This writ petition arises out of proceedings before a Family Court wherein respondents Nos. 3 to 6, the minor children of a deceased son of the petitioner, have claimed maintenance from their grandfather, i.e., the petitioner, on the basis of a rule of Muslim Law to the effect that in case of father and mother being incapable of maintaining the children, it is the obligation of the grandfather to mantain them provided he is in easy circumstances. Before the learned Family Court the petitioner (defendant) pleaded that the suit by the minors for their maintenance against the grandfather was incompetent as "no statutory duty is cast on a person to maintain the widow and the children of his deceased son". The learned Senior Civil Judge, Lyallpur acting as Family Court rejected the petitioner's plea and held as follows: "The parties are Muslims and they are governed by Shariat in their family relations as provided in section 2 of the West Pakistain Muslim Personal Law (Shariat) Application Act V of 1962. The Principle of Muhammadan Law as laid down in paragraph No. 370 mentioned above has not been excluded either expressly or by implication by any legislative enactment and, therefore, it applies to this case according to paragraph 4 of the Principles of Muhammadan Law by Mulls."
The petitioner filed an appeal against the above decision under section 14 of the West Pakistan Family Courts Act. 1964, which was dismissed by a learned Additional District Judge. The contentions raised on behalf of the petitioner appellant were that the Family Courts Act, 1964, did not provide for maintenance to minor grand-children; that even under section 498 of Cr. P. C. An order of maintenance could not be passed in, favour of grand-children; and that it has not been provided in the Family Courts Act that the rules of Muslim Law will be applicable, therefore it should be presumed that the said law has been impliedly excluded. The learned appellate Court repelled these contentions and observed: that conferment of powers of First Class Magistrate on a Family Judge does not limit his powers to grant maintenance in those cases only which are covered under section 488, Cr. P. C.; that the said power is only enabling one; that the jurisdiction of Family Courts extends to the subjects men--mentioned in the Schedule of the Act wherein item 3 relates to maintenance which subject by virtue of section 5 of the Act is within the exclusive jurisdic--tion of the Family Court, thus it has the power to grant maintenance; that the preamble of the Act read with section 5 and Schedule thereof shows that the question of maintenance of children has to be decided by "the judge of the Family Court"; that the Family Courts Act and other relevant laws do not. expressly or impliedly exclude the application of the Muslim Law-on the other hand, section 2 of the West Pakistan Muslim Personal Law Shariat) Application Act of 1961, provides that "these matter. Of the Muslim parties are to be governed by shariat", therefore, the question of maintenance of the minor grand-children is to be governed by Muslim Law; and that being so, para. 370, of "Mulla's Muhammadan Law" would be attracted and thus the decision on this question by the learned trial Judge was unexceptionable. Aggrieved, by the orders of the Family and appellate Courts, the petitioner then moved this Court in its ,writ jurisdiction.
II. Petitioner's case-Nature of Controversy
2. Learned counsel for the petitioner, while agreeing with two learned Courts below that under Muslim Law the petitioner would be liable to maintain the minor children of his deceased son, subject to the condition that he is in easy circumstances, vehemently opposed the view held b-, learned Courts below that the rules of Muslim Law shall govern the question of petitioner's liability before the Family Court. In other words, according to him, the Courts under the Family Courts Act of 1964 are not competent to apply the substantive Muslim Law to resolve the question of liability of a grandfather to maintain the minor children of his deceased son. He, it is argued, would not be liable if the application of Muslim Law is excluded. In order to achieve this object (exclusion of Moslim Law) the learned counsel raised the folhwing contentions:- "(i) It was provided in section 2 of Muslim Personal Law (Shariat) Application Act, 193 7 (since repealed) that notwithstanding any custom or usage to the contrary, in all questions regarding various specified subjects including maintenance "the rule of decision in cases where the parties are Muslims shall be Muslim Personal Law (Shariat)". However, the repealing Act, namely, West Pakistan Muslim Personal Law (Shariat) Application Act, 1962, in its section 2, excluded the application of Muslim Personal Law (Shariat) to questions regarding maintenance. According to him, the omission of "maintenance" from categorisation of various subjects in section of the 1962 Act should be presumed to be an express exclusion of this subject from the purview of the said provision and in any case it amounted to implied exclusion-
(ii) The Punjab Laws Act, 1972 in its section 5 provided for the application of Muslim Law to certain matters wherein the partiesare Muslim. Maintenance was excluded even from that provision .According to the learned counsel therefore, except for the limited period when the Shariat Application Act, 1937 remained in force, Muslim Law did not apply and would not apply to the controversies relating to maintenance; and lastly.
(iii) Relying on para. 5 read with paras. 2 to 4 of "Principles of Muhammadan Law" by Mulla, he contended that the rules-- of Muslim Law would apply only if not expressly or impliedly excluded and when they are not opposed to justice, equity and good conscience."
3. In view of the complicated nature of the questions involved in the case I had asked Syed Farooq Azeem Hassan, Assistant Advocate--General, and Mr. Eitizaz Ahsan, Advocate, to assist the Court as amicus curiae. Both of them addressed elaborate arguments in support of the proposition that the question of maintenance, as in this case, shall be governed by Muslim Law.
III. Views and Arguments of Syed Farooq Azeem Hassan, Assistant Advocate-General, Punjab, as Amicus Curiae
4. Syed Farooq Azeem Hassan, as amicus curiae, argued that Personal Law was applied in united India when there was a statute to permit its application because, otherwise, since the rule by East India Company,. The policy of the Britishers was well known that wherever they went they took the British common law with them. However, during the nine--teenth century, special enactments were made for the presidency towns for the application of personal law to non-Christians without making speci--fication of the items. By the end of 19th century, all kinds Of statute laws were made to apply to various subjects contracts, evidence, criminal law and procedure, etc. This mass of statutes-supplied the= gMuslim Personal Law (Shariat) Application Act, 1937 was mentioned as manifestation of this trend. In this very connection, the' learned A. A: G. Tried to link up the history of application of Muslim ta'ersonal Law from Punjab Laws Act, 1872 through the Shariat Act of 193 /.
The West Pakistan Muslim Personal Law (Shariat) Application Act, 1967., Family Laws Ordinance, 1961 and Family Courts Act, 1964. After pressing the foregoing hisioricat background, Mr. Farooq Azeem hussar made the following formulations representing his views on the question involved in this case:--- "(i) That the Muslim Personal Law (Shariat) Application Act, 1937--which provided for the application of Muslim Law to the subject of maintenance has not been effectively repealed by section 7 of the West Pakistan Muslim Personal Law (Shariat) Application Act, 1962, therefore, maintenance would continue to be governed by Muslim Law. He cited Yusuf Ali Khan v. The West Pakistan Bar Council Tribunal, Lahore (PLD 1972 Lah. 404in support of the proposition that the repeat, was not effective. ii) That the omission of maintenance from specification of subjects in section 2 of the West Pakistan Muslim Personal Law (Shariat) Act of 1962 was not intentional. It was an inadvertent mistake by the draftsman, otherwise, the policy underlying the Act of 1937 was continued in the Act of 1962, therefore, even if the 1937 Act be deemed to have been repealed, subject of maintenance is covered by the 1962 Act.
(iii) That the provisions in sections 5 and 6 of the Punjab Laws Act 1872 made it incumbent for the Courts to apply personal law in all matters relating to family relations and, because, maintenance falls within this subject, therefore, personal law will apply in the present case. In this behalf, learned A. A: G. Took an alternative position, namely, that even if it be assumed that maintenance is a separate subject from family relations and the same was inten--tionally not provided in section 5 of the Punjab Laws Act, then, under section 6, thereof, Muslim Law shall govern the situation through its own rules of equity, justice and good conscience. In this behalf, while elaborating the argument.
Learned A. A.-G. Made distinction between pre and post partition periods. For the former, he thought that under the then system of laws the only rules of equity, justice and good conscience which could be applied under section 6 would be those available in the English jurisprudence. He, in particular, pointed out that in fact these terms were taken from the law which was being applied by the Courts of Chancery in England. After partition however, he argued that the considerations would be different and the rules of equity, justice and good conscience as contained in Islamic jurisprudence would apply for three reasons;
(a) historical, ideological and sociological compulsions;
(b) constitutional mandates;
(c) judicial trend in superior Courts of Pakistan.
1n this behalf, learned A. A: G. Sought support from Snell's Equity and the ,following cases: Miss Asma Jilani v. The Government of the Punjab PLD 1972 SC 139. Ch. Manzoor Elahi v.
Federation of Pakistan, etc. PLD 1975 SC 66, Fateh Sher v. Sarang PLD 1971 Lab. 128, Muhammad Rafiq v. Mst. Khaliq-un-nissa and another PLD 1974 Kar. 20 and Shaw v. Director of Public Prosecutions (1961) 2 All E L R 446.
(iv) That it is a mandate in the Constitution of 1973 for all the three main Organs of State, to evolve and create an Islamic philosophy, though with different emphasis for individual organs". In order-to support this proposition, learned A. A.-G relied on the preamble, Article 2, Article 31 and Articles 227 to 230 of the Constitution . While elaborating this argument, he emphasized the name of the State "Islamic Republic" and various clauses of the preamble which, he thought, were not enforceable but were guide to the under--standing of the policy of the basic law, namely, "a democratic State based on Islamic principles". On Article 2 of the Constitution, which makes Islam as religion of the State of Pakistan, learned A. A: G. Put forward the proposition that it falls in Part I of the .Constitution which is "Introductory". Article 4(2) of the Constitution which deals with the rights and liabilities of the citizens of Pakistan in general also falls in the same part. Relying on the observations of their Lordships of the Supreme Court (at page 147 et seq of the report) in the case of Ch. Manzoor Elahi, he contended that if Article 4 can be treated as enforceable through Courts even when remedies qua some fundamental rights are suspended, there is no reason why the same principle should not apply to Article 2 of the Constitution. In this behalf, he also thought that all the Articles in Part I including 4 and 2 are coherent inter se It contains political, religious, economic and juridical concepts. According to him, Islam has not been made State religion to theocratic sense nor in the sense that the religion of its population is Islam, because the State is not such an entity which can have a religion in the afore-- noted sense. He made reference to the Irish and English Constitutions as also Munir's Commentaries on Constitution to answer the general question as to the meaning of "religion of State". According to hire, after excluding the meaning qua population in the theocratic sense it would be possible to realise that Article 2. Would operate to no other field than the realm of laws and affairs of State. But, in concrete terms however, he further argued that Article 2 would be interpreted and applied as enforceable law when such cases start pouring in the Pakistani Courts where its application would be thought necessary. On Article 31, his comment was that it provided for an Islamic way of life but was not enforceable. 'Itonly furnished the guidelines. With regard to Part IX of the Constitution, he again emphasized that a new scheme has been introduce, to provide a body of advisers on Islamic Law to the"Parliament" which, in ore sense, at least (Western notions) affected its sovereignty qua law making. When, according to him, there is so much stress on Islam in the Constitution as to sacrifice a part of the sovereignty of the Parliament, it was an indication- an important one-for the other organs including Judiciary to apply Islamic principles in its day to day working. He thought that the Judges in Pakistan should not be hesitant in applying the Islamic Law because this is the need of posterity. He cited the example of exercise of judicial review by the judiciary in America. There was no provision in the American Constitution in this behalf when the Supreme Court under the influence of Chief Justice Marshal held that it had the power of declaring Federal law as unconstitutional in Yarbury v. Madison (1803) 1 Cranch 139 and thus the philosophy of judicial review developed into a full-fledged constitution judicial power. Similarly, .In Pakistan, the judicial trend of applying the Islammic principles of Law wherever possible, though at present in its inception, according to him, must in due course grow to its logical ends in accordance with the constitutional mandates. What he meant probably to convey was that the judiciary should, through its power of judicial review (which should be presumed to be inherent) instead of retarding the process, accelerate the same. It will help what he termed "public philosophy---to develop. A public philosophy based on true principles of Islam which is the hall-mark of the constitutional set- up in Pakistan. In this behalf, he also made a reference to the fact that the President and Prime Minister of Pakistan are ordained by the Constitution to be Muslims. In conclusion, he argued that this concept, when put in concrete proposition, would mean that even though the Courts in Pakistan would not, for the time being during the inter regnum, be competent to strike down valid enacted statutory laws on the basis of repugnancy to Islamic law, it is not only permissible but also desirable that wherever the statute law has left vacuum the same must be filled (by the Courts) with rules of Islamic philosophy in contra-distinction to the rules of any foreign system of laws including the British one. '
IV. Views and Contentions of Mr. Eitzaz Ahsanas amicus curiae ;;-- 5. Mr. Eitizaz Ahmn, another learned Advocate-the second amicus curiae, who like Syed Farooq A. Hassan is himself young scholar of the prevalent major legal systems of the world and has also studied in British Universities, started his submissions with a note of respectful difference with his learned friend, by putting forward the proposition that it is, the constitutional duty of the judiciary of Pakistan to apply Islamic law wherever a vacuum is found qua the statute laws". Before going into details, he propounded the following propositions :-
(i) The sources of the law in Pakistan, in addition to the well-known ones, would include the precedents. He cited Articles 189 and 201 of the Constitution and case of Shorish Kashmiri PLD 1969 SC 14 in this behalf. All sources, when collected, would still leave some vacuum in laws which has to be filled with the rules of equity, justice and good conscience and not the English common law.
Though more often than not, these principles were found by the pre-Partition Indian Courts to be in conformity with the said common law, but the latter was not the primary consideration. The Indian Courts refusedto apply the English common law in case of vacuum if-
(a) a rule of common law was not equitable on its face
(b) a rule was not applicable to the conditions in India : and
(c) the statute which left the vacuum was not passed ore English principles of law.
(ii) The present controversy in this case has arisen in a proceeding in the special (writ) jurisdiction of this Court which, under the British law, is governed by the specific rules described by special nomenclature-certiorari, mandamus, prohibition, habeas corpus, etc. The Constitution-makers in Pakistan, since the 1962 Constitution, have consistently rejected the British law on this subject and after giving up the above nomenclature, various constitutions leave made concrete provisions for the exercise of this special jurisdiction by the superior Courts. Thus, a major departure has taken place from the British common law on account of the difference in constitutional and other conditions in Pakistan.
(iii) The Courts in Pakistan are required by Article 31 of the Constitution to apply Islamic law, wherever possible.
(iv) Under the dispensation/system before the introduction of Islamic provisions in the Constitution/s of Pakistan the personal law of the parties (here Muslim Law), and. Not the rules of British law, was the law to be applied by the Courts "unless something had been done, to stop it, by the Legislature or the Courts".
(v) The rule against extra-territoriality of laws would bar the application of any other law in case of vacuum in Pakistan. If a Pakistani law, general principle or specific statute would not be enforced by British Courts, there is no reason why the Pakistani Courts should continue to enforce the British laws in the form of rules of equity, justice and good conscience. He, in this behalf, also referred to some rules of Private International law.
(vi) Even if the English principles underlying the British law were to apply, then wherever there is right there is a remedy and, because, in this cage the minor children have a right to obtain maintenance from their grandfather, therefore, the Family Courts must provide the remedy.
(vii) And lastly, this learned counsel raised the argument that, as laid down by their Lordships of the Supreme Court in the case of Asma Alan! PLD 1972 SC : 39 (and under the Constitution), the laws given by a usurper cannot be enforced by the Courts on account of their juridical validity, but only for the sake of necessity. According to the learned counsel, the Britishers usurped the sovereignty in the areas including those constituting Pakistan and diverted the well-known system of law which was then in flow in those territories. After accepting good laws made by the foreign rulers, not because of their assumed. Validity but because of their necessity for the body politic, the Courts in Pakistan wherever a vacuum is found must revert back to that very system of law which was prevalent before the advent of British, but consistent with the later constitutional developments.
6. While dealing with the sources of law in the context of the present case, the learned counsel relied on Salmond's and Dias's Jurisprudence. According to him, British common law may be historical source, but not legal source of Pakistani law, on the same analogy as American precedents are not treated as a source of law for English Courts. On the other hand, he assumed that Islamic law is a legal source. He also thought that the legal sources are the only gates through which any branch of law can determine the course for judiciary in Pakistan. Learned counsel exploited with full advantage the effort by Dias to resolve the controversy between the naturalist and positivist points of view on the question of validity of laws. He argued that in the Dual Time Context the existing law might have a controlling influence on the present time span, but iii the continuing Time Context the naturalist view would seep in through the crevices of discretion when left to the Courts by the laws. And in matter of exercise of discretion, Judges and Courts would continue to apply moral rules of law. Apart from other considerations this course would be conducive to the public fidelity to the law. In this very context, learned counsel referred to the oath of office by the Judges and further contended that they cannot, but adopt an ideological approach whenever discretion is allowed to them. Thus possibilities would continue to arise whenever there is vacuum found in so far as the existing statute law is concerned which would thus be filled in by the moral/ideological law which in case of Pakistan is the Islamic law.
In this very context, he heavily relied on Dias views on how judiciary shapes the law.
7. The next subject dealt with by the learned counsel can be treated as extension of the above- noted philosophical argument in a concrete down to the earth reasoning Learned counsel took up dozens of cases from foreign and Pakistani jurisdiction to show that the Judges of a sovereign State should not prefer any foreign norms in the legal field so long as they can resolve the controversies through;. before them on the basis of their own standards of rules of natural justice equity and good conscience. He cited some cases from pre-Partition India wherein he thought the British rules of equity, good conscience and justice as distinguished from common law were either not applied or were applied with reservations. They are : Blreswar Ghosh v. Panchcouri Ghosh and others AIR 1923 Cal. 538, Alfred Wilkinson v. Eamily Norah 6I'Ilkinson and another AIR 192'; Born. 321, Sundermull v. Ladhuf.:i.: Kalr.Jirr. A I :L 1924 Cal. 240, Sheo Ratan Singh v. Karam Singh and others AIR 1924 All. 857,J. H. Pattinson and others v. Bindhya Debi, AIR 1933 Pat. 196, Raja Rampal Singh v. SiArendro hikrani Singh AIR 1937 Oudh 82,Emperor v. U.
Datrtpala AIR 1937 Rang. 8?, Balammal v. Palandi'Naidu and others AIR 1938 Mad. 164, Chhedi Lal v. Babu Bandan AIR 1944 All. 2'4, Haji !Anwir Ahmed 4. Hafiz Maqbul Ahmad AIR 1545 All. 318, Mvhammad Allahdad Khan v. Muhammad Ismail Khan I L R 30 All. 289, Nihal Singh and others v.
The Collector of Bulandshahr I L R 38 All. 237.
Reliance was also placed on Salmond's Jurisprudence, Anglo-Muhammadan Law by Wilson and Islamic Surveys (2) by N. J. Coulson. He then cited Hamira Bibi and others v. Zubaida Bibi and others (1) to show that sometimes even English Judges, while dealing with the question of filling in vacuum in law, instead of applying English rules of equity, justice and good conscience, applied the same rules from Islamic Law when the English rules clashed with the conscience of the parties involved in a particular lie. But at the same time he was critical that such instances would be very rare. A recent Pakistani case, namely. Abdul Ghani arid others v. Taleh Bibi and another (AIR1916PC46has also been cited to show that in case of vacuum, it is necessary to apply the Islamic Law. On general question of conscience of the Judges, the learned counsel was bitterly critical of the attitude of some of the foreign Judges. While interpreting and applying pre-Partition laws, he cited Palmer v. Wich & Puellnaeytown Steam Shipping Company, Limited (1894 A C 318to to show that some rules of British Law were not applied even for Scotland. But when the question of the validity of certain. Waqfs in Muslim Law arose in the well-known case of Abdul Fata ((1894-95)
22 1 A 76 -I L R 22 Cal. 619the same learned Judge who had written judgment in the case of Palmer followed absolutely different philosophy and applied the principles of British common law to a subject which fell under pure personal law of Muslims. This case was decided by the Privy Council in 1904 and it was not till 1913 when the Legislature realising the mistake committed in the sz,i:a .Decision .Corrected the same by a declaratory legislation (Waqf Validating Act of 1913). In this connection, learned counsel cited the comments made by Aziz Ahmad in "Islamic Law" and N. J.
Coulson in "Islamic Surveys ()". He made brief references to Superior Courts of Pakistan by Mannan, 'Futawa Alamgiri' and Baillie's Digest Muhammadan Law. He also relied on Cheshire's Private International Law to show that when some rule of foreign law are repugnant to English moral standards, they would not apply the. same to resolve the controveries coming before them. After making the above survey the learned counsel, in a critical remark but with due respects, opined that if the English Judges as he put it "did not apply their own rules of law across the river Dee in Scotland why should we, sitting beyond Sevenseas, apply their rules"; when, be stressed, "we have a large source of our own rules of law in the Islamic Jurisprudence". He then extended the same argument to the political and constitutional fields and it was in this connection that while elaborating his extraordinary argument, that ordinarily British rules of law subject to rule of necessity should be excluded from Pakistani Courts, as those given by usurpers of sovereignty in a foreign land. He extensively quoted from the case of Asma Jilani (PLD1972SC139Along with this, he briefly dealt with other argument that some British notions and nomenclature have been given up by the Constitution-makers in Pakistan when enacting the 1962 Constitution and those thereafter e.g, the changes in writ jurisdiction,
8. When dealing wit's the constitutional provisions in Pakistan as available in the 1973 Constitution, learned counsel took up a strong position that it is the duty of the Courts in Pakistani to apply the Islamic Law as a residuary source of law in case of a vacuum left by the `existing' statutory law. His main reliance was on clause (1) of Article 31 of the Constitution. While taking due note of the omission of Superior judiciary from the definition of `State' as contained in Article 7, learned counsel stressed the omission of the word 'State' from Article 31(1). Thus, the bar with reference to Article 7, it not applied to Article 31(1), it is the duty of the judiciary also to take the steps qua Islamic way of life (law included), mentioned in the 1etter provision. In reply to the possible objection that clause (1) or'
Article 24 would make Article 31(1) subject to the governing provision of the definition of the `State' in Article 7, learned counsel referred to the oath of office taken by the Judges of the superior Courts under the Constitution. The ruling of the Supreme Court in Ch. Tanbir Ahmad Siddiky v The Province of East Pakistan (PLD1968SC185) was distinguished by him with reference to the bar of jurisdiction of the Courts to enforce the principles of policy only when it is sought to be enforced as a positive measure through proceedings like those in writ jurisdiction. According to him, it would not apply if the principles of policy are sought to be applied in the discretionary jurisdiction of the Courts was the statatury laws being silent, a vaccum is to be filled in by some principles of law. In such situations, according to him, there would be no bar to -the Courts applying the rules of of Islamic Law- In this connection, while reading Article 29, learned counsel opined that notwithstanding the technical bars the principles of policy contained in the Constitution are not hollow slogan or mere pious wish and that they have some tangible content.
