IFTIKHAR MUHAMMAD CHAUDHARY, J.- By this common judgment, I have proposed to dispose of Civil Miscellaneous Appeals No. 10 and 11 of 1993, as identical question is involved in both the cases.
2. Precisely stating the facts giving rise to instant proceedings are that appellants, being legal heirs of late General (Retd) Muhammad Musa, filed an application in the month of May, 1991 for the issuance of Succession Certificate in respect of movable legacy of the deceased. On 10.6.1991 an application was moved on behalf of respondents 1 to 6 for impleading them as respondents1 on the ground, that they are also legal heirs of the late General, in terms of Section 4 of the Muslim Family Laws Ordinance, 1961. The application was contested and ultimately they were allowed to be made party, vide order dated 11.2.1992.
3. On 20.2.1992. Respondent No.1 Sardar Muhammad Javed Musa also filed a petition, before the same court for issuance of a letter of Administration under Section, 378 of the Succession Act in respect1 of the immovable properties left by the late General.
4. The appellants contested the petition, inter-alia on the ground, that Respondent No.1 Sardar Muhammad Javed Musa and others are the sons and daughters of Muhammad Ibrahim and Azra Changezai the son and daughter respectively of late General Muhammad Musa and they expired during his life time (late General Musa), therefore, me not entitled to any succession from his legacy.
5. The trial court without framing the points for determination recorded evidence in both the cases.
However, on 63.1993 it was decided that since there is no dispute that the parties are legal heirs of the deceased, except if the respondents are entitled to claim share out of his legacy as their predecessors were pre-deceased. On this following issue in both the cases was framed:- "Whether children of deceased Muhammad Ibrahim and Mst. Azra Changezai fall within the category of successor-in-interest of late General Muhammad Musa so as to inherit his legacy alongwith others successors-in-interest under the Shariah Law."
6. On having heard the argunients vide common order dated 293.1993 the trial court declared that respondent are* entitled to .Have share Osat of the legacy of the deceased under section 4 of the Muslim Family Laws Ordinance. 1961. Consequently required succession certificate was ordered to be issued in favour of both the parties.
7. Whereas the claim of respondents for issuance of the Letter of Administration, was declined because they failed to file schedule containing the details of the property.
8. Later on, Respondent No.1 Sardar Muhammad Javed Musa filed schedule of the property and the learned trial court without issuing notices to appellants, reviewed its order on 28.6.1993 and issued a letter of Administration in favour of respondents as well as appellants.
M/s Mr. Basharatullah and Muhammad Arshad Chaudhary, Advocate appeared on behalf of appellants. The respondents were represented by Mr Abdul Rauf Kasoori Advocate. Mr. Tahir Muhammad Khan Advocate was also requested to. Assist the court as amicus curiae.
9. Mr. Basharatullah contended that according to the injunctions of Quran and Sunnah the sons and daughters of predeceased son or daughter are not entitled to have share out of the legacy left by the grandfather. The provision of Section 4 of the Muslim Family Laws Ordinance, 1961 being contrary to the Islamic Injunctions is not enforceable. To substantiate his plea he made reference to the Code of Muslim Personal Law by Dr. Tanzil-ul-Rehman as well as the principles of Muhammadan Law by D.F. Mulla. He also argued that under Section 3 and 4 of the Enforcement of Shariah Act, 1991 (Act X of 1991) the Court has been empowered to interpret the existing laws in the light of Shariah.
10. Mr. Abdul Rauf Kasoori opposed the Counsel for Respondents and contended that in view of the judgment of Hon'ble Supreme Court in the case of ''Muhammad through legal heirs Vs. Mst Rehmatan and others" (1994 SCM R 681) the Hon'ble Federal Shariat Court is competent to examine, whether Section 4 of Muslim Family Laws Ordinance is contrary to the injunctions of Islam or not, and this court is not empowered to declare any existing law contrary to the injunctions of Islam while exercising jurisdiction under the Enforcement of Shariah Act, 1991 because Section 3 Sub- section (2) of the Act has provided protection to such laws.
11. Mr. Tahir Muhammad Khan learned Amicus Curiae appeared in response to the notice for one Or the two dates of hearing but when the case was finally heard he was not in attendance.
