1. KHALIL-UR-REHMAN KHAN, J.- This Shariat Appeal filed by the Federation of Pakistan is directed against the judgment dated 16-9-1991 of the Federal Shariat Court whereby accepting the petition of respondent No. 1 filed under Article 203-D of the Constitution of Islamic Republic of Pakistan, 1973, Sections 8, 9, 10, 14 and 21 of the Evacuee Trust Properties (Management and Disposal) Act, 1975 (hereinafter referred to as Act XIII of 1975) were declared to be repugnant to the Injunctions of Qur'an and Sunnah of the Holy Prophet (peace be upon him).
2. The Objections taken have been noted in the impugned judgment as under:-- "(i) That no one should be judge in his own cause;
(ii) That whenever a right is conferred on any authority whether judicial or mri-judicial, at least one right of appeal should be provided against the order of that authority;
(iii) That in no case doors of the Courts should be closed by barring the jurisdiction of Courts."
3. It was added that the fore-noted requirements go to the root of any judicial or quasi-judicial proceedings in any system and these have been completely ignored in Sections 8, 9, 10, 14 and 21 of Act XIII of 1975. The reasons given and the creticism made against the vesting of powers with the Chairman of the Evacuee Trust Property Board (hereinafter referred to as the Board) constituted under the statute are to the effect that arbitrary and extensive administrative and executive powers have been conferred on the Chairman. These powers include "to supervise and control all evacuee trust properties; to maintain and even dispose of evacuee trust properties; to by new properties by utilizing surplus income or by taking loan after obtaining approval of the Government; to mortgage or lease any evacuee trust property with the prior approval of the Federal Government; to extinguish a trust or to wind-up an institution the object which in his opinion has wholly or partly ceased to exist." These and other powers vested in the Chairman have been detailed in Section 4 of Act XIII of 1975. Additionally, judicial powers also vest in the Chairman but no right of appeal is provided against his decision.
4. Learned Judges of the Federal Shariat Court observed in the impugned judgment that with powers so conferred on the Chairman and with the involvement and dedication which an individual in his position is expected to employ, how can it be expected that this single individual would be able to keep his balance in disposing of disputes between the third parties and the Board. According to the learned Judges of the Federal Shariat Court, such an individual cannot be expected to have a detached view while scrutinising highly sensitive and disputed questions of law and fact. Reference was made to the oft repeated principle that justice should not 1 only be done but appear to have been done as mere adjudication of a dispute is not enough, the litigant should, while entering the Court premises, have a feeling that his case is being appraised by a person, who enjoys the title of ' shadow of God on earth, and once the case is concluded both the parties should come out with a feeling that justice has been done. It was added that Qur'an ic injunction is clear on the point that whenever there is a dispute between two parties and they fail to resolve it mutually, they should refer the same for adjudication to the Qazi/Judge. The verse of Holy Qur'an cited reads as under:-- ((Urdu Taxt Paragraph))
5. Learned Judges of the Federal Shariat Court further observed that the Chairman has been authorized to play dual role of a party as well as of a Judge for deciding the complex question whether a property is evacuee trust property or not, which determination is dependent on the determination of the trust deeds and other documents of title and the law applicable thereto, and that the Chairman would be cancelling an allotment or annulling the transfer of the property acquired through purchase or otherwise, thus, depriving people of their vested rights acquired through proper sale transactions or even by allotment in their favour passed by the competent , Authority under laws of land and there can be nothing more offensive to the concept of clean justice than to confer such powers on an individual and then granting unanimity to such orders. It was further observed that not only that the aggrieved party has no right of appeal against this order even remedy by way of a suit has been taken away from him as normal Courts have been barred from granting any injunction or issuing any process or to j examine the validity of the order when rightful owner with secure title fully protected either by an instrument of sale pr an allotment order in his favour is being bounded out by the Chowkidars of the Chairman. With reference to the observations that the Chairman has been authorized to play the role of a Judge, the following incident was noted and relied upon:-- ((Urdu Taxt Paragraph))
6. It was inferred from the above incident that even a powerful and Adil Caliph like Hazrat Umar (God be pleased with him) did not force his decision on Hazrat Abbas but himself suggested that the dispute should be adjudicated by a third party.
