KHALIL-UR-REHMAN KHAN, J.- The Bank of Punjab, a statutory Corporation established under -the Bank of Punjab Act, 1989, filed this petition under Article 199 of the Constitution seeking directions against respondents 1 and 2 to restrain them from treating the petitioner-Bank as Sahib-e-Nisab within the meaning of section 2(xxiii) (b) of Zakat and Ushr Ordinance, 1980, and to exempt the petitioner-Bank from the deduction of Zakat on N.I.T. Units and any other assets and also to direct N.I.T Units Trust to stop deducting Zakat on the N.I.T Units held by the petitioner-Bank. The case of the petitioner-Bank is that 60% of its equity is held by the Punjab Government, other 20% is held by the Autonomous Bodies and Corporations of the Provincial Government banks consultants and staff and the remaining 20% of the equity is owned and held by the general public. The Bank of Punjab Act, 1989, provides that the Government of Punjab shall be a shareholder of the Bank and shall hold at all times not less than 60% of the shares issued by the Bank through the Board of Directors who are Secretaries of the Provincial Government. The petitioner-Bank also acts as Zakat Deduction Agency under the Zakat and Ushr Ordinance, 1980, and as such deducts Zakat from the assets/amounts of its depositors/clients and remits the . Zakat so deducted to the Administrator General, Central Zakat Administration, respondent 1.
2. The petitioner-Bank has made huge investment in N.I.T. Units on which annual dividend is paid at the end of each financial year. The N.I.T. (Units) Trust, respondent 3 is deducting Zakat on the investment made in the said Units. The petitioner-Bank considering this investment not liable to compulsory deduction of Zakat, vide its letters dated 12th, 20th February and 17th, March, 1990, represented to respondent 3 that it being a statutory Corporation was not liable to pay Zakat. This request was not accepted as the petitioner was informed that it was not covered under section 2 (xxiii) (b) of the Zakat and Ushr Ordinance being not wholly owned by the Government and that respondent 3 was not in a position to allow exemption from compulsory deduction of Zakat at source on the investment of the Bank on the N.I.T. Units. This led to the filing of the present Constitution petition seeking aforesaid directions against the respondents.
3. Learned counsel for the petitioner argued that liability to pay Zakat of persons as contemplated by the Holy Qur'an is fixed by the Holy Qur'an itself and the power of charging and collecting Zakat from the persons so liable is provided in section 3 read with the Schedule to the Zakat and Ushr Ordinance, 1980 but this Ordinance as per section 1 (3) applies only to those companies or associations of persons, majority of the shares of which is owned by Muslim citizens and as admittedly more than 60% of equity is owned and held by the Provincial Government, the petitioner-Bank does not fall within the purview of the Ordinance and as such question whether the petitioner-Bank qualifies to be treated as 'Sahib-e-Nisab' does not arise. According to the learned counsel the provisions of the Ordinance arc to receive meaning and content in terms of concepts of Zakat prevalent in Fiqh as the Zakat and Ushr Ordinance, as is apparent from its preamble, was promulgated and enforced with a view to implement Islamic precepts relating to Zakat and Ushr, one of the pillars (Arkan) of Islam. It was further asserted that Zakat in Islam is obligation of a Muslim or natural persons and as the majority of the shares of the petitioner-Bank is held by Government of Punjab and other legal entities which are not natural persons, the Ordinance does not apply to it. Learned counsel cited The Progress of Pakistan C. Ltd. v. Registrar, Joint Stock Companies (PLD 1958 Lah. 887 (DB)) wherein it was held that a company is not a citizen. He argued that a statutory Corporation is distinct from a company or enterprise wholly owned by Government and as such omission to mention statutory Corporation in the exclusion clause of section 2 (xxiii) is immaterial and a statutory Corporation of the kind of petitioner-Bank cannot be treated as falling within the category of 'Sahib-e-Nisab'. Learned counsel for the petitioner also contended that investment in N.I.T. Units is made out of the funds lying with the petitioner-Bank; these funds are not net assets of the Bank. He explained that this fund/investment is out of deposits made by depositors and as such constitute liability of the petitioner-Bank. He added that the petitioner-Bank being itself a Zakat Deducting Agency is deducting Zakat from every depositor liable to compulsory deduction of Zakat and depositing the same with the Zakat Administration and deduction of Zakat on these very deposits in the hand of the N.I.T. Respondent amounts to deduction of Zakat twice over the same deposits. The deduction of Zakat by N.I.T., it was urged, is unauthorised and illegal.