9. With regard to the relevant statutes sought to be applied in this case, namely, the Shariat Application Acts of 1937 and 1962 and the Family Courts Act, 1964, learned counsel distinguished the Full Bench case of Yusuf Ali Khan v. The West Pakistan Bar Council Tribunal, Lahore (PLD 1972 Lah--- 404) relied upon by Syed Farooq A. Hassan, learned A. A.-G., and. Contended that the 1962 Act having admittedly been kept alive through various subsequent legal measures, section 7 thereof would keep the 1937 Act (even if not repealed in so far as the Central Statute Book is concerned) out pf application in the for break-up provinces of the Unit of West Pakistan. He, however, agreed with Syed Farooq A. Hassan, though on different arguments, that the 1962 Act does not exclude maintenance from its purview. He divided the subjects dealt in these laws in three categories : (a) those which are mentioned in both the Shariat Application Acts of 1937 and 1962 ; marriage, dower, divorce and guardianship; (b) those provided in the 1962 Act but not in the Family Courts Actsuccession, betrothel, wills, legacy, gifts, religious usages and institutions-in this category, according to him, rights exist under the 1962 Act but the Family Courts Act does not provide the remedy which must be sought through civil Courts; (c) subjects provided in the Family Courts Act but ostensibly not covered by the Act of 1962: restitution of conjugal rights, custody and maintenance. In this behalf, learned counsel thought that the first one would be covered by 'marriage' second by 'guardianship' and the third, by 'family relations' as mentioned in section 2 of the 1962 Act. Therefore. The Family Courts would be competent to apply Islamic Law in the present case. In case of doubt, however, according to him, his earlier arguments provide sufficient scope for the application of rules of Islamic Law, as in this eventuality it would become a case of filling in the vacuum in statute law by the residuary law, which would be the Islamic Law.
V. Islamic Law on the duty of the opulent to support (maintain) needy relations and the poor-A facet of Islamic social justice
10. No controversy has been raised either before the lower Courts or in the High Court with regard to the content of the substantive Muslim Law on the question whether a Muslim, in easy circumstances, is bound to maintain his grand-children who are incapable of maintaining themselves. This rule is only one facet of the concept of social justice in Islam. The poor under some restrictions are entitled under Muslim Law to have recourse for maintenance xo their relatives who are in easy circumstances (Muhammadan Jurisprudence by A. Rahim, pp. 343-344). Every relative within the prohibition degree is entitled to maintenance provided that, it a male, it is either child and poor, or, if adult, he is infirm or blind and poor and, if a to hale, she is poor whether a child or adult. Correspondingly, all persons not themselves poor are obliged to maintain their pour relatives within the prohibited degrees. Maintenance of wife and children, however, depends upon other considerations (see A Digest of Mohammedan Lav7-B. E. Baillie, Chap. III, and The Hedaya Book IV, Chap. XV, Section V). It is from the above main provisions of the Islamic Law on the question of the obligations and rights of the opulent and needy relations in Muslim society that as corollary it has been unquestionably accepted that a grandfather in easy circumstances is bound to maintain and support his needy grand-- children-see also Mulla's Principles of Muhammadan Law'-16th Edn.
(1967), Chap. XIX, section 370 arid 'Muhammadan Law' by Faiz Badruddin Tyabji, III Edn,, sections 288 and 327.
11. 1 do not agree that the obligation is of quasi- legal character. Tyabji has dealt with this aspect at page 309 thus: "The law of maintenance suffers in point of definiteness, as the Muslim texts had no object in keeping legal rights distinct from obligate ins of a moral nature. The powers of a Kazi are so different from those of Courts of law in India, that rules sufficient to guide the Muslim courts cart at times hardly be stated in a concrete form, without violence to some necessary, but merely implied, reservation or qualification, The whole of the law cannot, however, be said to be of merely imperfect obligation- The present Chapter states what seems legally enforceable." He them draft- -d sixty sections of precise Muslim Law on maintenance including 288 and 327. Theme was some codification in England and France on similar lines-see Poor Relief Act, 1601 (Eng.) and French Civil Code, 1803--Chap. V. Recently in some countries of Middle East, particularly Iraq and Syria, a number of Islamic law provisions have been given recognition in salutary form. Similar question was raised in Mahomed Jusab Haji Adam Nurani v. Haji Adorn Haji Usman Nurant (1; English general law on maintenance was sought to be applied and in alternative it was contended that Muslim Law was of imperfect obligation. It was observed that "the distinction between laws of perfect and imperfect obligation has been discussed in detail by Abdur Rahim at page 62 of his Principles of Muhammadan Jurisprudence, where he has described the laws as to domestic relations to be laws of perfect and not imperfect obligation. Later on at page 343. Abdur Rahim has referred to the maintenance of children being a right against their father. So also Wilson in Chapter VI of his Angle-Mahomedan Law has treated the rights of maintenance as rights enforceable under Angle-Mahomedan Law, and in para. 142 has asserted the right of minor sons to maintenance from their father on the authority- of page 456 of Bailllie'a Digest The remark, of Trevelyan in Chapter XXII of his Law Relating to Minors would not appear to be based on any authority relating to Angle-Mahomedan Law. So that there would appear to be no reason to doubt that rights of maintenance are enforceable under Anglo--Mahoruedan Law. That being so the right to enforce them in Civil Courts,' under section 9 of the Civil Procedure Code, is unaffected by the fact that, there is a concurrent provision for their enforcement in Criminal Courts under section 488 of the Criminal Procedure Code as pointed out in they, case of Ghana Kanta Mohanta v. Gereli ((1904) 32 Cal. 479
12. In Verse 26 of Surah XVII of the holy Qur'an it has been ordained: "Give to the 'kinsman' his due (as also to) the 'needy' and the 'wayfarer' and squander not (thy wealth) in wantonness". Some commentators have translated .The word correctly into 'right'. Similarly, in Verse 8 of Surah IV it has been decreed that at the time of division of inheritance some portion be given to the relatives (presumably those who ordinarily do not inherit and are needy) as also to tire needy in general.
There Verses, when read with others on the subject of rights of the needy and the kinsmen including Vs. 83, 177 and 215 in Surah II; Vs.--7, 9 and 36 of Surah IV; V-41 of Surah Vill ; V-90 of Sarah XV1; V-22 of Surah XXIVI V-23 of Surah XLII; give a clear picture of rights of the poor and liabilities of the rich. A further study and research in depth, of these and other similar Qur'anic injunctions to find out the norms of Islamic social justice is the need of the day. When applied through statute laws and Courts there would be preserved enough incentive for the opulent on the one hand 'to give' as the spending would be mainly on their own kinsmen; and on the other the needy also would seek remedies in an orderly manner through Courts of law, rather than through force and anarchy. The view expressed by some that a necessitous father may steal from the property of his opulent sore for his own maintenance, is subject to the condition that it might be resorted to only if the Courts are not functioning (see Tyabji, p. 333). The importance of Muslim Law on the liability of the opulent to support and maintain their needy relations can be well understood from a historical fact. The first Caliph (Hadhrat Abu Bakr (peace be upon him) used to support one of his poor relations (cousin Mistah). The latter was thought to be involved in the slander against the former's daughter (Hadhrat `Aysha-- peace be upon her). On this the maintenance and support was intended to be stopped. But God did not like it whereupon V-22 of Surah XXIV was revealed upon the holy Prophet (peace be upon him). The Arabic text when rendered into English reads as follows :- "Let not those among you who are endued with grace.
And amplitude of means Resolve by oath against helping Their kinsmen those in want, And those who have left.
Their homes in Allah's causes: Let them forgive and overlook. Do you not wisn. That Allah should forgive you? For Allah is Oft-Forgiving, Most Merciful." (Adopted from commentaries on the Holy Qur'an by Abdullah Yusuf Ali (1969), Vol. 11).
In this case, learned counsel for the petitioner, while accepting that the Muslim law does create such a liability (here of, grandfather to maintain needy grand-children), disputed the proposition that it can be enforced through Courts of law in Pakistan.
VI. Field of Muslim Law of maintenance unoccupied by Statute Law
13. Main argument of the learned counsel for the petitioner is that the subject of maintenance has teen intentionally omitted from the category of subjects dealt in section 2 of the West Pakistan Muslim Personal Lave (Shariat) Application Act, 1962. Section 2 reads as follows :- "2. Application of the Muslim Personal Law.-Notwithstanding any custom or usage, in all questions regarding succession (whether testate or intestate), special property of females, betrothal, marriage, divorce, dower, adoption, guardianship, minority, legitimacy or bastardy, family relations, wilts, legacies, gifts, religious usages or institutions, including waqfs, trusts and trust properties, the rule of decision, subject to the provisions of any enactment for the time being in force, shall be the Muslim Personal Law (Shariat) in cases where the parties are Muslims."
Amongst other laws. The Muslim Personal Law (Shariat) Application Act of 1937 "in its application to West Pakistan" was repealed by section 7 of the 1962-Act. Section 2 of the 1937 Act had provided that notwithstanding any custom or usage to the contrary, in all questions (save questions relating to agricultural land) regarding intestate succession, special property of females, including personal property inherited tar obtained under contract or gift or any other provisions, of personal Law, marriage, dissolution of marriage, including tnlaq, ila, zilwr, Wan, khula' and mubara'at, maintenance, dower, guardianship, gifts, trust and trust properties, and wakfs (other than charitable institutions and charitable and religious endowments) the rule of decision in cages where the partiesMuslims shall be Muslim Personal Law (Shariat). In so far as Pun ia!a is concerned, this subject has been dealt also in section 5 of the Punjab Laws Act of 1872 (Act IV of 1872) which (section) to the extent of its inconsistency with the provisions of the 1937 Act was repealed by section 6 thereof (the Shariat Act of 1937). Section 5 of the Punjab Laws Act reeds as follows :-- , "5. Decisions in certain cases to be according to native law-In questions regarding succession, special property of females, betrothal, marriage divorce, dower, adoption, guardianship, minority, bastardy, family relations, will, legacies. Gifts, partitions, or any religious usage or c, institution, the rule of decision shall be-
(a) Any custom applicable to the parties concerned, which is not contrary to justice, equity or good conscience, and has not been by this or any other enactment altered or abolished, and has not been declared to be void by any competent authority ;
(b) the Muhammadan Law, in cases where the parties are Muhammadans, and the Hindu Law, in cases where the parties are Hindus, except in in so far as such law has been altered or abolished by legislative enactment, or is opposed to the provisions of this Act, or has been modified by any such custom as is above referred to."
14. There appears to be considerable force in the argument of the petitioner's learned counsel that the omission of 'maintenance' from section 2 of the 1962 Act, in the background of its specific inclusion in the Shariat Act of 1937, could not be other than intentional. The other view that the expression ` family relations" would also include `maintenance' does not appear to be sound: If such a general expression is held to include specific subjects like maintenance, then there was no need to specify the other subjects like betrothal, marriage, divorce, adoption, guardianship, minority, legitimacy or bastardy in section 2. Looked at in this context, it is clear that the expression "family relations" has been used in a loose sense so as to refer to social and general relations involving moral and social obligations as enjoined by Shariat. On consideration of the other aspects of the question, in any, case, it is inconsequential whether maintenance is or is not included in section 2 of the 1962 Act.
VII. Historical Background and effect of Importation and Imposition of British Laws and Rules of Justice, Equity and "
Good Conscience in the Indo-Pak 't Sub-continent
15. In case it is assumed that a particular field of law is neither covered by statute law as generally understood, nor custom as it remained applicable to certain subjects and up to a period of time, nor personal law as applied by statutes to some specified subjects, the all important question would then arise as to what would be the rule of decision in Pakistan. The aforementioned Punjab Laws Act (Act IV of 1872), in section 6 thereof, furnished the answer, namely, that "in cases not otherwise specially provided for the Judges shall decide according to justice, equity and good conscience".
In the next section 7, all local customs and mercantile usages were also made subservient to the rules of justice, equity and good conscience. Similar provisions existed for other provinces/regions of undivided India fromnineteenth century [For N.-W. F. P., Law and Justice Regulation VII of 1901; for Bombay and Sind, see section 26 of Regulation IV of 1827; for British-- Baluchistan, see British- Baluchistan Civil Justice Regulation IX of 1896; and for Bengal, Agra and Assam, see section 37(2) of the Bengal, Agra and Assam Civil Courts Act, 1887]. Earlier thereto, during the eighteenth century, we find the Governor-General's Regulations of 1781 and 1793 whereby, amongst other matters, it was provided that Judges were to act according to justice, equity and good conscience in cases for which no specific rule existed. There was no such condition in these laws so as to indicate that the rules of equity, justice and good conscience as they prevailed in England were to apply in the sub-continent. On the other hand, the expression "justice, equity and good conscience" remained undefined and was left to be interpreted and applied by the Judges in accordance with their own understanding thereof. This omission, in my view, was intentional because in some other almost contemporaneous laws, where it was intended that the general law of England shall govern a certain situation, the same was provided in statutory form. For example, section 7 of the Indian Divorce Act (IV), 1869 laid down that the Courts shall in all proceedings under the said Act follow the principles and rules which "are as nearly as may be conformable to the principles and rules on which the Court for Divorce and Matrimonial Causes in England for the time being acts and gives relief".
16. The above conclusion is further strengthened by reference to still earlier period of the British advent in the sub-continent. The King of England, by various Charters, authorised the East India Company to govern its servants on the ships as also in the trading settlements on the coasts of India. The laws applied in aid of such governance were to be purely British. More specific provision was made in the Charter of 1661 where under the Company was empowered to "judge all persons . . . . . Under them, in all causes, whether civil or criminal, according to the laws of this Kingdom, and to execute judgment accordingly". This shows that the substantive and procedural laws to be applied by the company were all those which were then in force in England. Thus, the British law, including all its branches, statute, common law and equity were applicable to all persons, whether servants of the Company or living under it, in the trading settlements and they were, under the Charter of 1661, subject to those laws. The Charter of 1668, under which Bombay was transferred to the Company, empowered the latter to make laws, Ordinances and Constitutions for the good government of the island. If this Charter were to be treated as the then Constitution, it provided that the laws authorised by it had to be in accord with reason and further-they could not be repugnant, but be as near as might be agreeable, to the laws of England. The procedures followed by the Courts established by the company were similarly those of the Courts of England. Similar but fluid situation with regard to substantive and procedural laws prevailed till the early part of eighteenth century; where after, it appears, various Acts and Regulations, earlier referred to, made provisions for equity, justice and good conscience as sources of residuary law when a situation was not provided for through other branches of law-statute and customary. This would show that during the early period it was provided through Charters that Courts shall follow British substantive and procedural laws and further that the new laws to be made for Indian settlements could _ not be contrary to the laws of England. During the later period, i.e., eighteenth and nineteenth century, however. The residuary law in the absence of statutory provisions was to be found in equity, justice and good conscience without any specific rider to emphasize that this branch of law was to be developed on the same pattern as that of England. In other words, for the purpose of finding the residuary law, the choice was left to the good conscience and sense of justice as also the standards of equity known to the Judges, serving in India.
17. This was a turning point for the development of jurisprudence in India, The Judges were at liberty to follow the philosophy underlying the Muslim Law which was applicable in the sub-continent for centuries or to follow the general principles of British Jurisprudence with particular reference to common law and equity prevailing in England. For various reasons including psychological, the Judges of Indian origin also, by and large, preferred and followed English rules till the advent of Independence but this submission and surrender was not, without raising of substantial controversies by some of them. Mahmood, J. Of Allababad was one of them. His thought process on this question is discernible in his dissenting judgment in Queen-Empress v. Pohpi and others ((1891) 13 All. 171) which will be presently analysed in another connection. The above analysis has been made to show that even during the pre-Independence period, in so far as the then prevalent enforceable law since the middle of eighteenth century is concerned, it did not require the Judges specifically, to follow the British rules of equity, justice and good conscience as residuary law, if general Muslim Law, or, to put it differently, the Muslim Common Law would have been applied through its own principles of equity and justice as residuary law, strictly legally speaking, they (the Judges) would not have contravened any law determining their jurisdictions and governing and controlling their functions. I would revert to this subject again when dealing with the question whether, even after Independence and under the present constitutional arrangements, the Judges are to follow any other law than Muslim Common Law as residuary source of law in Pakistan.
VIII. Comparative Role of Pre-Independence Superior Judiciary Including the Privy Council
18. At this stage it is necessary to examine Case-law to see whether efforts were not made by the Judges during pre-Independence period to lay down that British rules of equity and justice were not to apply or would apply with restrictions and qualifications where the Indian statute law left a situation to be governed by "equity, justice and good conscience". In Bireswar Ghosh v. Panchcouri Ghosh and others (AIR 1923 Cal. 538after noting the principle that in all cases for which no specific statutory directions are given Judges should act according to justice, equity and good conscience as laid down in section 93 of the 1781 and section 21 of the 1793 Regulations, a Division Bench held that the decision of a case according to the principles of justice, equity and good conscience has "generally" meant decision according to the principles of English Law applicable to a "similar state of circumstances." Even the then existing precedent law was not treated as having settled the point finally. It is probably for that reason that the learned Judges. While giving their own opinion, thought that only generally the principles of English Law would apply. They further commented that this was justified in Dada v. Babaji ((1865) 2 Bom. H C R 38) mentioned by Jenkins, C. J., in Shivarao v. Pundlik ((1902) 26 Bom. 437op the authority of the judgment of the Judicial Committee in Varden Seth v. Lackpathy ((1862) 9 M I A 307 (P C)but It is doubtful whether the Judicial Committee really intended to enunciate the comprehensive rule attributed to their decision. Lord Hobhouse, however, in the later case of Waghela v. Masluddin ((1887) 14 1 A 89) stated that 'equity and good conscience' had been 'generally interpreted to mean the rules of English law if found applicable to Indian society and circumstances'. See also Maharaja of Vizianagram v. Raja Serru Cherla ((1903)
26 Mad. 686). Meenakshi Ammal v. Rama lyer (AIR 1914 Mad. 587), Govindan Nair v. Achutha Menon (AIR 1915 Mad. 1206). Kripasindhu v. Annada Sundari ((1908) 35 Cal. 34), Gurdeo v.
Chandrika ((1909) 36 Cal. 193). In this connection, reference may be made to the observation of Sir Barnes Peacock, C. J., in Rombakch v. Madhusadan ((1867) B L R Sup. Vol. 675that where rights of parties are determined according to the general principles of equity and justice, this must be done without any distinction, as in England, bctween that partial justice which is administered in the Courts of Law and the more full and complete justice for which it is frequently necessary to seek the assistance of a Court of Equity. This was adopted by Jenkins, C. J., in Debnarain v. Ramadhan (AIR 1914 Cal. 129see also the observation of Peacock, C. J., in Khemamoyi v. Soshi Bhusan ((1868) 9 W R 94). In these circumstances, it is not surprising to find that where, as in the present instance, there is no statutory provision directly conclusive on the question of the rights and liabilities of the parties, only justice, equity and good conscience which, Judges steeped in the principles of English jurispru--dence can and do administer, in default of any other rules, is so much of English Law and usage as seems reasonably applicable in this country : Satis Chunder v. Ramdeyal (AIR 1921 Cal. 1
19. It is to be observed that even in the case of Waghela v. Maslud--din which, with respect, was not a correct decision by the Judicial Committee, apart from the use of the word "generally", the learned Judges had also put a rider that the English law would apply only "if found applicable to Indian society and circumstances". A detailed analysis of this case and its effects would be done in another Part (XV) of this judgment,
20. A different note was stru.k in Balammal v. Palandi Noidu and others (AIR 1938 Mad. 164). Law of defamation as a civil wrong was being considered. After noticing that the law of defamation on the criminal side having beenof codified it must prevail but, for civil wrongs there was no codification, there, fore, the rule of law applicable was justice, equity and good conscience it was observed that this branch of law in India was "generally understood to be the principles of common law in England so far as they are applicable to Indian society having regard to the circumstances of the case". At the same time it was observed that "where the principles of Common Law in England are in a state of uncertainty, there is nothing to preclude us applying that view of the law which is essentially just and equitable".
It is apparent that instead of borrowing the rules of English law in the form of justice, equity and goodconscience, the Judges in this case applied that view of law which according to them appeared essentially just and equitable which, otherwise, need not be in consonance with the rules of English law. This is an instance of the expression "equity, justice and good conscience" having been interpreted as not being neeessari!y subservient to rules of English law.
21. Iii Raja Rampal Singh v. Surendra Bikram oli-agh (AIR 1937 Oudh 82), an argument was raised that the English principles of equity could not be invoked in the peculiar circumstances of the case as it was governed by tt,e Contract Act. It was repelled by observation that no specific provision of the Contract Act applied in that case and the argument, as advanced, was not acceptable because the English principle of equity, which was sought to be applied, enunciated in the English cases and "applied by their Lordships of the Privy Council" in Maharaja Grees Chund Ray v.
Sumbhoo Chand Ray ((1835) 5 W R 98) did not contravene any provision of the Contract Act ; and if that were so, "there seems to me no reason why it should not be applied to suitable cases by Indian Courts which are Courts of Equity as well as of law". It is obvious from the report that no other principle of equity than that available in English law was sought to be applied and because the English principle had been applied in other cases without doing any violence to the Contract Act, therefore, no harm was visualised in applying the same in the precedent case. It only illustrates the principle laid down in the earlier Calcutta case (Bireswar Ghosh v. Panchcouri Ghosh and others that generally speaking, if an English principle of equity could apply in the circumstances of the case and also suited the then conditions in India, it would be applied. This case, therefore, does not lay down any new principle.
22. In J. H. Pattinson and others v. Bindhya Debi (AIR 1933 Pat. 196the question was analysed in a different manner. An English Judge writing for the' Division Bench and while dealing with equitable principles for the purposes of mesne profits, observed that "there is no doubt that the expression `equity' ' has been often used in a loose sense in Indian cases as has been the expression `equity, justice and good conscience'. Courts in this country are enjoined to apply the rule of equity, justice and good conscience where there is no rule of law applicable to the facts but that is far from saying or meaning that each Judge may decide a case as he thinks fit and is bound y by no rules, but there must be rules and the deck'on of the case cannot depend upon caprice. Often the rule; of equity, justified and good conscience means a rule of the Common Law of England or role, of equity not as binding upon Indian Courts, but as a guidance in determining the matters which came before them in which there is no rule of Indian Law".
23. My reading of the judgment shows that by the expression "rule of Indian law", the learned Judge did not mean rule of Indian statute law, but any general principle of law which might have found place or was developed in the then Indian jurisprudence and which, keeping in view the judicial history of the sub-continent, could either be based on Muslim philosophy or any other Indian legal source, custom or usage. This supposition is strengthened by the fact that the learned Judge relied on Hamira Bibi v. Zubaida Bibi (AIR 1916 P C 46) to highlight the proposition that the rule of equity which was sought to be appliedwas consistent with the Muslim Law In the Privy Counci; casethe chapter on the duties (adab) of the kazt in Book XX Hedayawas referred to Show that "the rules of equity and equitable considerations commonly recognized in the Courts of Chancery in England are not foreign to the Mussalman systems". Lord Parker who delivered the opinion of the Judgment Committee was described in the judgment in the precedent case as "one of the most eminent equity Judges in England in this century". The ratio of this Patna case clearly shows that the common law of England or rules of equity in that country would be applied only if there was no other general rule of law available in the sub-continent and if a rule was available in Muslim Law, which then formed part of the Indian jurisprudence, it would be applied as a residuary law in case of vacuum in the statute law.