7. Now, appropriately, the provisions of Act XIII of 1975 which have I been declared repugnant to the Injunctions of Quran and Sunnah of the Holy Prophet (peace be upon him) may be reproduced for ready reference:- "8. Declaration of property as evacuee trust property.- (1) If a question arises whether an evacuee property is attached to a charitable, religious or educational trust, or institution or not it shall be decided by the Chairman whose decision shall be final and shall not be called in question in any Court.
(2) If the decision of the Chairman under sub-section (1) is that an evacuee property is evacuee trust property, he shall, by notification in the official Gazette, declare such property to be evacuee trust property.
(3) If a property is declared to be evacuee trust property under subsection (2), the Chairman may pass an order cancelling the allotment or alienation, as the case may be, take possession and assume administrative control, management and maintenance thereof: Provided that no declaration under sub-section (2) or order under sub-section (3) shall be made or passed in respect of any property without giving the persons having interest in that property a reasonable opportunity of being heard."
8. "9. Exemption of property in Trust Pool from process.- No evacuee trust property shall be liable to be proceeded against for any claim in any manner whatsoever in execution of any decree or order or by any other process of Court or other authority."
9. "10. Validation of certain transfers.-(1) An immovable evacuee trust property.--
(a) If situated in a rural area and utilized bona fide under any Act prior to June, 1964 for allotment against the satisfaction of verified claims, and
(b) If situated in an urban area and utilized bona fide under any Act for transfer against the satisfaction of verified claims in respect of which Permanent Transfer Deeds were issued prior to June, 1968, shall be deemed to have been validly transferred by sale to the Chief Settlement Commissioner, and the sale proceeds thereof shall be reimbursed to the Board and shall form part of the Trust Pool.
(2) If a question arises whether a transaction referred to in subsection (1) is bona fide or not, it shall be decided by the Chairman whose decision shall be final and shall not be called in question in any Court.
(3) If it is decided that a transaction referred to in sub-section (1) is not bona fide. The Chairman may pass an order cancelling the allotment or transfer of such property: Provided that no decision under sub-section (2) or order under sub-section (3) shall be taken or passed in respect of any property without giving the person affected a reasonable opportunity of being heard."
10. "14. Bar of jurisdiction.- Save as otherwise provided in this Act, no Civil Court shall have jurisdiction in respect of any matter which the Federal Government or an officer appointed under this Act is empowered under this Act to determine, and no injunction, process or order shall be granted or issued by any Court or other authority in respect of any action taken or to be taken in exercise of any power conferred by or under this Act."
11. "21. Power of Chairman, etc. As Civil Court.- (1) The Federal Government or any person authorized by it, the Chairman and every officer appointed under this Act shall, for the purposes of making any enquiry or hearing any appeal or revision under this Act, have the same powers as are vested in a Civil Court under the Code of Civil Procedure, 1908 (Act V of 1908), when trying a suit in respect of the following matters, namely:--
(a) summoning and enforcing the attendance of any person and examining him on oath,
(b) requiring the discovery and production of any document;
(c) requisitioning any public record from any Court or office;
(d) issuing commissions for the examination of witnesses;
(e) appointing guardians or next friends of persons who are minors or of unsound mind;
(f) adding legal representatives or deceased applicants or claimants, as parties;
(g) restoration of cases dismissed for default;
(h) substituting the names of the rightful claimants;
(i) consolidation of cases; (it any other matter which may be prescribed by rules made underthis Act.
(2) The Chairman and every officer appointed under this Act shall be deemed to be a Court for the purposes of Sections 480 and 482 of the Code of Criminal Procedure, 1898 (Act V of 1898), and any proceedings before the Chairman or any such officer shall be deemed to be a. Judicial proceedings within the meaning of Sections 193 and 228 of the Pakistan Penal Code (Act XLV of 1860), and for the purposes of Sections 196, 199 and 200 thereof."
12. Learned Judges have observed in the impugned judgment that the focal point in the case is conferment of unbridled and arbitrary powers on an individual and complete and total ouster of Courts from providing any relief to any aggrieved party who may be hit by and suffer at the hands of this individual, i.e. The Chairman of the Board.
