' MUHAMMAD AFZAL ZULLAH, J.--This appeal through leave of the Court is directed against the judgment dated 10-3-1976 of the Lahore High Court; whereby, an Income Tax reference was decided against the appellant/assessee.
2. The particulars of the case and the points for grant of leave to appeal were stated as follows: -
3. The appellant was married in 1933' to Mst. Masooda Begum and the Haq Mehr (dower) was allegedly increased to Rs,10,00,000 to comply with the wife's demand for increase of the dower commensurate with her status. Payment of the increased dower was effected by the assessee- appellant by transferring shares of the face value of Rs,6,40,000 to the wife in or before 1959. During the year ended 30th of June, 1960, a dividend of Rs,43,527 was received on these shares by the said Mst. Masooda Begum. The Income-Tax Officer included this sum in the income of the assessee- appellant on the ground that the transfer of shares was not for adequate consideration within' the meaning of Section 16(3)(a)(iii) of the Income-tax Act. On appeal, the Tribunal confirmed the Income-tax Officer's finding and dismissed his appeal.
4. The disputed amount of Rs,43,527 is the dividend income whicharose from the shares allotted to the wife as a result of their transfer by the appellant in her favour. The contention raised before the assessing officer was that the dower had been increased in accordance with law and transfer of shares was towards part-payment of the dower so increased. The only documentary evidence in 'Support of this increase in the dower amount were two affidavits; one by the assessee appellant and the other by his wife. The Tribunal found that the only evidence in the case consisted of the two afore-mentioned affidavits which were prepared and filed as late as in 196.4 although the increase was allegedly made in 1958. The absence of any contemporaneous evidence on the record was considered to cast doubts on the authenticity of the claim set up on the basis of the exception provided in clause (iii) of section 16(3)(a) of the Income-tax Act.
' The finding of the assessing officer that the transfer of shares made to the wife was not for adequate consideration was thus endorsed by the Tribunal which approved of adding the dividend income in dispute with that of the income of the assessee/appellant.
5. The High Court agreeing with this view further observed that the Tribunal did not accept the two affidavits presented by the assessee and the wife as sufficient evidence in support of the averment that earlier, the amount of dower had been increased. This finding was a finding of fact and unless it was reversed the benefit of section 16(3)(a)(iii) of the Income Tax Act would not be available to the assessee. The question posed by the Income-tax AppelRe Tribunal: "Whether the Tribunal was right in holding that the sum of Rs,50,072 was properly included in the income of the assessee under section 16(3)(a)(iii) of the Income-tax Act?" ' was, therefore, answered in the affirmative by the High Court.
6 Learned counsel on behalf of the appellant argued that the findings recorded by the Appellate Tribunal and upheld by the Lahore High Court required reconsideration. According to learned counsel, it is not a requirement in a Muslim marriage to fix or re-fix the dower in the presence of the witnesses. In case of dispute between the spouses over matters concerning a Muslim marriage, which is similar to a solemn contract, the question in controversy must be settled on the basis of evidence which may not necessarily be in writing. This matter could, therefore also, be resolved on the basis of the two subsequent affidavits filed by the husband and wife concerned and it was not necessary to produce any contemporaneous evidence. It is submitted that the case involved the interpretation of Sections 16(3)(a)(iii), 23 and 66(1) of the Income-tax Act, 1922 and the principles of Muslim Law relevant to the increase in the dower of Muslim females. The questions raised being of general public importance, leave was accordingly granted.
Sections 16(3)(a).(iii), 23 and 66(1) of the Income-tax Act 1922 are reproduced below:- "16(3) In computing the total income of any individual for the purpose of assessment, there shall be included--
(a) so much of the income of the spouse or minor child of such individual as arises directly or indirectly:- (i)
(ii)
(iii) from assets transferred directly or indirectly to the spouse otherwise than for adequate consideration or in connection with an agreement to live apart:"
(iv)
"23. Assessm ent.--(1) If the Income-tax Officer is satisfied without requiring the presence of the assessee or the production by him of any evidence that a return made under section 22 is correct and complete, he shall assess the total income of the assessee, and shall determine the same payable by him on the basis of such return.
