' This judgment will dispose of FAO No, 152 of 1991 and FAO No, 155 of 1991, which are directed against the order dated 11-6-1991 of Mr. Naveedul-Zafar Malik, Additional District Judge, Lahore, whereby he accepted the application of the respondent No,1 under section 11 of the Punjab Waqf Properties Ordinance, 1979 (hereinafter to be referred as Ordinance 1979).
2. The relevant facts are that Mst. Rashida Zohra wife of Dr. M.S. Namus was owner of property Nos.
9 and 10, Multan Road, Lahore. It is maintained that she created Wagf in respect of property No,9 through a registered Waqfnama dated 16-3-1982, Exh.D1 on the file while Waqf in respect of property No,10 was established through deed Exh. D2, which was duly registered on 5-2-1984. The latter Waqf was styled as 'Rashid Zohra Waqf and is the subject-matter of the present appeals. The Waqif, Mst. Rashida Zohra died on 5-3-1988. It was provided in the Waqf deed that after her death the property was to be administered by the Auqaf Department. It seems that the Waqf deed was supplied to the Auqaf Department after the death of the Waqif. The Auqaf Department thereafter processed the case and ultimately decided to take over the property. Notification under section 7 was issued on 31-1-1989 and respondent No,1 filed the petition under section 11 of the Ordinance 1979 on 28-2-1989. The appellants in FAO No, 155 of 1991 made an application for impleading them as respondents. The same was allowed and they were accordingly impleaded as respondents Nos.
2 to 10. The trial Court framed the following issues:--
(1) Whether the petitioner is the real son of Mst. Rashida Zohra and is entitled to inherit her property? OPA
(2) Whether the Waqafnama registered on 5-2-1984 on behalf of Mst. Rashida Zohra in respect of property in question is forged document and consequently notification dated 31-1-1989 issued by respondent No,1 taking over administration and control of the property in question is illegal, void and ineffective against the rights of the petitioner in respect of such property? OPA
(3) Whether this Court has no jurisdiction to grant relief claimed in the petition? OPR
(4) Whether the petition is bad for non-joinder of necessary parties? OPR
(5) Whether the petition has been filed with mala fide intention? If so with what effect? OPR
(6) Whether respondent No,9 is minor and the petition against him is not maintainable in its present form? OPR
(7) Relief.
' Respondent No,1 examined Muhammad Idrees as P.W.1, Malik Muhammad Ashiq as P.W.2, Mushtaq Ahmad as P.W.3, Iftikhar-ud-Din as P.W.4 and himself appeared as P.W.5, He also produced 29 documents. On the other hand, the other respondents examined Fasih-ud-Din as D.W.1, Abbas Ali as D.W.2 and Khalid Hussain as D.W.3 and produced 8 documents. The trial Court after hearing the arguments allowed the petition and it was declared that it was not a Waqf property. The Auqaf Department filed FAO No, 152 of 1991 while some of the other respondents have filed FAO No, 155 of 1991. Both the appeals were admitted to hearing and notice was issued to the respondents.
3. The learned counsel for the Auqaf Department argued that issue No,2 is the only material issue and the trial Court was wrong to decide the same against the appellant. It is added that onus of this issue was on respondent No,1, the applicant but he neither produced the document itself nor examined the scribe nor produced the marginal witnesses nor produced the record of the Sub- Registrar. It is added that he made an application for summoning the marginal witnesses, namely Munawar Hussain, Advocate Lahore and Abdul Rauf but the application was subsequently withdrawn, therefore, this issue should have been straightaway answered against the applicant for lack of proof and his petition dismissed. It is added that the plea in the application under section 11 of Ordinance 1979 was that the Waqf-deed is forged and fake and the allegations were not specific but general in nature. The main attack was that it is a forged document and at the time of the alleged execution the Waqif was seriously ill. It is added that if there was grain of truth in his plea then the applicant at least should have moved for reference of the signatures of the Waqif to the Handwriting Expert. It is maintained that this Court is fully competent to compare the signatures of the Waqif on the Waqfnama itself with admitted signatures on identity card and other documents including Waqfnama Exh.D1 in respect of the other property. In this behalf reliance is placed on the judgments reported as Pervaiz Afzal v. Hassan Ali (1992 CLC 1043), Arif Baig v. Mubarik Ali (PLD 1992 Lahore 366), Allah Dad v. S.M. Khan (1989 CLC 2287), Abdul Rahman v. Abdul Shakoor (1984 MLD 1140) and Muhammad Yousaf Iqbal Ahmed v. Fourth Sindh Labour Court (PLD 1977 Karachi 711). The learned counsel submitted that issue No,1 is beyond the scope of the proceedings under section 11 of Ordinance 1979, therefore, respondents Nos. 2 to 10 were neither proper nor necessary parties to the application.