13. Ch. Fazal-i-Hussain, Advocate, learned counsel for the Board contended that the learned Federal Shariat Court firstly vide judgment dated 25-5-1983 in Shariat Suo Motu No. 290 in re: The Evacuee Trust Properties (Management and Disposal) Act (XIII of 1975) declared that there is nothing contrary to Shariat in the Scheme framed under Act No. XIII of 1975 and that the property can vest in the Central Government which has the power to dispose it of in any manner which advances the collective good of the nation and then again Federal Shariat Court, vide order dated 9-1-1989 passed in Syed Tassaduq Hussain v. Federal Government of Pakistan declared Sections 8(3) and 10 of Act XIII of 1975 not violative of any Injunction of Islam and that against this order Shariat Appeal No. 2 of 1989 was taken to the Shariat Appellate Bench of the Supreme Court, which was dismissed vide order dated 27-2-1991 for non- prosecution; and in the presence of these judgments/orders, learned Federal Shariat Court had no jurisdiction to reopen the matter and hold to the contrary. It was also contended that the principle of Judge in his own cause has been wrongly applied to the case of management of evacuee trust properties as neither a claimant nor a non-claimant has any right in the evacuee trust property; that learned Judges of the Federal Shariat Court have not considered the very special nature of the property as well as the circumstances on account of which a special hierarchy has been created under the statute to achieve the special and peculiar objectives of preservingand safeguarding the properties belonging to Hindu trust in order to fulfil obligations of the Government arising out of the inter-dominion agreements on the subject.
14. Learned counsel referred to certain judgments to point out the special treatment which evacuee trust property has been accorded under the laws brought on the statute book since the creation of Pakistan. The thrust of. The argument was that no Us exists between the "two parties" which requires to be adjudicated upon and decided by a third person/Qazi or any adjudicator to determine the rights vesting in the said two or more adversaries. It was explained that it is because of this nature of the property and the peculiar circumstances requiring its preservation and management that the constitution of a Board with its Chairman possessing necessary powers has been provided by the Statute Act XIII of 1975, with a view to achieve the objectives underlined in the Act itself.
15. The two cases referred to by the learned counsel for the Board/appellant were not decided by the Federal Shariat Court on merits of the controversy, after deep consideration of the issues involved.
16. These decisions as such cannot be considered to be containing determinative decision of the Federal Shariat Court as in the first case lease granted under the Scheme framed in exercise of powers conferred under Act XIII of 1975 was held to be not violative of anything contained in Shariah and so it was observed that the property vests in the Central Government which as such has the power to dispose it of in any manner which advances the collective good of the nation. In the other case challenge was made to Section 8(3) and Section 10 of Act XIII of 1975 on the ground that these do not take into consideration the policy letter dated 17-6-1971. Even this argument was not pressed as it was conceded that the instructions cannot override the law and rather instructions must conform to the legal provisions. It was for these reasons and without going into the questions of vires of the law on the touchstone of Shariah it was observed that these sections do not violate any Injunction of Islam as given in the Qur'an and Sunnah of the Holy Prophet (peace be upon him). The second matter was though taken in appeal before the Shariat Appellate Bench of the Supreme Court but the same was dismissed for non-prosecution. The matter as such has never been judicially determined and these orders/judgments as such do not bar either the Federal Shariat Court or the Shariat Appellate Bench to examine these provisions of Act XIII of 1975 on the touchstone of Holy Qur'an and Sunnah of the Holy Prophet (peace be upon him). The contention of the learned counsel in this respect is, therefore, repelled.
17. The plea that the objectives of the law, i.e. The property of the Evacuee Trusts be preserved, managed and regulated, of course, merited to be kept in view before applying the principles deducible from the Injunctions of Holy Qur'an and Sunnah of the Holy Prophet (peace be upon him) in the administration of justice. In the case of The Punjab Province v. L. Sita Ram and others (PLD 1956 Federal Court 157) the question of nature of Pakistan (Administration of Evacuee Property)
18. Ordinance (XV of 1949) hereinafter referred to as Ordinance XV of 1949 came-up for consideration and A.S.M. Akram, J., in this connection observed as under:-- "It would be clear from the above that the Ordinance applies to a particular class of property which came to acquire a special character on account of political, social and economic upheaval which took place in the wake of the partition of the. Sub- Continent of India in 1947. In my opinion it matters little whether the said property was or was not the subject-matter of a pending appeal or a pending suit at the the of the passing of the Ordinance. The Ordinance is really a piece of legislation which concerns itself with administration rather than with adjudication a droit administratif concerning what is conductive to the welfare of the evacuees under the changed situation rather than what is required by law under the strict principles of legal jurisprudence."
