1. ' SARDAR SAID MUHAMMAD KHAN, CJ.---This appeal has been directed against the order of the Shariat Court dated 10-1-1991, whereby accepting the petition filed under the provisions of the Ordinance known as Azad Jammu and Kashmir Shariat Court Ordinance (hereinafter shall be referred to as the Ordinance), sections 8, 9, 12, 14, 15 and 16 of the Azad Jammu and Kashmir Land Reforms Act, 1960, were held to be repugnant to Holy Qur'an and the Sunnah of Holy Prophet. It may be stated that initially the Shariat Court had dismissed the petition in limine on 12-3-1989 holding that it had no jurisdiction to decide the matter because that would tantamount to adjudicate upon the provisions of section 4(14) of the Azad Jammu and Kashmir Interim Constitution Act, 1974, which provides for the acquisition of land in pursuance of law after paying compensation. The Shariat Court had expressed the view that the declaration sought regarding the aforesaid provisions of the Land Reforms Act would tantamount to a verdict on the validity or otherwise of the Constitutional provisions which could not be done in view of subsection (2) of section 57 of the Interim Constitution Act, 1974. On appeal to this Court, the judgment of the Shariat Court was set aside and the case was remanded to decide the same afresh with the direction to give reasons in support of the view as to how the relief sought was tantamount to a declaration regarding the validity of the Constitutional provisions contained in section .4 of the Interim Constitution Act, 1974. However, it appears that after the remand, the Shariat Court decided the petition on merits and did not dilate upon the question of the jurisdiction on which it had previously dismissed the Shariat petition. The presumption is that either the Shariat Court did not find any substance in the view previously taken by it or the same was not also pressed by either of the contesting parties. Even otherwise, we are of the opinion that under section 6 of the Ordinance the Shariat Court has been invested with the jurisdiction to give a declaration to the effect as to whether or not any law is repugnant to the injunctions of Islam as laid down by the Qur'an and Sunnah. The contents of the petition filed in the Shariat Court do not make any reference whatsoever to the Constitutional provisions contained in the Interim Constitution Act and, thus, it cannot be said by any stretch of imagination that the Shariat Court had no jurisdiction in view of the bar contained in subsection (2) of section 57 of the Interim Constitution Act. The subject-matter of the petition before the Shariat Court was the provisions of the Land Reforms Act and not that of Interim Constitution Act, 1974.
2. ' It may be stated that Mr. Muhammad Sharif Tariq, Advocate, filed an application on 19-8-1991 praying that the Land Commission may be impleaded in the proceedings and be heard because the proceedings under the Land Reforms Act were pending before it. The application has no substance because in Shariat petition, the Land Commission was not arrayed as a party and the applicant cannot be regarded a necessary or even a proper party. However, Mr. Sharif Tariq was permitted to address arguments as an amicus curiae to assist the Court. The learned Advocate has merely argued that the relevant provisions, even if held to be repugnant to the Sharjah, would not affect the pending cases. He has cited various authorities in support of his contention that the declaration would not affect pending cases. It may be stated that while exercising the jurisdiction under the Ordinance, the Shariat Court or for that matter this Court, sitting as appellate Court against the order of the Shariat Court, has to see whether a law or any of its provisions is repugnant to Qura'n and Sunnah. If a provision is found to be so repugnant, the Court has to fix the date on which the law shall cease to have effect. So far as the question of pending cases is concerned, provision has been made for it in section 11 of the Azad Jammu and Kashmir Shariat Court Ordinance which lays down that pending proceedings would continue, and the points in issue therein will be decided in accordance with the law for the time being in force. If any question arises about the applicability of this provision it can be resolved in the light of the facts of each case and not in the present appeal as an academic exercise. It appears that it was in view of section 11 mentioned above that in Qazalbash Waqf v. Chief Land Commissioner PLD 1990 SC 99, to which detailed reference would be made in later part of this judgment, the Supreme Court of Pakistan in operative part of the judgment thought it proper to add the following declaration:- "7. The operation of the self-executory provisions of the Regulation and the Act, and the provisions ancillary thereto shall not in any manner be affected by this decision till the aforesaid provisions cease to have effect i.e. on 23-3-1990!
3. ' Mr. Sharif Tariq has also raised an objection to the effect that the impugned judgment appears to have been passed by the High Court and not by the Shariat Court and, thus, the same is a nullity.
4. The perusal of the record reveals that originally the petition was filed before the Shariat Court; it was heard by the Shariat Court and was previously dismissed in limine as already stated. The appeal was also filed to this Court against the dismissal in limine under the provisions of the Ordinance and the case was remanded back to the Shariat Court to decide it afresh in view of the observations made by this Court. However, the title of the impugned judgment shows that the same was delivered by the High Court and not by the Shariat Court. In the circumstances, listed above, the mistake is merely a clerical one and there is no substance in the argument that the judgment would be deemed to be that of the High Court and not of the Shariat Court. Hence the objection is overruled.