24. In Mst. Samitra v. Karan Singh and others (AIR 1924 All. 857a question had arisen whether the rule laid down in Merryweather v. Nixon ((1799) 8 T R 186that no suit for contribution lies between tort-feasors, does not apply in its full axtent to India. It was noted that there is a long course of authority or theproposition that it applies only where it must be presumed that the party in default knew that he was committing an unlawful act or the act is one of an obviously illegal character. It was in this connection that in the judg--ment delivered for the Division Bench, again, by an English judge, it was observed that "if the case has to be decided on grounds of justice, equity and good conscience it is obviously equitable, in the case of a decree for mesne profits against parties who were in joint possession, that a person who had to satisfy the entire decree should be able to recover his share from his co-defendants, unless there has been something in his conduct to deprive him of this right. The rule of justice, equity and good conscience is in general no doubt considered to be identical with the rule of English Law but there are exceptions and there is the high authority of Lord Herschell in Palmer v. Wick ((1894) A C 318for the view that the rule in Merryweather v. Nixon that no suit lies for contribution between tortfeasors is not found on any principle of justice, equity or even public policy which would justify its extension to the jurisprudence of other countries. Lord Watson, concurring, said that the merits of the rule were not such as to commend it to universal acceptation and Lord Halsbury and Lord Shand concurred in these opinions". The working of the mind of the learned Judge seems clear that the rules of English law in the extended field of justice, equity and good conscience were not of universal or oven general application in places other than England. As would be presently shown, the case of Palmer v. Wick related to Scotland and an English (then existing) rule of equity was not applied to a contiguous territory-Scotland, on same island. It is very significant to note that the case of Palmer v. Wick was treated as "high authority" for the proposition that English rules of equity could not be applied without exceptions.
25. In Privy Council ruling-Hamira Bibi and others v. Zubaida Bibl and others which has already been mentioned while analysing the Patna case of J. H. Pattlnson, the observation appearing at page 301 of the report is relevant for the present discussion. It reads "When a widow is allowed to take possession of her husband's estate in order to satisfy her dower debt with the income thereof, it is either on the basis of some definite understanding as to the conditions on which she should hold the property, or on no understanding, If there is an agreement, express or implied, that she should not be entitled to claim any sum in excess of her actual dower, she must abide by its terms. But where there is no such understanding, and a claim is made as in the present case, the question arises whether, on equitable considerations, she should not be allowed some reason--able compensation, not only for the labour and responsibility imposed on her for the proper preservation and management of the estate, but also for forbearing to insist on her strict legal right to exact payment of the dower on the death of her husband. Their Lord--ships think that she is so entitled, and obviously, compensation for forbearance to enforce a money payment is best calculated on the basis of an equitable rate of interest. This appears to be consistent with the chapter on "The Duties (Adab) of the Kazi" in the principal works on Mussalman law, which clearly shows that the rules of equity and equitable considerations commonly recognized in the Courts of Chancery in England are not foreign to the Mussalman system, but are in fact referred to and invoked in the adjudication of cases."
One thing is discernible from this authority that their Lordships of the Privy Council were conscious that when dealing with a case of Muslims. Where ordinarily the Muslim Law should apply, even if they could apply an English rule of equity it must not be such a rule which is contrary to the philosophy of Muslim law. That is why, it was thought that the rule being applied was consistent "with the Chapter on the Duties (Adab) of the Kazi in the principal works on Mussalman law".
26. In Sundermull v. Ladhuram Kaluram AIR 1924 Cal. 240) also, stress was laid on the "Indian conditions" when holding that common law of England could be applied as a residuary law. But it must be observed that there is no discussion in this case of the principles involved in the question being discussed here. A more specific reference to this subject is found in Alabi koya and another v.
Mussa Koya and others (I L R 24 Mad. 513). After noticing certain statutory provisions, whereby Muslim Law had been applied on specific subjects in some regions, it was held that "in other parts of India rules of Mahomedan Law, though not made applicable by legislation, have been adopted by the Courts as in accordance with equity and good conscience and have been consistently enforced, as such, between Muhammadans". It is obvious that the philosophy underlying many rules of Muslim Law has often been used as guidance and direction for applying the rule of equity and good conscience. It can, therefore, be safely said that Muslim Law sometimes, used to be applied during the pre-Independence period as a residuary law in the form of rules of equity, justice and good conscience, when statutory law was silent on the point.
27. In the Oudh case, viz., Mst. Maqboolan and others v. Ramzan (AIR 1927 Oudh 154a distinction was sought to be made that whenever principles of justice, equity and good conscience are "not inconsistent with any positive rule of Muhammadan Law (they) may well be applied in determining the ground on which a claim for restitution of conjugal rights may be refused by the Courts of justice". It was further observed that "the Courts of Oudh are fortunately seized with a jurisdiction of that nature. By subsection (g) of section 3 of the Oudh Laws Act (XVIIi of 1876) cases not specifically provided for by any custom or the Mahomedan Law where the parties are Mubammadans or by any other law for the time being in force the Courts are invested with jurisdiction to act according to justice, equity and good conscience". My reading of this authority is that the learned Judges were of the view that the rules and principles of English Law relating to justice, equity and good conscience could be applied to a particular case in India only if they were not inconsistent with any "positive rule of Muhammadan Law" when the subject-matter related to Muslims and was not covered by any statutory guidance.
28. The Judicial Committee of the Privy Council in a case from Sind (Mian Pir Bus v. Muhammad Tahar (AIR 1934 PC235), in the particular circum--stances of that case, held that there was no room for the application of the English equitable doctrine that a contract for sale of real property makes the purchaser the owner in equity of the estate. It may, with respect, be pointed out that in the circumstances of the case, the observation does not appear to lay down a general rule. A Full Bench of Bombay High Court in Alfred Wilkinson v. Grace Emily North Wilkinsan and another (AIR 1923 Bom. 321 while interpreting section 7 of the Indian Divorce Act referred to earlier, held that this section is a residuary provision intended to provide for the subjects which were not expressly dealt with in the Act itself and that it was not unusual to insert provisions of this nature ex majore cautela in statutes where an unfamiliar branch of law was being codified for India. Cases of Bailey v. Bailey ((1903) 30 Cal. 490and Ramsay v. Boyle ((1903) 30 Cal. 489were referred for approving the observation that "the expression `rules and principles' points rather to the rules and principles on which the Court deals with these matrimonial causes in requiring a certain degree of evidence and other cognate matters." It was upon this construction of section 7 that it was further observed that the Court had declined to apply the ruling of the Probate Court in England to the case. In Chhedi Lai v. Babu Nandan (AIR 1944 All. 204) and Haji Tanvir v. Hafiz Maqbool Ahmad and another (AIR 1945 All.
318the learned Judges noted a well-- known attitude of the Indian Courts towards English precedent law on various: subjects namely, that although the decisions of the English Courts are entitled to great respect, they are not binding on Courts in India.
29. In the Calcutta case of Bireswar Ghosh reliance was placed on the observation of Sir Barnes Peacock, C. J., in Ram Bakhsh v. Madhusadan It appears that the observation by Peacock, C. J., was not noticed in its proper context. At page 379 of the Sutherland Weekly Reporter (C. 2) it was observed that "it has been held by some of the Common Law Courts in England that a suit for contribution amongst sureties is founded upon implied contract, . . . .; but it must be remarked that the Small Cause Courts in the Moffussil are bound to adjudicate according to the law which is administered in the other Courts of the Mofussil". It was only in this context that it was further observed that "in those Courts (Mofussil) the rights of parties are to be determined according to the general principles of equity and justice without any distinction, as in England, between that partial justice which is administered in the Courts of Law and the more . Full and complete justice for which it is frequently necessary to seek the assistance of a Court of Equity." His Lordship then made important observations which, with respect it is pointed out, were not noticed in the Calcutta case. They are: "The rules and, I may add. The fictions which have been in many cases adopted by the Common Law Courts in England for the purpose of obtaining jurisdiction in cases which would otherwise have been cognizable only by the Courts of Equity, are not necessary to be followed in this country, where our aim is to do complete justice in one suit. It is not necessary for us to imply promises or requests, merely because they would be implied under similar circumstances by the Common Law Courts in England, in cases in which but for such implication they would probably have no jurisdiction, and especially where we find that the Courts of Equity and the Courts of Law are in conflict upon the subject of such implications. I have generally found that, where fictions are resorted to, uncertainty and confusion are the consequences."
It is clear from the above analysis of the case of Ram Bakhsh that no principle was enunciated therein that the Courts in India were to follow the approach of the English Courts in controversy like the present one.
The approach of Peacock, C. J., in the Full Bench case of Ram Bakhsh, as analysed above, was appreciated by the Judicial Committee in Nawab Mirza Muhammad Kazim All Khan and another v.
Nawab Mirza Muhammad Sadiq Ali Khan and another (AIR 1938 P C 169in the observation that this "Full Bench decision --f the High Court at Calcutta in Sir Barnes Peacock's time . . . . . . Con--tains a careful exposition of the matter from an Indian stand-point".
30. In the case of Seth Chitor Mal v. Sahib Lai the majority Mew expressed in the judgment delivered by Edge, C. J. (Mahmood, J. ,dissenting) was that "justice, equity, and good conscience do not require us in India to go so far a field as the Irish Courts, in order there to seek for, and thence to import into India, novel principles of equity, based on .Unsound analogy, and rejected as unsound by Judges of such authority as Bowen and Fiy, L. JJ., and not followed by such an authority as the late Lord Justice Cotton in Faleke v. Scottish Imperial Insurance Co. (L R 34 Ch. D 234and which further are at variance with the Transfer of Property Act, 1882, of the Indian Legislature, and with the policy of the Government as disclosed in its legislative enactments." The doctrine which (was rejected) had its origin in the Courts of Ireland was `that a charge upon land may arise on the principle of Maritime Civil Salvage' which was not followed by English Courts in the cases of Leslie v.
French (L R 23 Ch. D 552) and Falcke v. Scottish .Imperial Insurance Co. Mahmood, J., however held that the English rules of equity are not applicable in India and could not be referred to except for the purpose of comparison and gave elaborate supporting reasons in this behalf which view, would be referred to again in the concluding part of this judgment.
31. Amongst several other authorities on the question of application of the English principles of equity, justice and good conscience in India is Rajah of Viztanagram v. Rajah Setru Cherla Somaskhararaj ((1903) 26 Mad. 686In this Full Bench case, two earlier Full Bench cases from Calcutta and Allahabad Klnu Ram Das v. Muzafer Hussain Shaha (1 L R 14 Cal. 809) and the case of Seth Chitor Mal were referred to. The observations by the Chief Justice of Allahabad High Court in the latter case, which have been already discussed above, are quoted at pages 702 and 703 of the report. A pithy observation by Subramania Aiyer, J., at page 722-723 of the report can be quoted with advantage. After making reference to the dissenting judgments by Mitter, J., ;and Mahmood, J., in Calcutta and Allahabad cases respectively and observations of Ayyanger, J., in that precedent case (of Rajah of Vizianagram), it was observed as follows :- "Whilst refraining from stating in my own words their arguments on the points, as I, by doing so, should be taking up time unprofitably, I think I ought not to omit to observe that this case convinces me ;that there is far less likelihood of any unsound rule being laid down in this country in consequence of the supposed deceptive character of the phrase `justice, equity and good conscience', than there is ofJudges refusing to accept a sound rule from, I say with all deference, what is little short of a prejudice to that time honoured phrase, intro--duced of old by wise legislators and universally accepted as words compendiously denoting those ultimate principles of what is right and proper, fair and reasonable, and good and expedient,--principles which Judges here, as elsewhere, cannot help resorting to~ in dealing with the difficult questions, not directly governed by existing precedents, which often arise in the course of the administra--tion of justice.
It is quite true that for the enunciation of such principles, we mainly and generally look to English decisions and text books of repute. But I fail to see why we are precluded from, when necessary, considering and following rules laid down in the sister island of Ireland, where the same system of common law and equity is 'administered by a judiciary neither less able nor less learned than that in England, if such rules appear to us to be the best suited to the conditions and requirements of this country."
(Underlining* is by me).
32. In another Madras cases Afeenakshl Ammal v. Pudikalapattigramam Rams Aiyar and others (AIR 1914 Mad. 587relating to maintenance, in almost similar situation as in the present case, but relating to a Hindu family, it was observed (at page 588 of the report) as follows "The rules of Hindu Law are binding on the Court only where it is. Necessary to decide 'any question regarding succession, inheritance,, marriage or caste or any religious usage or institution'. In so far as a right to maintenance is a charge on the inheritance of any person according to the Hindu Law, the rules laid down by it would be enforceable. But where maintenance is claimed against a person not on the ground that the property coming by inheritance to him is burdened with the maintenance of the person claiming it, but on the ground that the Hindu Law-givers have placed such a duty on the defendant, the Hindu Law, as such, has no obligatory force. The Court would have to decide the question in accordance with equity, justice and good conscience. The rules and precepts of Hindu Law givers might often be entitled to great respect in deciding the rule of justice in such cases. But the weight due to them would depend on the circumstances of each case including the conditions of modern society and the conceptions of equity and justice which the Court considers it right to give effect to."
(Underlining' is by me).
33. In the Privy Council case of Mst. Fanny Barlow v. Sophia! Eveline Orde and others (1870 Moor's Ind. App. Cas. 277) a difficult legal proposition was resolved by their Lordships of the Judicial Committee by resort to what is called, the natural law (at page 312 of the Report), namely, "the children of a man mean the issue begotten by him, and the criteria of this condition are, the being- born of a wedded wife or wives, or, if born of other women, the being recognized and acknowledged as children by the father." Earlier (at page 309) it was described as 'natural justice' but their Lordships also purported to have decided the case "according to justice, equity and good!
Conscience". The facts of the case are such that it was difficult to call the principle through which the controversy was resolved as that of 'natural; justice' or 'equity' so-called, therefore, resort was made to the expression 'natural law'. Col. Skinner, a soldier of fortune in service of East India.
Company, earned from his masters, for services rendered, big grants and jagirs affirmed (and to take effect from 15-9-1818) by Marquis of Hastingsone time Governor-General of India. Skinner died in 1841. He had left a will in favour of his sons and grand-children, all illegitimate-except one grand- daughter Sophia, respondent in appeal. It was her case that when the testator mentioned 'child'. Or grand-child, it meant 'legitimate' child and not illegitimate. The case had arisen in the region of Delhi, a part of the then North Western Province of India, and was decided by Judicial Commissioner of the then Punjab in favour of the grand-daughter. It was held by the Privy Council that the testator who himself was illegitimate did not follow any religion. The entire family including his brother who were illegitimate (except one) were not known to have followed any custom. It was further held that at the time of testator's death `there was no lex loci of the Province in which he was domiciled' (with respect, the observation is not accepted as correct) ; and as his personal law was unascertainable, therefore, rule of 'justice, equity and good conscience' would apply. But in reality, as earlier noted, law of 'nature' was applied.
34. A different note was struck by Jenkins, C. J., in Shivrao Narayan v. Pundlik Bhaire and others ((1902) 26 Born. 437 While relying on Dada Honaji v. Babaji Jagashet it was held that principles of English law applicable to a similar state of circumstances would govern the situation if an appeal was to be made to the principles of justice, equity and good conscience. Reference was also made to the two cases of Leslie v. French and Falcke v. Scottish Imperial Insurance Co., which have already been mentioned in the preceding paragraphs. In the earlier Bombay case of Dada tlonaji, which was relied upon by Jenkins. C. J., in the case of Shivrao Narayan, the Privy Council case of Varden Seth Ram v. Luckpathy Royjee Lallah and others was heavily relied upon while laying down the proposition that although the English Law is not obligatory upon the Courts in the Mofussil, they ought, in proceeding according to justice, equity, and good conscience, to be governed by the principles of the English law applicable to a similar state of circumstances. With respect to the learned Judge (Couch, J.) who wrote the judgment in this case (of Dada Honaji), he had also failed to notice that the Privy Council had not, by then, clearly held the above view. The opinion in the case of Varden Seth Ram was delivered by the Judicial Committee in 1862. Their Lordships, no doubt, did consider the question of application of the English rules of justice, equity and good conscience to Vas--s in India, but did not hold that the Courts in the sub-continent were to follow the same. The observations at page 324 of the Moor's Report are rather to the contrary. It was held that "the decision of the Sudder Dewanny Adawlut, so far as it respects the enforcement of the lien against the third and last defendants. Appears to have proceeded upon the ground that the principles of the English Law applicable to a similar state of circumstances ought not to govern the decision of that suit in those Courts. This was correct if the authoritative obligation of that law on the Company's Courts were insisted on. There is, properly, no prescribed general law to which their decisions must conform. They are directed in the Madras Presidency to proceed generally. according to justice. Equity, and good conscience " After expounding this legal proposition, it was then examined whether the decision appealed against had violated the direction qua justice, equity and good conscience and in that connection it was noticed that Muslim law on pawns would not apply ag one of the party was a Christian and because it was not shown that any local law existed, therefore, only in that situation (in absence of lex loci rei sitoe) reference was made to the English 'law' as to whether it was applicable as against expressed contract between the parties.
Ultimately, it was held that "to give effect to the legal estate as against a prior equitable title, would be an adoption of the English law ; and to adopt it, and yet reject its qualifications and restrictions, would be scarcely consistent with justice. It was further held that this course was not permissible in law in India. It may be remarked here that even though it was not held by the Privy Council in the case of Varden Seth Ram that the principles of equity, justice and good conscience as prevailing in England, were applicable to Indian similar cases ; the fact remains that in the latter case of Waghela v. Masluddin this rule was so laid. This view that it was in the case of Masluddin when the above rule was laid, was also expressed by Full Bench of Calcutta High Court in Kripa Sindhu Mukerjee v. Annada Sundari Debi ((1908) 35 Cal. 34At page 58 of the report, it was observed that "a recourse to the first principles of jurisprudence, may occasionally be useful in the administration of the law as contained in even an Indian Code. And it is too late now to discard them after their Lordships of the Judicial Committee have interpreted 'equity and good conscience' to mean the rules of English law, if found applicable to Indian society and circumstances : Waghela Rajsanji v.
Sheikh Masluddin Dada Honaji v. Babaji Jagushet and Waman Ramchandra v. Dhondiba Krlshnaji."
I would' again revert to this subject in another Part (XV) of this judgment and would critically examine the first mentioned case of Masluddin which, in fact, laid the foundation for importing English general law in India through doors of `equity, justice and good conscience'. With respect, it would be shown that it was an incorreet decision which governed the situation at least partly, but wrong. For about a century and that it is high time, it should not be followed any more.
IX. Attitude of English Courts and Judges qua Muslim Jurisprudence and General law vis-a-vis the Colonial appendage-British Common Law and Rules of Equity
35. Before coming to the judicial trend in Pakistan with regard to the application of the general principles and philosophy of Muslim Law for resolving concrete legal and constitutional controversies, it is necessary to deal with, briefly, the attitude of the English Courts and Judges on the subject that: wherever the English people went as colonial power, they took their common law with them. The generalisation regarding most of the principles underlying the codified laws and rules is true. However, with regard to the other branch of law, which by no means is small, namely, uncodified rules of law including "equity, natural justice and good conscience", with profoundest respect to the English Judges, it has to be said that the attitude on account of various reasons including, sometimes, the lack of detailed knowledge of the local, social and moral conditions as also the Indigenous legal norms, has not been very consistent. It has been noted above, while discussing the Indian authorities particularly the Calcutta case of Bireswar Ghosh v. Panchcouri Ghosh and others, that the Indian Courts tried to follow the 'general' guidance given by the Privy Council in the case of Masluddin, that the English rules of equity, justice and good conscience may be applied In India under certain conditions. Thus generally speaking, those rules were no doubt imported and applied in India. But in Palmer v. Wick, an English rule of equity was not applied in a case from Scotland simply, on the ground that it was not proper to do so on account of Scotland being a separate territory. Three learned Lords, who delivered the opinions. In detail, gave supporting reasons for this attitude. It is instructive to reproduce the same.
(Lord Herschel], L. C-) t "Much reliance was placed by the learned counsel for the appellant upon the judgment in the English case of Merryweather v. Nixan (8 T R 186). The reasons to be found in Lord Kenyon's judgment, so far as reported, are somewhat meagre, and the statement of the facts of the case is not less so. It is now too late to question that decision in this country : but when I am asked to hold it to be part of the law of Scotland. I am bound to say that it does not appear to me to be founded on any principle of justice or equity, or even of publlc policy, which justifies its extension to the jurisprudence of other countries."
(Lord Watson): "I have not hitherto noticed the English case of Merryweather v. Nixan. Assuming it to be an authority establishing the general rule for which the appellant contends-a proposition which seems to admit of doubt--I can only regard it as a positive rule of Common Law of England, which is Inconsistent with, and ought not to override, the law and practice of Scotland. The merits of the rule are not, in my opinion, such as to commend it to universal acceptation."
(Lord Halsbury)
"I concur with the proposition that the case of Merryweather v. Nixan has been so long and so universally acknowledged as part of the English law that even if one's own judgment did not concur with its principle it would be now too late to question its applicability to all cases in England governed by the principle therein enunciated ; but. l am not prepared to differ from the views entertained by the Lord Chancellor and my noble and learned friend Lord Watson when dealing with the iurisprudence of Scotland."
(Underlining* is mine).
It is pertinent to note that Scotland was treated as "another country" by Lord Chancellor Herschell.
His Lordship and Lord Halsbury thought that Scotland was another country and had jurisprudence of its own and Lord Watson was of the view that the common law of England could not override the law and practice of (that other country) Scotland. In a converse situation when a rule of equity prevailing in Ireland was sought to be applied in England, it was held that it contravened the English equitable rule qua Maritime Civil Salvage (see Leslie v. French and Falcke v. Scottish Imperial Insurance Co. In a Division Bench case from Allahabad Nihat Singh and others v. The Collector of Bulandshahr and another the learned Judges, after quoting the remarks in the speech of Lord Herschell (at page 324 of the report), obviously doubted the application of the doctrine of Merryweather v. Nixan, but at the same time expressed their certainty that it would not be extended to India and, as a further support for this reasoning, attention was invited to "the remarks of the other noble Lords *[Here in italics] who decided Palmer's case". As would be presently shown, the principles underlying the Indian laws before the advent of the British in the sub--continent were mainly based on the Muslim philosophy and jurisprudence. Contrary to what was recognized for Scotland as jurisprudence of its own, when such a situation arose in India, sometimes clear rules of law applicable there were ignored-what to talk of Indian or Muslim jurisprudence. A glaring example is found in the very well known case of Abul Fata Mahomed Ishak and others v. Rasamaya Dhur Chawhdrt and others I would refrain from making a detailed comment of my own on this case; which is so obvious an instance of ignoring Muslim law and imposition of English rules of equity'- to Indian subjects/conditions that, even according to some of the other authorities of the same source, it should not have been applied. It would be of great advantage to refer to a pithy observation by N. J. Coulson, an authority in Islamic Law and oriental studies, with regard to this case :- "Undoubtedly the most notorious misinterpretation of Hanafi Law, however, occurred in regard to the law of waqf endowments. In the celebrated case of Abul Fata v. Russomay (1894) an Indian High Court declared invalid a waqf of which the income was to go to the issue of the settlor's generation following generation until their extinction, and after them to widows, orphans, beggars and the poor. On appeal their Lordships of the Privy Council upheld this decision on the ground of the well-known principle of English Equity that the ultimate gift to the poor was so remote as to be illusory." (Underlining* is mine) (Islamic Surveys (21-A History of Islamic Law by N. J. Coulson, page 168 et seq).