(2) If the income-tax Officer is not satisfied without requiring the presence of the person who made the return or, the production of evidence that a return made under section 22 is correct and complete, he shall serve on such person a notice requiring him, on a date to be therein specified, either to attend the Income-tax Officer's Office or to produce, or to cause to be there produced, any evidence on which such person may rely in support of the return.
(2A) Where, in the course of assessm ent proceedings, the Income-tax Officer is of the opinion that any asset mentioned in a statement furnished under subsection (4A) of section 22 has not been correctly valued by an assessee he may refer the matter to a valuer for arriving at -the proper value of such asset. .
(3) On the day specified in the notice issued under subsection (2), or as soon afterwards as may be, the Income-tax Officer, after hearing such evidence as such person may produce and such other evidence as the Income-tax Officer may require, on specified points, shall by an order in writing assess the total income of the assessee, and determine the sum .Payable by him on the basis of such assessm ent.
(4) If any person fails to make the return either under subsection of section 22 or in compliance with a notice under subsection of that section and has not made a return or a revised return under subsection (3) of the same section or fails to comply with all the terms of a notice issued under subsection
(4) or subsection (4A) of the same section or, having made a return, fails to comply with all the terms of a notice issued under subsection (2) of this section, the Income-tax Officer shall make the assessm ent to the best of his judgment and determine the sum payable by the assessee on the basis of such assessm ent and, in the ease of a firm, may refuse to register it or may cancel its registration if it is already registered: ' Provided that where a person has failed to make a return under subsection (1) of section 22, no assessm ent under this subsection shall be made unless he has already been assessed to tax under this act for at least one assessment year prior to the assessment year in respect of which he has failed to make the return: ' Provided further that the registration of a firm shall be cancelled until fourteen days have elapsed from the issue of 'a notice by the Income-tax Officer to the firm intimating his intention to cancel its registration.
(5) Notwithstanding anything contained in the foregoing subsections, when the assessee is a firm and the total income of the firm has been assessed under subsection (1), subsection or subsection (4), as the case may be
(a) in the case of a registered firm tax payable by the firm itself shall be determined and the total income of each partner of the firm, including therein his share of its income, profits and gains of the previous year, shall be assessed and the sum payable by him on the basis of such assessment shall also be determined: ' Provided that if such share of any partner is a loss it shall be set off against his other income or carried forward and set off in accordance with the provisions of section 24: ' Provided further that when any of such partners is a person not resident in Pakistan his share of the income, profits and gains of the firm shall be assessed on the firm at the rates which would be applicable if it was assessed on him personally, and the sum so determined as payable shall be paid by the firm:
(b) in the case of an unregistered firm, the Income-tax Officer may proceed in the manner laid down in clause (a) as applicable to a registered firm, if, in his opinion, the aggregate amount of the tax including super-tax, if any, payable under such procedure would be greater than the aggregate amount which would be payable by the firm and the partners individually if the. Firm were assessed as an unregistered firm.
(6) Whenever the Income-tax Officer makes a determination in accordance with the provisions of subsection (5), he shall notify to the firm by an order in writing the amount of super-tax payable by it, if any, and the amount of the total income on which the determination has been based and the apportionment thereof between the several partners.
(7) In the course of any proceedings under section 22 or section 23, an Income-tax Officer, for the purpose of assessm ent of the income of an assessee or determination of the sum payable by him may be assisted, guided or instructed by an authority mentioned in section 5 or by one Or more nominees of the Central Board of Revenue."
"66(1) Within sixty days of the date upon which he is served with notice of an order under subsection (4) of section 33, the assessee or the Commissioner may, by application in the prescribed form, accompanied 'where application is made by the assessee by a fee of one hundred rupees, require the Appellate Tribunal to refer to the High Court any question of law arising out of such order, and the Appellate Tribunal shall within ninety days of the receipt of such application draw up a statement of the ease and refer it to the High Court."
