1. ' This Civil Misc. Appeal has been filed by the appellant challenging the orders passed by the District Judge, Sukkur on Auqaf Petition No,13 of 1961 whereby only plot bearing C.S. No,668 has been declared as graveyard for the burial of dead bodies of Pirzada community.
2. ' Briefly the facts are that Chief Administrator Auqaf, West Pakistan under his notification, dated 2- 9-1960 published in the Gazette of West Pakistan, Lahore of 3-9-1960 has taken over the Waqf property attached to shrine of Pir Shah Khairuddin alias Jiay Shah old Sukkur situate in C.S. Nos.665, 668, 658, 731, 671, 670, 667 and 666 in Ward 'A' old Sukkur under section 6 of the West Pakistan Waqf Properties Ordinance, 1959 and consequenity appointed the Manager thereof. The petitioner Muhammad Akram Pirzada (since deceased) the Mutwalli of said Waqf moved the said petition before the District Judge, Sukkur on 3-10-1960 claiming therein that the said properties were illegally taken over by the Auqaf Department as the same were. Waqf 'Alai Aulad' created by the ancestors of the petitioner under section 3 of Musalman Waqf Validating Act, 1913 for the benefit of the dedicators and their descendants. It was also the case of the petitioner that his ancestors had constructed the buildings on said Waqf properties for their own exclusive use and they were the owners thereof and lastly that they were entitled to perform different services, rituals and cermonies in the Dargah and were entitled to use the private graveyards for male and female deceased of their own family and the hall and room and other places in the Waqf property. The respondents-Waqf Department contested the matter and parties led their evidence by way of filing of affidavits and were subjected to cross-examination. Various documents were produced.
3. The following issues were framed from the pleadings of the parties:--
(1) Whether the petitioner was `Mutwalli' of the properties, known as Dargah Shah Khairuddin?
(2) What was the nature of Waqf, created by the petitioner's ancestors? If it was private Waqf what would be the effect of the properties mentioned in the petition?
(3) Whether properties taken over by the respondents are covered by Waqf Ordinance, if not what will be the effect?
(4) What should the order be?
4. ' Issue No, 1 is answered in favour of the present appellant and the same has not been challenged in this appeal. 1, therefore, need not go into that issue.
5. ' Issue No, 2 is the crucial issue in the case and the whole matter depends on this issue. It would be pertinent to mention here the earlier history of the case also. In this matter a Constitutional petition was filed before the High Court of Sindh and Balochistan at Karachi being Petition No, 31 of 1965 by the present deceased appellant Muhammad Akram against the Chief Administrator, Auqaf, West Pakistan, Lahore and Manager of Waqf Properties, Sukkur. This petition was disposed of by a Division Bench vide orders passed on 9-11-1973 wherein it was observed as under:-- "Be that is it may, the sole question is whether his action can be supported, by section 6 of the West Pakistan Waqf Properties Ordinance, 1961, and it will be recalled that the section only confers a power of control. This section had come up for construction before the Supreme Court in Sh. Inayat Ullah and others v. MA. Khan and others PLD 1964 SC 126, and in view of this judgment, a Division Bench of this Court had granted an interim injunction as prayed to the petitioner. Now, as no counter-affidavit has been filed, the position has not altered since the order allowing the petitioner's interim injunction, therefore, the learned Advocate-General's submission, on the basis of their Lordships' judgment in Inayatullah's case, was that in the event of an emergency, the 2nd respondent was competent to interfere even with the performance of religious services and ceremonies in Waqf property. It is not necessary for us to examine this submission because there is absolutely no evidence before us that there is or ever was an emergency in the instant case, therefore, far from supporting the claim of the respondents, the judgment in Inayatullah's case is fatal to the case of the respondents, and fully supports the claim of the petitioner. We, therefore, allow the petition without costs and direct the respondent not to interfere with the performance by the petitioner of the services and ceremonies specified in Annexure 'A' to the petition."