36. The obvious mis-interpretation of Islamic Law and application of English rules of equity to conditions in Indian sub-continent, in the case of Abul Fata, was noticed by the Indian Legislature and consequently the Waqf Validating Act of 1913 was passed. A Pakistani author, Mr. Aziz Ahmad in his 'Islamic Law in Theory and Practice' (1956 Edn.), while discussing this case, at page 378 observed thus :- "The difficulty with the European jurists and judges has been that they try to impose their own notions of law, justice and equity in cases to wing before them between the Muslims. They often forget that Muslims justly take pride in their law and jurisprudence. For which they claim divine origin, while the European notions of justice, law, equity and morality have changed many a time even in the living memory. In Abul Fata Mohammad v. Rasamaya the income of the waqf property was to be applied in the first instance for the benefit of the settlor's descendants from generation to generation, and the trust in favour of charity was not to come into operation until after the extinction of the whole line of the settlor's descendants. Their Lordships of the Privy Council held that the gift to charity was illusory, that the waqf offended against the rule baring perpetuity and so it was invalid. The aforementioned decision of the Privy Council was clearly against the Muslim Law, and so caused a considerable dissa--tisfaction in the Muslim community of Indo-Pakistan sub-continent. To negative the effect of the ruling, the Mussalman Wakf Validating Act (VI of 1913) was passed"
As has already been discussed, Abul Fata's case is not the only one on thequestion of application of British rules of equity, justice and good conscience -in pre-Partition India. Proper analysis has been done in Part VIII supra. It would not be fair to say that the case of Abul Fata, in so far as the -.Importation of the rules of English general law in Indian sub-continent is concerned, is the last authoritative word ; because, in some other cases as already pointed out, some hesitancy is discernible to apply those rules to "other territories" and thus, once again, confirming the rule laid down in the case of Falmer v. Wick.
37. It will not be out of place to cite a case of Privy Council coming :from an "other country" vie-a- vie the British isles, wherein the principle in Palmer v. Nick was followed. In Noorul Muheetha v. Sittle Rafeeka ,Leyaudeen -and others (PLD1953PC14)-decided on 12-1-1953 case from Ceylon -, a principle of Roman-Dutch (foreign) law was sought to be applied to a certain situation, but the Judicial Committee declined to accept the proposition and observed that "their Lordships are of opinion that Roman-Dutch law is not :applicable. The authorities establish that Muhammadans in Ceylon are governed ,by their own personal law as, to quote the proclamation of 23rd September 1799, it 'subsisted under the ancient Government of the United Provinces' except of course so far as the same may have been altered by statutory enactment" (Underlining* is mine). On the particular branch of law their Lordships, in the concluding part of the opinion, noticed what they thought uncertainty and made an advisory comment in that "they would, however, observe that the authorities as to the extent to which and the form in which general Muslim Law has been received into Ceylon seem very conflicting and they would venture to hope that the question of resolving by legislation -the doubts which this conflict of authorities must create may receive early attention".
38. However, with regret, but with profound respect, one has to notice that the English Judges, more often than not, found themselves driven to subject the Muslim Shariat Law to their own principles and norms of equity, despite a contemporary need to the contrary. N. J. Coulson depicted this attitude in the Islamic Surveys (2) already referred to (while-making further comment on Abul Fata's case) thus: "their Lordships appeared -to be in some uncertainty as to the principles upon which Shari'a law was to be properly ascertained . . . . . . . . In short, therefore, it would seem that once again British Judges had failed to appreciate the real significance of the doctrine of taqlid but had assumed that traditional Shariat law was just as much subject as the English Common Law to modification by those, equitable principles which had found acceptance in Courts". While dealing with the legislative action in this behalf, he also noted that "in this ewee(Abul Fata's), however, such influence did not prove, as it had done on so many other occasions, acceptable to the Muslim community in India and the Legislature eventually overruled the Privy Council by the Mussalman Waqf Validating Act, 1913, which substantially restored the traditional Hanafi doctrine of family settlements under the Waqf system". I would join. Issue with the learned author on the question as to whether Muslim .Community in India had voluntarily or without protest accepted 'any' -influence. It is not necessary to go into the political and socio-legal history .Of pre-Partition Indo-Pak sub-continent as the learned author himself gives a representative picture of the upsurge of the Muslim Will whenever conditions permitted throughout the world. In this regard it is noted at page 171 ofI slamic Surveys (2) that "British Courts applying Islamic law in Aden,. Zanzibar, and Kenya continued to regard the decision of the Privy Council in Abul Fate's case as binding upon them, and this has in turn necessitates' the promulgation of legislation on the pattern of the Waqf Validating Act in each of these territories". On the one hand the comment of the learned author speaks volumes of the insistence of the British Courts and Judges to, apply their own standards of equity, justice and good conscience to situations which could adequately be met by rules of law from Islamic jurisprudence; on the other, a consistent renaissance, upheaval and upsurge in the Muslim countries to adopt their own rules of equity, justice and good conscience a& enunciated by Islam, is discernible.
39. Some comments in the foregoing paragraph can be further supported and highlighted by making reference to two more Privy Council cases-one of 1897 and the other of 1901, both not much distant in time from Abul Fate's case. In Agha Mahomed Jaffar Bindaneem v. Koolsom Bee Bee and others ((1897) 24 1 A 196) two points vividly emerge: one, with profoundest respect to the Judicial Committee, contrary to what was done in Abul Fata's case their Lordships thought that "it would be wrong for the Court on a paint of this kind (question was of widow's maintenance) to attempt to put their own construction on the Kor'an in opposition to the express ruling of commentators of such great antiquity and high authority"; two, that an commented by Tyabji at page 321 of his work 3rd Ed., qua the question in issue, an earlier Qur'anic verse had been "revoked"; but in this case the Privy Council did not notice this fact and consequently were unable to understand how it was that the flidaya and Sharaiu'1-Islam laid down that no maintenance was due to the widow, in direct contravention of the verse of the Kor'an. They held, however, that they would not speculate as to the causes of then so-called "apparent contradiction", but would consider the law to be "correctly laid down in commentaries of such antiquity and authority". The other case is The Secretary of State for Foreign Affairs v. CharlesworthP Pilling & Co. And another ((1901) 28 1 A 121 The appeal was from the Court from Zanzibar. The legal question mooted was whether the dispute was to be resolved by English or Muslim law. It was held that the Indian statute law which had been applied by reference through an Order in Council was not, attracted. And if the jurisdiction of the British sovereign was to be exercised the law should be of England. "But the law of England recognizes the principle that incidents of land are governed by the law of its site"-i.e. Of Zanzibar which was Muslim law. Brushing aside the lower Court's view, about the notion/fiction by which the land occupied by a foreign sovereign or his ambassador was treated in law as a part of his dominions and taking note of warnings against pushing those 'fictions and metaphors' too far, it was held in this case that the local law, that is, the Muslim law applied: Reference was then made to Hedaya for resolving a very complicated question of usurpation of land and planting of trees thereon. As to why we find so much difference in the approach to the question of application of Muslim law has been commented upon above and in Parts XIV and XV infra.
X. Trend of superior Judiciary of Pakistan qua norms/Rules of Muslim Jurisprudence and Law, in situations "not otherwise specially provided for"
40. There is considerable case-law during the short period of judici history of Pakistan to shew a marked trend to follow, wherever possible, the Muslim philosophy, jurisprudence and law as against other rules of uncodified law. In Abdul Ghani and others v. Mst. Taleh Bib! And another (PLD 1962 Lab. 531) a Division Bench, notwithstanding a contrary case from Allahabad-King v. King (AIR 1945 All. 190and some other cases, reconsidered the question whether after the repeal of section 2 of the Evidence Act, the principles and rules of Muslim Law of Evidence would be revived and would apply to situations where the statutory provisions of the Evidence Act were not attracted.
After an elaborate discussion of all the relevant aspects and case-law, their Lordships 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". Unfortunately, this weighty authority has often been ignored in considering the questions of law relating to evidence and its appreciation. Many questions of interpret--tation of the Evidence Act and the principles of English law (particularly Common law), which have long been applied in the sub- continent would, in proper cases, now have to be replaced by Muslim Law of, Evidence and its underlying principles and philosophy.
41. In yet another Division Bench case, namely, Allah Bux v. Jano and' others (PLD 1962 Kar. 317), the question of location of the residuary law, when statute and customary, laws are silent on a point, was considered with reference to the application of the Muslim Law of Pre-emption in certain parts of Pakistan. After quoting from and approving the ratio decidendi in an Indian case-Shrl Audh Behari Singh v. Gajadhar Jaipuria and others (AIR 1954 SC 417), it was held that there being no statute or custom governing the question of pre-emption in the part--of the province concerned, the Muslim Law of Pre-emption would apply "on the grounds of equity, justice and good conscience". The Indian authority traced the application of this particular branch of Muslim Law in India thus: "The law of pre-emption was introduced in this country by the Muhammadans. There is no indication of any such conception in the Hindu law and the subject has not been noticed or discussed either in the writings of the Smriti Writers or in those of later commentators. Sir William Macnagaten in his Principles and Precedents of Mahomedan Law, vide page 14 has referred to a passage in the 'Mahaniravana Tantra' which, according to the learned author, implies that pre- emption was recognised as a legal provisiotr according to the notions of the Hindus. But the treatise itself is one on mythology, not on law and is admittedly a recent production. No value can be attached to a stray passage of this character the authenticity of which is not beyond doubt.
During the period of the Mugbal Emperors the law of pre--emption was administered as a rule of common law of the land in those parts of the country which came under the domination of the Muhammadan Rulers, and it was applied alike to Muhammadans and Zimmees (within which Christians and Hindus were included), no distinction being made in this respect between persons of different races and creeds, vide Hamilton's Hedaya, Vol. III, page 592. In course of time the Hindus came to adopt pre-emption as a custom for reasons of convenience and the custom is largely to be found in provinces like Bihar and Gujrat which bad once been integral parts of the Muhammadan empire. Since the establishment of British Rule in India (the observations continue) the Muhammadan law ceased to be the general law of the land and as pre-emption is not one of the matters especting which- Muhammadan law is expressly declared to be the rule of decision where the parties to a suit are Muhammadans, the Courts in British India administered the Muhammadan law of pre-emption as between Muhammadans entirely on grounds of justice, equity and good conscience. Here again there was no uniformity of views expressed by the different High Courts in India and the High Court of Madras definitely held that the law of pre- emption, by reason of its placing restrictions upon the .Liberty of transfer of property, could not be regarded to be in consonance with the principles of justice, equity and good conscience." The particular observations, which are most relevant in the present discussion and which were quoted with approval in the Karachi case, are as follows:- "Where the law has been codified, it undoubtedly becomes the territorial law of the place and is applicable to persons other than Muhammadans by reason of their property being situated therein: See 'Ameer Ali's Muhammadan Law, Vol. II, page 596'. In other parts of India its operation depends upon custom and when the law is custo--mary the right is enforceable irrespective of the religious persuasion of the parties concerned. Where the law is neither territorial nor customary, it is applicable only between Muhammadans as part of their personal law provided the judiciary of the place where the property is situated does not consider such law to be opposed to the principles of justice, equity and good conscience."
(Underlining* is mine).
No further comment is necessary to emphasize that the judiciary in Pakistan, on its own part, does not at all consider the Muslim Law or its philosophy, principles and jurisprudence as opposed to `justice, equity and good con- I science'. On the basis of above reasoning therefore, all aspects of law which are not covered by territorial or other enforceable law or usage are to be governed in Pakistan by the Muslim Law.
42. In the very well known Full Bench case of Mst. Khurshid Jan v. Fazal Dad (PLD 1964 Lab. 558), after discussion of some other aspects of Muslim Law, it was held that rules of Istihsan and Istislah were two distinct doctrines of Muslim jurisprudence. "If there is no clear rule of decision in Qura'nic and Tradi--tional Text nor an ljma' or a binding juristic analogy a Qazi or a Court may resort to private reasoning and, in that, he will undoubtedly be guided by the rules of justice, equity and good conscience or, in terms of Fiqah, by the doctrines of Istihsan and Istislah" (page 599 of the Report). The above weighty observations show that when there is no Qura'nic or Traditional Text or Ijma` or a binding Qiyas 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 Istlslah) as contained in Muslim jurisprudence are to be applied to situations not directly covered by the aforementioned g 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 to be filled in by rules of equity, justice and good conscience. In such a situation, it would not be permissible for Courts fn Pakistan to apply and import any more the rules of English Law relating to equity, justice and good conscience. In other words, 'all residuary law in Pakistan to beI applied in fields other than those occupied by existing statutory law has to be Muslim Law and jurisprudence and philosophy underlying the same.
43. At this stage, it is necessary to mention two Supreme Court rulings wherein the question of application of basic principles of Islamic Law was noticed a-- general argument. In Mst. Noor Jehan Begum v. Abdul Majid Shaida and another (Civil Review Petition No. K-3 of 1967 in Civil Appeal No. K-39 of 1965-decided on 14-4-67). An argument was raised against the application of principle of laches and estoppel as a bar to the grant of a relief. The same having been borrowed from Common Law of England, it was argued, should be deemed to have lost legal effectiveness on account of repugnancy to the Islamic Law which did not envisage the bar even of limita--tion.
Therefore, it was not enforceable in Pakistani Courts on ground of repugnancy to the directive principles of policy included in the 1962 Constitu--tion. This broad proposition was put forward in a petition for review which was dismissed at the preliminary hearing. Their Lordships were pleased to ignore the general argument (grounded on the provisions of the 1962 Constitution) with regard to the exclusion of principles of English Law, for the reason that this contention appeared to them to he too "broadly stated". The specific question raised in the case itself, that the earlier Supreme Court judgment in the case which had mainly proceeded on the consideration of the point of laches be reviewed on the ground that this principle (of ]aches) was repugnant to Islamic Law, was however repelled on a different ground. Their Lordships did not refuse to consider the question. On the other band, after making detailed reference to "maxims of Islamic Law" in the Mejella, the argument advanced in the case, that there was no room for principle of estoppel in Islamic Law, was repelled. I agree that the specific questions being considered in the present case and which have been big blighted by the two learned counsel appearing as amicus curiae were not placed before their Lordships and, therefore, they thought the other argument as having been "stated too broadly". But it cannot at all be ignored that the crux of the proposition was not only noted but was also dealt specifically so as to discuss the maxims of Islamic Law relating to bar of limitation and estoppel in the context of the principle of laches. This, in my view, is by itself an instance of the consideration of a specific principle of Islamic Law in a. Field (lacbes) which was not occupied by statute law. In other words, the resi--duary principle of law was sought to be discovered in order to fill in a vacuum in a territorial law. Their Lordships did find the same in the form of Islamic 'Law of estoppel, as explained, in at least three clauses of Mejella. And this principle, notwithstanding the fact that the law of limitation was not included in the Islamic Law, was applied as parallel or substitute for the principle of lacbes in English Law. In other words, there was no refusal on the part of the Supreme Court to note and decide the specific point regarding application of Islamic Law as residuary law, though the general argument based on the principles of policy as contained in the Constitution of 1962 was considered, as it was, "too broadly stated" to be accepted. Similar question was raised, but in a somewhat different form and a totally different context, in the case of Chaudhury Tanbir Ahmad Siddiky v. The Province of East Pakistan and others (PLD 1968 SC 185 An argument was advanced that the provisions of Islamic Law with regard to waqfs being God's Law.
Which had been recognized even in the 1962 Constitution, must be accorded an overriding position as against certain tetatutory laws and actions taken thereunder; which were the subject-matter of consideration in the said case. It was in this very context that further argument was raised that "waqf properties could not be taken over by the Government, as the action would be repugnant to the provisions of Islamic Law". This plea, it was held, was not justiciable in Courts under the then Constitution where under "the responsibility has been laid on the Legislature to see that no law repugnant to the Islamic Law, is brought on the statute. Book. The grievance, if any, therefore should be ventilated in a different forum and not in this Court". The other factors pressed into service by the. Learned counsel in this context were noted by their Lordships as appertaining "more to the realm of political philosophy than law". These observations have to be read in the context of the facts of the case wherein the most important distinguishing feature was that Islamic Law was sought to be applied in a field occupied by specific statute laws; which, as was pointed out by their Lordships of the Supreme Court, was not permissible under the Constitution till, of course, the Legislature were to step in, so as to carry out the mandate of the Constitution in concrete form of amending existing statute. The present. Discussion does not relate to the substitution of the existing statutory laws with Islamic Laws without enactment by Legislature. On the contrary, the subject under discussion here is that wherever the statute law is silent and a particular field is not occupied by any such law, the source of law which should then be approached for filling in the vacuum is not some foreign philosophy or jurisprudence including British Laws; but, is the Islamic Law and jurispru--dence. The question relating to this particular branch of law, as distinguished, from the statute law, was as already discussed, partly the subject-matter of the. Case of Mst. Noor Jehan Begum v. Abdul Majid Shaida and some other more recent elaborate and far more important rulings of their Lordships of the Supreme Court. I would make same comment on the Division Bench case of Labour Federation of Pakistan and others v. Pakistan and another (PLD 1969 Lah. 188 wherein, the validity of laws passed by appropriate Legislature was not allowed. To be challenged on the ground that they were inconsistent with the law contained in the Qut'an and Sunnah; as the principles of policy contained in the 1962 Constitution were not enforceable by Courts of law as against statute law. The controversy and position in that case also was, as explained above,, entirely different from that involved in the present discussion.
44. In the recent Supreme Court ruling in Miss Asma Alani v. The Government of the Punjab and another PLD 1972 SC 139), wherein the judgment contains many references to Muslim .Law and jurisprudence, one of the main con--siderations which prevailed so ' as to reject Kelsonian theory whereupon the well known case of Dosso (PLD 1958 SC (Pak.) 533) was based, was the fundamental reality and: principle enshrined in the Holy Qur'an: Say, `O Allah, Lord of sovereignty, Thou givest sovereignty to whosoever Thou pleasest; and Thou takest away sovereignty from whomsoever. Thou pleasest. Thou exaltest whomsoever Thou pleasest and Thom abasest whomsoever Thou pleasest. (Pt. 3, Ch. 3, Al'lmran. Ay. 26)
In this behalf the learned Chief Justice, who wrote the leading judgment (all ,the learned Judges wrote separate judgments but there was no dissent), held as follows:- "The basic concept underlying this unalterable principle of savereignty is that the entire body politic becomes a trustee for the discharge of sovereign functions. Since in a complex society every citizen cannot personally participate in the performance of the trust, the body politic appoints State functionaries to discharge these functions on its behalf and for its benefit, and has the right to remove the functionary so appointed by it if he goes against the law of the legal sovereign, or commits any other breach of trust or fails to discharge he obligations under a trust. The functional Head of the State is chosen by the community and has to be assisted by a Council which must hold its meetings in public view and remain accountable to public. It is under this system that the Government becomes a Government of laws and not of men, for, no one is above the law. It is this that led Von Hammer, a renowned Orientalist, to remark that under the Islamic system `the law rules through the utterance of justice, and the power of the Governor carries out the utterance of it."
This trust concept of Government filtered into Europe through Spain and even as early as 1685 John Locke rejected Hobbes' Leviathan and propounded the theory that sovereignty vested in the people and they had the right not only to decide as to who should govern them but also to lay down the manner of Government which they thought to be best for the common good. Government was, therefore, according to Locke, essentially a moral trust which could be forfeited if the conditions of the trust were not fulfilled by the trustee or trustees, as the case may be.
The trustees under this concept of ours are referred to as "those who are in authority among you"
(Pt. 4, Ch. 4, Ay. 60; Al-Nisa, P. 207) which again negates the possibility of absolute power being vested in a single hand, for, the reference is clearly to a plurality of persons and to an authority properly constituted by law.
Upon this analysis, I am, with the utmost respect for the then learned Chief Justice unable to resist the conclusion that be erred both in interpreting Kelsen's theory and applying the same to the facts and circumstances of the case before him. The principle enunciated by him is, in my humble opinion, wholly unsustainable, and I am duty bound to say that it cannot be treated as good law either on the princi--ple of stare decisis or even otherwise." (Underlining* is by me).
With respect, it is pointed out that the principle of binding constitutional law explained by no less an authority than the Chief Justice of Pakistan himself was based on a fundamental Qur'anic constitutional concept. Dosso's case was decided on the basis of an alien concept of law supposed to be contained in Kelsen's theory. There was nothing in any Part of the then written Constitution and the law to cover the situation. The Qur'anic (Islamic) law was not being used as a substitute for any written existing enforceable law/Constitution in Pakistan; rather, it was relied upon as against another principle of law contained in a part of foreign jurisprudence. This case, in my view, furnishes a strong precedent for applying general/common principles of Islamic Law in preference to the Western or, for that matter, English principles of law when the written Constitution and law are silent or need to be interpreted.
45. In the same year, in two judgments, by two different Full Benches of this Court, were applied the principles of Islamic Law as against English Law in resolving complicated legal and constitutional controversies; again, it may be explained, in a field which was not occupied by any statutory provisions of law. They are Zia-ur-Rahman v. The State (PLD 1972 Lab. 382and Yusuf Alt Khan v. The West Pakistan Bar Council Tribunal, Lahore (PLD 1972 Lab. 404In the latter ruling their Lordships of the Full Bench relied upon the very weighty, observations by the learned Chief Justice of Pakistan, which have been quoted above. In the former case, Islamic Constitutional principles relating, to Government through chosen representatives and other principles as enun--ciated by Islam, including social justice, were referred to and relied upon.
46. There are other cases in which several principles of Islamic Law have been pressed in service, where either the statute law was silent in an un--occupied field and vacuum had to be filled in by some principle of law, Islamic or otherwise; and/or a statute law was interpreted in the circumstances that two interpretations were possible-one, with preference for, or leaning towards, the Islamic principles, and the other, the English principles of law. In the case of Sardara v. Khushi Muhammad etc. (1973SCMR 189) their Lordships (despite their ruling in the case of Muhammad Rafique v. Muhammad Ghafoor (PLD19/2SC6while appreciating the raoio in Fateh Sher v. Sarang (PLD 1971 Lab. 128), noted at page 191 of the report: "in that case the High Court found that the detenu was a married woman and that the application under section 491 of the Code of Criminal Procedure was a collusive affair between her and her paramour". In these circumstances, it was held that "the Court in the exercise of ifs discretion was correct in directing that the woman although a sui juris be restored to her husband. Any other course would not only have resulted in giving the Court's alessings to the immoral activities of two unscrupulous persons who, "in Islam." were liable to extreme penalty, but also could have deprived her of an opportunity to correct herself" (Underlining* is mine). To the same effect is the ruling of the Supreme Court in Shaukal Ali v. Altaf Hussain Qureshi and another (1972 SCMR 398 note of the social and moral environments prevailing in the community for which the law is to be administered" (Underlining* is mine). Such being the case "the High Court was justified in refusing relief if it came to the conclusion that the petition had been presented for the sake of furthering an illicit love affair and avoiding criminal prosecution in connection with the kidnapping/abduc--tion of the woman in question". Two specific rulings of the High Court on the same subject, where relief was refused on the basis of Islamic Law and princi--ples in cases of section 491, Cr. P. C , are Fateh Sher v. Sarang and Ramzan v. Muhammad Aslam and 3 others (PLD 1972 Lab. 809); See also Muhammad Rafiq v. Muhammad Ghofoor, Muhammad Saddlq v. Fateh Muhammad (Cr. Misc. No. 423/1968--decided on 5-2-68), Muhammad Saddique v. Fateh Muhammad and another (1968 P Cr. L J 1758and The State v.
Ashfaq Ahmad Sheikh (PLD 1967 Lab. 1231). In all these cases, it was held on grounds based on Islamic philosophy and not the existing English norms that---the Court would not exercise discretion in favour of a party who sought its assistance to advance un-Islamic moral and social values.
