1. ' Khizar Hayat and seven others brought a suit for possession of 'Nehri Awwal' land measuring 11 kanals 17 marlas comprised in Khasra No, 68, village Hargoori, and of a house in that very village, praying further that Maulvi Abdul Hanan, defendant No. 1, who happened to be 'Pesh Imam' of the village and who was holding the aforesaid property in lieu of his services as 'Pesh Imam', should be restrained from constructing over the land and from leading the prayers. This suit was decreed by the trial Court and an appeal by Maulvi Abdul hanan before the District Judge also failed. Maulvi Abdul Hanan is still not satisfied and he has moved the present regular second appeal.
2. ' The only point that has been urged on behalf of the petitioner before me is that all that the two Courts below have found against the appellant is that he is not tempered person and quarrels with every one and for that reason undesirable to act as 'Pesh Imam'. This, according to the learned counsel for the appellant, is hardly a ground for the removal of an 'Imam' and in this respect the learned counsel produced a 'Fatwah' before me which referred to certain passages in "Al-fatawa- al-Hindiya" and "Radd-uiMuhtar" and proceeded to state that an 'Imam' can only be removed on the ground of 'Fisq', that is if he commits a felony and so on and so forth. The 'Fatwah' was returned to the learned counsel, for, the scope of the appeal is limited and again it was not accompanied by "away. What I mean to say is that the question referred to the 'Mufti' did not appear from the 'Fatwah' and it could not be said that the facts of the case were' brought to the notice of the 'Mufti' and his opinion was sought on those facts. A general statement of law in a 'Fatwah' will, therefore, be of no' help to the appellant. The position that 'Imam' can be removed if he is 'Fasiq' is hardly disputable. The crucial question in the case is that the entire village will not accept the appellant as 'Imam' and have refused to follow him in prayers as they considered him to be undesirable because of his het temper and quarrelsome habits. The learned counsel for the appellant has not produced any authority from a Muslim Jurist that in like situations the people of the village still remain obliged to perform their prayers after such an 'Imam'. To my mind, "Alfatwa-al-Hindiya" and "Raddul Muhtar" do not lay down law for all time so far as the present subject is concerned. It cannot be over-looked that to start with it was the duty of the Caliph to lead the prayers and there is consenus of -opinion in "Ahl-i-Sunnat Wal-Jama't" that Caliph is not a hereditary office.
3. ' The process of election in one form or the other is involved. It is true that for the congregational mosques where `Juma' prayers are led, Imam' is the person whom the 'Ameer' or the 'Ruler' appoints or who is being appointed by a delegatee of the 'Ameer/Ruler'. The Khateeb' of the mosques in Pakistan under the Auqaf Department can be cited as an example. But this, however, does not mean that for every mosque the appointment of the 'Imam' is a must and that such an appointment become hereditary and the appointee is not in any case liable to removal. Speaking generally, the office of 'Imam' is not known to Muslim law and the matte is governed by the Rule laid down in Qaduri. It says "preferable fro amongst the people for leading the prayers is the one who is most well versed out of them in the traditions of the Holy Prophet. If all are equal, then the most pious out of them. If all are equal, then the one who is the best out of them in reading the Book of God. If all are equal, then the most aged amongst them. It is not appropriate that a slave or Fasiq "should lead the prayers". These preferences would not have been laid down if the office of the 'Imam' was to be hereditary, rather these postulate that whenever people offer prayers they should see right and left and request the one who is the best out of them, in the light of the above observations, to lead the congregation. One fails to understand what services the appellant has been doing to Islam by forcing himself upon the unwilling congregation. Either they have been offering the prayers without him or they have been not offering prayers at all in the mosque. This is the most unfortunate aspect of this case.
4. ' I have tried to get guidance from Hedya by Charles Hamilton, Digest of Moohummudan Law by Baillie, Muhammadan Law by Tayab Ji, Muhammadan Law by Mulla, Mahommadan Law by Ameer Ali Syed and Mojelle, but have not been able to lay my hands upon any text or precedent which should be directly helpful. As far as the case-law is concerned, there is a ruling from this Court in Ghaniur Rahrnan and others v. Abdul Salam and others (1) wherein it has been held by Bashiruddin Ahmad, J., on the authority of Muhammadan Jurisprudence by Abdur Rahim, page 384, that an 'Imam' incurring displeasure of residents and congregations by his way-ward habits and undesirable behaviour may be removed and be replaced by another. A reference to the body of the judgment will show - that his Lordship was of the view that no person could be imposed on the congregation as an 'Imam' against their wishes and this appears to me to be in accordance with the spirit of Islam and exigencies of the life in the villages. The fact remains that in that case before his Lordship the Pesh Imam' was accused on seven grounds, some being indeed heinous. That `Ahl-i-Mohallah' have got some say in the affairs of the mosque is a proposition which can be very well supported by a reference to pages 317 and 318 of the Muhammadan Law by Ameer All Syed, Volume I. Courts cannot be unmindful of the changes of time and it will be indeed an anachronism if a person was allowed to force himself on the village B community as a Leader of their prayers, unless of course the appointment was by the State. One cannot be unmindful that mosques in villages are b and large on the `Shamilat' and the appointment of the 'Imam' is either by the elders of the locality or by the consensus of opinion. The rules laid down in "Alfatawa-al-Hindiya and "Raddul Muhtar", even if those are - specific on the point and might help the appellant, will have to yeild because times have changed. In support of this I will refer to Maxim No, 39 {{FOOT NOTE}}
(1) PLD 1965 Pesh. 27 {{FOOT NOTE}} ' contained in the Majelle English translation by Tyser, page, 8 which is to the following effect :- "39. It cannot be denied that with a change of times, the requirements of the law change. (Example from the Mira'at Mejelle.
5. ' It is permitted in or time to shut the door of the Mosque, when it is not prayer time, to avoid theft.")
6. ' All that I should like to emphasise is that times have changed and 'Pesh Imam' cannot be forced on village community unless of course there is a State appointment. In this case there is over- whelming evidence to support the concurrent findings of the Courts below that none in the villages wishes to be led by the appellant in prayers. The reasons which they have given may not be convincing but it cannot be overlooked that out of respect for that office people might not have liked to say more.
7. ' As far as the findings of the two Courts below that the possession of the appellant over the house and the land was permissive, there can be no dispute. It is well supported by evidence, and it appears to me that the learned counsel for the appellant was right when he did not attack it.
8. ' On the view of the matter that I take, I find no force in this appeal and would dismiss it in limine.