Lastly it was submitted that the petitioner-Bank is being discriminated as Zakat on N.I.T. Units held by the United Bank Limited is not being deducted by respondent No.3 though it is not wholly owned by the Federal Government.
4. Learned Deputy Attorney-General for Central Zakat Council and Administrator-General. Central Zakat Administration and Mr. Asif Jan, Advocate for N.I.T. Trust in their written statements as well as during arguments urged that though 60% equity of the petitioner-Bank is required to be held by the Government of Punjab under Section 7 of the Bank of Punjab Act, 1989, and these shares are held by the Provincial Government but provisions of sub-section (2) of section 1 and sub-clauses (b) and (c) of clause (xxiii) of section 2 of the Zakat and Ushr Ordinance, 1980, are quite clear and leave no doubt as to the extent of applicability of the Ordinance and treatment of a statutory Corporation or a company etc. With regard to its status as 'Sahib-e-Nisab'. It was urged that the petitioner Bank comes under the purview of section 1(2) of the Ordinance and clearly falls outside the purview of sub-clause (b) or (c) of clause (xxiii) of section 2 of the Ordinance and as such the petitioner-Bank was correctly treated as Sahib- e-Nisab and there is neither misinterpretation of section 2(xxiii) of the Ordinance nor any Quranic Injunction has been violated as a juridical person can be made liable to pay Zakat, nor there is any violation of Article 2-A or Article 18 of the Constitution. It was explained that every company or association of persons or body of individuals, whether incorporated or not, is obliged to deduct Zakat on compulsory basis from the Muslim shareholders who are citizens of Pakistan unless exempted under sub-section (3) of section 1 of the Ordinance. The respondents further submitted that no discrimination has been made against the petitioner-Bank in any way and the law has been applied in an absolutely correct and just manner and that a Government, Federal or Provincial, is totally different from a Corporation of any type, statutory or otherwise. It was, however, admitted that nationalised commercial banks have been excluded from the definition of 'Sahib-e-Nisab' in terms of clause (xxiii) of section 2 of the Ordinance because these are owned wholly by the Federal Government which is not the case with the petitioner-Bank as only sixty per cent of its equity is held by the Government of Punjab. The claim of the petitioner-Bank for being exempted from compulsory deduction of Zakat in respect of its assets was thus repudiated.
It may also be noted that the preliminary objections taken in the written statement were not urged during the arguments and the same are, therefore, not being noticed.
5. Dr. Riaz-ul-Hassan Gillani, Advocate was requested to assist the Court as amicus curiae. The exposition of Injunctions relating to Zakat as presented by the amicus curiae was that the Holy Qur'an speaks of Salat (Prayer) and Zakat as obligation of believers at least thirty-two times in different verses. He cited Hamilton's Hedaya Book I, Page 1 to explain the obligation of Zakat and the conditions upon which it is incumbent. The statement reads:- "Zakat is an ordinance of God, incumbent upon every person who is free, sane, adult and Mussulman, provided he be possessed in full propriety, of such estate or effects as are termed in the language of the law a Nisab, and that he has been in possession of the same for the space of one complete year, which is denominated Hawlan Hawl. The reason of this obligation is found in the word of God, who has ordained it in the Koran, saying 'Bestow Zakat', The same injunction occurs in the traditions; and it is moreover universally admitted".