19. In this case the provision contained in Section 34 of the Ordinance, expressly barring the jurisdiction of the Civil or Revenue Court or any other authority was given effect to taking the view that this section bars the jurisdiction even of the Privy Council and prescribes a special procedure which is to be followed in the matter of present nature and resultantly the matter was remanded to the custodian in order to determine the nature and extent of right and interest of the Punjab Province in the land in dispute with reference to the claim set-up.
20. The legal position obtaining with regard to the evacuee properties attached to the religious, charitable or educational institutions since partition of the country requires to be noticed in order to find out the scheme, purpose and objective of Act XIII of 1975. The Governments of the two dominions created on partition of the sub-continent into India and Pakistan entered inti) agreements with regard to the properties left by the evacuees in their respective countries an the arrangements so agreed were made effective through legislative measures. An evacuee trust property, according to Section 6 of Ordinance XV of 1949 was not to form part of the Rehabilitation Pool constituted under the said Ordinance. Sub-section (2) of Section 6 of Ordinance XV of 1949 further provided that fresh trustees are to be appointed in case of such trust properties. Section 7 of Pakistan (Administration of Evacuee Property) Act, XII of 1957 (hereinafter referred to as Act XII of 1975) which took place of Ordinance XV of 1949 continued the aforesaid position by providing that the evacuee trust properties are not to form part of the Rehabilitation Pool. These statutes gave power to title Custodian to manage the control the evacuee trust properties till the appointment of the new trustees. The objective of these laws was to rehabilitate not only the refugees who came over to Pakistan but also to restore and maintain social and economic life of Pakistan. The second phase commenced with the enforcement of Settlement laws i.e. Displaced Persons (Compensation and Rehabilitation) Act, 1958 and Displaced Persons (Land Settlement) Act, 1958 and the Schemes framed thereunder with effect from 26-3-1958. Sections 4(2) and 5 of the aforesaid two Acts respectively provided that the Immovable Evacuee Property/land attached to any charitable, religious or educational trusts or institutions and such other evacuee property as may be specified in this behalf by the Central Government by Notification in the official Gazette, shall not form part of any compensation pool constituted under the said Statutes. The Statutes were amended vide Displaced Persons Laws Amendment Ordinance, 1964 (Ordinance XII of 1964) providing for reference to the Chief Settlement Commissioner to determine the question whether an evacuee property is attached to charitable, religious or educational institution or trust, which question the Supreme Court had held in the case of Devachand Maljimal v. The Deputy Settlement and Rehabilitation Commissioner, Karachi and 6 others (PLD 1965 SC 356) can be decided by the Civil Court. Sections 4(3) and 5(2) of the two Settlement Laws respectively provided that if a question arises whether an evacuee property is attached to a charitable, religious or educational trust or institution or not, it shall be referred to the Chief Settlement Commissioner, whose decision thereon shall be final and shall not, except as provided in other sub-section, be called in question in any Court. Sections 4-A and 5-A and Sections 16-A and 14(2) were also added respectively in the aforesaid Statutes providing that for the purposes of administration, maintenance, management and disposal of evacuee properties attached to charitable, religious or educational institutions, trust pools shall be constituted and that one or more schemes are to be prepared for the administration, maintenance, management- and disposal of property constituting the trust pool. It may further be noted that schemes for the trust properties had been earliest issued under both the Laws with the approval of the Central Government conveyed vide Letter No. F-3(5)/60-B, dated 7- 4-1960, Board was then constituted on 7-4-1960 for the performance of administration and management of the immovable evacuee trust property. In order to complete the history of legislation reference may also be made to Ordinance XXVIH of 1972 enforced with effect from 1710- 1972 (PLD 1973 Central Statutes 34) whereby in Section 4(3) and Section 16-A of the Displaced Persons (Compensation and Rehabilitation) Act for the words "Chief Settlement Commissioner" the words "Chairman Evacuee Trust Property Board" 'were substituted with the result that the references were thereafter to be decided by the Chairman of the Board. An explanation was also added to the effect that Evacuee Trust Property Board means that Board constituted under the Scheme for the management and disposal of properties attached to a charitable, religious or educational trust or institution. Then in 1975, Ordinance No. XIII of 1975 was promulgated alongwith the promulgation of "Evacuee Laws Repeal Act, 1975 (Act XIV of 1975)."
21. The afore-noted history of the legislation would show that the evacuee trust properties vest in the Board which are to be managed, controlled and regulated by the Board through its Chairman and other functionaries and with a view to preserve the said property vast powers, both administrative and Mtf57-judicial have been conferred, as detailed in Section 4 of Act XII of 1957., Such powers were earlier vested under the Rehabilitation Law in the Custodian. The spirit of these laws and nature of these powers so vested were commented upon by Supreme Court in Ata Ullah Malik v.