5. ' Coming to the merits of the case, the learned counsel for the appellant has contended that the Shariat Court has committed error in declaring the aforesaid provisions of the Land Reforms Act as violative of Holy Qur'an and 'Sunnah. He has argued that the land which is in excess of certain limit and was not cultivated by the owner could rightly be acquired by the State, after payment of compensation, and distributed to the needy, say tenants. He has argued that the view taken by the Shariat Court on the basis of the judgment of the Supreme Court of Pakistan reported as Qazalbash Waqf v. Chief Land Commissioner, Punjab PLD 1990 SC 99, does not conform with the principles of Shariah.
6. ' In reply, it was argued by the learned counsel for the respondent that Shariah does not recognise to deprive an owner of the property forcibly and that too on the payment of nominal compensation. The learned counsel referred to some Verses from the Holy Qur'an and contended that an owner cannot be deprived of the property by adopting `baatil' ways. The learned counsel contended as to what would be regarded as `baatil' means to deprive a lawful owner of his lawful property are numerous and the aforesaid provisions are some of the instances of `baatil' means within the meaning of relevant Verses of the Holy Qur'an. The learned counsel maintained that the judgment of the Supreme Court of Pakistan, referred to above, correctly enunciated the principles of Shariah on the point and suffers from no legal infirmity.
7. ' It would be expedient to reproduce the impugned provisions of the Azad Jammu and Kashmir Land Reforms Act which have been held to be violative of Shariah. For the correct appreciation of the matter in controversy the same are reproduced below:-- "Section 8: Limits on individual holdings.---(1) Save as otherwise provided in this Act, no person shall, at any time, own or in any capacity possess land in excess of five hundred acres of cultivated land, or one thousand acres of uncultivated land, or cultivated and uncultivated land the aggregate area of which exceeds five hundred acres of cultivated land, one acre of cultivated land being reckoned as equivalent to two acres of uncultivated land, and any reference in this Act to an 'acre' of cultivated land shall be construed accordingly.
(2) In calculating the area owned by a person the area in respect of which his occupancy tenants finally become the owners in accordance with the provisions of this Act, shall be excluded from the total of his holding and shall be included in the total holding of the occupancy tenants as owners.
8. Section 9.
9. Wakfs.---(1) Land included in any 'wakf of the nature described in section 3 of the Musalman Wakf Validating Act, 1913 (VI of 1913) shall, on the commencement of this Act cease to form part of such wakf.
(2) Such land, except the portion, if any, already specifically dedicated for a religious, pious or charitable purpose, shall be appropriated as follows:---
(a) If the donor is alive and is the sole beneficiary of the wakf, the land shall revert to him.
(b) If the donor is alive and is not the sole beneficiary and there are other beneficiaries besides him, then such portion of the land as is reserved under the 'wakf for the benefit of the donor shall revert to him, and the remaining portion of the land shall be divided among the other beneficiaries, non-heirs receiving share in proportion to the benefit reserved for them under the 'war and heirs according to the law of inheritance, as if succession had opened on the commencement of this Act.
(c) If the donor is dead, the land shall be divided among the beneficiaries, non-heirs receiving share in proportion to the benefit reserved for them under the 'wakf' and heirs according to the law of inheritance, as if succession had opened on the day the donor died.
(d) If a benefit derivable from such land, not being a dedication of a specified land, is reserved under the `wakf for religious, pious, or charitable purpose, the Commission may, in lieu of the benefit, allow for such purpose such portion of the land to be retained or such compensation to be paid, as it thinks fit, and utilize the land or a portion thereof, as the case may be, in accordance with the provisions of this Act.
10. Section 12.
11. Share in shamilats.---(1) A person owning or possessing a share in a Shamilat shall not be entitled to own or possess any such share if after the application of the provisions of sections 8, 9 and 10 he is entitled to retain outside the Shamilat an area of five hundred acres of cultivated land or one thousand acres of uncultivated land.
(2) In case-the area retained by such person is less than five hundred acres of cultivated land or one thousand acres of uncultivated land, he shall be entitled to so much share in the Shamilat as would provide him with an area equivalent to five hundred acres of cultivated land or one thousand acres of uncultivated land.
12. Section 14, Power to obtain declaration---The Commissioner may, by order published in the official Gazette, direct persons who own or possess land in excess of five hundred acres of cultivated land or its equivalent, to submit to such authority, in such manner and form, and by such date, as may be specified in the order, declarations in respect of areas owned or possessed by such person, areas, gifted or received by gift on or after the 24th day of October, 1947, areas transferred or alienated by them on or after the 24th day of January, 1959, areas selected for retention by them, and such other information as the Commissioner may require.
13. Section 15.
14. Resumption and vesting in Government of excess land.---(1) Land in excess of the area permissible for retention under Part III shall vest in and be resumed by Government free from encumbrance or charge.
(2) Any encumbrance or charge, which existed on any land resumed under subsection (1), shall be deemed to have been transferred to the land retained under Part III, and also to the compensation payable under sections 16 and 17 to the extent necessary.