Reference was also made to Mian Khalid Abdul Rauf v. Federation of Pakistan (PLD 1987 Supreme Court 228) in support of the assertion that Zakat which is one of the pillars (Arkan) of Islam is obligation of individual Muslim believer The observation at page 246 reads:- {{URDU TEXT}} 4s--iT j)iJ Xpfi J->*/*>' &/* - /(Jr'j u I f J H -U2c- Learned counsel submitted that juridical status of association of persons apart, obligation to pay Zakat of the persons constituting the association or legal entity is to be determined in respect of the zakatable assets. According to him, where privately owned and State-owned assets are common or intermingled, the majority ownership will determine the liability and that Zakat is not leviable on assets belonging to the State, Baitul Mai, Schools and Orphanages. In support, reference was made to the following:- {{URDU TEXT}} irrj* JsiJf-fJ*/& (Ownership implies that the asset belongs to a Mukallaf "
(Ownership implies that the asset belongs to a Mukallaf" {{URDU TEXT MISSING}} Mukallaf. --A person who is liable to comply Injunction of Shariah. {{URDU TEXT MISSING}} (Zakat is not deductible from the following assets) {{URDU TEXT MISSING}} (Assets dedicated in favour of public in general) {{URDU TEXT MISSING}} (e.g. Mosques, refugee camps, Houses for the poor, there is no Zakat in respect thereof, but those assets which have been dedicated in favour of son or heir, these assets are liable to Zakat for the reason that owner of such {{URDU TEXT MISSING}} assets has restricted power of disposal. {{URDU TEXT MISSING}} (This refers to assets which do not vest in any determinable owner but vest in public-at-large, e.g. Assets vesting in Government, assets known as fay ' ' or one fifth of ghanima ' 'as these assets are utilised for the good of citizens.) Dr. Riaz-ul-Hassan Gillani, Advocate further submitted that when calculating the Zakat due on company shares, the fraction of the investment represented by the shareholders share of Zakat fee portion of the company's wealth (buildings machinery, land, etc.) must be deducted by each individual shareholder from his capital investment and Zakat paid only on his/her share of the company's reserve and working capital (i.e. Cash and articles of trade).
He added that if Zakat has been paid by any person on the assets, then on the same assets Zakat cannot be deducted again. Reference was made to Fiqh-uz-Zakat, Vol, I, pages 529-531 by Yousaf Alqyzave. Relevant pari reads:- i}cr ir.. Jmj'Jw.j Im?
I ? Ji >; o'A _ o 'J"* , us; & w ju a'lfh o ; V-(1)/v J t/(1)* \7K -y fHI CU t;i (Jl 'Cf/ JS uri,bj_j #tbs lij^^ftKeS^alue1 'dfljfrdfa #the #tbs s/S'lUj y^(1) (jjA&J.jCf ill^ :/yillc(t"lf'^(i^(1).(1)> I #the {{URDU TEXT}} Translation.
(As per the above-noted opinion, if shares of the value of 1000 dinars of a company yield at the end of the year to a person profit of 200 dinars he should pay 30 dinars that is, 2-1/2% on the total value, that is, 1,200 dinars, but if on the net profit of the company, Zakat at the rate of 10% Ushr) is deducted then Zakat stood levied on 1,000 dinars and its profit twice, that is, Zakat is levied once on the owner of the shares in the capacity of a trader by collecting Zakat on his shares and its profit at the rate of 2.50% and second time in the capacity of a person producing goods, so Zakat levied on his profit. In other words on income of company one-tenth (Ushr) is received and in this manner Shariah forbids collection of Zakat on same assets twice in a year. We will have to collect Zakat only one time on either of the situations, that is, take either 2.50% on value of shares and its profit or one-tenth (Ushr) on the income of. The company and in this way deduction of Zakat twice over can be avoided).
In support of the above-noted assertion, reference was made to the observation recorded in Sindh High Court case of Galobe Textils Mill v. Habib Bank Limited C. P.D-8590 of 1984 decided by a Division Bench on 28th April, 1986. These are:- "According to Shariah read with the provisions of Zakat Ord., Zakat is payable by a Sahib-e-Nisab after deduction from his zatakable assets, the amounts of debts outstanding against him.....
The observation referred to reads: "it is a principle of Shariat that Zakat can only be deducted once and not twice".....
He argued that as per opinions of Islamic Jurists, Zakat is an obligation enjoined on natural persons; and the assets owned by Government institutions are exempt from payment of Zakat and in case an institution is partly owned by Government and partly by non-governmental institutions or individuals Zakat will be payable if the majority of the shares is held by Muslim citizens. As regards legal entities constituted by Muslim citizens Zakat can be levied on net assets that is, assets after deducting value of the fixed assets (i.e. Building, land, machinery) as well as liabilities.