47. A Division Bench of this Court applied principles of Muslim--International Law (war and its consequences), when deciding a case relating to enemy property in State Bank of India Lrd. v. The Custodian, Evacuee Property,--West Pakistan (PLD 1969 Lab. 1050
48. In another case, again, the same Division Bench made comment on public functionaries with reference to their duty to be just as it also satisfies basic Islamic concepts in the Constitution. See Mian Arif Iftikhar and other v. Lahore Improvement Trust and 2 others PLD 1969 Lab. 108.7
49. In yet another case Province of West Pakistan v. P. W. R. Stores' Unton and another (PLD 1975 Lab. 1072a complicated but important question of interpretation of Labour Laws was resolved in favour of that interpretation which advanced the basic concepts of Islamic social justice as provided in the Constitution. It was observed at page 1083 of the report as follows:- "While dealing with a similar question arising out of proceedings under the Workmen's Compensation Act, in Mst. Kalsoom Akhtar v. Abdul' Rashid and others F. A. O. No. 42 of 1973 decided on 25-7-74 it was observed by me as follows '(7) There is yet another aspect of the matter.
By virtue of the latest dispensation under our Constitution, social justice (as understood in: Islam) is one of the corner stones of our polity. This principle and concept has now been enshrined in the Constitution itself. All the organs of the State and authorities and persons performing functions, on their behalf have been enjoined to see the fulfilment of this and the other principles of policy contained in the Constitution. Article 3 of the Constitution has codified in an expressive form a part of this--principle. Keeping this as a basis, if the Workmen's Compensation, Act is studied with particular attention to the preamble thereof and its underlying spirit as also the spirit of the Constitution, the old theory (if there was any) underlying the principles of interpretatiqn of this enactment as contained in the commentaries on the Workmen's Compensation Act relied upon by the learned Assistant Advocate-General, does not hold good. I am of the view that the interpretation beneficial' to the workman in so far as it does not violate the language used in the enactment has now to be adopted. The interests of the benefit--ciaries thereunder have to be safeguarded and it is no more possible to hold that it is a penal statute in so far as the employers are concerned. In view of the same background of spirit and principle it is not even a quasi-penal statute. It lays down the duties and liabilities of one citizen in the position of an employer towards the other citizen who is his workman. There is no question of exacting a penalty from the employer.
The spirit of the Constitution and the law, as discussed above, enjoins upon the employer to fulfil his obligation under, in accordance with and subject to this law, not as a penalty but as an ordinary duty and obligation towards the workmen. I, therefore, express my dissent in so far as the following cases cited by the author in the commentaries relied upon by the learned Assistant Advocate-- General are concerned: Bombay Burmah Trading Corporation Ltd. v. Ma E Nan (AIR 193 Rang. 45) and Maung Kyan, In matter of (AIR 1931 Rang. 173).
It may be mentioned here that in one of the cases, namely, Chilu Kahar v. Burn 8c Co. Ltd., Howrah (AIR 1953 Cal. 516), somewhat similar conclusions were reached but on a different reasoning, namely, that with the progress of the times, the conception of the circumstances in which the workman is entitled to compensation has widened, and become more liberal. That reasoning is also possible to support the above expressed views and I approve of it but, as discussed above, my reasons for laying down the above rule are different, namely: require--ments and dictates of our Constitution together with the purposes and the spirit of the enactment in question, namely the Workmen's Com--pensation Act'
As noted above, the change in Pakistan in so far as the advancement of social ,justice is concerned, has been recognised in the Constitution with difference that out of various types only the Islamic social justice has been recognised and accepted as the corner stone of policy. In the light of the above discussion, I am of the view that whenever there are two equally strong possible interpretations of a statutory provision contained in a labour law, the liberal one beneficial to the labour would have to be adopted provided this course is not contra indicated by any other provision of law."
50. While dealing with law of Contempt, a Full Bench of this Court ,noticed and dealt with an important argument based on Islamic Law-See Mu jibur Rahman Shami and another v. A Judge of the High Court, Lahore (PLD 1973 Lah. 778-The Supreme Court ruling in 4shfaque Ahmad Sheikh v.
The State (PLD 1972 SC 39dealing with similar point was also noticed in this Court. Their Lordships, at page 47/48 of the report, observed as follows:- "Now, Article 123 of the 1962 Constitution which lays down the law of contempt is bound to be obeyed by every citizen and every person residing within Pakistan. The contention of the learned counsel as to the alleged invalidity of the law of contempt as codified in Article 123 is therefore clearly fallacious. Even under the Islamic Law, one is to obey all persons in authority who necessarily include the Qazi. This is enjoined in the Holy Qur'an as is evident from the following Ayats: "(God doth command you to render back your trusts to those to whom they are due; and when ye judge between man and man, that ye judge with justice; verily how excellent is the teaching which He given you; For God is He who heareth and seeth all things. O ye who believe; Obey God, and obey the Apostle, and those charged with authority among you. If ye differ in anything among yourselves, refer it to God and His Apostle, if ye do believe in God and the Last Day; that is best, and most suitable for final determination)."
On the same subject (Contempt) see A. K. M. A. Awal v. The State (PLD 1964SC562) wherein Ahe Qur'anic concept of repentance and mercy (Touba and Rehm) was relied upon; The State v. Sheikh Shaukat Ali, Advocate and others (PLD 1976 Lah. 355and Habib Wahab El-Kheiri, Advocate v.
Sheikh Shaukat Ali, Advocate (PLD 1976 Lah 373).
51. In yet another field, namely, the one under discussion in this case (maintenance), their Lordships of the Supreme Court held that principles of Islamic Law can be taken into consideration when deciding cases under section 488, Cr. P. C. See Mst Fahmida Begum v. Syed Mashaf Hussain Shah( P , D 1958 SC (Pak.) 284
52. There might still be many more cases and subjects wherein Islamic Law has been applied either to fill in a vacuum in the existing statute laws or one out of two possible interpretations of written law which was in accord with the Islamic Law was adopted; or, whenever the law left discretion to the Court to act or not to act in a certain manner, the principles of Islamic Law applicable to the situation, were noticed and applied. It would be, thus, legitimate to conclude that the Case-Law, after Independence, is indicative of a marked trend by the superior judiciary in Pakistan to apply Islamic Law and its principles wherever the statute is either silent or is to be interpreted or leaves discretion to the Court to act in one or the other manner.
XI. Duty of the Judiciary in Pakistan, under the Constitution, regarding 'Fundamental principles and basic concepts of Islam', including the accepted Islamic judicial norms and philosophy
53. This brings us to the consideration of a direct question as to whether application of basic Islamic juridioial principles, in situations as mentioned in the preceding paragraph and other similar situations, has been prohibited by the Constitution. And secondly, whether there is any direction or guidance in the Constitution with regard to the subject under discussion. Article 31 of the Constitution reads as follows:- "31. Islamic way of life.-(1) Steps shall be taken to enable the Muslims of Pakistan, individually and collectively, to order their lives in accordance with the fundamental principles and basic con,epts of Islam and to provide facilities whereby they may be enabled to understand the meaning of life according to the Holy Qur'an and Sunnah.
(2) The State shall endeavour, as respects the Muslims of Pakistan,-
(a) to make the teaching of the Holy Qur'an and Islamiat compulsory, to encourage and facilitate the learning of Arabic language and to secure correct and exact printing and publishing of the Holy Qur'an;
(b) to promote unity and the observance of Islamic moral standards; and
(c) to secure the proper organisation of zakat, auqaf and mosques."
This Article in Chapter 2 contains the very first principle of policy and falls in Part II of the Constitution. Article 7 provides that wherever the expression "the State" is used in Part 11, it would mean the Federal Government, Parliament, a Provincial Government, a Pro--vincial Assembly, and such local or other authorities in Pakistan as are by law empowered to impose any tax or cess.
Judiciary, as such, the third main limb of the State has, on account of some point of wisdom, not been included in this definition of the State. However, Article 7 leaves scope for exceptions, namely, that if the context otherwise requires, the definition of the State contained therein would not control the meaning thereof. Article 29 provides that the principles of policy set out in Chapter 2 shall be the responsibility of each organ and authority of the State and persons performing functions there under, so as to act in accordance with those principles which relate to the functions or the organ, authority or person. It is very important to note that all the principles of policy contained in Chapter 2, excepting the one contained in Clause (1) of Article 31 and Article 34 have been made the direct responsibility of "the State," by pre--fixing the directives with the expression "the State. "For'example, Article 33 provides that "the State" shall discourage parochial, racial, tribal, sectarian and Provincial prejudices among, the citizens." Article 35 provides that "the State shall protect the marriage, the family, the mother and the child." But Clause (1) of Article 31 does not contain any such directive for "the State." Wherever expression "the State" occurs in Chapter 2, it ordinarily would carry the particular definition contained in Article 7 with it. Conver--sely, the avoidance of use of "the State" in Charter 2 at places would mean exclusion of the said definition. In other words, the mandates contained in Clause (1) of Article 31 and Article 34 have been made the responsibility of all the organs and authorities of the State and, may be, of citizens and institu--tions as well and not only these organs and authorities and persons of the State as are mentioned in the restricted definition in Article 7. Thus looked at, the mandate contained in Clause (1) of Article 31 has to be carried out by the State as defined in Article 7, as also by other organs, authorities and institutions in Pakistan, which would necessarily include the judiciary-with greater emphasis and responsibility on the superior judiciary; which, under the Constitution, declares law through interpreatation to be followed by all subordinate Courts. It is thus clear that the definition in Article 7 and the provisions of Article 29 (1) do not, in any way, restrict the duty and the responsibility of the judiciary of Pakistan to carry out the mandate contained in Clause (1) of Article 31.
54. There is another aspect of the matter. If it is assumed that this mandate has been enjoined by Article 29 (1) read with Article 7 upon "the State," as defined, it would mean that all the organs and authorities of the Federal Government, Parliament, a Provincial Government, a Provincial Asrembly and such local or other authorities in Pakistan as are by law empowered to impose any tax or cess, are duty bound to carry it out. This does not mean that other authorities, etc., though not bound, are prohibited) from carrying it out. To impute such intention to the Constitution-makers would be without justification. Thus other authorities, etc. Are at liberty (though not bound) to follow and carry it out. To put it in a different form, while the organs ated authorities of the State mentioned in Article 7 have no choice not to follow the directive principles of policy, the other organs and authorities of the State including the judiciary would have discretion either to follow or not to follow the same, of course, depending upon the circum--stances.
55. 1'he distinction considered above has to be kept in view when applying the twin bar contained in Article 30 of the Constitution which reads thus:- "30. Responsibility with respect to principles of policy.-(I) The responsi--bility of deciding whether any action of an organ or authority of the State, or of a person performing functions on behalf of an organ or authority of the State, is in accordance with the Principles of Policy is that of the organ or authority of the State, or of the person, concerned. (2) The validity of an action or of a law shall not be called in question on the ground that it is not in accordance with the Principles of Policy, and no action shall lie against the State, any organ or authority of the State or any person on such ground."
Firstly, it has been prescribed that the responsibility of deciding whether any action of an organ or authority of the State or of a person performing func--tions on its behalf is in accordance with the principles of policy, is that of the said organ or authority or the person concerned. In other words, n other organ or authority or person in the State not included in Article 7 ca direct the organs, authorities and persons included therein to act in accor--dance with the principles of policy. To put it more precisely in the context, the judiciary which is not included in the definition of the State cannot direct organs, authorities and persons included in the definition of the State to act in accordance with the principles of policy. But this does not mean that the superior judiciary would not be able, on account of the said bar, either: (i) to set down a rule for itself to follow the principles of policy; or (ii) to declare it for the subordinate judiciary to act in accordance therewith; because, by doing that it would not at all be dealing/interfering with the responsibility enjoined by the Constitution upon other organs of the State included in Article 7 to act or not to act in accordance with the principle of policy. The second bar, as contained in clause (2) of Article 33, appears on face to be of more real import, namely, that if a certain individual, institution, organ or authority in Pakistan takes any action or makes any law which seems not to be in accordance with the principles of policy, it would not be possible for any one to call in question any such action or law on the ground that it is not in accordance with the principles of policy. Not only of this, but it has also been provided that no formal action which woul obviously include legal proceedings shall lie against the State, any organ or authority of the State, or any person, in this behalf. It is significant to note that here, in clause (2) expression "the State" has also been used independently of and in addition to any organ or authority of the State, or any person which would show that in the context of this clause the protection has been afforded, not only to the organs of the State included in the definition thereof in Article 7, but also to other organs and authorities of and persons in the State.
Thus expression "the State" used in clause (2) of Article 30, in the context thereof, carries wider connotation and is not controlled by the definition contained in Article 7. The above analysis would show that this second bar keeps protected all organs, etc. Mentioned in Article 7 as also the judiciary from any attack/challenge from any source, whatever, calling in question the validity of law declared or rule made by it, on the ground of negation of any principle of policy. If the negation immune from attack, it cannot at all be canvassed that affirmation of a princi--ple of poli would be prohibited. Thus, there is no bar to the superior judiciary in the performance of its functions and duties and in exercise of, its jurisdiction and powers to act or to declare law in accordance with those principles. To put it differently, the judiciary like other organs and authorities is immune from attack qua its actions and declaration of law on any ground relatable to principles of policy. If it takes any action or declares any law in accordance therewith, there is nothing in this Article to prevent it from doing so. This discussion on the bars relating to the enforcement of, or actions is accordance with, the principles of policy leads to an irresistible conclusion that qua the judiciary (though it cannot direct other organs of the " State to act in accordance with the principles of policy) there is nothing to prevent itself from acting on those principles subject of course to some other constitu--tional limitations and important compulsions qua the statute law which would be spelt out separately (see Part XVI infra).
56. Before dealing with the contents of principles of policy contained in Article 31 (1), it is necessary to clarify one more aspect of the responsibility of and bars against different organs of the State regarding the principles of policy. As already noted, Article 7 visualizes exceptions with regard to the definition of the State contained therein, whenever the context so requires. The expression "the State" used in Article 29 (1) no doubt will have to be read subject to the rider clause in the definition in Article 7, namely, that it is to apply "unless the context otherwise requires." When Article 29(t) pro- -vides that the principles of policy set out in Chapter 2 shall be the responsibility of each organ and authority of the State and persons performing functions on their behalf to act in accordance with those principles in relation to their functions, those organs, authorities and persons will have to be determined in the context of each principle of policy contained in Articles 31 to 40. Out of over two dozens single and composite principles of policy (in this counting, different items in Clause (2) of Article 31 and various Clauses in Articles 37 and 38 have been taken as separate principles) only two have been singled out by the Constitution-makers, namely, those contained in Clause (1) of Article 31 and Article 34, in connection with which not only the State as defined in Article 7 has been made responsible but other organs, authorities, etc. Are also e.,joined upon to act in accordance therewith. This distinction, in the context of the aforementioned two principles of policy (Articles 31
(1) and 34 f vis-a-vis all other principles contained in the other Articles, furnishes a glaring example of the "requirement" of "the context' otherwise" visualized in Article 7. In other words, both these principles have been made the responsibi--lity of all the organs of, and authorities, institutions and individuals in the State. The superior judiciary is no exception. It is, therefore, as already ob--served subject to certain important constitutional and its own limitations, under~ a mandate contained in Article 31 (1) to take steps "to enable the Muslims oil Pakistan, individually and collectively. To order their lives in accordance with the fundamental principles and basic concepts of Islam."
57. It needs to be examined as to what is the real content of principle of policy contained in Article 31 (t) which has very aptly been captioned "Islamic way of life." Each word and phrase used therein, it appears, has Q been very carefully selected. An attempt shall now be made to find connota-- tions of these words and phrases and find meanings of the main principle of policy formed by them, in so far as, the functions of the judiciary are concer--ned. "Taking steps" by the judiciary, broadly speaking, would, include; making of rules wherever empowered to do so-Supreme Court and High Courts do have the power to make rules concerning the procedures; issuing of directions in accordance with law to other Courts - High Courts have such power; and conscious re- orientation in thought and process of reasoning. All judiciary in matters of interpretation of enacted laws; in exercise of discretion; and when applying general principles of law, in fields unoccupied by enacted law or other statutory direction, is in continuous process of development, progress and evolution. "Steps" can always be taken in one way for the other. "To enable" the Muslims of Pakistan, individually and) collectively, "to order their lives" means no more than providing aids, motivations, guidance with tangible practical, psychological, sociological R results. It is well-known that those laws, enacted or declared, are morel respected and obeyed which are in accord with the moral beliefs of people, to whom they apply. "In accordance with the fundamental principles and basic concepts of Islam." Field of law and lawful behaviour and assertion, enforce--ment and protection of legal rights, is one of the major concerns of the State and the citizen. Articles 4 and 5 of the Constitution are sufficiently explanatory of this aspect of individual's life in Pakistan. "To enable the Muslims of Pakistan to order their lives in accordance with the fundamental principles and basic concepts of Islam" is, if not the most important, at leas one of the major steps to resolve legal controversies on these bases, of cours wherever possible, under and subject to the existing constitutional and legal limitations and arrangements. To put the reasoning differently and in concrete form, a question can be posed; whether recourse to accepted juridical norms and philosophy of Islam by the judiciary in cases coning for decision, subject to there being no contrary statutory indication in that behalf, can b a step opposed to "enabling the Muslims to order their lives in accordanc with the fundamental principles and basic concepts of Islam." The answe would be in the 'negative.' Rather, on the other hand, it will be in aid of achieving the said desired object.
The above brief analysis of the 'content' of Article 31 (1) qua judiciary is by no means exhaustive.
New situations would always continue to lead to discovery of fresh meanings and shades.
58. At this stage, it is necessary to see the implications of Article 2 of the Constitution. During the arguments addressed by Mr. Farooq A. Hassan. Learned Assistant Advocate-General, he heavily relied on it. The English text reads: "Islam shall be the State religion of Pakistan"
The Arabic rendering is as follows; (I have taken the Arabic text from the official Arabic translation of the Constitution prepared by the Ministry of Law and Parliamentary Affairs, Government of Pakistan).
It may be straightway clarified that the word " in the above Arabic translation also means and represents " Jyol " and "in Arbic, as also "official" and "regular" fn English (see ELIAS' Modern Dictionary Arabic-English). Adoption of any other meaning for this word in the translation would be in violation of the spirit and letter of the Constitution; and thus unacceptable, with onsequence of its exclusion from the translation as un- enacted part of the Constitution. The Arabic rendering of Article 2 is analogous to what is contained in Verse 19 of Surah AI'Imran of the Holy Qur'an, relevant portion whereof reads as follows:- To the same effect is a part of Verse 3 of Surah Al' Maida of the Holy Qur'an and several other verses. The English word "religion" as used in Article 2 has not been defined in the Constitution. Its meaning given in various English dictionaries does not, at all, represent the true significance of the word 46 :)j .5 " as used in its above quoted and understood Arabic text as also in the Qur'an. It is not possible to doubt the proposition that the consti--tution-makers while enacting Article 2 must have been inspired and motivated by the injunctions in the Qur'an on the subject of Islam as Din.
While religion as a Western concept means mere system of faith and worship-practice of sacred rites-the word "" in Arabic language of the Qur'an not confined and used so estrictively. It also represents all that goes with "statecraft" and "way of life." The study of the Holy Qur'an shows that it has been used therein, in at least, five different major facets ofhuman life. They are
(i) sovereignty, control. Authority over others and corresponding total submission;
(ii) law of the land and rule of Law of God;
(iii) code and way of life and thought;
(iv) judgment and consequential punishment;
(v) religion in restricted sense-submission in faith and prayer.
(See, amongst others, Verse 76 of Surah 12: V. 2 of Surah 24; V. 78 of Surah 38; Vs. 2 dt 3 of Surah 39; V. 65 of Surah 40; V. 13 & 21 of Surah 42; V. 26 of Surah 70; V. 46 of Surah 74; and V. 9 of Surah 82 of the Holy Qur'an.)
When Islam is ordained as way of life of the State of Pakistan, it does nat carry merely spiritual meaning of submission in faith and prayer, but also has ramifications in the other aspects of life like political and social including juridical. Thus, word "religion" ( ) has been used in Article 2 for the State with the foregoing meanings and connotation specified at Nos. (i), (ii) and T (iii) above.
Looked at from this angle, it is impossible to agree with the view that this Article visualizes the making of a mere theocratic system. The State not being an ordinary person having spiritual perceptions, cannot have any religion in ordinary (English) sense. Article 2, therefore, deals with the tangible aspects of Statecraft including realm of political science, jurisprudence, laws and affairs of State properly so-called.
59. I, however, would not go to the extent, as argued by the learned Assis--that Advocate-General, of laying do urn that Article 2 like Article 4, in its own terms, is enforceable by Courts. Article 4 has been held to be so enforceable, by the Supreme Court in the case of Ch. Manzoor Elahi (PLD 1975 SC 66It may be stated that the entire way of life as envisaged by Islam cannot be enforced by Courts. They can only enforce basic juridical principles and concepts of Islam in fields were permissible by the Constitution and the law and that too, in accordance with organized rules and legal procedures.
60. The argument of the learned Assistant Advocate-General that when cases under Article 2 start pouring in, it will receive more tangible interpret--tation and would be applied in concrete situations, has also not impressed me. It appears that Part I of the Constitution "Introductory", in which Article 2 falls, can be divided into directly enforceable and not so directly enforceable parts.
For example, Articles 4 and 6 are, on the face, concrete enforceable provisions as of any other practical territorial law, while Articles 1 and 5 eabe applied only indirectly as aids to the resolution of other legal controversies. Articles 2 and 3 provide two fundamental basis of the polity in Pakistan-- one deals with the 'statecraft' and 'way of life' and the other, with one of its (life's) major facets, namely, economic and social justice. They can certainly be kept in view while interpreting other provisions of the Constitution and v the laws made under and by its authority. But, with respect, I do not agree, with the learned Additional Advocate-General that when the Supreme Court held, in the case of Ch. Manzoor Elahl, that Article 4 was directly enforceable, they also meant that all other Articles in the Introductory Part I of the Con--stitution were similarly directly enforceable. There is another additional reason for coming to this canclusion that Article 2 as such is not so enforce-- able in Courts. Some mechanism has been provided in various other parts of the Constitution wherein the content and meaning of this Article has been sought to be applied in concrete forms.
One of those Parts of the Constitu--tion is Chapter 2 which contains the principles of policy. It is not a mere coincidence that Article 31, which has been discussed above, deals with the particular steps which "shall be taken" to enable the Muslims of Pakistan to conduct themselves in, what the heading of Article 31 describes, "Islamic way of life". As discussed above, it is only through such like provisions of the Constitution that Article 2 can be given an operative shape. Lest it might be thought that, as in case of Article 2, so also while dealing with Article 31(1) it would not be possible for the Courts to translate the same in practical terms, it needs to be emphasized that the entire controversy in this case revolves round the question whether, in case of absence of any statutory law governing a situation, or where there is sufficient scope while interpreting laws or exercising discretion, the Courts are to seek guidance from Western or any other philosophy and juridical norms or from the fundamental principles and basic concepts of Islam. To put it otherwise, the question is whether in such like situations, if a point is covered by rules of equity, say, as enumerated in Snell's Principles of Equity or a contrary rule of Istihsan inspired by the Holy Qur'an and/or the life of the Holy Prophet (peace be upon him), will it not be necessary for the Courts to follow the latter and not the former; and will it not be a practical implementation of the mandate for 'ordering our lives in accordance with fundamental principles and basic' concepts of Islam contained in Clause (1) of Article 31? The answer is obvious. In this context, Article 2 (Islam to be State religion) having been partly translated in practical form in Article 31 (Islamic way of life) would be applied in concrete legal situations by Courts and also on account of general re- orientation of legal thought in Pakistan. The opinion expressed by Mr. Muhammad Monir, c3 formerly Chief Justice of Pakistan, in his commentaries on the Constitution, that this Article means only this that in its outer manifestations the State and its Government should carry an Islamic symbol or that it is vague and general in so far as the legal implications are concerned, with respect, in view of the above analysis, does not appear to be correct.