4. The learned counsel for the other appellants argued that the only formality for completion of Waqf is declaration and appointment of Mutawalli, which can be any one including the Waqif. The learned counsel in this behalf has referred to sections 186 and 202 of the Muhammadan Law by D.F.
Mulla. The learned counsel submitted that issue No,1 was illegally and wrongly framed because the trial Court was only concerned with the status of the property and not the status of private parties claiming any right or interest in the property.
5. On the other hand, the learned counsel for respondent No,1 argued that the certified copies of the Waqfnama Exh.D2 could not have been produced legally until and unless the loss of the original document was proved. It is added that registration does not prove execution. In this behalf, the learned counsel has referred to the judgment reported as Khan Muhammad Yusuf Khan Khattak v.
S.M. Ayub (PLD 1973 SC 160), Sikandar Hayat v. Fazal Karim (PLD 1971 SC 730), Muhammad Ramzan v.
Province of Punjab (1989 MLD 3676), Mehrai v. Noor Bhari (PLD 1978 Lahore 771), and Muhammad Sher v. Muhammad Azim (PLD 1977 Lahore 729). It is added that the property was not Waqf as is also clear from the conduct of Mst. Rashida Zohra, who throughout her lifetime dealt with the property as owner. She paid the taxes, received rent as is clear from the documents Exh.P1 to P6. In this behalf the learned counsel has referred to Chief Administrator of Auqaf, Sindh v. Ibrahim Shah (PLD 1975 Karachi 964) and Gannamaneedi Madhavayya v. Gannamaneedi Achamma (PLD 1949 PC 80). It is added that the fact that the property was not registered under section 6 of Ordinance 1979 as Waqf during the lifetime of the Waqif also lends support to the fact that no Waqf was created.
6. The next submission is that since the Waqif reserved usufruct of the property during her lifetime, therefore, it was not a Waqf property as defined in section 2(e) of Ordinance 1979, therefore, its take-over by the Department is absolutely illegal and without jurisdiction.
7. The next submission is that the date of the alleged Waqf has been wrongly given as 2-5-1984 in Exh. P9 and Notification Exh.P9/1. This is fatal because on one hand it renders the Notification nullity and on the other hand it proves that, in fact, there was no Waqfnama and Exh.D2 is' a forged and fabricated document. It is added that the Auqaf Department has led no evidence, whatsoever. This way the evidence produced by the applicant remained unrebutted, therefore, there is nothing wrong with the findings recorded by the trial Court. It is submitted that the notification was published in the Official Gazette on 22-8-1992, therefore, it cannot be made effective from 31-1- 1989. The learned counsel in this behalf referred to Mst. Sobia Hanif v. Collector, Lahore District, and 5 others (1993 CLC 2073) Mst. Ghulam Fatima v. Chief Administrator of Auqaf, Punjab and another (1993 CLC 692) and The Province of East Pakistan v. Major Nawab Khawaja Hasan Askary and others (PLD 1971 SC 82).