7. The. Points raised from the appellant's side were sought to be met by the learned counsel for the respondent, mainly on the arguments: Firstly, that the High Court has proceeded to answer the reference on affirmation of findings of fact by Tribunal therefore no question of law is involved. And secondly, that the High Court or the Income-tax Tribunal has not laid down any law with regard to the rule of evidence in a case. Like the present one; therefore, as argued, this appeal merits 'to be dismissed on the same ground as prevailed with the High Court.
8. Learned counsel for the appellant relying on some authorities/case law contended that it is not a simple case of appreciation of evidence for rendering a finding of fact. The High Court has affirmed a rule of evidence relating to the personal law on the question of marriage and dower; which affects the rights of not only the assessee but also the spouses involved in a Muslim marriage contract; besides, their successors-in-interest in case of devolution of rights and property.
9. The question; whether, the High Court thought it a simple case of appreciation of evidence or it falls within the ambit of the law laying jurisdiction of the High Court, can be resolved by making reference to a short passage from the High Court judgment which reads as follows: - "It was submitted vehemently by the learned counsel for the petitioner that the requirement of documentary evidence postulated by the Tribunal had no legal backing. We are afraid the Tribunal never held that it was only documentary evidence by which the infrastructure of the claim in the present case could be made available. All that it is said was that the fact of increase of dower had to be proved either by record or evidence prepared or available at the time that the dower was increased." (Underlining is ours).
10. The underlined portion of the High Court observation when properly analysed means as follows:-
(i) Although there is nothing in law to prevent a Muslim husband from increasing the dower subsequent to the marriage; but, the factum of increase had to be properly proved.
(ii) That in order to properly establish the "increase of dower" it was necessary:-
(a) to prove the same "by record"; or (b)to prove the same by "evidence prepared or available at the time that the dower was increased".
11. The above analysis leaves no doubt in our mind that the High Court laid down two rather three rules of evidence which have the force of law and thus declared them as law to be attracted to similar other cases. Thus the so-called legal objections raised by the learned counsel for the respondent for opposition to this appeal, have no force.
12. The three requirements of rule of evidence upheld/enunciated by the High Court are: (i) the increase of dower must be evidenced by documentary "record" or some "evidence prepared" at the time of the increase; or, in case these two materials are not available there must be some other material, which even if not prepared by he persons concerned, be then, at that time "available" e.g. Presence of witnesses, to depose subsequently about the increase, can be visualised in this last context.
' The relevant statutory provisions already noticed and reproduced do not insist upon any such requirement regarding mode and rule of evidence. No other provision either from the general, law of evidence or any special rule of evidence vis-a-vis, the Income-tax, law, has either been relied upon from the 'respondent's side or noted by the High Court--same is the position with regard to the orders passed by the Income-tax Authorities. Indeed it is not denied from respondent's side that there is no such provision either in any statute or rule..
' In such a situation ordinarily if there is no statutory rule of evidence governing a situation the Court is not prohibited from adopting any just and fair rule of evidence. This can be treated as the ordinary law in absence of any statutory constraints; but, there can be exceptions to this principle on account of the special subject of inquiry. In this case the special subject of inquiry is the Muslim Law of matrimony and dower. It is well known that there are special rules of evidence, vis-a-vis, marriage, divorce and other related subjects included in matrimony and the subject of dower is no exception in this behalf in so far as the Muslim Law is concerned, which is in force since before partition.
14. Although the subject under discussion namely, the rules of evidence in proof of increase of dower by Muslim husband are available in several well-known treaties on Muslim Law but none of the learned counsel had time enough to cite all of them. Learned counsel for the appellant has relied on the following observations in Syed Ameer Ali's work (Pakistan Edition) 1965 Vol.2 page 423:- ' Under the Islamic system there is no community of goods between husband and wife. She is absolute owner of her own property and of whatever the husband settles on her as dower. The terms of the settlement are agreed to before marriage, but when these have been omitted, they may be settled subsequently. The terms of the contract may be varied at any time during the continuance of the marriage by mutual consent. The wife has the power either to relinquish the whole dower-bebt, or make an abatement in her husband's favour: whilst the husband, similarly, has the power of making additions to her settlement or dower.