Dr. Riaz-ul-Hassan, Advocate was of the view that investment in NIT Units made out of the funds Hying with the Bank cannot be treated as net assets, rather this amount is part of the amount deposited with the petitioner-Bank on which Zakat has already been deducted from the account of every Muslim depositor and as such further deduction of Zakat would amount to deduction of Zakat twice. This is neither permitted by Shariah nor by the Ordinance. It was further submitted that non-exclusion of a statutory Corporation, the majority of the shares of which is owned by Government from the definition of the term "Sahib-e-Nisab" in section 2(xxiii) of the Ordinance is violative of Shariah as well as against the scheme and scope of the Ordinance. He was of the view of that this Court should direct the Legislature to include in the exclusion clause of section 2(xxiii) of the Ordinance, the statutory corporation, majority of the shares of which is owned by Government and not by Muslim citizens. He referred to the observations made in the case of Government of N.- W.F.P, and others. v. Said Kama! Shah and others (PLD 1990 SC 865) and contended that enforcement of this definition as it stands would be against the Injunctions of Islam as it omits one of the well-recognized concepts of Shariah. He also referred to Zaheeruddin and others. v. The State and others (1983 SCMR 1718) to emphasize that every manmade law must now conform to the Injunctions of )slam as contained in Qur'an and Sunnah of the Holy Prophet (PBUH) and so the provisions of the Zakat and Ushr Ordinance, 1980 which professes to enforce Injunctions of Islam pertaining to Zakat have to be interpreted in the light of principles enunciated by Muslim Jurists, and if any provision thereof is repugnant to Injunctions of Islam, the same is not to be enforced and implemented.
6. I have given serious consideration to the respective pleas of the parties. The contention that the provisions of the Zakat and Ushr Ordinance, 1980 are to be interpreted in the light of principles enunciated and concepts developed by the Jurists of Islamic jurisprudence may first be dealt with.
Since the establishment of Pakistan, trend of the superior judiciary of Pakistan has been to apply the principles of equity, justice and good conscience as propounded by the Muslim philosophers and as understood in the Islamic jurisprudence is situations where there was no statute or custom governing a particular matter. A Division Bench of Lahore High Court in Abdul Ghani and others. v.
Mst. Taleh Bibi and another (PLD 1962 Lahore 531) considered the question, "whether after the review of section 2 of Evidence Act, 1872 principles and rules of Muslim Law of Evidence stood revived and would apply to situations where the statutory provisions of Evidence Act were not attracted". Learned Judges after discussion of relevant aspects and case-law including the contrary view expressed by "Allahabad High Court in the case of King v. King (AIR 1945 Allahabad 190) held, "that after the repeal of section, 2 of the Evidence Act, the rules of Muhammadan Law which had been repealed by clause (1) have been revived and are now part of the law of Evidence".
A learned Judge of this Court again in the case of Nizam Khan v. Additional District judge and others (PLD 1976 Lahore 930) after tracing the historical background and examining the effect of importation and imposition of British Laws and Rules of Justice, equity and good conscience in the Sub-continent in the background of decided cases observed as under:- "The above weighty observations show that when there is no Qur'anic or Traditional Text of lmja 'or binding Qisas on a question of law, the Courts are to follow the rules of Istihsan and Istislah as understood in Islamic jurisprudence. In other words the rules of equity, good conscience and public policy (Istihsan and Istislah) as contained in Muslim jurisprudence are to be applied to situations not directly covered by the aforementioned sources of Muslim Law. If this is true of one branch of existing law in Pakistan namely Muslim Law that Istihsan and Istislah should be resorted to, it would be a contradiction in approach not to resolve the controversies arising out of other branches of territorial law when they are silent and a vacuum exists |o be filled in by rules of equity, justice and good conscience. In such a situation, it would not be permissible for Courts in Pakistan to apply and import any more the rules of English Law relating to equity, justice and good conscience. In other words, all residuary laws in Pakistan to be applied in fields other than those occupied by existing statutory law has to be Muslim Law and jurisprudence and philosophy underlying the same".