8. The learned counsel for the Auqaf Department while summing up the arguments submitted that since respondent No,1 has failed to produce any evidence, whatsoever, on issue No,2, therefore, there was no need of rebuttal. Moreover, the other respondents have produced the documents and the oral evidence. It is added that the Department has no clue as to the whereabouts of the original Waqfnama and there was no chance of getting the same as the property and belongings of the deceased Mst. Rashida Zohra after her death were taken over by respondent No,1. It is added that certified copies were produced which were admissible and presumption of truth is attached to the same. In this behalf, the learned counsel has referred to Article 79 of the Qanoon-e-Shahadat, 1984 and sections 57 and 60 of the Registration Act and relied on the decisions reported as Zahoor All v. Haji Abdul Sattar (1987 CLC 2337), Mst. Aisal Mai v. Allah Ditta (1991 CLC Note 246 at p. 191) and Sughran Begum v. Qadir Begum (PLD 1986 Quetta 232). It is added that there was no need to produce the marginal witnesses as the original was not available to the Auqaf Department.
Moreover, Mr. Munawar Hussain, Advocate was counsel for respondent No,1 and Mst. Rashida Zohra.
It is added that respondent No,1 did not produce any witnesses from the family and the evidence produced is of general nature and does not inspire any confidence. It is added that Exh.D2 being a registered document, presumption of truth is attached to the same. In this behalf, reference is made to the judgments reported as Mansoor E. Khan v. Sophia Mansoor Khan (1987 MLD 737), Muhammad Anwar v. Muhammad Iqbal (1984 CLC 103) and Moinuddin Paracha v. Sirajuddin Paracha (1994 CLC 247). It is added that it was obligatory for the applicant to prove this document as forged in order to succeed before the trial Court. This was not done. It is maintained that the quality of evidence is material not quantity. In this behalf, reliance is placed on the judgments reported as Farooq Hassan v. Mumtaz Ahmed Khan (1988 CLC 578), Kausar Haseen v. Anis Begum (1988 MLD 552) and Muhammad Hussain v. Zahoor Ahmad (1989 CLC 1498). It is added that there was no need for the Department to prove the Waqfnama Exh. D2 by production of witnesses in view of proviso to Article 79 of Qanoon-e-Shahadat, 1984. There is clear presumption of genuineness attached to Exh.D2 in view of Article 91 of the Qanoon-e-Shahadat. It, at the end of the arguments, came to light that notification of take-over although issued by the Auqaf Department on 31-1-1989 yet the same was published by the Government Printing Press in the Gazette on 22-8-1992. The learned counsel for the appellant maintained that the late publication of the notification of take- over is of no legal consequence. It was a mere formality and the subsequent publication has cured the defect if any. The learned counsel in this behalf has referred to judgment of Full Bench of this Court reported as Saiyyid Abul A'la Maudoodi etc. v. The Government of West 'Pakistan through Secretary to Government of West Pakistan, Home Department, Lahore (PLD 1964 Karachi 478). It is added that new plea cannot be taken at this stage. In this behalf, the learned counsel has referred to Muhammad Ishaq v. Chief Administrator of Auqaf. Punjab (PLD 1977 SC 639).
9. I have given my anxious consideration to the arguments of the learned counsel for the parties, gone through the record, relevant provisions of law and precedents relied by the learned counsel for the parties. The material issue in these appeals is issue No,2. The onus of the same was on the respondent No,1, who has neither produced the document nor examined the scribe and marginal witnesses nor sent for the record of the Sub-Registrar as to the registration of this document nor got the signatures of Waqif compared/examined by the Handwriting Expert to prove that the document is fake and forged. The statements of his witnesses are of general natures besides the fact that they are not related to late Waqif, therefore, it can safely be recorded that there is no evidence to prove that the Waqf deed Exh. D2 is a forged and fake document. The plea of the respondent No,1, as is clear from the petition, that Waqfnama is a forged, fictitious and fabricated document and at the time of the execution/registration the Waqif was under comma and senseless. The respondent No,1 in order to succeed had to prove this plea but there is not iota of evidence on this point rather there was no effort, whatsoever, made to prove this main plea. The P.W.1 is a Record Clerk of Education Department. He has stated nothing as to Waqfnama. Malik Muhammad Ashiq claimed that he is an ex-neighbourer of the family of Waqif and without reference to Waqfnama stated that Mst. Rashida Zohra never created the Waqf. This statement is general in nature, therefore, of hardly any worth as far as issue No,2 is concerned. While P.W.3 Mushtaq Ahmad right in the examination-in-chief stated that he was not aware whether Mst.