12. It may be observed that Section 4 of the Muslim Family Laws Ordinance, 1961 was declared contrary to the injunctions of Quran and Sunnah by a Shariat Bench of the Peshawar High Court vide judgment dated 1.10.1979 in the case of Mst. Farishta Vs. Federation of Pakistan PLD 1980 Peshawar P 47 Against this judgment the Federal Govemment preferred appeal before the Shariat Beach of Supreme Court which was allowed, vide judgment PLD.1981 S.C. 120; Relevant para there from is reproduced below:- "Examined in the light of the above discussion it is clear and we hold that section 4 of the Muslim Family Laws Ordinance VIII of 1961 is a special statutory provision which is intended to be applied only to Muslim of Pakistan as a class by itself and from that point of view, constitutes a persons law for the Muslims, i.e. Muslim Personal Law in the sense above explained, with the result, that its scrutiny was outside the jurisdiction of the High Court and the Judgment and order of that court, holding to the contrary, is not correct and is liable to be set aside. In this view of the matter wd are also not in a position to deal with the merits of the validity or invalidity of the impugned provision, as our jurisdiction is equally limited to the extent authorised by Article 203-B of the Constitution which lays down that such types of laws are not to he scrutinized there under. Holding accordingly, we accept this appeal and without expressing any opinion on the merits of the case or the law challenged herein, set aside the order of the High Court as being without jurisdiction, leaving the parties to bear their own costs".
In the above report the Honourable Supreme Court declined to examine the Ordinance-VIH of 1961, in view of the Provisions of Article 203-B of the Constitution.
13. It is pertinent to note that under Chapter 3-A of the Constitution Federal Shariat Court was established with powers to examine whether or not, any law or provision of law, is repugnant to die injunctions of Islam as laid down in the Holy Quran and Sunnah of the Holy Prophet. (PBUH). But a constitutional protection/safeguard was provided to Muslim Personal Law and it was kept outside the jurisdiction of Federal Shariat Court for the purpose of scrutiny as it is indicative from the definition of the word 'law1 under Article 203-B(c). As such the Hon'ble Shariat Bench of the Supreme Court in the Case of Federation of Pakistan held that the Section 4 of the Muslim Family Laws Ordinance, 1961 is immune from the scrutiny by the High Court as well as the Supreme Court itself. Although later on honourable Supreme Court while refusing leave to appeal in the case of Muhammad through legal heirs vs. Mst Rehmatan & others 1994 CMR 681 has held that the Federal Shariat Court is competent to examine whether Section 4 is contrary to the injunctions of Islam or not. With utmost respect and greater sense of humility I venture to say that the authoritative previous judgment of PLD 1981 SC 120 referred to hereinabove was not brought/placed before the Hon'ble Bench of the' Supreme Court, hearing the case, as such, the view expressed in earlier Judgment of Hon'ble Supreme Court will prevail, because that judgment was given in deciding a Regular Appeal.
14. Even otherwise under Article 189 read with Article 203-GG of the Constitution of Islamic Republic of Pakistan the decisions of the Supreme Court or the Shariat Bench of the Supreme Court shall in binding on all other courts in Pakistan if a question of law has been decided or the decision is based upon or enunciates a principle of law, therefore, in my most humble opinion in view of this judgment of the Supreme Court, the Federal Shariat Court also has no jurisdiction to scrutinize Section 4 of the Muslim Family Law Ordinance, 1961 in view of the fact that to protect the Personal Law constitutional safeguard has been provided.
15. Now I would advert to attend the contention of Mr. Basharatullah the learned counsel namely that this court section 3 and 4 of the Enforcement of Shariah Act, 1991 is competent to declare the existing provisions of law repugnant to Injunctions of Islam if they are based on the principles which are not recognized by the Holy Quran or the Sunnah of Holy Prophet (PBUH). The learned counsel quoted various paragraphs from the Code of Muslim Personal Law by Dr. Tanzil-uI-Rehman to substantiate his plea. In my estimation the primary question in this behalf relates to the powers of the court in view of Shariah Act. Thus it would be appropriate to reproduce hereinbelow Section-3 and 4 therefrom.
