' GUL MUHAMMAD KHAN, C.J.--During the suo moto examination of laws, this Court examined the above laws and pin-pointed certain provisions as repugnant to Injunctions of Islam. The relevant provisions, under these Acts were section 11 of the Act LVIII of 1975 and Act LIX of 1975 (the above first two Acts) section 20 of the Act LXII of 1975 relating to Federal Ministers and Ministers of the State and section 16 of the last two Acts LXXXII of 1975 and LXXXIII of 1975. All these sections provide that if the persons mentioned therein receive any injury, as a result of travel by air on official duty, they themselves shall be paid by the Government compensation as fixed by the above sections. In case of death however, the compensation is payable to the persons nominated and in the absence of such nomination to his heirs.
2. This Court, in the previous judgment, held that these provisions about payment of compensation in case of death are repugnant to the Injunctions of Quran and Sunnah as they violated the rules of inheritance. It was therefore ordered that these sections shall be amended so as to provide for payment of compensation, in case of death, to the heirs of the deceased only, but, if for the sake of conveniences it is considered essential that the nominee should be paid he wilt receive it as the agent of all the heirs to be disbursed between them according to Islamic law and he shall also furnish security for the disbursement.
3. The Federal Government challenged the order in an appeal, on which the Appellate Shariat Bench of the Supreme Court remanded the case. In the reported judgment (PLD 1986 S. C.240) the Appellate Shariat Bench of the Supreme Court was pleased to order as under: - "In the light of the foregoing, on account of the omission by the Federal Shariat Court to give reasons by making references to the Holy Quran and Sunnah and their principles as discussed earlier, together with the directions for the enactment of certain laws, as also with the observations in the above paragraphs, these appeals are allowed and, the cases are remanded to Federal Shariat Court for fresh decisions in accordance with the law."
4. We have heard the learned counsel for the parties as also the Juris consults and have been strengthened to uphold the view already expressed. The contention raised on behalf of the State and supported from the opinion of the counsel of Islamic Ideology, is quite misplaced. The compensation provided for in the enactment is on account of death due to accident. Thus even on the basis of the argument of the Council of -Islamic Ideology, the deceased had sufferred an injury before his death or the death was the cause of the injury suffered.
5. In that view of the matter, the compensation is equated with 'diyat' which is without any controversy heritable. See verse 92 of Surah Al-Nisa which is as under:- "It is not for a believer to slay another believer except by mishap. And whose slayeth a believer by mishap shall set free a believing bondsman and pay blood-money to his family unless they forego it as a matter of charity. But if the slain belonged to a people hostile to you and he was a believer, then set free a. Believing bondsman; and if the slain belonged to a people between whom and you there is alliance, then let the blood-money be paid to his family and a believing bondsman be also set free; but he who hath not the means for- this should fast two consecutive months. This is a penance enjoined by God by way of repentance. God, the Wise, knoweth why He does so."
' The compensation provided in the above law shall thus be deemed to be property left by the deceased and it must be divided according to B the law of inheritance.
6. The following 'Ahadith' further show that no heir can be given more than his share by way of will: {{URDU TEXT}} "Abu Omamah reported: I heard the Messenger of Allah say in his sermon in the year of the Farewell Pilgrimage; Verily Allah has given every man having right his right. So there shall be no bequest for an heir. (Abu Daud and Ibn Majah and Tirmizi)." (Mishkat-ul-Masabih by Al-Haj Maulana Fazlul Karim Volume II p.324). {{URDU TEXT}} "Sa'ad-b-abi Waqqas reported: I fell ill in the Year of Victory and was at the point of death. The Holy Prophet (PBUH) came to visit me in illness. I said: 0 messenger of Allah, I have got abundant property and there is nobody to inherit me except two daughters. Shall I dispose of my entire property? 'No' said he. I enquired: "Then half?" 'No' said he. I asked: "Then one-third?" He said "One third, and one-third is too much. That you should leave your heirs free from want is certainly better than that you should leave them poor to beg of men, that you should never incur an expense seeking therewith the pleasure of Allah but you will be rewarded therefor, even for a morsel of food which you lift up to the mouth of your wife." (Agreed) (Ibid page 323).
' There is another tradition reported in the following words:- (Translation--If a deceased leaves behind property or any other right that belongs to his heirs and if he leaves some debt or liability or children, they will be my responsibility).
' Another tradition of the same nature is reported in 'Bukhari' volume III page 290.
(Translation--And I am a better guardian of the believers than themselves for, if a believer dies leaving behind a debt, it will be my liability, but if he leaves behind property, it will devolve on his heirs).
At the time {{URDU TEXT}} (last sermon) the Holy Prophet (PBUH) is reported to have stated as under:- (Translation--Allah Almighty has Himself created the entitlement of every person and, therefore, a will in favour of an heir is not valid).
' To the similar effect is another tradition quoted by Jassas through Ibne Abbas in the following words:- (Translation--No will is valid in favour of any heir until it is consented to by the other heirs).
' Verse 11 of Surah Nisa also provides as under:- (Translation--You do not know who out of your parents or sons is more beneficial to you. The inheritance is determined by Allah Himself and undoubtedly, He knows better).
7. The principle deducible from the above is that no proprietor can disturb the entitlement of heirs inter se by giving them over and above their share as heirs. He is not allowed to discriminate as Allah knows who is more beneficial to him. So the test to be applied .Is whether the right or the property in question is coming through the proprietor or some other donor. If it is the property of a donor and was not to come to the proprietor or through him to the heirs the donation even to an heir over and above his share is valid. However, if the right or the property was to come to the proprietor and through him to an heir over and above his share as an heir, it is not lawful. Again it will be lawful to the extent of 1/3 if the nominee is not an heir and the rest will go to the heirs in accordance with their share under the law of inheritance.
8. The result is that no heir can get more than the share allotted to him under Quran and as explained in Ahadith. Thus the rules of inheritance cannot be changed by the deceased through his will or other directive nor even is the State empowered to make any law which violates the Injunctions of Quran and Sunnah. We, therefore, again take the same view as taken before and direct that law as pointed out above shall be amended suitably till 15th April, 1989 failing which the above objectionable provisions shall cease to operate as law.