22. The Custodian Evacuee Trust Property, West Pakistan and Karachi and others (PLD 1964 SC 236) as follows:- "There is no question at all that the Custodian of Evacuee Property is not constituted as a Court. The functions which he performs in respect of appeals and revisions generally follow the procedure and principles applicable to judicial proceedings. But in one most important aspect, they fall short of being fully judicial, namely, that the Custodian is required to decide questions raised as to the ownership of, and all vested in the Custodian, by operation of law. The Custodian is made a judge in his own cause in respect of such proceedings, and this position is not affected by the consideration that the vesting is in the Custodian not as a person but as a corporation sole, in whom the evacuee property is vested to be applied to specified uses, in particular, the rehabilitation of the vast flood (of) refugees. The Custodian in his official capacity has a real interest in the properties so vested in him to preserve against claims by persons other than refugees. Experience shows that in the vast majority of cases, that interest has not been lightly parted with. Consequently, the Custodian does not satisfy one essential requirement of a Judge in respect of the proceedings which come before him affecting evacuee property vested to him, and those proceedings could at best be claimed to be merely quasi- judicial."
23. The power to declare an evacuee property as trust property attached to a charitable, religious or educational trust or institutions was given to the Chief Settlement Commissioner under the Settlement Laws and the decisions given in this adjudicatory, qasi-judicial proceedings were made appealable to the High Court by providing for an appeal under Section 4(4) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 and Section 5(3) of the Displaced Persons (Land Settlement) Act, 1958. The power to make adjudication as to status of property now vests under Act XIII of 1975 with the Chairman under Section 8 and then revision lies to the Federal Government which is to be decided by Secretary/Additional Secretary to be nominated by the Government.
24. The nature of these proceedings came to be noticed by one of us (Khalil-ur-Rehman Khan. J.) in the Lahore High Court in the case of Rauf Ahmed v. Secretary to the Government of Pakistan Ministry of Religious Affairs and Minorities Affairs, Islamabad and 9 others (PLD 1991 Lahore 33) and the comments made therein read as under:-- "The proceedings held for deciding aforesaid questions are more of the nature of inquisitory proceedings and not adversary proceedings as in these proceedings firstly the Chairman and then the Secretary being the judges in their own cause, at as a matter of exception to the general rule that ' no one can be judge of his own cause.' These officers as such are not arbiters between the two parties litigating over a lis but the offices holding inquisitory proceedings. An arbiter in adversary proceeding grants liberty to the parties to produce whatever evidence they may like to produce in support of their respective claims whereas the Presiding Officer of inquisitory proceedings, in addition to allowing the parties or persons interested in the matter to produce the evidence of their own choice is duty bound to collect material and the evidence relevant and.
25. Pertaining to the matter under inquiry of his own if all the available evidence has not been produced during the inquiry. This difference in the inquisitory proceedings and adversary proceedings is apparent and well-established. The officer presiding over the inquisitory proceedings would be failing in his duty if he bases his decision on the evidence produced by the parties alone when the relevant evidence which could be made available and examined, was kept out of consideration observing that the same was not produced by the parties themselves before him."
26. The other important feature of the statute in question primarily is to manage, maintain and dispose of the evacuee trust property in accordance with the provisions of the Act and the rules, schemes or the directions made or issued thereunder. The hierarchy of the officers created under Act XIII Of 1975 has been assigned the duty and the obligation to preserve, maintain and manage these properties. Almost all the persons who had created these trusts or had the responsibility to manage these trusts, as trustees had either died or migrated and as such are not available and in their place the Board has been constituted to perform the unctions assigned to them. These being evacuees and the evacuee trusts, the Muslims and other citizens have no direct interest therein and a$ such no right can be claimed by anyone in the properties vesting in these trusts and for that reason the general rule that no one can be a judge of his own cause cannot be applied in the inquisitory proceedings to be held by the Chairman for the purpose of deciding the nature or status of the property in exercise of his powers vesting in him under Section 8 of Act XIII of 1975. Had these features been brought to the notice of learned Judges of the Federal Shariat Court, obviously it would not have been observed that the dispute to be disposed by the Chairman is a "dispute between third party and the Board and that such an individual cannot be expected to have a detached view while scrutinizing a highly sensitive and disputed question of law and fact.