Rashida Zohra created any Waqf or not. P.W.4 Iftikhar-ud-Din, who claimed to be known to the family of respondent No,1, stated nothing as to the Waqf or the Waqfnama. He, however, in the cross-examination deposed that now he has learnt that the dispute is as to the creation of Waqf.
The respondent No,5 himself appeared as P.W.S. He alleged that the brothers of Mst. Rashida Zohra tried to have a deal with him about the properties left by late Mst. Rashida Zohra but he refused to accept their proposal and given them any share in the properties. They threatened to involve him multiple litigation. Thereafter he received copy of the notification from the Auqaf Department whereupon he contacted the office and came to know that Iqbal Ansari has handed over copies of the Waqfnama and letter to the Auqaf Department. Thereafter he stated that the same are forged and fabricated. The Waqf was never created and Mst. Rashida Zohra remained in possession as owner. She had been letting out portions of the property to the tenants and dealing with them. It was she, who paid the property tax, income-tax etc. This is whole of his statement. There is not a single word as to how and by whom the deed was forged and fabricated. There is not a word in his examination-in-chief as to serious illness of Mst. Rashida Zohra.
10. This is not all. The respondent No,1 made an application for summoning the marginal witnesses of this Waqfnama Exh. D2 but thereafter proceeded to withdraw the application and the same was dismissed as withdrawn. He admitted in cross-examination that he knew Mian Munawar Hussain, Advocate for the last 15/20 years and the said Advocate represented them in various cases. It is clear from the decree-sheet Exh.P14 that the said Mian Munawar Hussain, Advocate had appeared for him in the suit for injunction, therefore, this is a strong presumption that had the witnesses appeared he would have not supported the plea of respondent No,1. On the other hand, the signatures of Mian Munawar Hussain, Advocate on the Waqfnama show that whatever was done by Waqif was done voluntarily and she was assisted by an experienced lawyer in preparation of the Waqfnama.
11. The perusal of the trial Court file shows that the respondent No,1 wanted to prove the plea of illness and for that purpose he has placed photo copies of about 16 prescriptions. This is not all. He has produced copy of death register. The column 10 shows that he notified the factum of death of Mst. Rashida Zohra. It is interesting to note that in column 8 pertaining to cause of death he has indicated that it was a natural death {{URDU TEXT}}(_sfib). This document seems to have been produced by him to prove issue No,1 but since he has produced the same, therefore, it can be referred to by this Court.
' It falsifies his plea that Mst. Rashida Zohra was seriously ill. He has also produced a copy of letter dated 9-4-1986 to Manager, Habib Bank whereby the Manager was directed not to pay the amount to any of the heirs as the same has to be utilized for construction of the mosque on the property dedicated for this purpose. It seems that this letter pertained to both of the properties.
12. Now coming to the objection to the admission of certified copy of Waqf deed in evidence as Exh.
D2. There is presumption of truth attached to the document being a registered document. The learned counsel while raising the objection did not keep in mind provisions of Article 91 of the Qanoon-eShahadat, which provides that the document is to be presumed genuine. The appellant was to rebut this presumption while discharging onus of issue No,2. It is true that general rule is that the documents required by law to be attested shall not be used as evidence until two attesting witnesses, who are if alive, amenable to the jurisdiction of the Court and capable of giving evidence are o produced but according to the proviso it shall not be necessary to call attesting witnesses to prove execution of a document, which is not a will and is registered in accordance with the Registration Act, 1908, unless its execution is specifically denied by the person, who allegedly executed it. This way the proviso has reduced the rigor of the main provision considerably. In the present case the Waqfnama, which is a registered document, is fully covered by the proviso. The same was rightly used in evidence. This is not all. The respondent No,1 admitted the existence of Waqf deed and the trial Court rightly placed the onus of issue No,2. On him in view of the provisions of Articles 79 and 91 of the Qanoon-e-Shahadat.
