' AJMAL MIAN, C.J.---This is an appeal with the leave of this Court against the judgment dated 26- 3-1991 of a Division Bench of the High Court of Sindh in Constitution Petition No,D-108 of 1990 filed by the respondent, allowing the same to the extent of declaring that no Zakat shall be charged or collected on compulsory basis in respect of assets of the respondent specified in the declaration form.
2. The brief facts are that respondent was holding 6720 N.I.T. Units and, as per averment in the memo. Of the Constitution Petition, she is a Hanafi Muslim. On 27-6-1989 she filed a declaration duly sworn in, in the prescribed manner as required by the first proviso to subsection (3) of section 1 of Zakat and Ushr Ordinance, 1980 (hereinafter referred to as the Ordinance) for exemption from compulsory deduction of Zakat on her aforesaid holdings of N.I.T. Units. Thereupon, appellant No,2 i,e, M/s. National Investment Trust (which was respondent No,1 in the above Constitution Petition) took the plea, through their letter dated 3-7-1989, that as the affidavit was not executed before 30 days of the valuation date, they were not in a position to mark- her holdings as NDZ Amount for the year 1989, but would do so for 1990. However, after the expiry of about two months, through their letter dated 5-9-1989, they came out with the plea that her above request could not be allowed on the ground that she was a follower of Fiqh Hanafiya. In the above background, the respondent filed above Constitution Petition. The above petition was resisted, inasmuch as appellant No,2 filed a counter-affidavit wherein they attacked the averments made in the petition. However, it was stated that as the respondent in her declaration asserted that she was professing Hanafi faith, as such proviso to subsection (3) of section 1 of the Ordinance was not attracted in her case. It was also stated that all Muslims were bound to pay Zakat, but according to Fiqh Jafaria, there is no Zakat on cash which includes investments/savings and thus the above facility of non-deduction of Zakat is available only to Fiqh Jafariyah.
3. However, the learned Judges of the Division Bench found that the above proviso to subsection
(3) of section 1 of the Ordinance does not make any distinction between the followers of various sects. It was also concluded that the declaration filed by the respondent was in accordance with the relevant provisions of the Ordinance and sub-rule (1) of rule 20 of the Rules [i,e, Zakat (Deduction and Refund) Rules, 1981]. It was further concluded that the above distinction between Fiqh Jafariyah and the other recognized Fiqhs was founded on the basis of the letters dated 21-2- 1983/7-3-1983 and 26-3-1983 issued by the Government of Pakistan, Ministry of Finance. As a consequence thereof the above Constitution Petition was allowed to the above extent through the judgment under appeal. Against the above judgment the appellants filed petition for leave to appeal, which was granted for the reason that the question raised in the petition besides being of first impression was of great public importance and that the interpretation of Hanafi Fiqh, Constitution and the relevant law, namely, Zakat and Ushr Ordinance, 1980 were involved. The interim order was also confirmed.
4. In support of the above appeal Mr. Yawar Ali, learned Deputy Attorney-General has vehemently contended that in view of Article 203-A read with Article 203-G of the Constitution, the High Court could not have entertained the above Constitution Petition as section (3-A) of the Ordinance confers jurisdiction on the Federal Shariat Court to decide whether a declaration made in Terms of subsection (3) of section 1 of the Ordinance is valid according to the Fiqh he professes to follow and if the Federal Shariat Court decided that the declaration is not valid, such person without prejudice to any action that may be taken against him under any law to be liable to pay Zakat and Ushr, as the case may be in the manner laid down in this Ordinance.
5. The above contention seems to be untenable. The controversy involved was not as to whether the declaration made by the respondent was invalid as per her Fiqh i,e, Fiqh Hanafiya but as to whether under the above proviso to subsection (3) of section 1 any discrimination can be made inter se between the various Fiqhs. The above proviso reads as under:-- 'Provided further that, where for any reason Zakat or Ushr is collected on compulsory basis from such a person and he does not wish to leave it in the Zakat Fund as Sadaqah or Khairat in the name of Allah as a manifestation of the unity of the Ummah and claims refund, on the basis of a declaration as aforesaid filed by him within the period specified in the first proviso or within such further period as may be prescribed, the amount so collected shall be refunded to him in the prescribed manner."
The perusal of the above proviso indicates that it does not make any distinction between any of the recognized Fiqhs. If the above proviso would have made distinction between the various recognized Fiqhs on the basis of reasonable classification i,e,, it should have been based:--
(a) on an intelligible differentia which distinguishes persons or things that are grouped together from those who have been left out;
(b) that the differentia must have rational nexus to the object sought to be achieved by such classification, ' the same might have justified to treat Fiqh Jafariyah differently from the other recognized Fiqhs.