6. ' Annexure 'A' specifies various daily services, ceremonies and other services which the Mutwalli and Pirzada family used to perform and carry out in the abovesaid Waqf property comprising 8 survey numbers. It may also be relevant to refer to the case of Sh. Inayatullah and others v. MA. Khan and others PLD 1964 SC 126, relying on which the Division Bench had given the abovesaid judgment. In this case a Bench comprising three Judges of the Honourable Supreme Court had dealt with the meaning of word "control", as used in section 6 of the West Pakistan Waqf Properties Ordinance, 1961 and held that the word 'control' here would mean "to regulate" and their Lordships further observed that the Chief Administrator, Auqaf is not vested with powers to prohibit for all times established religious practice held in Waqf property and that in formulating the scheme under section 11(2) of the said Ordinance he is not empowered to disregard even wishes of dedicator of Waqf.
7. ' Mr. Abdul Haleem Pirzada, the learned counsel for the appellant in addition to relying on the abovecited case of Sh. Inayatullah v. M.A. Khan and others and the judgment of the Division Bench of High Court of Sindh and Balochistan given in Petition No, 31 of 1965 pertaining to this very Waqf which is in dispute in this appeal has further relied on the case of Haji Ghulam Rasool and others v.
8. The Chief Administrator of Auqaf, West Pakistan PLD 1971 Supreme Court 376 wherein a Bench of four learned Judges of the Honourable Supreme Court has held: "Apart from these, learned counsel appearing for the appellants has also attacked the vires of the Ordinance but for the reasons already given by us in our judgment in the case of Pir Rashid-ul- Daula we hold as follows:--
(1) that the validity of the Ordinance is not now open to challenge;
(2) that the notifications have been validated by the West Pakistan, Waqf Properties Ordinance, 1961;
(3) that the income from offerings in boxes kept at the shrine could be validly made a Waqf under the Muhammadan Law and were, in any event, validly made a Waqf under the Explanation 4 to section 2 of the Ordinance of 1959 as validated by the Ordinance of 1961. They became Waqf from the date of the notification.
(4) that since according to the practice prevailing in this shrine from time immemorial the pre- notification income from the other immovable properties and offerings in boxes kept at the shrine were appropriated as the personal property of the Mujawaran, they should be treated as such;
(5) that the Mujawaran also acquired the right by immemorial user of performing the Rusumaats and other religious ceremonies with this shrine provided that the performance of such functions does not amount to misuse of the Waqf properties; and
(6) that under the Waqf Properties Ordinance the Chief Administrator of Auqafs had no right to deprive them of this privilege of performing such Rasumaats and other religious ceremonies, although he had the discretion to contribute or not to contribute towards the expenses thereof and the right to regulate the same."
9. ' In the same case it has been observed by the Honourable Supreme Court: "It cannot, therefore, he denied that the Mujawaran have acquired by prescription the right to possess and cultivate these lands. They have openly and as of right possessed these lands, cultivated them, let them out and even constructed buildings on them at their own expenses. They have been recorded since 1892 as in possession 'without rent on account of service of shrine'. This is a valuable right of which they cannot be deprived. All that the Chief Administrator of Auqafs can do is to take rent from them or terminate their right to possession by appropriate legal proceedings for their ejectment. If the management and control of a Waqf property is take over by the Administrator of Auqafs it does not mean that such take over automatically extinguishes the tenancy rights or the right to possession of persons settled on the lands. If the Administrator seeks to eject such persons he must proceed in accordance with law."
10. ' It may be pertinent to reproduce the provisions of section 6 of the above said Ordinance which reads as under: "6. Chief Administrator may take over Waqf property by notification.--Notwithstanding anything in section 22 of the Religious Endowments Act, 1863, the Chief Administrator may, by notification, take over and assume the administration, control, management and maintenance of a Waqf property.
11. Explanation.---For the purposes of this section, 'control' and `management' include control over the performance and management of religious, spiritual, cultural and other services and ceremonies at or in a Waqf property."