SECTIONS:- Supremacy of Shariah-(1) The Shariah that is to say the Injunctions of Islam as laid in the Holy Quran and Sunnah, shall be the supreme law of Pakistan.
(2) Notwithstanding anything contained in this Act, the judgment of any court or any other law for the time being in force, the present political system, including the Majlis-e-Shoora(Parliament) and Provincial Assemblies and the existing system of Govemment, shall , not be challenged in any court, including Supreme Court, the Federal Shariat Court or any authority or tribunal: Provided that nothing contained herein shall affect the rights of the non-Muslim guaranteed by or under the Constitution.
FSECTION.4- Laws to be interpreted in the light of Shariah:- For the purpose of this Act
(a) while interpreting the statute-law, if more than one interpretation is possible, the one' consistent with the Islamic principles and jurisprudence shall be adopted by the Court; and
(b) where two or more interpretations are equally possible the interpretation which advances the Principles of Policy and Islamic provisions in the Constitution shall be adopted by the Court.
It was urged by Mr. Kasuri that Section 4 of the Ordinance of 1961 being an ousting law is not challengeable at the touch-stone of Shariat, i.e. Injunctions of Islam, in any court in view of Section 3(2) reproduced above.
16. A persual of Section 3(2) reveals that the lawgivers have provided an exception only to save the system of the government prevailing in the country. This very provision came for consideration before Federal Shariat Court in the case of Muhammad Ismail Qureshi Vs. Federal Govemment of Pakistan PLD 1992 ESC 445 wherein, it has been declared that it is ultra vires to the Constitution.
Thus I am of the opinion that the Section 3(2) Act 1991 provides no immunity to any law from challenging in any court, at the touch-stone of Shariah.
A careful perusal of section 3(2) of the Shariah Act, 1991 reveals that a court has been allowed to interpret the existing provisions of law, in accordance with the principles of Shariah and ho powers have been conferred upon it to declare whether any law is repugnant or contrary to the Holy Quran or Sunnah of the Holy Prophet,(PBUH) therefore, in such view of the legal position, on the strength of the arguments advanced by Mr. Basharatullah, it is not possible to declare that respondents being the sons and daughters of deceased, son and daughter of late General Muhammad Musa are not entitled to claim share out of the legacy left by him. It would be advantageous to note that such powers even otherwise, cannot be exercised, because it being a personal law enjoys a Constitutional protection and for that matter, as it has been observed hereinabove that even the Federal Shariat Court, which was created under the constitution to scrutinize the different laws at the touch-stone of Shariat has not been empowered , to examine the provisions of Muslim Family Laws Ordinance, as it has been observed by the Hon'ble Supreme Court in PLD 198l SC 120. Since there is no dispute between the parties in respect of their respective shares in terms of section 4 of the Ordinance of 1961, therefore, no interpretation of whatsoever nature is warranted by this Court at the touch-stone of Islamic Injunctions.
17. Mr. Basharatullah, learned Counsel next argued that the trial court after having dismissed the application of respondents for the issuance of letter of administration was not competent to review its order without giving notice to appellants.
18. Mr. Abdul Rauf Kasoori, Advocate stated that such powers are available to the court under section 152 CPC. To support the contention, he placed reliance on 1976 SCM R 420.
19. I have examined this aspect of the case as well No doubt it was incumbent upon the trial court to have issued notice to all concerned, before reviewing its order, whereby a letter of administration was issued in favour of both the parties on receiving the schedule of the property froth the respondent, but the question is that, whether any prejudice has been caused to appellants or not Since it has been held by the lower court that both the parties are entitled to have share in moveable and immoveable property of their predecessor-in-interest and due to this very reason a joint Succession Certificate was issued to them vide order dated 29th May, 1993, Similarly a joint letter of administration has been granted and since this Court has not interfered in the impugned order on the pleas raised by Appellant therefore, in my opinion, due to issuance of a joint letter of Administration in favour of both the parties no prejudice has been caused to anyone.
Thus no useful purpose will be served In remanding the case only this reason.
For the above mentioned reasons, I see no force in the appeals, which are accordingly dismissed.