27. Moreover, disputes as to status of Hindu trust properties stood settled firstly during the stage of rehabilitation under the Rehabilitation Laws and then during the settlement operations under the two settlement laws. At that stage the power vested in the Chief Settlement Commissioner and the appeal against the decision rendered by him lay before the High Court. To such arrangement obviously no objection even on the basis and the reasoning given in the impugned judgment can be raised as power to make a final decision vested in the High Court. If still any such dispute can be raised at this late stage the same is mostly to be agitated by anyone who has not got any vested interest in the property itself. In such a situation, it cannot be claimed that the dispute so raised is a dispute between the two parties and such a dispute for adjudication is to be necessarily adjudicated upon in exclusive adjudicatory proceedings. But need to have the question whether property is attached to Hindu religious or charitable trust adjudicated may arise to a person who has been transferred evacuee property, urban or rural, under the two Settlement Laws and dispute is raised that the said property is not trust property, and so was not transferable at all or its transfer was not bona fide. The first question would fall to be adjudicated upon under Section 8 while the bona fide of the transfer is required to be determined under Section 10 of the Act XIII of 1975.
28. Again, if a person is claiming that the transfer to him is bona fide, he is obviously not denying the trust nature of the property. On the other hand, if the transfer made to him is not bona fide then if he seeks the declaration as' to status/nature of the property under Section 8 he is not a person having an interest in the property and he is not, as such, a party seeking relief in his favour and thus, cannot claim that the Board represented through the Chairman is his adversary and as such adjudication of the dispute raised by him should be made by an independent person/authority.
29. Even with regard to the dispute raised by transferee, it is pertinent to note that rights in the evacuee property were directed to be transferred and conveyed to the allottees of the agricultural land, rural or urban, by amending the Displaced Persons (Land Settlement) Act, 1958 by Ordinance XIII of 1964. Only such evacuee properties could be transferred under these two laws which formed part of the compensation pool constituted under both the Settlement Laws. The properties attached to evacuee, charitable, religious or educational institutions or trusts were specifically excluded from the compensation pools constituted under these laws and as such the same were not available for transfer to displaced persons or others. But despite such exclusion ordained by law some of the properties attached to the evacuee trust properties were found to have been allotted and transferred against satisfaction of verified claims. The question, therefore, arose whether such claimants who have been transferred such properties, should be ousted from these properties or the transfers made bona fide should be allowed to remain intact and the Board should be compensated otherwise on account of bona fide utilization of these properties in satisfying the claims of displaced persons. The Federal Government took the decision not to de settle such transferees in whose favour transfer orders were made in a bona fide manner being not conscious of the trust nature of the property by the competent Settlement Officer. Such transfers as such were decided to be validated by enacting Section 10 of Act XIII of 1975. The target date for transfer of rural land was fixed June, 1964, as the permanent Tights were decided to be conveyed vide substituted Section I6 of the Displaced Persons (Land Settlement) Act, 1958, vide Order XIII of 1964 and for urban land property prior to June, 1968 with reference to the decision bf the Federal Government taken in this behalf. It may be pertinently noted that by substituting Section 16-A, in the Displaced Persons (Compensation and Rehabilitation) Act, 1958, vide Ordinance XIII of 1964 sale of trust properties was also contemplated See also A.R. Niazi, Advocate and others v. Pakistan through the Secretary Settlement and Rehabilitation Department, Rawalpindi and 4 others (PLD 1968 SC 119). A blanket validation, however, in respect of bona fide utilization of the properties under the two Settlement Acts, was made by enacting Section 10 of the Act XIII of 1975 as under:-- "(10) Validation of certain transfers.- (1) An immovable evacuee trust property.--
(a) if situated in a rural area and utilized bona fide under any Act prior to June, 1964; for allotment against the satisfaction of verified claims; and
(b) if situated in an urban area and utilized bona fide under any at for transfer against the satisfaction of verified claims in respect of which Permanent Transfer Deeds were issued prior to June, 1968, shall be deemed to have been validly transferred by sale to the Chief Settlement Commissioner and the sale proceeds thereof shall be reimbursed to the Board and shall form part of the Trust Pool.