12. ' Relying on the abovecited case-law and the provisions of section 6, the learned counsel for the appellant has urged that the Auqaf Department can take over the control of the Waqf properties but they cannot deny the beneficiaries of the benefits which were being derived by them from out of the Waqf properties nor the Auqaf Department can refuse the performance of various ceremonies, rituals and services in the Waqf property and the user of the Auqaf properties for the purpose for which the same were being used by them since the very creation of the Waqf. He has further submitted that as held by the Honourable Supreme Court the word 'control' as used in section 6 of the said Ordinance can only mean that power "to regulate" has been vested upon the Management of Auqaf Department. Mr. Ghulam Kadir Jatoi, the learned counsel appearing for the respondent-Auqaf Department has also placed reliance on the abovecited case of Haji Ghulam Rasool v. Chief Administrator of Auqaf, West Pakistan.
13. I have considered the submissions of the learned counsel for the parties and have gone through the abovecited case-law. It is obvious from the plain reading of section 6 of the Ordinance which shows that the respondent-Auqaf Department is invested with the power to regulate only the Waqf properties and they cannot deny the user of the same for the purposes, specially the performance of various services, rituals and ceremonies which were being performed thereon and cannot change the user of the said properties or put the same to user for purposes other than for which the same was being used.
14. ' Now the other question that arises is a question of fact i.e, whether the appellant had proved the user of the properties involved in the petition before the District Judge for the purpose for which they claim the same. It appears that the learned District Judge while passing the impugned order has misread the evidence and has not taken into consideration the affidavit filed by Ghulam Nabi, the elder son and legal representative of appellant Muhammad Akram, who had by that time died.
15. In this affidavit deponent Ghulam Nabi has very specifically and categorically stated that these properties were being used for the purposes mentioned therein and also that there were two graveyards situate in the said Waqf property, one graveyard for male and another for female members of Pirzada family which were situate in C.S. Nos. 665 and 668. He has also stated in his affidavit that there is also a tomb situate in C.S. No, 665 which is attached to the graveyard exclusively to be used as resting place for the Pirzada family at the time of burial. This deponent has been cross-examined but no contradiction or denial of his case could be extracted from him.
16. This witness has also produced a number of documents. The petitioner also examined a witness Sharfuddin, the City Surveyor of Sukkur who has produced various documents pertaining to the Sanads of the abovesaid Waqf properties showing that the same was granted to the ancestors of the appellant by the then English Rulers. This witness has also been cross-examined by the counsel for the present respondents but they have not put any question to him in denial of the case of present appellants. From the evidence of the abovesaid Ghulam Nabi and City Surveyor it goes without saying that their case hhs not been rebutted by the present respondents in cross- examination and would, therefore, be deemd to be admitted. As against this the respondents have examined their Manager, namely, Abdullah through affidavit. His affidavit is of formal nature to prove that the control of the properties was taken over by the Auqaf Department including the mosque. He states in paragraph 7 of his affidavit as under:-- "7. That the shrine and the properties attached to it including the mosque, the graveyard and the other buildings and plots referred to, in the petition are Waqf properties that are meant for charitable uses and also for the benefit of the Muslims, alongwith other religious and pious purposes recognized by Islam."
17. ' This witness, however, does not specify as to whether the graveyard was situate only in one City Survey number or in two City Survey numbers i.e, 665 and 668 as claimed by the appellant nor does he specify the various constructions situate or uses to which the different survey numbers were subjected. This witness in cross-examination has stated that he does not know as to how many graveyards were situate in the said property nor does he know to what use the Pirzada family was putting the said property. He also states in his cross-examination that he does not know if the hall on the Waqf property was used as Musafirkhana or was used by Pirzada family on the occasion of death. He also does not know who is the Mutawalli of Dargah or who keeps the keys of the Dargah. He has also admitted in his cross-examination that Auqaf Department does not possess the Dargah. The evidence of this witness, therefore, does not support the case of the respondents nor does it controvert the case as put by the appellant in the affidavit of Ghulam Nabi the son of deceased appellant and City Surveyor.
