The suit land. Was owned by one Khushi Muhammad son of Allah Dad who is stated to have died somewhere in 1989. Inheritance mutation No,336 was entered at the behest of his brother Wali Muhammad and was attested on 23-9-1989 in favour of the latter whereby the entire estate was mutated in favour of Wali Muhammad. His widow Mst. Shakoori filed a suit-on 9-12-1989 claiming that she is entitled to 1/4th share in the said estate being the widow of Khushi Muhammad and the mutation has been wrongly attested. Wali Muhammad filed a written statement claiming that Mst., Shakoori was divorced by Khushi Muhammad in the year 1982 and a divorce in writing. Was sent to the said lady thrice by Khushi Muhammad. The learned trial Court framed issues. The relevant being issue No,1 which is as follows:---
(1) Whether the plaintiff was divorced by Khushi Muhammad about 14/15 years prior to this suit and, thus, she is not entitled for inheritance the property of Khushi Muhammad? OPD.
The learned trial Court recorded the evidence: He found some discrepancies in the statements of witnesses produced by the respondent as to the execution of alleged divorce documents and also found that it is an admitted position that the notice of divorce was not addressed to the Chairman, Arbitration Council, in terms of section 7 of Muslim Family Laws Ordinance, 1961 and, as such, the divorce did not become effective and he decreed the suit on 15-7-1990. An appeal filed by the respondents, was dismissed by the learned Additional District Judge, Sargodha, on 17-7-1995.
2. Mr. Muhammad Saeed Akhtar, learned counsel for the petitioners, who are L.Rs, of Wali Muhammad, argued that section 7 of the Muslim Family Laws Ordinance, 1961 is repugnant to the injunctions of Islam and non-compliance with its requirement cannot affect the validity of divorce which, according to him, was otherwise proved. He relied on case titled Allah Dad v. Mukhtar and another (1992 SCM R 1273) and case titled Muhammad Sarwar and Mst. Shahida Parveen v. The State (PLD 1988 FSC 42). On the other hand, Khan Zahid Hussain Khan, learned counsel for the respondents, placing reliance on the case of Mushtaq Ahmed v. Sat Bharai (1994 SCM R 1720) supported the impugned judgments.
3. I have gone through the record appended with this civil revision with the assistance of the learned counsel for the parties. It is an admitted position that a notice in terms of section 7 of the said Ordinance was not sent by Khushi Muhammad to the Chairman, Arbitration Council, section 7(1) lays down that a man, who wishes to divorce his wife, shall give a notice in writing to the Chairman informing the latter of his haying pronounced Talaq. Subsection (3) of section 7 provides that a Talaq shall not be effective until the expiration of 90 days from the day on which notice under subsection (1) of section 7 is delivered to the Chairman. A reading of this provision of law would show that a Talaq shall not be effective till after the expiry of 90 days and this period of 90 days is to be counted from the day on which the C notice, prescribed by the said section 7(1) is delivered to the Chairman. The admitted position in this case is that such a notice was not delivered. Thus, on a plain reading of the said law, which is a valid piece of legislation, Mst. Shakoori was the wife of Khushi Muhammad as till the time of his death no effective Talaq was given to her by Khushi Muhammad. In Allah Dad's case (supra) the Shariat Appellate Bench of the Supreme Court was dealing with a petition for leave to appeal against a judgment of acquittal in a case under section 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979. It will be pertinent to refer to the observations of their Lordships in paras. 19 and 20 of the report which are reproduced herein:- "Therefore, even if it is assumed that section 7 of the Family Laws Ordinance is a good law, the same cannot affect the validity of a marriage contracted according to Shariah at least to the extent of the criminal liability envisaged in the Ordinance.
' It is now evident that a notice of Talaq to the Chairman is not mandatory under the Injunctions of Islam and any divorce pronounced or written by a husband cannot be ineffective or invalid in Shariah merely because its notice has not been given to the Chairman, therefore, if a woman after obtaining a divorce from her husband and after the necessary period of 'Iddat'; contracts marriage with. a third person, there marriage cannot be held as invalid marriage at least for the purpose of the Ordinance. In the instant case, the respondents have contracted Nikah after the petitioner had divorced Mat. Rashida Alchtar (respondent No,2), so even though the petitioner had not given a notice to the Chairman, the divorce became effective in Shariah and the marriage contracted thereafter is a valid marriage especially for the purpose of the Ordinance and the cohabitation of the respondents cannot be held as 'Zina'." (Emphasis supplied).