' The learned counsel while making this argument lost sight of the fact that by not producing the document the respondent No,1 has not laid even the foundation to discharge the onus of issue No,2.
Therefore, if for argument saking the Waqf deed is excluded from consideration then the result would be straightaway dismissal of the petition of respondent No,1 on account of his failure to prove the issue.
13. The main thrust of the argument of the learned counsel for the respondent No,1 is that it was clear from the conduct of Mst. Rashida Zohra that she was in possession and dealt with the property as a complete owner and not as Mutawalli. In this behalf documents Exhs.P1 to P3 were got produced from P.W.1. On the other hand, the learned counsel for the appellant argued that the conduct is not at all relevant and in this behalf, he has referred to the case of Ghulam Shabbir v.
Mst. Nur Begum and others (PLD 1977 SC 75). There is merit in the argument because once Waqf is created then the property vests in the Almighty Allah and the ex-owner by his own act or deed cannot convert the same into his personal property. In the case of Ghulam Shabbir (supra) this Court affirmed the decree passed by the Additional District Judge on appeal of the defendant by reversing the decree of the trial Court whereby suit was dismissed. The Hon'ble Supreme Court allowed the appeal of the plaintiff and ruled as under:-- "In Muhammad Saeed and others v. Mst. Sakina Begum and others AIR 1946 PC 177 it was held that the Waqf once made cannot be invalidated by a subsequent inaction of the Waqif nor by a mere assertion in any subsequent document that he had not acted upon the Waqfnama since its registration. Similarly in Yunus Mian Ch. v. Feroze Ch. PLD 1952 Dacca 206, it was observed that malfeasance or misfeasance on that part of the Mutwalli cannot invalidate a Waqf which at its creation was a valid Waqif. If the Waqif made the Waqf in good faith and with real intention of divesting herself of the ownership of the Waqf properties it was a valid Waqf. In Ch. Muhammad Afzal and others v. Ch. Din Muhammad and others AIR 1947 Lah. 117, the facts were that the Waqif had after the creation of the Waqf granted leases, effected mortgages and made applications for repairs and alterations of the property to the municipal authorities and in all those transactions he described himself as the owner. In that connection the Court held that these subsequent acts may and very frequently do amount to a breach of trust, but from a breach it was impossible to argue that there never was a trust created. On appeal from this case in Beli Ram and Brothers v.
Muhammad Afzal, their Lordships of the Privy Council affirmed these findings and observed that it is the established law that once there is an effective dedication in Waqf, it cannot be revoked and that breaches of trust on the part of the trustee however numerous and extending over, however long a period, cannot put an end to the trust."
' Therefore, the conduct is not relevant and even otherwise there is no clear evidence. The Waqfnama is dated 11-1-1984 and the same was registered on 5-2-1984. The usufruct of the property during her life was reserved by the Waqif and thus she continued in possession. The respondent No,1 has mainly relied on the documents Exhs.P1 to P3. It seems that the trial Court did not apply its mind to the documents at all in spite of objection before accepting the same. The same were not admissible in evidence. In this behalf, reference can be made to judgment of Hon'ble Supreme Court in the case of Khan Muhammad Yusuf Khan Khattak (supra). Exh. P1 is copy of a certificate issued by the Excise and Taxation Officer (Zone-IV), Lahore, the copy of the same issued by the Education Department was not admissible in evidence. Exh.P2 is copy of agreement of rent. Neither the scribe nor the executant nor any of the witnesses was produced to prove. While Exh.P3 is an application to the Excise and Taxation Officer which, also, could not exhibit without sending for the original from the Excise and Taxation Officer and proof of it. This way the documents were illegally brought on record and has to be excluded from consideration. Anyhow this controversy need not be discussed any further in view of the above-noted judgment of the Hon'ble Supreme Court in the case of Ghulam Shabbir (supra).