XII. Choice between Islamic or Western Philosophy and moral-cum-- Juridical norms/jurisprudence
61. No apology is needed for the sake of the Western legal thinkers in adopting the above course in order to implement the mandates of our own Constitution which, it has to be emphasized, is the Constitution of a State and nation which rightly claims to be ideological. I need not quote examples of other ideological States where, instead of being apologetic, a legitimate pride is genuinely felt by their functionaries in enforcing the ideology whether it is on the part of the Executive, Legislature or the Judiciary.
62. It is to be stated here that even in the systems, which do not claim to be ideological and are so- called secular, the recourse by Law Courts to X prevalent religious and spiritual standards, in interpreting and enforcing laws is not uncommon. Only one well-known case, which has been widely commented upon in legal circles, needs to be cited as a representative one. It ii Shaw v.
Director of Public Prosecutions ((1961)2 All ELR446It was a case of a vacuum in, or a field unoccupied by, Common Law, described by Dias in his work on Jurisprudence-p. 144, Ed. 3rd-, as 'gap'. The learned jurist thought that Viscount Simonds, while filling this 'gap', "forcibly re-asserted the judicial task of preserving moral standards". He also referred to the following observations in that case by Lord Simonds:- "When Lord Mansfield, speaking long after the Star Chamber had been abolished, said that the Court of King's Bench was the custop morum of the people and had the superintendence of offences contra bonos mores, he was asserting, as I now assert, that there is in that Court a residual power, where no statute has yet intervened to supersede the common law, to superintend those offences which are prejudicial to the public welfare But gaps remain and will always remain since no one can foresee every way in which the wickedness of man may disrupt the order of society. . . Must we wait until Parliament finds time to deal with such conduct? I say, My Lords, that if the common law is powerless in such an event, then we should no longer do her reverence. But I say that her band is still powerful and that it is for Her Majesty's Judges to play the part which Lord Mansfield pointed out to them."
Lord Simond's views about the Courts being custodians of public morals and their residual power to fill gaps in laws till the Legislature acts in its own time are fully attracted here. The quotation.
However, it appears is more apt for Dias's opinion with regard to factors which combine to influence Judges in particular cases. He was trying to show that "Viscount Simonds, who, in a matter concerning local Government (in another case), protested against a naked usurpation of the Legislative function under the thin disguise of interpretation" and suggested the remedy by amending the law "adopted a different attitude when it came to a gap in the common law". In the report of the case of Shaw, there is an editorial note making reference to several observations in the separate judgments of the learned Lords "on the approach that should be made towards relating the application of common law offences to the changing standards of life in succeeding generations". The following are some of those observations which might be found relevant for the purpose of the discussion in this case:- (Viscount Simonds)
"I am concerned only to assert what was vigorously denied by counsel for the appellant, that such an offence (conspiracy to encourage public morals -it was a case of corrupting the public morals through propagation of prostitution in the form of advertisements for the prostitutes) is known to the common law and that it was open to the jury to find on the facts of this case that the appellant was guilty of such an offence. I must say categorically that, if it were not so, Her Majesty's Courts would strangely have failed in their duty as servants and guardians of the common law." (pp. 451- 452) . "To one of your Lordships it may appear an affront. To public decency, to another, considering that it may succeed in its obvious intention of provoking libidinous desires, it will seem a corruption of public morals. Yet others may deem it aptly described as the creation of a public mischief or the undermining of moral conduct. The same act will not in all ages be regarded in the same way. The law must be related to the changing standards of life, not yielding to every shifting impulse of the popular will but having regard to fundamental assessments of human values and the purposes of society. Today a denial of the fundamental Christian doctrine, which m past centuries would have been regarded by the ecclesiastical Courts as heresy and by the common law as blasphemy, will no longer be an offence if the decencies of con--troversy are observed. When Lord Mansfield, speaking long after the Star Chamber had been abolished, said (In R. v. Delaval, (1763) 3 Burr. At p.
1438). . . . ." (pp. 452-453)
(Lord Tucker)
"There was material in this case to support the view that some of the advertisements in the magazines indicated that the adver--tisers were willing to take part in acts of sexual perversion.
This element was, I think, conclusive against the appellant's submission, but I am not to be taken as expressing the view that, in the absence of this feature, the case should have been withdrawn from the jury who must be the final arbiters in such matters, as they are on the question of obscenity.
They alone can adequately reflect the changing public views on such matters through the centuries. As regards lack of precedent, apart from R. v. Berg, Britt, Carre & Lummies (1927), 20 Cr.
App. Rep. 38) in 1927 and R. v. Dale (Central Criminal Court, 1960, unreported) in 1960, I would remind your Lordships of the words of Parke, J., in Mirehouse v. Rennell (1833), 1 Cl. & Fin. At p. 546): "The case, therefore, is in some sense new, as many others are which continually occur; but we have no right to consider it, because it is new, as one for which the law has not provided at all; and because it has not yet been decided, to decide it for ourselves, according to our own judgment of what is just and expedient. Our common law system consists in the applying to new combinations of circumstances those rules of law which we derive from legal principles and judicial prece-- dents; and for the sake of attaining uniformity, consistency and certainty, we must apply those rules, where they are not plainly un--reasonable and inconvenient, to all cases which arise; and we are not at liberty to reject them, and to abandon all analogy to them, in those to which they have not yet been judicially applied, because we think that the rules are not as convenient and reasonable as we ourselves could have devised. It appears to me to be of great importance to keep this principle of decision steadily in view, not merelv for the determination of the particular case, but for the interests of law as a science." (pp. 465-466)
(Lord Hodson)
"The judicial precedents which have been cited show conclusively to my mind that the Courts have never abandoned their function as custodes morum by surrendering to the Legislature the right and duty to apply established principles to new combinations of circumstances. The words of Parke, J., in Mirehouse v. Rennell, (1833) 1 Cl. Fin. At p. 546 read by my noble and learned friend, Lord Tucker, are not outdated and, in my opinion, are applicable to this case." (p. 468)
And lastly, on the same page: "Even if Christianity be not part of the law of England, yet the common law has its roots in Christianity and has always regarded the institution of marriage as worthy to be supported as an essential part of the structure of the society to which we belong. I do not see any reason why a conspiracy to encourage fornication and adultery should be regarded as outside the ambit of a conspiracy to corrupt public morals. It is suggested, as I understand it, that this throws the net too wide, and in some way it is desirable to show a tenderness towards pro--stitution as a recognised and necessary evil. I do not accept this approach."
The thoughts of the eminent English Judges in the House of Lords quoted above relating to: (a)
Christianity av religion being the basis of Common Law; (b) their duty not to ignore the public morals in interpreting the laws; and (c) further to fill in the gaps in the laws by moral, and no other considerations, are too obvious to be further commented upon. Why mutatismutandis these rules should not apply to the approach by Pakistani Judges in the fulfillment of their own oath of office, is incomprehensible-the necessary changes being: `Islam' for 'Christianity'; `Islamic moral values' for `public morals'; and Muslim way of life' for 'moral consideration' as understood in the West--(See also Part X para. 46, comments on cases of Sardara and Shaukat Ali.)
63. It will not be out of place to refer here, again, to Dias' Jarisprudence (Third Edition), wherein the jurist tried to reconcile the positivists and natura--lists' views on the definition and purpose of law, by adopting, what he terms as, temporal approach. According to him, this approach may be viewed in either of two frameworks of time: that of the present moment or one of a continuum. A rule of law as it stands is all that is needed for the purposes of the moment, "but the idea of a living rule automatically imports the factors that brought it into being, keep it going, modify, weaken or kill it, as well as those that determine how in fact it works in its social environment" "The temporal approach here outlined offers a modest but systematic plan by asking: What factors (social, political, moral, ere.) brought about a rule of law? What factors keep it going? (Which need not necessarily be the same as those which brought it about). How does it work? (which calls for an investigation into its structure, its efficiency in fulfilling its task and the factors that affect its working Can it be improved? Such questions reach out into sociology, ethics and other fields with limitless ramifications; but they remain geared to adefinite system"-(p. 21). The learned jurist dealt wirh the sources of law and when coming to values as one of the sources, he discussed national and social safety, sanctity of person, sanctity of property. Social welfare, equality, doctrine and tradition, convenience, international comity and, above all, morality as con tinuously influencing the development of law. It is not necessary to enter into the controversy about value of judgments nor with regard to the merits of the above sources and internal contradictions therein. What needs to be emphasized is that there can be little doubt that moral considerations do influence rules of law and, in our polity; social and ethical standards are mainly based on Islamic principles. The above theoretical aspect of the question assumes practical shape when interpreting statutes, while applying precedents to new situations, filling in the gaps and when exercising judicial discretion. While dealing with question of gap, Dias, thought that Judges do make law, of course, through precedents. While visualizing a situation of vacuum, he thought that if there is no rule at hand, no Judge would refuse to give a decision on the point. He would try to discover a rule (the learned jurist used the word "invent" with which, with respect, I do not agree). Here it might be of interest but also relevant to mention, that according to Article 4 of the French Civil Code of 1803 "a Judge who refuses to render judgment under pretence that law is silent, obscure or insufficient, may be prosecuted as being guilty of denying justice". After discussing the question of statutory interpretation as one of the sources of law. Dias concluded that in the first place, it should not be supposed that there is a single set of rules of statutory interpretation. It would be truer to speak of conflicting guides, largely supported by dicta, than rules. Secondly, an inescapable corollary of the demand that Judges should be more helpful to Parliament in their treat--ment of statutes is that a measure of creativeness has to be conceded to them. Thirdly, statutes should only be approached in the time-frame of a continuum, and this makes moral and functional considerations an integral part of the whole problem. Fourthly, functional interpretation requires that information should be provided about the context of the provision. Statutes are no longer the minor departures from Common Law that they used to be. They now inaugurate wholly new policies and social experiments. It is not possible to give these sympathetic consideration without some appreciation of their background. Fifthly, the doctrine of stare declsis should not be applied to statute interpretation, and indeed Judges themselves have occasionally deprecated it. Sixthly, the more generously worded provisions of modern statutes invite a mote liberal attitude. And lastly, statutes are designed to control behaviour and, like every communication, involve an author, a medium and an audience. They are not addressed solely, or even primarily, to Judges. The task of the Judge is to see whether or not X's actual behaviour came within the statutory prescription. Interpretation has thus to be per--formed, not only by Judges, but also by those whose behaviour is being regulated (see pp. 147 to 150). Reference here may be made to views of Sir Henry Maine in "Ancient Law" quoted with approval in Snell's Principles of Equity, on the subject of the origin (generally) of equity. These experts think that "in progressive societies, social necessities and social opinion are always more or less in advance of law and that the three instrumentalities by which the gulf between the two is narrowed are legal fictions, equity, and legislation. When law becomes fixed, it is adapted to the new wants of society first by legal fictions, next by the growth of a fresh body of rules by the side of the original law, founded on distinct principles, and claiming to supersede the law in virtue of a superior sanctity inherent in those principles (this is equity), and finally by legislation. It is, of course, possible for these three instrumentalities to be operating at the same time, and that is what happened in this country (England)"-see p. 2, Snell's Principles of Equity, 22nd Ed. By H. C. Rivington. It was the growth of fresh body of rules adapted to new wants of society and founded on distinct sanctity that the Chancellor's jurisdiction was exercised on the ground of conscience, "an un--satisfactory measure, which, as Selden pointed out in his Table Talk, was likely to vary with each Chancellor, even as his foot:" This was how the famous rules of equity initially came into being in the country of their origin. In this work on equity, one finds that the sources of common and statute law of England were the enforceable principles of natural justice. Equity was, in its popular sense, treated as all other rules of natural justice and good conscience. Technically speaking however, equity was treated as that portion of natural justice which, though of such a nature as properly to admit of being judicially enforced, was omitted to be enforced by Common Law Courts and this omission was supplied by the Court of Chancery. The learned author thought that "in short, the whole distinction between equity and law is not so much a matter of substance or principle as of form and history". In this connection, a salutary rule adopted by the English Judges for their own guidance needs to be mentioned: that every Judge of every division must recognize and give effect to all equitable rights and defence, and, subject to the supremacy of equity, to all legal rights ani obligations, and must grant all such remedies as the parties may be entit' d to in respect of any legal or equitable claim, so that, as far as possible, all atters in controvery between the parties may be completely and finally determined (page 7). Ultimately, the rules of equity have, through various processes, merged with other branches of law and the author (at page 9) thought that "the two streams, a has been well said, have met, and now run in the same channel, but there waters do not mix". From the above references to Snell's Equity, it must have been realized that the basis of the rules of equity and Common Law are presumed to be the natural justice in its wider sense as understood by English jurists.
64. All this mechanism was resorted to in the name of conscience and 1 for the purpose of ensuring complete justice. We are, in a way, passion through a developing state of transformation from English to Islamic juridical norms and processes. It would not be improper nor unconstitutional for Pakistani Judges, keeping in view the development of English judicial system, to follow their own rules of natural justice as contained in the Islamic "accepted juridical norms"-an expression borrowed from the case of Ch. Manzoor Elahl-and "fundamental principles and basic concepts of Islam" (Article 31 of the Constitution) and to seek inspiration from their own Constitution, ideology, history and environment.
XIII. Rules of natural justice/equity and the religion-natural law sources
65. To answer a critic claiming identity of all the rules of 'natural justice' as understood in West and basic Islamic principles of divine justice, it is necessary to pose and answer a question as to what were the main sources of the former 'natural justice'. S. A. de Smith, as a purview to the Chapter on Natural Justice, in his 'Judicial Review of Administrative Action, 3rd Ed., p. 134', gives the following background:- "The expression 'natural justice' has been described as one 'sadly lacking in precision' and has been consigned more than once to the lumber room. Thus, it has been said that in so far as it 'means that a result or process should be just, it is harmless though it may be a high sounding expression; in so far as it attempts to reflect the old jus naturale, it is a confused and unwarranted transfer into the ethical sphere of a term employed for other distinctions; and, in so far as it is resorted to for other purposes, it is vacuous. No one who has the slightest acquaintance with the medieval English legal system or with legal systems in other parts of the world will suggest that those elements of judicial procedure which are now regarded as the hallmark of a civilised society have been generally enforced or even generally regarded as proper. But Courts and commentators who decline to accept any form of justice as natural may take their choice from among 'substantial justice', 'the essence of justice', 'fundamental justice', 'universal justice', 'rational justice', 'the principles of British ,justice', or simply 'justice without any epithet' or Tair--play in action' as phrases which express the same idea. And in any event 'natural justice' was written into the statute book in 1969. There are, moreover, considerations which incline English lawyers towards retaining 'natural justice' as part of their vocabulary. The term expresses the close relationship between the Common Law and moral principles, and it has an impressive ancestry. That no man is to be judged unheard was a precept known to the Greeks, inscribed in ancient times upon images in places where justice was administered, proclaimed in Seneca's Medea, enshrined in the scriptures, mentioned by St.
Augustine, embodied in Germanic as well as African proverbs, ascribed in the Year Books to the law of nature, asserted by Coke to be of divine justice, and traced by an eighteenth century Judge to the events in the Garden of Eden. The historical and philosophical foundation of the English concept of 'natural' justice may be in--secure; it is not the less worthy of preservation. If it is vulnerable to rational criticism, so too are the 'unalienable rights' of the Founding Fathers of the American Constitution. And the view that 'natural justice is so vague as to be practically meaningless' is tainted by per--ennial fallacy that because something cannot be cut and dried or nicely weighed or measured therefore it does not exist."
About Greek sources, J. M. Kelly in (1964) 9 Natural Law forum 103 points out that the Greeks tended to regard the principle as a practical aid to making good decisions rather than an abstract principle of justice. Spanish born Roman Seneca's contribution also cannot be accepted as valuable without evoking some sensitive thoughts about his person. He was a statesman, philosopher, satirist and tragedian who combined rhetoric with philosophy and became famous as philosopher. He had a chequered life. Tutor and adviser of Nero, he was accused of adultery with later's cousin and was allegedly a conspirator in the palace to murder his (Nero's) mother. It is impossible to resolve the contradictions: in his life and work; between opportunism and enlightenment; and financial unscrupulousness and philoso--phical resignation. He was punished by his own pupil who ordered his suicide (see Encyclopedia Britanica). What judicial approach and wisdom or for that matter law compels us in Pakistan to follow and depend upon the lines or sayings in the rhetoric of man like Seneca. As a 'rule' of natural justice, in preference to the sayings and practice of Muhammad, the Holy Prophet (peace be upon him); who is even now treated by one of the old seats of learning of Law in the West, as amongst the greatest law-givers of mankind.
It is understandable that Mr. S. A. De Smith, while trying to say that the English concept of natural justice is vulnerable to rational criticism, com--pared with it only the one other alternative, i.e , "unalienable rights enshrined in the American Constitution". Rules of natural justice and existence of fundamental rights in other systems, e.g., Islamic have not been noticed even as a comparative source of this branch of law. During the last two decades, in Pakistan, sufficient legal literature has developed on the question of cut and dried basic principles of justice as also fundamental rights as contained in Muslim Law and jurisprudence.
67. It must have been seen that apart from the Greek sources and Seneca's Medea, which was cited in Boawell's case ((1606) 6 Co. Rep. 41(b), 52(a)), Bagg's case ((1615) 11 Co. Rep. 93(b), 99(a) and in several nineteenth century cases, and some old year books, the main source of rules of natural justice, has been the moral rules based on the relationship between Common Law and morality as understood by English people, with its source in their religion, namely, Christianity. This has more vividly been admitted, by Domat in his celebrated work on "The Civil Law in its natural order", when dealing with spiritual and temporal powers in Vol. I, Chapter IX, on the subject of religion, as follows:- "Lastly, we ought to look upon religion as the most natural foundation of the order of society. For it is the spirit of religion that is the principle of the true order that ought to be in society. But there isthis difference between religion, and all the other foundations of society, that whereas the others are common to all places, the true religion is only known and received in some states; and even in those where it is known, the spirit of it doth not so far prevail as to influence all persons to follow the rules of it. But yet it is certain, that, in the places where profession is made of the true religion, society is in its most natural state, and in the most proper form being maintained in good order, by a concurrence of religion and civil policy, and by a union in the ministry of the spiritual and temporal powers."
He then proceeded in the subsequent Chapter to inquire how religion and policy agree among themselves because "this matter is an essential part of the plan of society, and bath a great affinity with the civil laws". In one of the Chapters titled "Reflections on some Remarks in the Preceding Chapter (of the Nature and Spirit of Laws, and their Different Kinds), which are a Founda--tion of several Rules touching the "Use and Interpretation of Laws", the learned author propounded several rules of interpretation of laws. The very first one is: "Natural Laws regulate both the Time past and the Time to come, although never promulgated, and the Arbitrary Laws regulate only the Time to come, after Publication". He thought "that the natural laws are truths which nature and reason teach men, that they have of themselves the justice and authority which oblige people to obey them, and that nobody can pretend ignorance of them: that, on the contrary, the arbitrary laws are as facts naturally unknown to men, and which are not binding till after they have been promulgated". The foregoing discussion on the subject of connec--tion between law, natural justice, morality-religion, is with a view to high--light the fact that the general law or principles thereof, namely, natural justice, Common Law, equity, etc, have their ultimate source in the "natural law" which is mainly obtained from religious ideas and norms of conduct in the societies practising them.
68. It is the manifestation of this truism that till today, the Queen in England is. In most formal Charters. Described as defender of faith. The Irish people have not tried to conceal this basic reality even in their Constitu--tion wherein religion is one of the main corner-stones.
69. Contemporaneously with the development of equity, Common Law and statutory rules from `natural justice', as generally understood by English people (and discussed in the preceding paragraphs), efforts were being made in the initial stages of the British advent in India to introduce these very concepts in the colony. It would suffice to cite only one instance of a legisla--tion of constitutional nature, namely, "Company's Laws prepared for the civil Government and equal distribution of justice upon the Island (of Bombay), set and engrossed in March 1669." The preamble and some of the clauses contain the following captions and subjects:- Preamble: "Whereas His Most Excellent Majesty Our Sovereign Lord Charles the Second by the Grace of God of Great Britain France and Ireland King Defender of the Faith . . . . . . .Granted unto the Governor and Company of Merchants of London Trading into the East Indies . . . . . And con--stituted them the true and absolute Lords and Proprietors . . . . . . . And to Establish Courts of Justice forms of Judicature . . . . . . And for the better government of the said Island and places and of all the fn. Habitants that do or shall reside and inhabit therein and for the due and impartial Administration of Justice to all, to the glory of God and the Honour of the Protestant Religion and of our King and Country . . . . .
Ordained and do by these presents make Ordain constitute. . . : '
Clause (I)-1st "We do Direct, Order and Appoint that the Lords day be religiously observed by abs-Inence from all bodily Labour and secular employments as also from all gaming and other unlawful pastime v and that our Governor or his Deputy and Council take care not only to appoint one or more publick place or places for the Worship of God whither all Persons of the Protestant Religion may resort to attend upon and join in the publick exercises of Religious Dutys as prayers, reading the Word of God, hearing of Sermons, Singing of Psalms, and on occasion the Adminis--tration of both the sacraments of Baptism and the Lords Supper but also by their presence to encourage the Minister or Ministers in the Discharge of his or their Dutys and the people in their attendance on the Ordinances . . . . . .
Clause (I)-2ndly "That in the Publick (? Assembly the Minister) or such as discharge the Duty of Prayer in the Absence of a Minister be mindful to pray for our Sovereign Lord the Kings Majesty the Peace Happiness and Prosperity of His Kingdoms as also for the good and Welfare of the English East India Company; and also that in the Publick Assembiy every Lords day at such times as may be most convenient the Creed commonly called the Apostles Creed or sometimes in place thereof the Creed commonly called the Athanatius Creed. as also the Ten Commandments of the Moral Law out of the 20th Chapter of Exodus together with the Summary thereof as it is contained in the 22th
(sic) Chapter of St. Matthews Gospel 37th, 38th, 39th and 40th Verses be read unto the people."
(This was for all to listen).
Clause (1)-3rdly "That where there is a Minister there shall once every Week on some working day be a public Sermon or Lecture and that the Minister once in every Week either on the Lords day or on some other day shall Cathechize the Youth and Younger people in publick at the publick place of Worship and then open and expound the Doctrine of the true Christian Religion that so the people may be well grounded in the Principles and Doctrine of Faith and be able to give a reason of their hope and on good grounds to maintain their Religion against all opposers and gainsayers the time for the said Lecture and Catechizing shall be appointed by Our Governor and Council or his Deputy and Council who are to be present thereat if not hindered by necessary Affairs."
Clause (I)-4thly "Though we could and do heartily pray and wish that all people were brought to the full knowledge of the Truth and especially that all Christians were of One heart and one way, that the Lord might be one and his name One in all the Earth yet for as much as for the present it is otherwise we do strictly enjoin that none be troubled or molested for their Religion, Civil Laws and Constitutions of the place (? but all) be permitted to enjoy the (sic) liberty in their Houses, and that Life and Conversation be only used to draw people at a Love and embracing of the true Religion but that no /force or conrtraint be put on any in Religious matters."
