted defence in protracted litigation, throwing avoidable burdens on Courts and Tribunals.

165. For the reasons stated above, my conclusions are as follows :-

(1) Though not directly under challenge, but of necessity, while examining the challenged provisions of the Statutes taken note I find the following provisions to be repugnant to Verse 58, Sura Nisa of the Holy Qur'an -

(i) Section 4 of Civil Servants Act.

(ii) Section 4 of Sind Civil Servants Act, 1973.

(iii) Section 4 of Baluchistan Civil Servants Act, 1974.

(lY) Section 4 of N.-W. F. P. Civil Servants Act, 1973.

(2) The following provisions of the Statute/Statutory Rules and challenge are found to be repugnant to the Injunctions of Islam (Verse 58, Sura Nisa, Holy Qur'an) :-

(i) Section 13, clauses (i) and (ii) of Civil Servants Act, 1973.

(ii) Section 12, clauses (i) and (ii) of Punjab Civil Servants Act, 1973.

(iii) Section 13, clause (i) of Sind Civil Servants Act, 1973.

(iv) Section 13, clauses (i) and (ii) of Baluchistan Civil Servants Act, 1974.

(v) Section 13, clause (i) of the N.-W. F. P. Civil Servants Act, 1973.

166. On these findings I would dismiss all the appeals except Shariat Appeal No. 14 of 1984 which shall be allowed. I would allow a period of six months from the announcement of the judgment to the concerned Govern--ments to take consequential steps failing which this decision shall take effect.

167. No order as to costs.

168. ORDER. OF THE COURT By majority, the following appeals are dismissed Shariat Appeal No. 6 of 1983 ; Shariat Appeals Nos. 15 , 19 and 34 of 1984 ; Shariat Appeal No. 1 of 1985.

169. And Shariat Appeal No. 14 of 1984, is allowed.

170. The provisions of the Statutes and statutory rules specified below, under challenge, in these appeals, are found to be repugnant to the Injunctions of Islam ; in so far as they do not provide for due notice of the action proposed to be taken and opportunity of showing cause against such action

(i) Section 13, clauses (i) and (ti) of Civil Servants Act, 1973.

(ii) Section 12, clauses (i) and (ii) of Punjab Civil Servants Act, 1973.

171. (iii)Section 13, clause (i) of Sind Civil Servants Act, 1973.

(iv) Section 13, clauses (i) and (ii) of Baluchistan Civil Servants Act, 1974.

172. (v)Section 13, clause (i) of the N.-W.F.P. Civil Servants Act, 1973.

173. (vi)Sub-rule (3) of Rule 44 of Pakistan Cantonment Servants Rules, 1954 framed under the Cantonments Act, 1924.

174. The competent authorities are hereby allowed a period of six months from today (11-3-1987) to amend the law so as to bring it into conformity with the injunctions of Islam, failing which they shall cease to have legal effect.

175. The appellants in cases other than Shariat Appeal No.14 of 1984 shall pay the cost of those who appeared to oppose them at the rate of Rs.3,000 per individual. The appellant in Shariat Appeal No. 14 of 1984 shall be paid as Rs.3,000 as costs by the respondents therein.