14. The learned counsel for the respondent No,1 argued with reference to Exhs. P9 and 9/1 that the date of Waqfnama in these documents is mentioned as 2-5-1984 whereas Exh. D2 is dated 5-2- 1984, therefore, the notification is illegal. It is clear from the notification that number of the property is correctly given in the notification as well as notice. There was no misgiving in the mind of the parties as to identity of the property. There was no necessity to give the date of Waqfnama in the notification and it was sufficient to describe the property in the schedule. This has been done, therefore, notification is legal. This is not all. This objection was neither raised in the petition nor issue claimed. The learned counsel for the appellant-Department rightly pointed out that it is a clerical mistake otherwise the file of the department shows that the proceedings were in respect of Waqfnama dated 5-2-1984.
15. This brings us to the other objection to the notification that it was not published in the Gazette as required under section 7 of the Ordinance 1979 read with section 2 (41) of the General Clauses Act till 22-8-1992, therefore, take-over in 1989 is illegal and the petition before the trial Court was premature. Before proceeding any further with this objection it is relevant to give the necessary background in which it has arisen. The learned counsel argued that incorrect date of Exh. D2 has been given in the notification, as noted in the preceding paras., it was at this juncture Court directed the learned counsel for the appellant-Department to produce the office file. The order was complied. The learned counsel for the appellant was explaining that the incorrect date of Waqf deed is a result of clerical error. The learned counsel for the respondent No,1 noted that the Gazette notification is dated 22-8-1992 and then he raised this contention. It was argued that notification became effective when it is published.
' On the other hand, the learned counsel for the appellant maintained that the publication of notification is only a formality and there is no time prescribed for its publication, therefore, late publication is of no legal consequence. The learned counsel in this behalf referred to judgment of Full Bench of Karachi High Court in case of Saiyyid Abul Maudoodi (supra).It is added that the new plea cannot be taken at this stage. In this behalf, the learned counsel has referred to case of Muhammad Ishaq (supra). The objection is of no consequence in the given circumstances. In face of the facts of the case on record, the admitted position is that the notification has been published and that the respondent No,1 throughout was under the impression that the formalities in respect of notification have been duly complied as is clear from his conduct while filing the petition under section 11 of the Ordinance 1979 and producing its copy as Exh. P9/1. The defect is of the type of mistake as to matter of fact as provided for in section 22 of the Contract Act, therefore, it did not even render the contract voidable, what to talk of rendering it void.
16. The learned counsel for the respondent No,1 was asked repeatedly as to prejudice caused by this late publication but he could point none. It is admitted position that this was neither pleaded in the petition nor any issue was claimed nor any evidence was led. The learned counsel for the appellant has rightly referred that new plea and that too without proper application cannot be even considered.
17. This is not all. The learned counsel for the appellant has rightly referred to the decision of Full Bench in the case of Maulana Abul A'la Maudoodi (supra). The Full Bench on the point of notification noted with approval the definition of word "publish" as given in the Webster's New International Dictionary; which reads as under:-- "To bring before the public, as for sale or distribution; esp. a to print, or cause to be printed, and to issue from the press, either for sale or general distribution, as a book, newspaper, piece of music, engraving, etc."
' The Hon'ble Supreme Court although reversed this decision yet as far notification point is concerned that was upheld. The decision is reported as Saiyyid Abul A'la Maudoodi and 2 others v.
The Government of West Pakistan and another (PLD 1964 SC 673). The judgment of this Court in the case of Abdul Ghafoor v. Hassan Zaheer, C.S.P. And another (PLD 1965 (W.P.) Lahore 27) is para materia to the case in hand. In the precedent case the petitioner was elected as Chairman, Union Committee on 20-7-1964. One of the contesting candidates presented election petition and prayed that the publication of the name of the petitioner as Chairman be suspended till final disposal of the election petition. The Collector issued the notice to the petitioner and in the meanwhile withheld the publication of notification. The petitioner unsuccessfully moved application- for vacation of this order and then challenged its vires through Constitutional petition. It was held by a Division Bench of this Court as under:-- "4. It should not be assumed that the notification of the name of a Chairman in the official Gazette is a necessary condition for his functioning as a Chairman. As soon as his election takes place and he is declared successful under rule 5 (5) of the Rules, he becomes a Chairman of the Town Committee, clothed with the powers of a Chairman. Therefore, even though his name may not have been notified, the petitioner could not have been prevented from functioning as a Chairman, and the appointment of a substitute to act in his place under Article 75 of the Basic Democracies Order was wholly misconceived."