(2) If a question arises whether a transaction referred to in subsection (1) is bona fide or not it shall be decided by the Chairman whose decision shall be final and shall not be called in question in any Court."- It would, therefore, be seen that the purpose of enacting Section 10 was to save the utilization bona fide of the trust properties in favour of the bona fide transferees in satisfaction of the verified claims of the displaced persons. So, the objective was to confer the rights which otherwise in law could not have vested because the transfers made and obtained were otherwise illegal for the simple reason that die properties being trust did not form part of the compensation pool and no jurisdiction existed for transferring such trust properties even in satisfaction of the verified claims.
30. Learned Judges of the Federal Shariat Court were not informed of the purpose and the objectives sought to be achieved by enacting Section 10 and it was for this reason that it was observed that the objection raised against Section 10 is that transfers have been discriminated as the dead line for transfer in rural areas is June, 1964 and for urban areas is June, 1968 and that what is the wisdom behind it is not clear. Thus, the impact of Section 10 is not that the vested rights of the parties have been usurped with retrospective effect rather the rights have been preserved and safeguarded by declaring the bona fide transfers as valid and hence if such transferees have made further transfers the same stand preserved and honoured. On the other hand, if the transfer orders, obtained were not bona fide, for instance the order having been passed by an officer who was not otherwise authorized to pass the order, of the transfer order passed stands vitiated on account of inherent legal infirmity, such transfers, even in absence of Section 10 would be void as the property being evacuee rust property was not available for transfer even under the orders of a competent settlement officer. Thus, no right on account of such transfer by the original transferee or by a vendee from such transferee could be claimed.
31. The provisions of Sections 8 and 10 seen in the above-noted perspective show the objective of the law i.e. The preservation, management and maintenance of the evacuee trust in conformity and in discharge of the commitment made in the inter-dominion agreement. It is also apparent that the right of any citizen or any other party is not sought to be prejudicially affected in achieving the objective of preservation, management and maintenance of the trust properties and such the principle that no one can be judge of his own cause does not apply. See in this context, verse 59, of Surah Al-Nisa and the incident of appointing an Arbiter (Hakam) in the matter of acquisition of the house of Hazrat Abbas (God be pleased with him) relied upon by the learned Judges of the Federal Shariat Court also do not apply.
32. The constitution of the Board and the powers vested in the Chairman and other officers under the Rules and the Schemes framed under Act XIII of 1975 have been conferred in order to achieve the objectives of law and the powers to collect evidence contemplated under Section 21 of the Act XIII of 1975 which is necessary for the purpose of holding inquisitory proceedings for the purposes of collecting material so as to arrive at the truth and ward of the unwarranted claims made to grab the property belonging to the evacuee religious and charitable institutions or trusts. It was also held by the Supreme Court in the case of A.R. Niazi (PLD 1968 SC 119) that the "High Court appears to be right in holding that there was no ground for thinking that the rule of equality before the law and equal protection of the law, embodied in Fundamental Right No. 15, had been placed in jeopardy by the legislation relating to evacuee trust property. Evacuee trust property is a separate class of property and this classification would itself justify its differential treatment as compared with other evacuee properties".
33. For the reason given above, we do not find and justification to agree with the conclusion arrived at bv the learned Judges of the Federal Shariat Court in respect of Sections 8. 10 and 21 of Act XIII of 1975. We. Therefore, declare that these sections do not contain anything contrary to the Injunctions of Holy Qur'an and Sunnah of the Holy Prophet ((peace be upon him).
34. Now we take-up the provisions of Sections 9 and 14 of Act XIII of 1975.
35. Section 9 exempts the property in trust pool from the process of Court or other authority while Section 14 bars the jurisdiction of the Civil Court in respect of any matter which the Federal Government or an officer appointed under Act XIII of 1975 is empowered under the Act to determine. This section further provides that no injunction, process or order shall be granted or issued by any Court or other authority in respect of any action taken or to be taken in exercise of any power conferred by or under Act XIII of 1975.
36. The reason for holding these sections (Sections 9 and 14) contrary to the Injunctions of Islam as given in paragraphs 13 and 14 of the impugned judgment is that if the owner of the property had incurred any liability and a competent Court has decreed the claim, the claim must be satisfied by execution of the decree and to defeat the claim and nullify the decree against the real owner of the property would be nothing else but usurpation of rights of the decree-holder. Reference was made to verse 188 of Surah Al-Baqarah which is to the effect that "And devour not one another's possessions wrongfully, and neither employee legal artifices with a view to devouring sinfully and knowingly, anything that by right belongs to others."