The amount of the dower, as already pointed out, is either settled by the contract of marriage or by custom, or, in the case of fatwas or takhim, by a subsequent agreement between the parties, or by an order of the Judge, or arbitrators." (Underlining is ours)
15. He also relied on Muslim Law by Saksena, Third Edition page 229. The passage reads as follows:- "It depends upon the parties to modify the amount of dower any time they like, and likewise an addition can be made to the dower which has already been settled at the marriage (Mst. Nashiban Bi v. Mst. Lqbal Begum 1935 ,Lah.816), with the consent of the parties, and the parties would be bound by the subsequent contract (Karamunnissa v. Hussaini, 3 A11.266; Ibrahim Bhurwa v. Isa Rasul, 41 Bom. 5, 16);" but this addition would be void, if the marriage is dissolved otherwise than by death and without consummation or valid retirement. The new contract for an addition to the dower is,by a large fiction, considered as a part of the old marriage-contract (Jahuran Bibi v.
Sakina Bibi, 58 CLC 251). The onus of proving the voluntary nature of relinquishment of dower by the wife falls on him who sets up such a case (Sajjad Hussain v. Muhammad Sayed Hasan, 1934 A11.71). Thus the dower can be fixed at any time before or after the marriage and the husband can increase the amount of the dower at any time during the continuance of marriage. For purposes, of increasing the dower a declaration by the husband is quite sufficient under the Muslim Law (Chan Pir v. Fakar Shah, 1940 Lah.104)." (Underlining is ours)
16. A short passage from Hedaya (2nd Edition Vol.]. Page 45) Commentary on the Muslim Law has also been relied upon: "Case of an addition made to the dower after marriage.--If a man makes any addition to the dower in favour of his wife subsequent to the contract, such addition is binding upon him."
17. Section 4 in Chapter v (under the heading "Dower" with sub-heading only of "Disputes regarding Dower") of the Baillie's Digest of Muslim Law, has also been referred. However, it is instructive to reproduce the whole of said Section 4, as it relates to rules of evidence also.
"First. If the dispute is upon the fact whether a dower was assigned or not, the word of the husband is to be preferred; without any difficulty if the dispute has arisen previous to consummation, because a contract of marriage without specification of dower is common and probable. And though the dispute should have arisen after consummation, here also the word of the husband is to be preferred, as supporting the original and radical conclusion of freedom from obligation until the contrary is proved. Further, there is no difficulty in assigning the preference to the husband's assertion if he fixes an amount of dower, however trifling, down to a grain of rice, because here the probability is established, ,and the excess alleged being contrary to the probable conclusion and unknown, must be supported by proof. If the difference between the parties is as to the amount or quality of the dower specified, here still the word of the husband is to be preferred. Whereas, if he acknowledges the dower claimed by his wife, and alleges his delivery of it, but fails to adduce any proof of his assertion, credit must in this case be given to the word and oath of the woman. Where, however, there has been an actual delivery of the dower, but the wife alleges that what was given was intended as a gift, here again, the word of the husband is to be preferred, as he must necessarily be best acquainted with his own intention.
' Second. If the husband and wife should have retired together, and the wife alleged that carnal intercourse took place between them, then, if the case admits of proof on the part of the husband, as where the wife was a virgin at the time of the marriage, and asserts coition in the natural way, the decision is obvious. Where, again, she was not a virgin at the time of the marriage, or alleges coition unnaturally, the husband's declaration on oath must be credited, because the original condition is an absence of coition, and he denies what she alleges, which therefore requires to be established by proof. Some doctors, however, are of opinion that her assertion upon oath must be received as supported by the natural conclusion to be drawn from a man and woman in good health retiring together when no obstruction to the carnal act is alleged. But the first doctrine is the most approved.