6. In this behalf reference may be made to para. 26 of the judgment of a Full Bench of this Court in the case of I.A. Sharwani and others v. Government of Pakistan through Secretary, Finance Division, Islamabad and others 199.1 SCMR 1041 relevant at 1086, wherein the question of reasonable classification has been dilated upon extensively after referring to a number of cases of Pakistani and foreign jurisdictions, which reads as under:-- "26. From the above cited cases the following principles of law are deducible:--
(i) that equal protection of law does not envisage that every citizen is to be treated alike in all circumstances, but it contemplates that persons similarly situated or similarly placed are to be treated alike;
(ii) that reasonable classification is permissible but it must be founded on reasonable distinction or reasonable basis;
(iii) that different laws can validly be enacted for different sexes, persons in different age groups, persons having different financial standing, and persons, accused of heinous crimes;
(iv) that no standard of universal application to test reasonableness of a classification can be laid down as what may be reasonable classification in a particular set of circumstances, may be unreasonable in the other set of circumstances;
(v) that a law applying to one person or one class of persons may be constitutionally valid if there is sufficient basis of reason for it, but a classification which is arbitrary and is not founded on any rational basis is no classification as to warrant its exclusion from the mischief of Article 25;
(vi) that equal protection of law means that all persons equally placed be treated alike both in privileges conferred and liabilities imposed;
(vii) that in order to make a classification reasonable, it should be based--
(a) on an intelligible differentia which distinguishes persons or things that are grouped together from those who have been left out;
(b) that the differentia must have rational nexus to the object sought to be achieved by such classification.
' The above principles were reiterated by this Court in the case of Government of Balochistan v.
Azizullah Memon PLD 1993 SC 341. The same have been reaffirmed recently by a Full Bench of this Court in the case of Mehram Ali and others v. Federation of Pakistan and others PLD 1998 SC 1445.
7. The other course open to the Federation was to have invoked section 24 of the Ordinance, which empowers the Federal Government to exempt by notification in the official Gazette any specified class of cases or persons from payment of compulsory levy of Zakat and Ushr with consultation of Council of Islamic Ideology. However, it may be pointed out that any exemption under the above provision is liable to be tested on the touchstone of reasonable classification as enunciated by this Court in the above reports.
8. It may be pertinent to reproduce the aforesaid confidential letter No,879-CE-28(6) dated 21st February/7th March, 1983, issued by the Deputy Administrator-General Zakat, Central Zakat Administration, Ministry of Finance, Government of Pakistan, addressed to the President, National Bank of Pakistan, which reads as under:-- "GOVERNMENT OF PAKISTAN MINISTRY OF FINANCE CENTRAL ZAKAT ADMINISTRATION ' No,879 CE 28(6)
CONFIDENTIAL 92-Nazimuddin Road, F.8/4, Islamabad, 21st February, 1983 7th March, 1983 ' The President, ' National Bank of Pakistan, ' Trustee of the National Investment ' Trust (National Bank of Pakistan ' Trustee Wing, Head Office), I.I. Chundrigar Road, ' Post Box No,4936, Karachi ' Subject: CLAIMS FOR EXEMPTION ON GROUNDS OF FAITH AND FIQH FROM DEDUCTION OF ZAKAT-AT- SOURCE.
' Under the first proviso to subsection (3) of section 1 of the Zakat and Ushr Ordinance, 1980, a person can claim exemption from the deduction of Zakat at source, in respect of his Zakatable assets, if he files a declaration in the prescribed Form (CZ-50) in the manner prescribed in the proviso to the effect that he is a follower of one of the recognized fiqhs namely:--
(1) Fiqh Hanafi;
(2) Fiqh Shafai;
(3) Fiqh Maliki;
(4) Fiqh Hambali; and
(5) Fiqh-e-Jafariyah; ' and that his faith and fiqh do not oblige him to pay Zakat wholly or partially in the manner laid down in the said Ordinance.
2. In this connection, the following guidelines are laid down:
(a) Declaration filed by anyone professing to follow a Fiqh other than the five specified above, may be ignored;
(b) Declaration filed by a person professing to follow Fiqh-e-Jafariyah, may be accepted, subject to the fulfilment of the usual conditions and observance of the prescribed procedure;
(c) Declaration filed by a person professing to follow any of the aforementioned four recognized Fiqhs, other than Fiqh-e-Jafarlyah, may be referred to this Administration (Sd.)
(S.Athar Mahmud)
Deputy Administrator-General, Zakat. Phone: 51106."
10. From the above-quoted letter, it is evident that though the same clearly states that a person can claim exemption from the deduction of Zakat-at-Source, in respect of Zakatable assets, if he files a declaration in the prescribed Form (CZ-50) in the manner prescribed in the proviso to the effect that he is a follower of the five recognized Fiqhs namely: (1). Fiqh Hanafi;
(2) Fiqh Shafai;
(3) Fiqh Maliki;
(4) Fiqh Hambali; and
(5) Fiqh-e-Jafariyah; ' But at the same time, it has been stated that Declaration filed by a person professing to follow Fiqh-e-Jafariyah may be accepted subject to the fulfillment of the usual conditions, but Declaration filed by a person professing to follow any of the aforementioned four recognized Fiqhs other than Fiqh-e-Jafariyah may be referred to the Zakat Administration.
' In the instant case, as pointed out hereinabove, the plea taken by the appellants was that since the respondent professes to follow Fiqh-e-Hanfi, she was not entitled to claim the benefit of above proviso to subsection (3) of section 1 of the Ordinance, which plea was not sustainable as discussed hereinabove.
11. The upshot of the above discussion is that the above appeal is dismissed with no order as to costs.