18. ' From the above discussion and evidence which has been brought on record and the judgment given by the Division Bench of High Court of Sindh and Balochistan in Constitutional Petition No, 31 of 1965 it is concluded that the properties mentioned in this petition comprising City Survey Numbers were being used and subjected for the performance of various ceremonies, rituals and services as mentioned in Annexure 'A' attached with Constitutional Petition No, 31 of 1965 which is reproduced hereunder:- "LIST OF SERVICES AND CEREMONIES TO BE PERFORMED BY THE PETITIONER.
19. Daily Services.
(1) To open and shut the silver gate of the shrine and windows of the marble enclosure around the grave of the saint.
(2) To clear the grave and the enclosure around it.
(3) To spread Ghilaf and tie the Kalangi and Dastar and put on flowers and sprinkle Attar and scented water and to change these.
(4) To give religious thread and flowers and Khak for Tabbaruk. Ceremonies and services.
(a) On the day previous to the Urs, to open the windows of the enclosure around the grave in the presence of main disciples of Pir7adad family and spread Ghilaf and put on the grave Dastar in the gold and valvet cover and put on the gold Kalangi and Jhabas and decorate the Dargah for the purpose of the Urs, and distribute the dry flowers removed amongst the disciples, who collect outside silver door at that time.
(b) In the morning on the day of the Urs, to start the Nobat of Dhamal after Fateha Khawani by the Sajjada Nasheen in the presence of the main disciples and thereafter with the accompaniments of the drums and Nobat to hoist the new flag of the Dargah. The Nobat to continue thereafter after intervals during the day and the night.
(c) Preparation of food for the breaking of the fast by the disciples and the pilgrims and offering of Maghreb prayers in the mosque and giving anybody ovbserving fast food for breaking fast and invoking the blessings for the pilgrims thereafter, and giving food to anybody who wanted during the night of the Urs.
(d) After the Maghreb prayers to sit on Gadi on the marble floor outside the silver gate of the Dargah and receive the new and old Mureeds of the Dargah and give them religious instructions called `Amanar from the Dargah as also invoke the blessings of the saint and tie green turban known as Nes' on the head of new Mureeds.
(e) To organise `Moulood"Samaa' or singing other cultural and religious compositions from the other saints of Sindh and other places to the accompaniment of traditional music.
(t) To organise at night the `Shughur or Khatam ceremony in connection with Khatam-e-Quran in the mosque and Dastarbandi, etc. Of the Hafiz, Maulood etc. And distribution of Tabbaruk to the disciples and then to give food to disciples for `Sehri'.
(g) About dawn time on the night of the Urs, the ceremony of `Samahin' accompanied with religious songs by all, the applicant and the disciples present all standing assembling in front of the silver gate of the Dargah in the marble space and recite in a body religious songs and finally invoke the blessings of the saint. This finishes just before the morning Azzan.
(h) Morning prayer in the mosque and final Dowa.
(i) The new Ghilaf spread and the Dastar and Kalangi continue until the Idul Fitr and changed again by the applicant with ceremonies on the day following the Id. On the Id day the graves of the applicant's ancestors are all covered with Ghilaf and just after the Id prayers the applicant sits alongwith other members of Pirzada family at the Dargah and receives the disciples of the Saint and invokes blessings of the Saint.
(j) Besides the above services and ceremonies the following ceremonies are performed by the petitioner on the night between the 10th and 11th days of the lunar month known as 'Yarheen'.
(1) Daily services.
(2) Ceremonies Nos.(d) and (e) given above."
20. ' From the above discussion it is also concluded that the survey numbers 668 and 665 are being used for the purposes of graveyard and the resting place attached to the graveyard, exclusively by the Pirzada family.
21. ' In view of the findings on issue No,2, it is observed that the properties have been taken over by the respondents subject to their power to regulate" only.
22. ' In view of the above discussion I allow this appeal, set aside the orders passed by the District Judge and declare that the C.S. Nos.665 and 668 are used for the purpose of graveyard and resting place exclusively by Pirzada family and the respondents cannot deny such user to them.
23. With regard to remaining survey numbers it is observed that the respondents could only control and regulate the same but cannot deny the user of the same for the purpose of performing various services, ceremonies and rituals as mentioned above. There will, however, be no order as to costs.