"Third. When the dower is instruction in a chapter of the Koran, or in a trade, and the wife alleges she has been taught something else, her word is to be preferred, for she is a denier of what he claims.
"Fourth. If a woman should adduce evidence to prove that her husband married her at two different times by two separate contracts, as founding a claim to two dowers, and he should insist that what she supposed to be two contracts was merely a repetition of the one contract, her word is to be preferred, because appearances are in her favour. Whether he is liable for the two dowers is a question which has been answered in the affirmative, in reliance on the fact of there having been two separate acts of contract; but it has also been said that he is only liable for a dower and a half.
The first opinion, however, is the most approved." (Underlining is ours).
18. Learned counsel for the appellant has also relied on Jahurdan Carib Khan and others v. Sakina Bibi and others (AIR 1934 Calcutta 210 at 212); Mt. Nasiban Bi and others v. Mt. Iqbal Begum (AIR 1935 Lah.816); and, Chan Pir v. Fakar Shah (AIR 1940 Lah.104 at 105). The other cases which have only been referred but not relied upon are:- "(1) Ibrahim Bura v. Isa Rasul (41 Borri.5)
(2) Sajjad Hussain v. Muhammad Sayed Hassan (1934 A11.71),
(3) Mt. Rukiayia Begum v. Radha Kishan (AIR 1944 Allahabad 214).
(4) Mst. Allah Jawai v. Allah Ditta (PLD 1975 Lah.1399) (Hiba-bil-ewaz)
(5) Mst. Tayyaba Khanam v. Chairman Federal Land Commission (1984 SCMR 1110)".
19. It would have been seen that an acknowledgement in any form including declaration by the husband with regard to increase of dower is, as held by the Lahore High Court in Chan Pir's case, "quite sufficient" to prove the same under Muslim Law. Even when there is a dispute between the wife and husband what to talk of third party, according to Baillie the: "word of the husband is to be preferred as he must necessarily be best acquainted with his own intention." The Lahore High Court has also, in the case of Mt.Nasiban Bi, dealt with the nature and real value of the increase in dower.
It has held that among the Hanafis and Shiahs, the addition is not regarded in the light of a gift or hiba, and does not, therefore, require delivery of seisin,.At the time the addition is made, to render it valid. Further relying on Hedaya, it was held that an alteration in the terms of such a contract being a matter within the power of the parties, is like an addition to the price in sale and thus becomes incorporated with the original dower. The necessary corollary would be that all the consequences flowing from the original dower would flow from the increased dower. The Calcutta case of Jahurdan Garib Khan went a step further. It was held that if a widow is found in possession of her husband's property during the life-time and continued so after his death her possession would be deemed to have been lawfully obtained and that too in lieu of dower without any further substantial evidence. Such a presumption was held rebuttable.
' Thus the law is contrary to what the Income-tax Authorities have held on this particular aspect of the controversy.
' Although the subject of acknowledgement of marriage and paternity is not directly involved in this case but the subject of fixation and increase of dower is not much different from the said two subjects in so far as the particular rule of evidence, vis-a-vis, acknowledgement/admission, is concerned. Looked at from that angle also, the general law of acknowledgement in the context of Islamic Fiqh declared by the Courts from time to time, also goes against the respondent. A recent judgment of this Court in this behalf in Civil Petitions No,408/85 and 409/85 Abdul Majid Khan and another v. Mst. Anwar Begu.m (PLD 1989 SC 362) has dealt with general question of acknowledgement in wider context. Further, a detailed discussion on similar questions though, indirectly applicable, can be found in Major Sher Afzal v. Shamim Firdaus and another (PLD 1980 Supreme Court 228). The following observations,on the subject under discussion, noted with approval in the last mentioned judgment, are relevant in the present context:- "Ikrar or acknowledgement in general stands upon much the same footing as an admission as defined in the Evidence Act. Acknowledgements of parentage and other matters of personal status stand upon a higher footing than matters of evidence, and form a part of the substantive Muhammadan Law. Mahmood, J." at p.267.