I have recorded that it is a para materia for the reason that Waqif in the Waqfnama Exh. D2 has clearly provided that after her death Waqf shall be G administered by the Auqaf Department, therefore, the notification of take-over was a mere formality otherwise property vested in the Auqaf Department the moment Waqif died. This is not the usual case where Auqaf takes over management from Mutawalli, on the other hand, in this case the respondent No, 1 had no right to possess and manage the Waqf property. Then comes the case of Standard Vacuum Oil Company v. The Trustees (In place of "The Commissioners" By Amendment) for the Port of Chittagong) (PLD 1961 Dacca 278). In this case the scales of tolls were not published. It was held that provision was not mandatory and the noncompliance was only an irregularity. This controversy fades into insignificance in view of the judgment of the Hon'ble Supreme Court in the case of Pakistan through Secretary, Ministry of Defence and others v. Late Ch. Muhammad Ahsan through Legal Heirs and others (1991 SCMR 2180). The relevant para. Reads as under:-- "In a recent judgment of this Court in Muhammad Siddique v. Market Committee, Tandlianwala (1983 SCMR 785) it was held that depending upon the circumstances of each case the mere fact that publication in the Gazette was delayed, could neither invalidate the notification nor make its operation retrospective as such vis-a-vis date of actually signing it. In the said case the notification concerned was prepared on 30th July, 1975 but was published in the official Gazette on 20th November, 1975---4 months later. The signing of the notification on 30th of July 1975 was treated as having curative effect even if the publication the Gazette was delayed by 4 months.
Although this rule may not be applicable to all situations where publication in the Gazette is necessary but in the facts and circumstances of this case we would have certainly applied the rule laid down in the case of Muhammad Siddique. If a need would have arisen it would have advanced the cause of justice; namely, that factual acquisition of land in this case not having been denied and the same having been acted upon for nearly 50 years and that there is an air field in the land for such a long time, we would not have annulled all that on the ground of technicality namely that although the notice notification had been signed and issued to, all concerned, which had not been gazetted. In other words the purpose of the publication in the ordinary sense was practically served in this case almost contemporaneously when the acquisition took place. In fact it was more substantial publication in so far as the owners were concerned than if it would have been in the official Gazette. This is so, vis-a-vis, the practical side of the matter.
' The learned counsel for the respondent No,1 referred to section 4 of the General Clauses Act but the same deals with the publication of the enactments and not of the notifications, therefore, it is not relevant.
18. The third attack to the notification is that the property is not a Waqf property as per definition contained in section 2(e) of the Ordinance 1979. The argument is clearly misconceived and raised without taking into consideration explanations to the definition of Waqf property particularly explanation No,6. Therefore, before proceeding any further it is worthwhile to refer to the definition and Explanation No,6, which-read as under:- "(e) "Waqf property" means property of any kind permanently dedicated by a person professing Islam for any purpose recognised by Islam as religious, pious or charitable, but does not include property of any Waqf such as is described in section 3 of the Musalman Waqf Validating Act, 1913 (VI of 1913), under which any benefit is for the time being claimable for himself by the person by whom the Waqf was created or by any member of his family or descendants."
Explanation 6.---Relief of the poor and the orphans, education, workshop, medical relief, maintenance of shrines or the advancement of any other object of charitable, religious or pious nature or of general public utility shall be deemed to be charitable purposes."