' The above observations would clearly show that the anxiety was to protect the parties from the rigours of criminal liability, emanating from the said Ordinance in the particular circumstances of the said case. This case was decided on 4-3-1992. However, after the decision of this case Supreme Court of Pakistan pronounced judgment in the case of Hakim Khan and 3 others v. Government of Pakistan (PLD 1992 SC 595). In the said case Article 2-A came up for interpretation before the Apex Court. Mr. Justice Shafi-urRehman (as his Lordship then was) while agreeing with the leading opinion of Mr. Justice Nasim Hassan Shah (as his Lordship then was) observed as follows:--- "What does the Objectives Resolution contain? It has three separate distinct components. The first is purely structural feature of it that the sovereignty of Almighty descending on the people of Pakistan constituting State of Pakistan is to be exercised through their chosen representatives. So the people operating through their chosen representatives and the Almighty Allah at the Apex exhaust the pristine, devolution, distribution and sharing of Divine sovereignty. The individuals, the authorities, the institutions, the Courts, do not figure in this structure. They make their appearance on terms, with limitation, as a result of further delegation of authority expressly made or impliedly conferred.
' The second is its qualitative feature.
' The sovereignty shared or enjoyed is delegated, capable of further delegation, is by its very nature a sacred trust and has to be exercised within the limits prescribed by the Almighty Allah.
' The third is its normative feature. The norms, the goals, the ideals, mostly mundane in nature are spelt out with particularity which have to be achieved through the Constituent Assembly and by the process of framing a Constitution.
' Nowhere in the Objectives Resolution, either expressly or impliedly do I find either a test of repugnancy or of contrariety, nor empowering of an individual or of an institution or authority or even a Court to invoke, apply and declare Divine limits, and go on striking everything that comes in conflict with it by reference to Article 2-A. Such an interpretation of Article 2-A of the Constitution and appropriation of authority so to do amounts to usurpation. It would indeed be so when the amplitude of power reserved for the Parliament in the same Constitutional instrument is kept in view."
' Following the dictum laid down in Hakim Khan's case (supra) the following observations were made in the case of Mst. Kaneez Fatima v. Wali Muhammad and another (PLD 1993 SC 901) by Mr. Justice Saleem Akhtar (as his Lordship then was) at page 915 of the report:--- "The learned counsel for the appellant has referred to Allah Dad v. Mukhtar Ahmad and another 1992 SCM R 1273 where it has been observed that in the absence of notice under section 7 of the Ordinance Talaq becomes effective and reliance was placid on Mirza Qamar Raza v. Mst. Tahira Begum and others PLD 1988 Kar. 169 where on the basis of Article 2A while exercising Constitutional jurisdiction in a family matter section 7 of the Ordinance was declared to be void and against the Injunctions of Islam. With respect it may be pointed out that the jurisdiction of the Federal Shariat Court and the Shariat Appellate Bench of the Supreme Court does not extend to the Constitution and the Family Laws. Furthermore Mina Qamar Raza's case was set aside by a Bench of the Supreme Court on the ground that elucidation on the question of validity of section 7 of the touchstone of Article 2A was not required in the facts and circumstances as it is an accepted principle that if a case can be decided on other issues properly, it is not necessary to enter into Constitutional issues. In Allah Dad's case decision would be made on the basis of Mst. Bashiran and others v. Muhammad Hussain and another PLD 1988 SC 186 which has been noted by the learned Judge in para.21 of that judgment. As Allah Dad's case could be decided on the principles of Mst.
Bashiran's care, there was no need to enter into questions of Constitutional issues particularly so when it did not fall within the jurisdiction of the Court."
' The argument of the learned counsel for the petitioner is, therefore, without any force, in view of the aforestated dictum of the Supreme Court which followed the case of Allah Dad (supra).
4. On the other hand, the judgment cited by the learned counsel for the respondent is squarely applicable to the facts of the present case and with respectful agreement with the same I endorse the view pronounced by .The two Courts' below. This civil revision is accordingly dismissed.