Clause (Ill)-4thly " . . You shall swear to be good and true to our Sovereign Lord the King of England and to His Heirs and Successors you shall Administer Justice from time to time to all persons without favour or affection according to the principles of Common Right the Laws that are or shall hereafter be for the East India Company or their Authority legally made and Established . . . . ."
Clause (V)-4thly "That all Fornication Uncleanness and Adultery be forborn and if any shall be found guilty and convicted of the said Crime by Confession or by Verdict of a Jury that in such Cases until it be otherwise provided our Governor or his Deputy and Council do take care to Discountenance and punish the same in such a way as shall by them be found most efcatious and agreeable to the nature of the People and not contrary to the Laws and Statutes of the Kingdom of England."
It is true that the original of this law quoted from "The First Century of British Justice in India "by Sir Charles Fawcett (1934 Edn.) is nowhere found in any statute book but, as explained therein, its copy was found in "a volume of miscellaneous records, mostly consisting of copies of letters about the company's marine affairs in England between January 1748 and December 1751 (Miscellaneous, Vol. II)." The author has observed that "the copy of the Laws shows signs of having been compared with the original and corrected; ated its authenticity is further supported by its resemblance to the corresponding Laws for St. Helena, which the company itself stated were drawn on the model of the Bombay Laws". It is another truism that we feel not only shy of enacting and propounding Islamic laws and views but are also, as earlier hinted, apologetic for making attempts at that. It is this attitude which has led some contemporary modern writers on Pakistan, its ideology and laws to think as if we have kept our basic norms and principles of Islam, only as a show piece in the Constitution and have no intention of applying them, despite opportunity. For example, in Introduc- -tion to "Constitution and Administrative Law" by O. Hood Phillips (1967 Edn., page 10), the author made the following comparative comments "The Constitution of the Irish Republic, India and Pakistan expressly recognise the distinction between fundamental rights safeguarded by the Courts against amendment otherwise than by the appropriate procedure, and `directive principles of social (or State) policy' for the general guidance of the Legislature but which are not cognizable by any Court. Such directive principles of State policy are morally binding on the Legislature, but can scarcely be called laws." (Underlining* is mine).
Had "the State" of Pakistan distinguished itself by a realistic enactment of laws purported to have been made in accordance with those directive principles of State policy, which are based on Islamic philosophy, the author would not have bracketed Pakistan with Irish Republic and India.
71. It will be of some ad vantsge here to cite a dissenting judgment in a Full Bench case from Allahabad by the great Muslim jurist of India of nineteenth century, namely, Syed Mahmood, J. ; which shows how even in page missed 993 & 994 controvert the above-quoted views of Mahmood, J. This was a period when even an inconsequestial philosophical revolt against established English judicial norms and philosophy of law could be treated as seditious. We today are in a much happier position There is no scope for complacency that the continued maintenance of status quo in the legal field will not be harmful either to the Muslim society or Pakistani ideology.
72. Even though it is well known that according to Qur'an and Sunnah ft is not permissible to import ideas and solutions for problems covered by Islamic injunctions, yet the foregoing discussion would not be complete without specific reference to some Qur'anic injunctions in this behalf.
They are
(i) Surah Al-Baqara (II) V. 2-- urdu An English rendering of Urdu translation by Maulana Abul A'la Maudoodi (not the one given here) is more apt for the present discussion. It is as follows :- Vs. 135-138-- "The Jews say, "Become Jews and you will be rightly guided" ; the Christians say, "Become Christians and you will have the true guidance", Say to them, "Nay, we turn away from every other way and accept the way of Abraham, and Abraham did not associate other gods with Allah." O'
Muslims, say to them, "We believe in Allah and the Guidance which has been sent down to us and which was sent to Abraham. Ismail, Isaac and Jacob and his descendants and which was given by their Lord to Moses and Jesus and to all other Prophets. We do not discriminate against any of them and we have completely surrendered to Allah as Muslims." Then if they believe "the way you have believed", they have the right guidance, and if they turn away from this, it will become obvious that they are obdurate. Therefore, rest assured that Allah will suffice to defend you against them. He hears everything and He knows everything.
Say, "Take Allah's colour, and who can give a better colour than Allah? Therefore we worship and submit to Him alone." (Underlining* is by me).
(i) Surah Al'Imran (III) V. 19- urdu (Here 'Kafir can be read in either of the two senses-one who does not believe is no doubt "Kafir" but one who after believing does not follow, his actions, are like those of Kafirs: see commentaries by Maulana Shabbir Abmad Usmani. That is, probably, why M. M. Pickthall has used the expression "disbelievers.") urdu Still better rendering with reference to the context here, is the following English translation by M. M.
Pickthall :- "(48) And unto the have We revealed the Scripture with the truth, confirming whatever Scripture was before it, and a watcher over it. So Judge between them by that which Allah bath revealed, and follow not their desires away from the truth which hath come unto the. For each We have appointed a divine law and a traced-out way. Had Allah willed He could have made you one community. But that He may try you by that which He bath given you (He bath made you as ye are). So vie one with another in good works. Unto Allah ye will all return, and He will then inform you of that wherein ye differ.
(49) So judge between them by that which Allah hath revealed, and follow not their desires, but beware of them lest they seduce the from some part of that which Allah hath revealed unto the.
And if they turn away, then know that Allah's will is to smite them for some sin of theirs. Lo l many of mankind are evil-livers."
(v) Surah Al'In'am (VI) V 152 part only- urdu '1 have while giving different Urdu and English translations tried to follow, as nearly as possible, Hakim Yaseen's re-arrangement of translations by -Shah Abdul Qadir and Shah Rafiuddin; Maulana Shabbir Ahmad Usmani's adoption of translation by Maulana Mahmoodul Hassan; Muhammad Marmaduke Pickthall's "The Meaning of the Glorious Koran"; and qua Surah AI-Baqara, English rendering of Urdu translation/commentary (Tafhim--ul-Qur'an) by Moulana S. Abul A'la Maudoodi, recently published by Akhlaq Hussain. Director, Islamic Publications Ltd., as "The Meaning o1 ,the Qur'an". It appears from the foreword to the translation by M. M. Pickthall that the work had the support of authority. It reads :- "Before publication the work has been scrutinised word by word and thoroughly revised in Egypt with the help of one whose mother--tongue is Arabic, who has studied the Kor'an and who knows English; and when difficulties were encountered the translator had recourse to perhaps the greatest living authority on the subject. Every care has thus been taken to avoid unwarrantable renderings. On the one of' two occasions where there is departure from the traditional interpreta--tion, the traditional rendering will be found in a footnote.
The translator's thanks are due to Lord Lloyd for an introduction of great use in Egypt; to Dr. F.
Krenhow for supplying him with old mean--ings of Arabic words not to be found in dictionaries; to Muhammad Ahmad Al-Ghamrawi Bay of the Cairo College of Medicine for his invaluable and patient help with the revision of the manuscript, a work which occupied three months; to the Sheykh Mustafa Al-Maraghi, former Rector of Al-Azhar University, for his advice and guidance in the revision; and to His Excellency Fuad Bey Salim Al-Higazi, by whose efforts such revision was made possible.
The mushaf (copy of the Koran) which has been used throughout is a. Lithograph copy of that written by Al-Hajj Muhammad Shakarzadeh at the command of Sultan Mahmud of Turkey in 1246 A.
H. In the Introduction and the notes to individual surahs, Ibn Hisham (Bulaq, ed. 1295 A. H.) has been followed, with occasional reference to the much later, much abbreviated, but more critical Life of the Prophet by Ibn Khaldun (published as an appendix to his Tarikh, Bulaq ed.). Other Surahs, like that of Abu'1-Fida, late in date and uncritical, have been read but not followed. Of commentators A- Beydawi and Zamakhsbari must be mentioned, while for reference during the work of revision, the brief commentary of Al-Jalaleyn was kept at hand. Wahid's Asbabu'n-Nuzul has been largely consulted, and for the--authenticity of Traditions the translator has relied upon Bukhari."
With respect to the learned scholar, I am of the view that the word 'Din' in the Qur'an has, as discussed elsewhere in this judgment, not always been used in the sense conveyed by the English word 'religion'. At some places he has translated , as "law" but at some other places the use of word 'religion' has not conveyed the full connotation. The Qur'anic injunctions are so clear and obvious that reliance on principles and sources of law other than those of Islam, in situations where it is not prohibited by the Constitution and the law to adopt them, would be impermissible. This view directly follows from "the Qur'an" and also finds support from "the Sunnah". It is not necessary to quote here the traditions in this behalf. This part of discussion can well be closed by making reference to the views of Allama Dr. Muhammad Iqbal, the philosopher, poet and thinker of Pakistan, which have wide acceptance in different sections of our society; as contained in one of his masterpiecesi "The Will of Sultan Tipu" in Zarb-i-Kalim, the last couplet whereof reads "batil dooi pasand hat has la sbareek bat ahirkat miana has-o-batil; na kar qabool"
When rendered into English it would be nearly as follows :- It is only the evil/falsehood which admits of duality; Truth/justice is indivisible and has no match ; Partnership between the two should not be accepted.
XIV. Basic Islamic Philosophy and Juridical Norms capable of Practical Application In Modern Times
73. At this stage, a peculiar question needs to be dealt with. In some[g quarters, it is an impression- though wrong-that Islamic concepts of law or, at least, some of them are not of practical content and value and cannot cope with the modern theories of law and jurisprudence ; therefore, it would be, if not impracticable, at least difficult to adopt them in this age and at the same time to claim modernisation of or modernism in our judicial system. One straight comment is that some branches of Muslim law have already been codified and the Pakistani Courts are successfully coping with the entire number of situations which arise in connection with those laws. And the decisions in that behalf cannot at all be criticised on the bar of either quality vii-a-vii the real norms of justice or even of modernism. This is not only in Pakistan. Contemporary phenomenon has developed also in most of the Muslim countries. In Egypt since 1949, Civil Codes have been promulgated wherein, according to N. J. Coulson, the previous practice of indiscriminate adoption of European laws has been departed from. It is very interesting to note that in the Egyptian Code, Article I provided that in matters not specifically regulated by the Code, the Courts should follow customary law, the principles of Islamic law, or the principles of natural justice. This again, according to Coulson, "obviously opens the door to a wider reference to Shari'a law" (see page 153, Islamic Surveys-2, a History of Islamic Laws). Even though the Ottoman Mejella was superseded in Turkey, the same is the basis of several laws and principles of general law in Iraq and Jordan.
Pakistani superior Courts have also started dwelling on it-see the following. Observation in Mst.
Noor Jehan Begum v. Abdul Majid Shaida and another (Law Notes1967 (NUC)SC15):-- "It may be conceded that Islamic Law does not envisage the bar of limitation being raised successfully to legal proceedings but it appears incorrect that the principle of estoppel is not recognized in the Islamic judicial system. One of the maxims of Islamic Law included in the Mejella, the well-known Turkish Code of Islamic Law, in clause 100, expressly refers to this principle and it is further illustrared therein, by clause 1024 which relates to pre-emption. In clause 167 thereof it is laid down that even silence on an occasion requiring speech may disentitle a person from resuscitating a claim which he allowed to go against him by silence which amounts to acquiescence."
It might be thought by some critics as pedantic and presumptuous on the part of Pakistani jurists to say that Islamic Law in each and every field would be able to meet the demands of modern society. But they are wrong. It would here suffice to quote. Again, the views of Coulson (in the same work, at page 224/225) "generally speaking, the Qur'anic precepts are in the nature of ethical norms-broad enough to support modern legal structures and capable of varying interpretations to meet the particular needs of time and place. And on this basis it would seem that Islamic jurisprudence could implement, in practical and modernist terms, its fundamental and unique ideal of a way of life based on the Command of God. Freed from the notion of a religious law expressed in totalitarian and uncompromising terms, jurisprudence would approach the problem of law and society in a different light. Instead of asking itself, as it has done since the tenth century and still generally does today, what concessions must be wrested from the law by the needs of society, its new terms of reference would be precisely the opposite: to determine what limitations religious principles set upon society".
74. If the above is the view of the efficacy of Islamic law and its general rules, then another question needs to be answered as to why the Judges in areas, now constituting Pakistan, during the pre- Independence era did not interpret the expression "justice, equity and good conscience" in accordance with the Islamic rules as it should have been. Again, in this behalf in order to avoid projection of the mind of a newly independent state from British ,.Colonial domination, it is better to refer to the same Orientalist, N. J. Coulson. He is of the view that outside the area of the Middle East, the infiltration of Western law into the Islamic world was closely connected with the "policies" ...Of occupying imperial and colonial powers. He gives vivid examples of Algeria, Indonesia, India, Sudan, North Africa and Nigeria to support his opinion. With regard to India in particular, he gave an additional reason, namely. That `civil law, meanwhile, had become increasingly anglicised by virtue of the principle adopted by the courts of deciding cases according to `justice, equity, and good conscience': for British judges, and Indian Judges trained in English law, inevitably resorted to the introduction of English rules as a result of both their desire for uniformity in the law applicable to a very mixed population and the general difficulty they experienced in properly ascertaining the terms of Islamic Law from the authoritative Arabic texts. Indeed `justice, equity, and good conscience' was in practice synonymous with English law." How can the same considerations govern the situation and prevail in an independent State (Pakistan) even after about three decades of gaining Independence. Nor can it be now said that this is closely connected with policies of any occupying imperial and colonial powers. It is also not true that Pakistani Judges are trained only in English law and would not be able to apply the principles of Muslim Law so as "inevitably to resort to the English rules". As would be presently shown the question of preservation of the rights of non-Muslims qua their laws has adequately been resolved by the Constitution. Nor they feel any general difficulty in "properly ascertaining the terms of Islamic Law" from the authoritative Arabic texts. It would, therefore, be not really proper to say that for Pakistani Judges, `justice, equity and good conscience' would practically be synonymous with English law. Some of these considerations could have been applicable to the pre-Independence era and that also qua few, but there -might be other causes. In Pakistan now these questions, as explained above, do not arise.
XV. Full analysis and effect of Privy Council case of Waghela v.
Masluddin (141 A 89) on Local Jurisprudence
75. The above discussion leads once again to the same question as to why in the High Courts in pre-Partition India, particularly the areas now constituting Pakistan and Bangla Desh, for all practical purposes, a positive and conscious effort was not made to give up the English concepts of "justice, equity and good conscience" and to interpret these terms in accordance with the rules of Islamic jurisprudence, which had intrinsic value and had also been applied in this sub-continent for several centuries. In addition to the causes noted in the last portion of the foregoing paragraph, lit will be in defence of the Judges, then, presiding over the High Courts to refer to one of the earliest basic Privy Council judgments on this .Question, namely, Waghela v. Masluddin ((1887) 14 1 A 89) which has also been subjected to comment in the earlier parts of this judgment. As held by the Calcutta High Court in the case of Bireswar Ghosh v. Panchcouri Ghosh ((1865) 2 Bom. H C R 38) it was doubtful where the Judicial Committee in the earlier case followed an Dada v. Babaji (AIR 1923 Cal. 538) namely, Varden Seth v. Lackpathy ((1862) 9 M I A 303) "intended to enunciate ,the comprehensive rule attributed to their decision" that principles of English Law were applicable for determining the questions relatable to "justice, -equity and good conscience". According to their Lordships of the Calcutta ;High Court, the real basis for this view were laid in the case of Waghela v.
Masluddin. With the highest regard and respect for the Judicial Committee, which it is admitted, made considerable contribution to the judicial history of this sub-continent, it is ventured to observe that this case was not correctly decided. I need not go into the .Question whether, at this stage of independent development of judicial thought in Pakistan, Judges of the superior Courts are still formally bound by the pronouncements of the Judicial Committee ; though they have to be regarded with profoundest respect and an effort would always be made to seek useful ,guidance from them".
76. In order to appreciate the Privy Council decision correctly, it will be proper to refer to other colonial legislation ; wherein same or similar .Expressions (justice, equity and good conscience) were used. Cases concerning those measures also came before the English Judges to interpret them. It would be seen whether there was any difference in approach vis-a-vis India. 7n section 87 of the Courts Ordinance of Gold Coast, it is provided--"Nothing in this Ordinance shall deprive the Courts of the right to observe and enforce the observance or shall deprive any person of the benefit ~of any native law or custom existing in the Gold Coast such law or custom not being repugnant to natural justice, equity and good conscience nor incompatible either directly or by necessary implication with any Ordinance for the time being in force". In section 17 of the old Supreme Court Ordinance of Nigeria, a similar provision existed. In section 10 of the old Native Courts Ordinance of Nigeria it was provided that a native Court shall administer the "native law and custom prevailing in the area of the jurisdiction of the Court so far as it is not repuguant to natural justice or morality or inconsistent with any provisions of any other Ordinance". Another provision of the same Ordinance forbids the imposition of punish--ments that are repugnant to "natural justice and humanity". In section 13 of Native Courts Ordinance of Tanganyika, it is enacted-''Subject to the provisions of this Ordinance a native Court shall administer: (a) the native `law and custom prevailing in the area of the jurisdiction of the Court so far as it is not repugnant to justice or morality . . . . . : '; and by section 15 punishments must not be "repugnant to natural justice and humanity". In section 11 of the Native Courtq Ordinance of Uganda, the expression "natural justice or morality" is used. Section 71 of the New Zealand Constitution Act of 1852 provided that it may be expedient that the laws, customs and usages of the aboriginal or native inhabitants of New Zealand, so far as they are not repugnant to the general principles of humanity, should for the present be maintained. Similar provisions exist in the legislation of several other British overseas territories. Phrase "natural justice" has often been used therein. Definitions were not provided for in the aforementioned legislative measures for the expressions "natural justice, equity, good conscience", "natural justice and morality" or "natural justice and humanity" as used in the overseas legislation. This was in line with the English Law because there is no comprehensive definition of natural justice as used in that law. But up to the phase, when the case of Masluddin was decided by the Judicial Committee in 1887, some of these phrases had been considered in well-known case of Blankard v. Galdy ((1684) 2 Salk. 411) and an Anonymous Case ((1722) 2 P W Ms. 75). In the first case, it was held: that in case of on uninhabited country newly found out by English subjects all laws in force in England are in force there ; . . . That it was impossible the laws of this nation, by mere conquest, without more, should take place in a conquered country ; . . . . . . That in the case of an infidel country. Their laws by conquest do not entirely cease, but only such as are against the Law of God; and that in such cases. Where the laws are rejected or silent, the conquered country shall be governed according to the rule of natural equity". In the second case, it was held that "an uninhabited country newly found out and inhabited by the English would be governed by the laws of England. A conquered country is to be governed by such laws as the conqueror will impose; but until the conqueror gives them new laws, they are to be governed by their own laws, unless where those laws are contrary to the laws of God or totally silent". An authoritative comment on this case reads as follows :- "Attention is drawn to the fact that the headnote of the case refers to the "laws of God" as the test of validity, whereas the body of the report decides that the test is that the laws should not be contrary to our religion or enact anything that is malum in se. This would appear, to amount to very much the same thing since the laws of God to an Englishman of the eighteenth century could be found fn his revealed religion, and anything that was malum in se (as contrasted with malum prohibitum) was, according to the teaching of the medieval lawyers, contrary to natural law, the laws of God, summum jus or whatever other name might be given to the concept."
Later on, the aforementioned declared law was applied in Attorney-General v. Stewart ((1817) 2 Mer.
159) as also in Lyons (Mayer of) v. East India Co. ((1836) 1 Moo. Ind. App. 175, (271)). It was in line with the above consistent interpretation of the afore-discussed expressions and phrases relating to justice. Equity, morality, humanity that the Judicial Committee held in .Moses v. Parker (1896 A C 245) that in cases where the statute: provides for taking of guidance from equity and good conscience only, the decision of the Court would not be treated as, strictly speaking, a judicial decision in accordance with the technicalities or legal forms and would not be made subject to appeal or give occasion for the exercise of Her Majesty's. Prerogative of granting appeals from courts of justice. It was a case from Tasmania and interpretation of section 5 of Tasmanian Act No. 10 of 185& was involved. It was provided therein that the decision of the Supreme Court which was to be guided by rules of equity and good conscience only, was binding on the Governor, not by strict rules of law or equity or by any technicalities or legal forms. In the foregoing discussion in this paragraph, I have relied heavily on the treatment of the subject by H. H. Marshall and have quoted from his work "Natural Justice", Chap. 9 (1959 Ed ) The learned author at p. 171 concluded. After a valuable rich discussion in this behalf. That Blankard v. Galdy, the Anonymous Case and Attorney- General v. Stewart all appear to state that "it is the law of England that where a country is conquered or ceded its laws and customs do not cease but continue, except in so far as they are contrary to the laws of God, or of 'our religion' or are mala in se. We have seen in previous chapters that the expressions 'the laws of God', 'summus jus', 'natural law', 'natural justice. Equity and good conscience' were in early times synonymous terms. It would appear, probable, therefore. When the expressions 'natural justice', 'equity and good L conscience', and 'natural justice and morality', and natural justice and humanity', and 'general principles of humanity' are used in the legislation of or relating to overseas territories which have been conquered or ceded that this legislation Is rendering statutory as regards those territories the policy of English law declared in the cases quoted above. It would, therefore, seem that the phrases which we have examining in this Chapter are synonymous with 'the laws' of God' or 'natural law' and that. As we hove also seen in earlier chapters these phrases leave a wide discretion to the judges to decide questions in accordance with 'their own ideas' of fairplay". I fully agree with the conclusions of the learned author with regard to the interpretation of the relevant branch or law as also his remarks that "what is fairplay, moral, humane or inoffensive to the conscience in one country is not necessarily so in another. Values, standards and principles vary from place to place and from time to time. The penalty of cutting off of hands and feet for theft has been abolished as contrary to humanity by the British in several possessions conquered by or ceded to them. On the other hand the death penalty for murder has been retained in such possessions. Thus, according to the standards of English law, the cutting off of hands and feet is an inhumane punishment while the breaking of the neck is not."
77. The above discussion would show that at the time that the case of Masluddin came for consideration before the Judicial Committee, the law already declared in England with regard to the meanings of the expressions "justice. Equity and good conscience" (and other related expressions mentioned above) was that they were synonymous with the laws of God or natural law. In India, these laws at the time of British advent, were based on Islamic Jurisprudence. With respect to their Lordships, who decided the case of Masluddin, they did not correctly interpret or, at least, follow the said law already declared ; and instead thought it fit, for reasons not very clear in the report of Masluddin's case, that "in point of fact, the matter must be .Decided by equity and good conscience, generally interpreted to mean the rules of English law if found applicable to Indian society and circumstances".1 Again, with respect, it is pointed out that by then, as generally interpreted, this expression did not at all mean the rules of English law as applicable to the particular territory or territories, but in reality meant the "laws of God' or "natural law" prevailing therein."