20. The value of acknowledgement even in criminal cases, when an admission favours both the parties involved in an offence of Zina, has also been treated as a special rule of evidence under the Muslim Law by the Courts in Pakistan in Shariat jurisdiction. See (i) Arif Hussain and Azra Parveen v.
State (PLD 1982 FSC 42), (ii) Muhammad Ramzan v. Muhammad Saeed PLD 1983 FSC.483), and
(iii) Muhammad Bashir v. The State 1984 P Cr.L J 1892.
21. In addition to what has been found as a result of the submissions made at the Bar and the study made otherwise of the subject-matter under discussion, it is further held that the rule of evidence in Islamic Law relating to dower and its increase based on acknowledgement, declaration and/or possession of property said to have been delivered in lieu of dower, is not mere rule of procedure and appreciation of evidence. It partakes of the substantive Islamic Law.
22. Leaving aside other types of acknowledgement the one relevant in this case; namely, subsequent declaration, by a husband about the dower or its increase, has been accepted, in the situations like the present one, as such evidence on which a positive verdict, contrary to what the High Court and the Income Tax Authorities have held, could be based. And it is for a valid and substantial reason about human conduct that Islamic Law gives extraordinary importance to the declaration even if subsequent and not contemporaneously made by the husband. The question of the intention of the maker of the declaration with reference to this weighty evidence has already been dealt with. It may be added that notwithstanding the fact that valuable rights of a spouse allowed by Islam are involved, the factum of increase, it has to be accepted, cannot always be in presence of witnesses or the subject-matter of contemporaneous record about it as assumed by the Income-tax Authorities and approved by the High Court. Such a situation for increase of dower can amongst others develop at such occasions; when, neither it is possible nor can it be expected in normal human conduct that the witnesses would be present or there would be opportunity for making a record.
23. No more discussion is needed on the law points involved in this case and noted in the leave grant order. The rule of evidence laid down by the Income-tax Authorities and upheld by the High Court is a declaration of a legal requirement. It clearly runs against the Islamic Law on the subject.
As it is so held, to the extent aforesaid, the impugned judgment of the High Court is liable to be set aside.
24. The next question arises as to what is the effect of the foregoing finding on the results of the present case with regard to the Income-tax reference made to the High Court. It could be urged by the respondent side, though not argued, that even if an illegality has been committed by not applying the correct Muslim Law, it will not make any difference. Argument being that the same not having been codified the Income-tax Authorities are not bound to follow the same.
25. As an opening remark on this issue, it must be stated to the credit of the public functionaries in Pakistan, that they understand the constitutional constraints in various mandates for the enforcement of Islamic Injunctions in the field of Islamic Law and jurisprudence. It is, therefore, rare that such an objection is raised; and for the same obvious reason, it has not been raised in this case. However, it is deemed necessary to further clarify the position in this behalf.
26. The question of Islamization as a constitutional and legal question, distinguished from its general implications, has been the subject of legislation, both constitutional and other statutory dispensation, as well as of the precedent law.
' Article 2A read with Objectives Resolution of the Constitution according to some jurists, as well as some decided cases, was enacted on account of an observation in the judgment of this Court in the case The State v. Ziaur Rehman and others (PLD 1973 SC 49). According to others it always formed part of the constitutional set up of Pakistan. Be that as it may, the present position is that Article 2-A read with Objectives Resolution; the Principles of Policy (which are being enforced by the superior Courts in an indirect manner--See Miss Benazir Bhutto's case (PLD 1988 SC 416); Chapter 3-A, Part VII of the Constitution, vis-a-vis the functioning of the Federal Shariat Court and the Shariat Appellate Bench of this Court; and Article 227; and, other provisions of the Constitution relating to Islamization, are being interpreted and applied in various situations. This Court no doubt has, for the time being, left open the final verdict on the combined effect of these constitutional provisions and mandates and other parts of our Constitutional set up in so far as the question of Islamization is concerned--SeeSardar Ali's case (PLD 1988 SC 287).