The Supreme Court again in the case of Income Tax Commissioner v. M/s. Siemen (PLD 1991 SC 368) reiterated the aforenoted view as under:- "It was held in the case of Haji Nizam Khan by the Lahore High Court and subsequently affirmed in several legal fields, including criminal and fiscal, that so long as the existing statutes are not brought in conformity with Injunctions of Islam (Article 227 of the Constitution), their interpretation and enforcement wherein discretionary judicial elements arc involved, only that course would be adopted which is in accord with the Islamic philosophy, its common law and jurisprudence (See also the case of Muhammad Bashir PLD 1982 SC 139 and the case of Mian Aziz A. Sheikh PLD 1989 SC 613".
7. The adoption of Rules of Justice and good conscience as pronounced and understood in the Islamic jurisprudence had the sanction of the Constitution, adopted, promulgated and enforced from time to time in all the three Constitutions as all the Constitutions contemplated that "the Muslims shall be enabled to order their lives in the individual and collective spheres in accordance with the teachings and requirements of Islam as set out in the Holy Qur'an and Sunnah". In the year 1985, the Objectives Resolution was made substantive part of the Constitution by adding Article 2-A in the Constitution of 1973 and the effect of the same has been noticed in the case of Zaheeruddin and others. v, The State and other (1993 SCM R 1718 (supra) by the Supreme Court in the following words: "Every man-made law must now conform to the Injunctions of Islam as contained in Qur'an and Sunnah of Holy Prophet (PBUH)".
The effect of aforenoted developments is that now while interpreting the statutory law, if more than one interpretation is possible, the one consistent with the Islamic principles has to be adopted and that interpretation which advances the principles of policy and Islamic provisions in the Constitution is to be adopted by the Court. While interpreting provisions of Zakat and Ushr Ordinance, 1980 the Injunctions of Holy Qur'an and Sunnah will have to be followed. The principles and concepts developed by Muslim jurists will naturally receive due consideration in order to charge and collect Zakat which is one of the fundamental pillars (Arkan) of Islam. The declared object of this Ordinance is that provisions as to Zakat are being enforced in order to comply with the mandate of the Constitution to the effect that the Muslims of Pakistan are to be enabled to order their lives, in the individual and collective spheres in accordance with the tenets of Islam. This is so stated in the Preamble of this Ordinance. Zakat and Salat (prayer) have been mentioned together in Holy Qur'an as obligation of the believers and as such both fall in the category of "acts of worship" and both have to be performed keeping in view the aforesaid distinction. Reference to the injunctions of Qur'an and Sunnah and the concepts developed by Jurists would be necessary for enforcing the provisions of the Zakat and Ushr Ordinance. 1980 as section 2(xv) also refers to Shariah for determining the Zakat able assets.
No controversy, as such, can be raised as regards application of Injunctions of Islam as contained in Holy Qur'an and Sunnah in the matter of enforcement of provisions of Zakat and Ushr Ordinance and in interpreting any of the provisions thereof.
8. I, therefore, proceed to examine the respective submissions of the learned counsel for the parties on merits.
The Zakat on the investment of petitioner-Bank in the N.(1).T. Units is being charged and collected on compulsory basis for each Zakat year on the plea that a statutory corporation which is not wholly owned directly or indirectly by the Federal Government has not been mentioned in sub- clause (b) of clause (xxiii) of section 2 of the Zakat and Ushr Ordinance, 1980, and as such the petitioner-Bank is being rightly treated as Sahib-e-Nisab and thus KI T. Units Trust is rightly deducting Zakat on the N.(1).T. Units. This clause reads as under:- Section 2: (xxiii) 'Sahib-e-Nisab' means a person who owns or possesses assets not less than nisab, but does not include-
(a) the Federal Government, a Provincial Government or a local authority;
(b) a statutory corporation, a company or other enterprise, owned wholly, directly or indirectly, by the Federal Government, a Provincial Government, a local authority or a corporation owned by the Federal Government or a Provincial Government, either singly or jointly with one or more of the other three; The basic contention on the other hand on behalf of the petitioner-Bank was that the petitioner- Company does not fall within the purview of Zakat and Ushr Ordinance as it is a statutory corporation, the majority shares of which are owned and held by the Provincial Government.