' While section 3 of the Musalman Waqf Validating Act, 1913, reads as under:-- "3. Power of Mussalmans to create certain Waqfs.---It shall be lawful for any person professing the Mussalman faith to create a Waqf which in all other respects is in accordance with the provisions of Mussalman Law, for the following among other purposes--
(a) for the maintenance and support wholly or partially of his family, children or descendants, and
(b) where the person creating Waqf is Hanafi Mussalman, also for his own maintenance and support during his lifetime or for the payment of his debts of the rents and profits of the property dedicated: ' Provided that ultimate benefit is in such cases expressly or impliedly reserved for the poor or for any other purpose recognized by the Mussalman law as religious, pious or charitable purpose of a permanent character."
' It is clear from the perusal of Waqfnama Exh.D2 that Waqif during her lifetime reserved the income for herself but after her death 10% was to be spent on maintenance of mosque while 90% was to be used for the benefit of the patients of Mayo Hospital. The Waqif was to continue as Mutawalli and after her death the property was to vest in the Auqaf Department. Now the key- I words in the definition are "benefit is for the time being claimable for himself'. The use of words 'for the time being' makes it clear that it was not applicable in future. I am supported by the judgment of Hon'ble Supreme Court reported as Maj. Mehtab Khan v. The Rehabilitation Authority and another (PLD 1973 SC 451). In the present case the benefits are not available now to any member of her family or descendants. The whole income is now to be used for religious and charitable purposes, therefore, the proviso is not attracted. The waqf is fairly and squarely covered by Explanation No,6.
19. The other question, which arises in this context, is that when parties were under misconception of a fact and this misconception has not caused any prejudice to either of them then whether they should be asked to start the whole proceedings once again? Conversely speaking, whether subsequent events whereby the cause of action matured should be ignored? I am of considered view that in the absence of prejudice it is against public policy to relegate the parties to their original position after they have undertaken the I agony of the trial and the litigation has consumed considerable time of the Courts. Therefore, the objection as to late publication of the notification is of no legal consequence.
20. Now coming to issue No,l. It is observed here that the respondents Nos.2 to 10 were neither proper nor necessary parties. They, if interested that the property should remain waqf, then should have at the best appeared as witnesses on behalf of the Auqaf Department. The result of acceptance of their application is that a petition under section 11 had been converted into a suit for administration. This is neither legal nor desirable. The trial Court while dealing with the application could have granted declaration either that the property is not waqf property or that property is waqf property within the limits stated in the petition. This is absolutely clear from the perusal of section 11 under which the petition was filed. The Additional District Judge while hearing this petition was not a Court of general jurisdiction but a Special Court, therefore, has to exercise the jurisdiction strictly in accordance with the provisions of Ordinance 1979. The Legislature in its own wisdom has provided a special forum. There is only one appeal to this Court. The decision in appeal is final. This is not all. The jurisdiction of Civil and Revenue Courts or other authority have been specifically excluded under section 21. This goes a long way to show that the controversy is to be limited only to the declarations as provided for in section 11. The learned counsel for the respondent No,1 referred to the case of Pir Rashid-ud-Daula and 3 others v. The Chief Administrator of Auqaf, West Pakistan (PLD 1971 SC 401) but the same is not relevant because in that case the provisions of the Ordinance were challenged and that has to be decided by the trial Court before undertaking the adjudication on merits. In this behalf, reference can also be made to the judgment in the case of Pir Sabir Shah v. Shad Muhammad Khan. Member Provincial Assembly, N.-W.F.P. And another (PLD 1995 SC 66).
The learned counsel for the respondent No,1 in this context also referred to opening part of section 11 providing that any person claiming any interest may file the petition. The argument was that the appellant had to establish his interest. The argument is misconceived on the face of the fact that the Auqaf Department itself treated respondent No,1 as interested party being incharge of the property in dispute and served him with the notice Exh. P9. The respondent No,1 was well within his right to maintain an application under section 11 on the basis of this notice. This issue is, therefore, struck off.
21. The trial Court failed to appreciate the controversy in its proper perspective and decide the issue No,2 in accordance with law. The findings are illegal, unjustified and without basis. The same are, therefore, reversed.
22. The upshot of the above discussion is that the impugned order of the Additional District Judge is set aside by accepting these appeals with costs throughout. The result is that the application of the respondent No,1 under section 11 of the Ordinance 1979, stands dismissed.