78. At the time of British advent in the Indian sub-continent, the laws of God as understood in Islam were, under Mughal Rule, occupying the judicial field. It is well known that here, more than anywhere else, the colonial power had to meet tough and principled resistance. Unless the effects of Muslim rule in all its facets were to be sweeped blank, the conquest would not have been complete-social and legal norms could not be allowed to remain unaffected. When Masluddin's case was decided in 1887, hardly half a generation away (past) was the great resistance in a war for, Indepen--dence; to which the rulers gave the name of "Mutiny of 1857; and in connection with which, we know, history witnessed a number of heinous acts performed by the then colonial executive to completely annihilate the Muslim administration. The British were so sensitive about Muslim revival and resurgence here, that all attempts and traces thereof were, overtly and sometimes covertly but consciously as also sub-consciously but gradually, curbed and done away with. Collective mind of a ruling colonial power during such psychological phase can be read and judged even from things which on surface appear small. The banishment of the old, ailing and ineffective sovereign Bahadur Shah Zaffar is not less important. But more revealing in this behalf was the decision not to permit the remains of hip body to be brought from Rangoon to Delhi ; which circumstance was well prophesied in one of the most pathetic pieces of poetry-cum-social history, relating to his burial. With this background, could Muslim philosophy and its juridical principles, which held swa y for centuries, be permitted to be brought back, through the corridors of, 'revealed laws of God', 'natural law' and 'justice, equity and good conscience' as understood in Islam ?
Answer in so far as the colonial executive is concerned, would undoubtedly be in the negative ; but qua the judicial limb of the then State of Great Britain it would not be much different-not necessarily because of any rancour or bias but, may be, because of commonplace reasons, which, according to some writers on jurisprudence (Dins' views in this behalf have already been noticed in Part XII supra) would be referable to the compulsions of a totality ; or, were the product of misunderstanding and lack of comprehension of particular situations, as has been analysed by N.
J. Coulson whose views in this behalf have been noted in Part XIV supra). Their Lordships o the Privy Council then, in the case of Masluddin, thought it fit, in their own wisdom without, however, any stated justification and support from any principle of law, enunciated as shown above by English Judges themselves, H. To bind the Indian Courts with their own set of the rules of 'natural justice' B and further thought it fit to restrict the otherwise wide discretion left to the Judges (by the afore- noticed rulings) to decide questions in accordance with their own ideas of 'natural law' and Fairplay'. The decision in the case of Masluddin was contrary to the position consistently maintained in those well known decisions."
79. This view of the decision of the Judicial Committee in the case of Masluddin finds full support from the comments made by H. H. Marshal in "Natural Justice", p. 171, Chap. 9, 1959 Ed. According to him : "(a) while: it is clear that in India the rules of English law may be invoked to fill up a gap in the Indian law on any particular subject, yet it is equally obvious, that it would be improper to apply the rules of English law as a test of whether a particular colonial native law (this, I may point out, would include Islamic Law) and custom was contrary to natural justice, equity and good conscience, since the test would be too rigid and by its application injustice might be done ; and (b) the ruling (Masluddin) would appear to be inap--plicable to the interpretation of the wording of the Ordinances above referred to in view of the decisions in Blankard v. Galdy, the Anonymous Case and: Attorney-General v. Stewart mentioned above". And I may add that it also ran counter to the decision of their Lordships in one of the very well-- considered cases Mayor of Lyons v. East India Co. The upshot of the forego--ing discussion is no doubt simple but at the same time far more important than on face it looks to be. But for the Privy Council ruling in the case of Masluddin and some subsequent cases which followed it, the general rules, of English law would not have been adopted in the sub-continent a$ principles governing "justice, equity and good conscience". As fully discussed above, the decision in the said case was not correct. If the rulings ire above- mentioned cases had been followed by the Privy Council itself, very, few rules of English general law on 'equity and natural justice' would have excluded the Islamic common law through interpretation of the phrase "justice, equity and good conscience". Till a certain stage even after Independence, the Courts here were bound by the decisions of the Judicial Committee. Now, as already explained, the position is not the same. We are not required to follow the English law in pursuance of the aforementioned. With respect, incorrect approach of the Judicial Committee in the case of Masluddin, as against and in preference to general principles of Islamic :.Law on questions relating to "justice, equity and good conscience" and in prophesied in one of the most pathetic pieces of poetry-cum-social history,) relating to his burial. With this background, could Muslim philosophy and its juridical principles, which held sway for centuries, be permitted to be brought back, through the corridors of, 'revealed laws of God', 'natural law' and 'justice, equity and good conscience' as understood in Islam Answer in so far as the colonial executive is concerned, would undoubtedly be in the negative ; but qua the judicial limb of the then State of Great Britain it would not be much different-not necessarily because of any rancour or bias but, may be, because of commonplace reasons, which, according to some waters on jurisprudence (Dins' views in this behalf have already been noticed in Part XII supra) would be referable to the compulsions of a totality ; or, were the product of misunderstanding and lack of comprehension ,of particular situations, as has been analysed by N. J. Coulson whose views in this behalf have been noted in Part XIV supra). Their Lordships o the Privy Council then, in the case of Masluddin, thought it fit, in their own wisdom without, however, any stated justification and support from any principle of law. Enunciated as shown above by English Judges themselves, to bind the Indian Courts with their own set of the rules of 'natural justice' and further thought it fit to restrict the otherwise wide discretion left to the Judges (by the afore-noticed rulings) to decide questions in accordance with their own ideas of 'natural law' and Fairplay'. The decision in the case of Masluddin was contrary to the position consistently maintained in those well known decisions."
79. This view of the decision of the Judicial Committee=in the case of Masluddin finds full support from the comments made by H. H. Marshal in "Natural Justice", p. 171, Chap. 9, 1959 Ed. According to him : "(a) while it is clear that in India the rules of English law may be invoked to fill up a gap in the Indian law on any particular subject, yet it is equally obvious. That it would be improper to apply the rules of English law as a test of whether a particular colonial native law (this, I may point out, would include Islamic Law) and custom was contrary to natural justice, equity and good conscience, since the test would be too rigid and by its application injustice might be done ; and (b) the ruling (Masluddin) would appear to be inap--plicable to the interpretation of the wording of the Ordinances above referred to in view of the decisions in Blankard v. Galdy, the Anonymous Case and Attorney-General v. Stewart mentioned above". And I may add that it also ran counter to the decision of their Lordships in one of the very well-. Considered cases Mayor of Lyons v. East India Co. The upshot of the forego--ing discussion is no doubt simple but at the same time far more important than on face it looks to be. But for the Privy Council ruling in the case of Masluddin and some subsequent cases which followed it, the general rules of English law would not have been adopted in the sub-continent, as principles governing "justice, equity and good conscience". As fully discussed above, the decision in the said case was not correct, if the rulings in above- mentioned cases had been followed by the Privy Council itself, very few rules of English general law on 'equity and natural justice' would have excluded the Islamic common law through interpretation of the phrase "justice, equity and good conscience". Till a certain stage even after) Independence, the Courts here were bound by the decisions of the Judicial Committee. Now, as already explained, the position is not the same. We are not required to follow the English law in pursuance of the aforemen--mentioned, with respect, incorrect approach of the Judicial Committee in the case of Masluddin, as against and in preference to general principles of Islamic law on questions relating to "justice, equity and good conscience" and in interpreting statute laws, exercising discretion, and filling the vacuum or fields ,i unoccupied by existing positive law."
80. A large portion of Judge's functions concerns the foregoing aspects of administration of justice.
Volumes have been written on each one of them. I would conclude this part of the discussion by making a reference to a passage from Domat's Civil Law which deals with one only of these aspect, namely, field left out by positive law to he filled by precedent law . . . . . . . . Since laws are general rules, they cannot regulate the time to come, so as to make express provision against all inconveniences, which are infinite in number, and that their dispositions should express, all the cases that may possibly happen ; but it is only the prudence and duty of a law-giver to foresee the most natural and most ordinary events, and to form his dispositions in such a manner as that, without entering into the detail of the singular cases, he may establish ruleq common to them all, by discerning that which may deserve either exceptions or particular dispositions. And next it is the duty of the judges to apply the laws, not only to what appears to be regulated by their express dispositions, but to all the cases where a just applica--tion of them may be made, and which appear to be comprehended either within the express sense of the law, or within the consequences that may be gathered from it." (Civil Law by Jean Domat, Vol. I (1853)
Section XVII Chapter XII, p. 88).
XVI. Constitutional and other Legal Limitations in the Application of Islamic Laws and Accepted Juridical Norms and Conclusions
81. I observed earlier (Part XI supra) that the Courts in Pakistan have, to adopt and apply Islamic philosophy and its accepted juridical principles in some fields, but within certain limitations. They need to be spelt out, While on the one hand, as explained in the said Part, our Constitution does not prohibit, rather requires the Courts to apply Islamic lave and' principles in some fields which are unoccupied ; on the other, it bars their application for the time being in some others-these are the limitations and are indeed very important. Under Article 268, protection and con--tinuance has been afforded to one major branch of law, i.e., the 'existing laws'. Clause (7) of this Article defines this expression as : "all laws (including Ordinances, Orders-in-Council, Orders, rules, be-laws, regula--tions and Letters Patent constituting a High Court, and any notifications and other legal instruments having the force of law) in force in Pakistan ox any part thereof, or having extra- territorial validity, immediately before the commencing day." Article 227 provides a mandate that t "all existing laws shall be brought in conformity with the injunctions of Islam as laid down in the Holy Qur'an and Sunnah, in this Part referred to as the Injunctions of Islam", and further regarding the new laws - "no law shall be--enacted which is repugnant to such injunctions". Effect to this provision e shall he given "only in the manner" provided in Part TX of the Constitutions (Article 227 (2)) : whereunder for this purpose a Council of Islamic Ideology has been crested, functions whereof are specified in Article 230). The Islamic provisions, Article 227 (3) lays down, "shall not affect the personae" laws of non-Muslims or their status as citizens". It would be thus seen that in respect of the existing laws as also the new laws of similar type (see definition of existing law) no one has any right to insist upon their modification through Courts which are not empowered to change them so as to being them en conformity with Islamic injunctions. Thus, all `positive, existing and future, laws', subject to their vices otherwise, are to be applied as they are, regardless of their position vis-a-vis Islamic injunctions. For example, notwithstanding the tact that Pakistan Penal Code contains various un-Islamic provisions the Courts cannot refuse to enforce them as, such on the ground that they contravene Islamic injunctions (see also Clause 23 of Letters Patent of Lahore High Court). The exceptional position' with regard, however, to their interpretation, supplying the omissions where'` they are silent, exercising discretion where allowed by them and construing the norms of justice, equity and good conscience, as discussed already, is different. The Courts in these exceptional branches, are free to apply Muslim Common Law and jurisprudence and there is no need now to giver .Preference to the foreign juridical norms including the British Common Law or rules of equity or, for that matter. General Anglo-Saxon law. It might be explained here that non- Muslim citizens would not suffer and: disability by ,this approach. Their personal laws and status have been kept intact and protected by the Constitution on a permanent basis. Regarding general laws and polity as also the jurisprudence they would obviously not insist upon the propagation of any ideology other than that of the State of Pakistan. That being so, they would not have any objection to its enforce--ment through all possible means including the judicial system. Moreover, ff the amendment and enactment of general laws in conformity with the .Islamic Injunctions (as provided in Article 227) is permissible why should their enforcement and interpretation by the Courts on the same lines of Islamic ;injunctions be open to any such objection.
82. Sufficient justification for the foregoing view on restricted apple--cation of general Islamic law and jurisprudence by the Judiciary in Pakistan, has been shown in this judgment. But the discussion would remain incomplete without noticing a provision in the Constitution which ordinarily is treated as merely a technical surplusage. In reality, however, in the entire context of our Constitution, it is not so unimportant. Clause (6) of Article 268 provides that : "Any Court, tribunal or authority required or empowered to enforce an existing law shall, notwithstanding that no adaptations have been made in such law by an Order made under clause (3) or clause (4), construe the law with all such adaptations as are necessary to bring it into accord with the provisions of the Constitution."
Bringing all "existing laws" in conformity with Islamic injunctions could, but for the H bar/limitation spelt out in the preceding paragraph from clause (2) o q Article 227, be included in the functions of judiciary to "construe the law with-adaptations-to bring it into accord with the provisions of the Constitu--tion". Except for the aforementioned bar qua the existing and future positive laws, the Courts are not only free but also required to construe "'an existing law" in such a way as to bring it in accord with the Constitu--tion. Chapter 2 of Part II of the Constitution containing principles of, policy is no exception to the above direction by the Constitution to the Courts. This assumption gets strengthened from the fact that another organ of the State, namely, the executive (through the President) has been debarred from making any adaptations qua the provisions of the Constitution contained in Part II thereof. There are two other limitations on the part of the President-one, the adaptations, etc. Could be made within two years ,of the commencing day, and, two, they would be subject to "an Act of the appropriate Legislature"-clauses (3), (4) and (5) of Article 268. There are no such limitations on power rather duty of the Courts to "construe the law" in such a way as to bring it in accord with the Constitution. There is yet another support for the above assumption in respect of the role of the judiciary. Part II of the Constitution contains two Chapters. One -- Fundamental Rights and the other, Principles of Policy. Executive is debarred from making adaptations, etc. In respect of both the Chapters. Qua the judiciary, there is no such bar in respect of any of the two fields. I Unless otherwise due to emergency the role of judiciary gets restricted in I regard to Fundamental Rights, the power under Article 268 (6) remains intact for construing the law in such a manner as to bring it in accord with the provisions of the Constitution which would include Part II thereof which includes hotly-Fundamental Rights as well as relevant principle. Of policy.
83. While this judgment was under preparation rather nearing com--pletion, recently retired Chief Justice Hamoodur Rahman, while speaking at a farewell function, observed as follows "It was high time that Pakistan should discard the principles of adminis--tration of justice based on Anglo-Saxon ideals, since (he thought that) Muslims had a well-established system of justice of their own . . . . . . Islamic jurisprudence and institutions of justice existed long before Anglo-Saxon ideas took roots in the jurisprudence." . . .
He emphasized that "jurists, ulema etc. Should endeavour to evolve a common -law based on 'our own ideals' and discard those elements in the system as had been imported from the Anglo-Saxon System."
(The Pakistan Times, 10th November 1975)
It is necessary here to give the last and most recent example of interpretation of our laws and Constitution by making reference to the Islamic injunctions. These are some of the observations of Mr. Justice Muhammad Gul in his separate note in the Islamic Republic of Pakistan v. Abdul Wall Khan (PLD 1976 SC 57judgment of the Supreme Court in the Reference relating to the National Awami Party- "The preambles to the for Constitutions we have had since Independence, are also eloquent testimony of the affirmation of Pakistan Ideology. Part IX of the Constitution enjoins the State to bring all existing laws into conformity with the Divine Laws, and forbids the State from enacting any law repugnant to injunctions of Islam. This establishes the supremacy of the Divine Laws and to that extent the legislative powers of Legislatures in Pakistan are abridged. This is in accord with the express Qur'anic injunctions: "5 : 44-And whoever judges not by what Allah has revealed, those are the disbelievers".
"5 : 48-And We have revealed to the the Book with the truth, verify--ing that which is before it of the Book and a guardian over it, so judge between them by what Allah has revealed and follow not their low desires (turning away) from the truth that has come to the."
This clearly negatives the supremacy of the Legislature in Pakistan. In a secular State, the Legislature is supreme, and laws are made in accordance with the will of the majority, free from any outside curbs. Recently, Legislation was reported to have been introduced in one of the Scandinavian countries to legalise marriage between a brother and his sister. This would be an impossibility in Pakistan even if the measure is passed by a unanimous vote, because of the Qur'anic injunctions. This brings into hold relief the distinction between a secular State and an ideological State. According to this concept, the supreme authority vests with the Holy Qur'an."
It needs to be explained that the first part of the separate judgment by his Lordship contains a note of dissent on question of interpretation of certain provisions of the Political Parties Act; while the second above-quoted part far from being a dissent, is in continuation of the discussion on various aspects of the case before the Supreme Court. It deals with the two Nation theory, the idea of 4/5 nationalities vis-a-vis the ideology of Pakistan and its constitutions. It is not a minority judgment in this behalf because there is no contrary view on these aspects in the main judgment written by Chief Justice Hamoodur Rahman.
84. I would be failing in my duty and reverence to the great jurist Syed Mahmood, J. Of Allahbad High Court,- if his views of dissent on the question of application of English juridical norms, including principles of .`justice, equity and good conscience", in the Full Bench case of Seth Chitor Mal v. Sahib Lal ((1892) 14 All. 273) already mentioned in Part VIII supra, are not referred to, reiterated and taken advantage of. His Lordship observed and held as follows "Now, the provisions of section 37 of the Civil Courts Act (XII of 1887), reproducing as they do much earlier provisions of statute law, are clear in laying down that, with the exception of certain branches of the Hindu and the Muhammadan Law, the Courts are to follow legislative enactments, and in cases not provided for by such enact--ments, 'the Court shall act according to justice, equity and good conscience. This much was indeed conceded by Wilson, J., in the Full Bench case just mentioned ; but the learned Judge went on to say towards the end of his judgment : 'We are not, under these circumstances, in my opinion, at liberty to treat the matter as if it were res integral, and under the name of equity and good conscience to adopt whatever rule we think most likely to work well.'
Itis perfectly true that in dealing with questions not covered by express legislative provisions the Judge must not forget that he is a Judge and not a legislator. Hut it is equally true that a Judge sitting in one country is not to administer the laws of another country. To the English system of jurisprudence, common law and the principles of equity administered in the Courts of Chancery in England India owes a vast debt of gratitude for the improvements in the administration of justice.
How far the principles of the English system have been imported into India is apparent not only from our Statute book, but also from the vast body of decided cases, which I may describe as judge-made law. Notions of justice, equity and good conscience are necessarily incapable of exact and exhaustive definition, and in administering them the Judge has to take except--tional care whether he is or is not importing foreign notions too far, or giving too much preference to the notions of equity in one country over the notions of another."
I have carefully gone through the majority judgment written by Sir John Edge, Kt., Chief Justice. The points made therein have been fully met in the dissenting judgment of Mabmood, J. I am in most respectful agreement with the above-quoted views, and adopt the same without modification or any further comment as they are much (rather more) applicable today as they were nearly a century ago. I accordingly hold that we, in Pakistan, are not bound to and cannot follow any foreign notions of justice, equity and good conscience in preference to our own, though of course they may be referred to for purpose of comparison, as Mahmud, J., also held, and historical development.
85. I have made enough comment and given conclusions of my own on each subject dealt in the preceding parts of this judgment. It is no more good law to interpret the expression "justice, equity and good conscience" to mean the rules of English law, as in any way applicable in Pakistan.
Instead, accepted and fundamental principles and juridical norms of Islam, its philosophy, jurisprudence and its common law shall govern the application of the rules of justice and equity as also would control the discretion of the Judges when the questions of good conscience and fairplay are involved.
86. Several corrollaries follow from the above legal position. All expressions like natural, universal, rational, humane, moral, substantial, fundamental 'justice' ;justice; natural laws ; laws of God ; natural or human jurisprudence ; general principles of humanity ; general law ; equity ; natural equity ; fairplay ; conscience ; good conscience ; and propriety/prudence shall have meanings and shades as available in Islamic philosophy and jurispru--dence. The foreign and for that matter western ideas in this behalf would be relevant for beneficial purpose of comparison, research and historical develop--ment. When such an idea is in conflict with Islam it shall be rejected and if it is in consonance with an Islamic principle, it will not be required to be applied as law of Pakistan. In case of new situations, well-known sources of Islamic law including Istihsan and Istlslah shall be made use of and in extraordinary situations the process would be completed and/or accelerated by the legislative action.
87. The need for the application of the above rule of interpretation of Constitution and laws would amongst others, and subject to "written" laws of interpretation including "definitions" and prohibitions and personal law of non-Muslims, arise in the situations as follows t When the unwritten law what is commonly known as "general" law (jus) as distinguished from the "positive", "written", "teritorial" or "statutory" law (lex) is to be discovered. In other words, when field un- occupied and un-provided for by the statutory laws or vacuum and gap left by them is to be filled.
It has already been held that this residual power of the Courts exists and continues only till the Legislature acts and fills the gap itself and further that this power is not available to 'modify' the 'existing laws' for the time being subject to their wires. The 'residuary' law in Pakistan vis-a-vis the written Constitu--tion and written law, is Islamic law, justice and equity. Wherever, while interpreting the statue law, more than one interpretations are possible, the one consistent with Islamic principles and jurisprudence would be adopted. General maxims and rules of natural law and justice which are read as part of statutes (unless specifically excluded) would be subordinated to, and modified so as to be in accord with, basic principles of Islam and its values.
Out of two otherwise equal interpretations, one of which advances the principles of policy and Islamic provisions in the Constitution and the other does not, the former, unless prohibited by "written" Constitution and the written law, would be adopted. Wherever the expression "justice, equity and good conscience" occurs in law, it shall be interpreted in accordance with Islamic law and principles. When the law gives discretion to the Court and it can be exercised in more than one ways, it would be so exercised as to advance justice and fairplay as understood in Islam. Rules of prudence, propriety and abundant caution and similar other considerations would be applied only in consonance with Islamic standards. Present law when requited to be applied to new situations would be so understood, followed and applied as to advance Islamic principles. All doubts in interpretation of laws and appreciation of evidence would be resolved in manner consistent with Islamic principles and jurisprudence in preference to any contrary norm. Courts for which law declared by a superior Court is binding as law, when faced with any of the above situations qua precedent binding law, would treat it as if "written" law but, in order to assist and act in aid of the superior Courts which laid down the precedent, might, with respect; deliberate Islamic point of view which would in turn help re-appraisal and re-interpretation on Islamic lines. Such points would ordinarily have to be raised and canvassed formally so as to take advantage of. The controversy in each case would hive to be specified after due study with the help of the bar. This would help the entire judicial system to develop on the pattern envisaged in the Constitution. Rule-making and directional powers also can be exercised in such manner as to advance the foregoing considerations and, thus, the entire re-orientation.
88. In this case, as observed in Part VI supra, there is no provision and direction in the written law under which the petitioner might be obliged to support and maintain his minor grand-children (respondents 3 to 6) ; but, as held in Part V supra, he is bound by Islamic law to support them under certain conditions including his being in easy circum--stances. There is no prohibition qua application of Islamic law in this field. The `rule of justice, equity and good conscience', when applied in accordance with the principles laid down in the two preceding paragraphs, would not oblige this Court or the learned trial Court to follow any other law including English law in preference to the above-stated Islamic law. In the light of the discussion on various aspects of the matter in different parts of this judgment and for the foregoing reasons, no justification has been made out for interference with the judgments and orders of the learned Family Judge and the learned Additional District Judge (in appeal). This writ petition is accordingly dismissed. There shall be no order as to costs. The learned counsel appearing in this case, particularly the two appearing as amicus curiae, rendered very valuable assistance and particularly so because of their learning and study in western seats of legal education. It is again clarified that the views of Mr. Farooq A, Hassan, learned A. A: G., noted in the judgment are as amicus curiae and do not in any way represent that of "the Assistant Advocate-General".
89. Before parting with this judgment I would like to reiterate that no doubt `social opinion and need' ordinarily remains ahead of written law and general principles and Courts endeavour to bridge the gap, but legislative action need not be delayed particularly when qua the relevant aspects referred in Paragraphs 85, 86 and 87 supra, a legislative measure can be of general but declaratory type. It need not necessarily involve lengthy debates, but would certainly help the ordinary citizen avoid any difficulties in understanding his rights and liabilities. The authorities concerned, inmight, as well, initiate ;appropriate action. It is also pointed out that although works like `Mejella', the Turkish Code of Maxims of Islamic law, are available for guidance of Bench and the Bar, but a more comprehensive ode of basic Islamic juridical norms, including the latest research and experience, should be compiled through the constitutional agencies. A copy of this judgment would be sent by the office, free of charge, to the Council of Islamic Ideology for any action, if so advised, under Article 230 of the Constitution regarding what has been hold in paragraphs 85, 86 and 87 supra.
S. A. H.
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