Reliance in this connection was placed on subsection (2) of section 1 of the Zakat and Ushr Ordinance, 1980, which reads as under:- 1(2) It extends to the whole of Pakistan, but (as regards payment and recovery of Zakat and Ushr) applies only to Muslim citizens of Pakistan and a company, or other association of persons, or body of individuals, whether incorporated or not, majority of the shares of which is owned or the beneficial ownership of which is held by such citizens.
The other definition and the section which are relevant in this context are the definition of the term 'nisab' and section 3 which provides for the charging and collection of Zakat. The term 'nisab' is defined in section 2(xva) as under:-
(xva) 'Nisab' in relation lo assets liable to Zakat, except agricultural produce and animals fed free in pastures means 612.32 grams of silver, or cash or gold, or goods for trade, or any assets liable to Zakat under Shariah, the aggregate of which is equal to the value of 612.32 grams of silver, as notified by the Administrator-General for each Zakat year or, in the case of a person whose assets liable to Zakat consist only of gold, 87.48 grams of gold; The relevant part of section 3 reads as under:- 3(1) Subject to the other provisions of this Ordinance, Zakat in respect of assets mentioned in the First Schedule shall be charged and collected, on compulsory basis, for each Zakat year, at the rates and in the manner specified therein, and as may be prescribed, from every person (who is on the valuation date, and has for the preceding Zakat year been, Sahib-e-Nisab.
The respondents are treating the investment in NIT Units of the petitioner-Bank as liable to compulsory deduction of Zakat for the reason that a company, whether statutory corporation or otherwise, which is not owned wholly by the Government has not been excluded from the definition of 'sahib-e-nisab'. The effect of non-mentioning of a company which is not owned wholly by the Government in the exclusion clause requires to be determined. The term 'sahib-e- nisab' has been defined to mean "a person who owns or possesses assets not less than 'nisab'. After so defining the said term the Legislature has added that the term 'sahib-e-nisab' is not to include persons, institutions or bodies detailed in clauses (a) to (n). The settled principles of interpretation of statutes are that ordinarily when it is intended to exhaust the significance of the term interpreted, the word 'means' is used. The use of the word 'means' shows that the definition is hard and fast definition and that no other meaning can be assigned to the expression that is put in the definition.
The word 'include' used while defining a term in the interpretation clause is generally used in order to enlarge the meaning of words and phrases occurring in the body of statute. It is intended that while the term defined should retain its ordinary meaning its scope should be widened by specific enumeration of certain matters which in its ordinary meaning may or may not apply so as to make the definition enumerative and not exhaustive and when it is so used these words and phrases must be construed as comprehending not only such things as they signify according to their natural import but also those things which interpretation clause declares that they shall include.
The Legislature while defining the term 'sahib-e-nisab' has used the word 'means' which shows that the definition given is exhaustive and no other meaning is to be assigned to the expression than is put in the definition subject, however, to the condition that there is anything repugnant in the subject or context. But at the same time the Legislature has used the words 'does not include'.
These words indicate that the Governments, bodies, companies, statutory corporations, funds or the persons mentioned in clauses (a) to (n) are not to be taken to be falling within the definition of the term 'Sahib-e-nisab'. The omission of a particular corporation, company or association of persons etc. From clauses (a) to (n) would not necessarily mean that the same necessarily fall within the definition of the term 'sahib-e-nisab'. the question whether or not a company or statutory corporation, or body of persons, falls within the ambit of the term 'sahib-e-nisab' has to be answered by examining the meaning assigned to the term and with reference to the other provisions of the Zakat and Ushr Ordinance, 1980. This brings us back to the main definition of the term 'sahib-e-nisab' which is to the effect that "a person who owns or possesses assets not less than 'nisab". The term 'person', however, has not been defined in this Ordinance. According to section 3 (29) of the General Clauses Act, 1898, a 'person' shall include any company or association or body of individuals whether incorporated or not. So a juridical person also falls within the ambit of the term 'person' but it is to be noted that a person natural or juridical has to be one to whom or to which the Zakat and Ushr Ordinance applies and the assets owned or possessed by him are those assets which under Shariah are liable to Zakat as the term 'nisab' so provides. This conclusion stands fortified from the provisions of section 3 as well which provides that Zakat in respect of 'assets mentioned in. The First Schedule shall be charged and collected on compulsory basis in each Zakat year at the rates and in manner specified therein subject to provisions of this Ordinance'. The other provision which is relevant is contained in sub-section (2) of section 1 of the Ordinance for the purpose of finding out a person natural or legal/juridical who or which is liable to pay Zakat on compulsory basis.