15. Section 16.
16. Scale and payment of compensation---(1) In addition to any compensation which may be payable under section 17, compensation for land resumed under section 15, shall be paid according to the following scale, that is to say--
(a) for the first 200 Kanals at the rate of 75 times the land revenue of the land resumed;
(b) for the next 400 Kanals at the rate of 60 times the land revenue;
(c) for the next 800 Kanals at the rate of 45 times the land revenue;
(d) for the next 1600 Kanals at the rate of 30 times the land revenue;
(e) for the balance at the rate of 15 times the land revenue: ' Provided that the maximum compensation for the resumed land shall not exceed Rs,75 per Kanal in any case.
(2) Where any land is not assessed to land revenue the Land Commission shall determine the rate of its land revenue for purposes of assessment of compensation and in cases where the land is recorded as 'ghair mumkin', or uncultivable, the rate of land revenue for the purpose of determining the compensation shall be deemed to be one-half of the lowest rate of land revenue in that assessm ent circle.
(3) Where the land to be resumed is covered by forests owned by the land owner the compensation for the land so resumed shall be determined by the Land Commission in consultation with the Forest Department of the Azad Jammu and Kashmir Government.
(4) Compensation payable under this section shall be paid in such manner as may be provided by the Government."
17. ' It may be stated that the abovementioned provisions of the Land Reforms Act are identical to ones which were the subject-matter of the dispute in the Supreme Court of Pakistan which ultimately resulted in the verdict of the Supreme Court of Pakistan, referred to above. Even the phraseology employed in the provisions which were subject-matter of dispute before the Supreme Court of Pakistan and those which are before us is also more or less identical. Thus, the questions which fell for the determination before the Supreme Court of Pakistan and those which are before us are the same. Consequently, the view taken by the Supreme Court of Pakistan, if otherwise found to be in consonance with Shariah, is fully applicable to the facts of the case in hand. It may be stated that before dilating upon the points involved in some detail, it would be expedient to reproduce some of the relevant Verses from the Holy Qur'an:--
(i) Sura Baqarah, V. 212: " As to the wordly riches, Allah has full authority and power to bestow these without measures on anyone He wills."
18. Sura Baqarah, V.
188. {{URDU TEXT}} "Do not usurp one another's property by unjust means nor otter it to the judges so that you may devour knowingly and unjustly a portion of the goods of others."
(iii) Sura Nahal, V.71: {{URDU TEXT}} {{URDU TEXT}} ' It is evident from the above Verses of the Holy Qur'an that usurpation of another's property by unjust means has been strictly prohibited. There could be difference of opinion as to what would be regarded the unjust way of usurpation of other's property but there could not be any difference on the point that usurpation of other's property is strictly prohibited by Shariah. Verse 71 of Sura Nahal reproduced above, is merely persuasive in terms that `Rizq' in excess of one's necessity should be distributed amongst the poor. The phraseology employed in the Verse is not a commandment but a persuasion to give alms to those who are poor. ~~It is evident from the provisions of the Land Reforms Act, reproduced above, that the cumulative effect of the same is to take away the immovable property of an owner beyond certain limits and put a restriction on the quantum of acreage which one can own. The compensation envisaged in the aforesaid provisions also cannot be regarded to be `compensation' in the true connotation of the word because it is merely nominal and cannot be termed as compensation.~~ Maulana Abul Aala Maudoodi has dealt with the proposition in some detail in his booklet known as `Masala Malqiat-e-Zamin'. The relevant extracts from the booklet are reproduced as under: {{URDU TEXT}} {{URDU TEXT}} {{URDU TEXT}} ' It is evident from the view taken by Maulana Abut Aala Maudoodi that the Holy Qur'an and Sunnah permit to take a property without compensation only from a usurper; but in case of old onwerships it is not possible to ascertain that the same were got through lawful or unlawful means. Thus, if it is necessary to bring the reforms in private holdings, it can only be done by purchasing the lands from the owners and distributing the same to the needy.
19. ' In Qazalbash's case, referred to above, Mr. Justice Muhammad Taqi Usmani, whose opinion represents the majority view, while dealing with the proposition has observed as under:-- {{URDU TEXT}} ' Dealing further with the question of compensation, the learned author observed as under:- {{URDU TEXT}} {{URDU TEXT}} {{URDU TEXT}} ' The learned Judge, after citing different incidents from the life of the Holy Prophet (peace be upon him), and Khulafa-e-Rashideen, has concluded the matter in para. 90 of the judgment as under:-- {{URDU TEXT}} ~~It is evident from what has been stated above that without paying compensation, an owner cannot be deprived of the property and compensation must be adequate one and not merely nominal.~~ ~~In the light of what has been stated above, finding no force in this appeal it is hereby dismissed with no order as to the costs. This decision shall take effect on 10th of May 1993 whereupon the provisions declared repugnant to the Injunctions of Islam will cease to have effect.~~ ORDER OF THE COURT ' The judgment shall be sent to the Assistant Registrar Branch Registry, Mirpur who shall announce the same in presence of the counsel for the parties.