SALEEM AKHTAR, J.---Both these petitions shall be disposed of by this order as facts and questions of law involved are common.
2. Dispute between the parties is in respect of inheritance of late General (Rtd.) Muhammad Musa, who died on 12-3-1991. The petitioners being the legal heirs of the late General filed an application in May, 1991 for obtaining succession certificate in respect of movable properties of the deceased.
As respondents Nos.l to 6 were not impleaded, they filed an application for being joined as party.
They were allowed to be made party by order dated 11-2-1992. On 20-2-1992 respondent No. l filed a petition before the same Court for grant of letter of administration under section 378 of the Succession Act in respect of immovable properties left by the late General. It may be pertinent to point out that respondents Nos.1, 2, 3 and 4 are the sons and daughters of pre-deceased son Muhammad Ibrahim Musa of the late General, who had died on 19-7-1969. Likewise respondents No.5 and 6 are he son and daughter of Mrs. Azra Changezi, pre-deceased daughter of the late General, who died on 3-6-1989. The petitioners had claimed share in terms of section 4 of the Muslim Family Laws Ordinance, 1961 hereinafter called the Ordinance. The respondents opposed it as according to them the petitioners being the sons and daughters of the pre--deceased son and daughter or of the late General were excluded from inheritance under the Shia Law of Inheritance.
The learned trial Court held that the petitioners are entitled to have share out of the legacy of the late General under section 4 of the Ordinance. Succession certificate was granted in favour of both the parties. Likewise letter of administration was also granted in favour of both the petitioners and the respondents. Both these orders were challenged before the High Court in to separate appeals filed by the petitioners. By the impugned judgment both the appeals were dismissed.
3. Mr. Khalid M. Ishque, learned counsel for the petitioners referred to Articles 2A, 203-B, 227 and 268 of the Constitution and sections 3 and 4 of the Enforcement of Shariah Act, 1991 and contended that in view of these provisions the Civil Courts have powers to examine, review, interpret and strike down, if necessary, any provision of the Ordinance, which is contrary to the Injunctions of Islam as laid down by the Holy Qur'an and Sunnah and not falling within the jurisdiction of the Federal Shariat Court. In support of his contention Mr. Khalid Ishaque referred to the following judgments:-
(1) Hakim Khan and others v. Government of Pakistan and others (PLD 1993 SC 595);
(2) Mst. Kaniz Fatima v. Wali Muhammad and another (PLD 1993 SC 901);
(3) Zaheeruddin and others v. The State (1993 SCMR 1718);
(4) Dr. Mahmood-ur-Rehman Faisal v. Government of Pakistan (PLD 1994 SC 607) and
(5) Muhammad through legal heirs v. Mst. Rehmatan and 4 others (1994 SCMR 681).
In order to substantiate his contention that predeceased sons and daughters are excluded from inheritance in the presence of sons and daughters of the deceased, the learned counsel relied on Verses 7 to 14 of Sura al-Nisa and Mst. Farishta v. Federation of Pakistan (PLD 1980 Peshawar 47).
4. Mr. Yahya Bakhtiar, learned Senior Advocate Supreme Court for the respondents, referring to letter of Iqbal to Jinnah dated 28-5-1937 and the Reconstruction of Religious Thought in Islam by Iqbal, contended that Islam permits Ijtehad and the history and the structure of the Law of Islam indicate possibility of any fresh interpretation of its principles. According to the learned counsel, section 4 of the Ordinance is a result of Ijtehad and interpretation of the Principles of Islam and cannot be termed as un-Islamic or against the Injunctions of Islam as laid down by the Holy Quran and Sunnah.'
5. The contentions raised require consideration. Leave is granted. Considering the nature of questions involved, which are of general public importance the learned counsel request that the appeals be heard by a larger Bench. The office should place the matter before the Hon'ble Chief Justice for necessary orders. Application for stay is rejected.