9. It is apparent from very perusal of sub-section (2) quoted above, that a company or other association of persons or body of individuals whether incorporated or not, majority of the shares of which is owned or the beneficial ownership of which is held by Muslim citizens, falls within the purview of the Ordinance. Thus, subject to other provisions of the Ordinance which have created certain exceptions, Zakat is payable by the following two categories of persons:-
(i) Muslim citizens of Pakistan;
(ii) a company or other association of persons etc. Majority of the shares of which is owned or the beneficial ownership of which is held by Muslim citizens.
It, therefore, follows that in case of those companies or association of persons, the majority of the shares of which is not owned or the beneficial ownership of which is not held by Muslim citizens, the Zakat and Ushr Ordinance docs not apply to them and the question of charging and collecting Zakat from their assets on compulsory basis docs not arise. In this view of the matter, omission of such a company, the majority of shares of which is held by a Government, from the exclusion clause of the term sahib-c-nisab' would not make any difference. This interpretation is in accord with the consensus of the Muslim Jurists. These views have been noted in the arguments of the learned amicus curiae.
10. As regards the plea that as the petitioner-Bank is deducting Zakat from the accounts of each depositor which accounts reflect the amount deposited and the profit earned, deduction of Zakat on amount of N.I.T. Units, which amount is taken out of those very deposits, results in collection of Zakat twice, and such a deduction twice over is not permitted by Sharia, there is force in it. The tradition of Holy Prophet is " " (Sadaqah is not levied twice, see Musanaf by I on abi Sheeba, Vol.3 page 218. This very matter has been discussed by Yousaf Alqarzave in his book title "Fiqh-us-Zakat'
( ) Vol.1, pages 529-531, and the extract relied upon by Dr. Riaz-ul- Hassan Gillani (quoted in para 5 of the judgment) appears at page 529. It may be pointed out that view expressed in the extract reproduced refers to the views of Abu Zehrah and his two colleagues |o the tiled that Zakat on the shares and bonds of traders is different front the Zakat which is levied on companies. Zakat on companies is levied on the basts that assets of the company in value increase due to productive activity while value of shares also increases as these arc traded in the market. These views were not agreed to by Mr. Yousaf Alqarzave as after discussion he records the opinion that Sharia forbids colled ion of Zakat twice in a year on the same assets. (See also comments to the same effect at pages 321 and 322 of the same volume J. The comments of Mulana Abul A'ala Maudoodi in his book titled {{URDU TEXT MISSING}} " page 359 may now be quoted:- - , ----------- . , - T ' s/'Of <=- J7 Jh S^6uy iJ)4LTtfjSu>,b(V ^3 (1).
J'/ 'c;&' ilk-efjii& It?lJ<(1)->/js<~*'C>i3r.)/S '' - - ^ r- , r . ^ I T {{URDU TEXT}} The method of calculating Zakat on company assets has been given in this comment but the fact remains that Zakat is to be charged and collected on the same assets with reference to the liability of individual shareholder, in the instant case as the investment in the N.I.T. Units as well as the profits accruing thereon is ultimately reflected in the account of each depositor and such deposits are subjected to compulsory deduction of Zakat, the N.I.T. Units Trust respondent cannot deduct Zakat on the said investment.
11. For these reasons, it is held and declared that Zakat and Ushr Ordinance, 1980 does not apply to the petitioner-Bank and as such the investment made in the N.I.T. Units-With National Investment Trust respondent is not liable to compulsory deduction of Zakat. As a consequence of the above declaration, the N.I.T. Units Trust respondent is restrained from deducting Zakat from N.I.T. Units and the respondents are further directed to refund the amount of Zakat on N.I.T. Units which was kept in a separate account to the petitioner-Bank. The petition stands accepted. The parties are however left to bear their own cost. The petitioner will however pay Rs. 10,000 as fee to the learned amicus curiae.