' Nevertheless in individual cases wherever necessary, the superior Courts are already engaged in the process of interpretation and adjudication in this field. The judicial wisdom is accumulating, experience is being gained and considerable discussion in judgments and otherwise is going on.
All this would ultimately assist the Supreme Court in rendering final verdicts in this behalf regarding interaction and operation of these provisions. That, however, does not mean that wherever a provision is clear and its effect is clear it would not be so stated and would not be acted upon.
26. Article 227(1) not only requires that all existing laws shall be brought in conformity with the injunctions of Islam but it also commands as a mandate that "No law shall be enacted which is repugnant to such injunctions". It is a command to all law-making bodies and functionaries. It will be anomalous to assume that although in Article 227 there is a command to all the legislative bodies not to enact any law which is repugnant to Islamic Injunctions, nevertheless it permits the functionaries of the State at all levels to go on enacting rules like those of evidence which have the force of law and which are repugnant to the Injunctions of Islam. It is in this context that the earlier made remarks about the conduct of State functionaries in Pakistan get illustrated, i.e,, none would ever assert that he has power or would lay down a rule having the force of law, which is repugnant to Injunctions of Islam. In the context of the present case, neither the legislature, under the command contained in Article 227(1) has the power to enact a law in any field including those relating to Taxes, which is repugnant to injunctions of Islam; nor any other functionary including the Income-tax Authorities has any such power to lay down any un-Islamic rule, which has a force of law.
27. It is true that with regard to the statutory enactments Article 227 in its Clause (2) commands that: effect shall be given to the a fore discussed negative command in Clause (1), "only in the manner provided in this part (Part IX)". And thus it may be argued, it also applies to Statutory rules.
But, this prohibition in Clause (2) of Article 227 does not apply to decisions by functionaries of State where in the judicial, quasi-judicial or other spheres involving exercise of judgment, as distinguished from exercise of law-making or statutory rule making authority, they take decisions.
In other words whatever a decision is contained in any such judgment of any such functionary which lays down a rule of law or declares so as a rule of law the superior Courts, shall be within their competence in a properly instituted proceedings to strike it down both under the general mandate contained in Clause (1) of Article 227 as well as under Article 2-A read with the Objectives Resolution.
' This is in addition to the reasoning which prevailed in the case: Muhammad Bashir v, The State (PLD 1982 SC 139) which had approved the judgment of the Lahore High Court in the case of Haji Nizam Khan v. Additional District Judge, Lyallpur and others (PLD 1976 Lah.930). The approach then was that although it was not possible for the Courts to enforce Islamic Law in those fields which were fully occupied by statutory dispensation; yet, it was not only open to the Courts but they were duty bound to apply common law of Islam, its jurisprudence and philosophy, in fields which were not occupied by statutory dispensation. Various examples of those subjects are enumerated in the concluding part of the judgment of Haji Nizam's case.
' What was held in Muhammad Bashir's case and for that matter Haji Nazam's case, can now be further supported with reference to Articles 2-A and 227(1) of the Constitution; as also, what has been held and enforced from amongst the principles of policy by this Court, in the case of Miss Benazir Bhutto.
28. The foregoing rules of interpretation, would apply in the present case, to the decision of the Income-tax Authorities laying down in their judgment, a rule of evidence which goes against Islamic Law and jurisprudence. It was upheld by the High Court, though with respect, wrongly. It has to be set aside and declared as of no effect.
' That being so, while setting aside the High Court judgment, the question referred to the High Court, quoted in paragraph 5 supra, is answered in the negative. The result is that the Income-tax Tribunal was not "right in holding that the sum of Rs,50,072 was properly included in the income of the assesse under section 16(3)(a)(iii) of the Income-tax Act." This appeal thus is allowed.