37. Learned Judges of the Federal Shariat Court, taking lead from the afore-noted verse of the Holy Qur'an observed that "it is difficult to imagine how decrees of creditors can be defeated and their execution rendered null and void:" and that "surely the property exposed to the execution of a decree neither belongs to the Government nor to the Board. If a competent Court has, after examining the claim of the plaintiff, passed a decree, the decree must be honoured and executed.
38. Section 9 takes away the powers from Court and on the face of it, it cannot be sustained."
39. The aforesaid reasoning on its very face shows that the question raised was examined in a cursory manner as the intent, spirit and the objective of these provisions were neither gone into nor scrutinized and evaluated. Trusts and institutions created by evacuees and the properties attached with the exodus of their managers and Hindus needed care and protection and as such special laws with special provisions were enacted which laws created authorities/Tribunals of exclusive jurisdiction with a view to achieve the objectives set out in the laws themselves. The purpose was not to defeat the rights of citizens rather to have the dispute raised determined without protracted trial through adversary proceedings. Anyone claiming any right in the property treated as evacuee property or evacuee trust property is required to agitate the matter before the authority/Tribunal of exclusive jurisdiction created under the statute and in case anyone is aggrieved of the decision so rendered, the remedy lay before the High Court and then to the Supreme Court under Constitutional jurisdiction. Even the jurisdiction of Civil Court was not altogether barred as jurisdiction of the Civil Court was barred to decide the question which was determinable by the tribunal/authority under the statute. A provision similar to Section 9 was contained in Section l2 of the Pakistan (Administration of Evacuee Property) Ordinance, 1949 (Ordinance XV of 1949) which came to be considered by the Lahore High Court as early as in the year 1955 and it was held in Qamar-uz-Zaman Khan v. The Punjab Province and others (PLD 1955 Lah. 612) that the object of Section l2 was to exempt evacuee property from legal process so that there may be no interference with the administrative control of the Custodian and order would be hit by Section l2 only if it directs or enables the taking of some action with respect to evacuee property. Every order which has referred to evacuee property is not necessarily within Section l2. A simple declaration that an order passed in respect of evacuee property is void does not in any way affect the control of the Custodian and is not excluded from the jurisdiction of the Civil Courts and that grant of such a declaration is competent. This would show that solely on account of any similar provisions as those contained in Section 12, the jurisdiction of the Civil Court does not stand barred altogether under Section 9 of the Act XIII of 1975 and it was for this reason that Section 14 has been added barring the jurisdiction of the civil Courts but that section again limits it in respect of any matters which the Federal Government or an Officer appointed under Act XIII of 1975 is empowered to determine. Even under civil law, process cannot be issued against property of the trust itself as in a suit against the endowment, even when the debt is a secured debt the proper decree to be passed is to direct the defendant to pay the decretal amount within a fixed period, and in case of default, directing that a receiver of the endowment property may be appointed to realize the rents and profits of the properties and after providing for the necessary expenses of the institution, and a reasonable provision for the maintenance of the Mohunt or Shebait the balance should be applied towards the payment of the debt until it is satisfied. [See: Niladri v. Mahant Chaturbhuj (AIR 1926 Privy Council 112) and Vibhudhapriya v. Laksmindra (AIR 1927 Privy Council 1311)].
40. The exclusion of jurisdiction is not intended to defeat the rights lawfully created in favour of a citizen by the Board or its authorities acting within the framework of law and the scope of authority vesting in them. For instance, if a property has been competently decided to be sold to a citizen under a valid contract entered into between the Board and a citizen, and the sale consideration has also been received, can it be urged that in case of refusal to abide by the arrangement so agreed upon validly, the jurisdiction of the Civil Courts will not be attracted and decree of specific performance passed would not be executed by taking refuge under either Section 9 or Section 14- of Act XIII of 1975. Such examples can be multiplied to demonstrate the scope and the limit of the bar contained in these sections.
41. Another aspect worth-mentioning is that even under the general law special protection is provided to the trust properties. Reference is invited to Section 92 of the Civil Procedure Code whereunder a suit in respect of any alleged breach of any express or constructive trust created for public purposes of a charitable or religious nature of for a direction for the administration of any such trust, cannot be instituted in the Civil Court without obtaining the consent in writing of the Advocate-General.
42. Thus, the special provisions contained in the statute to achieve certain objectives cannot be taken to be intended to defeat the fights of citizens otherwise vesting in them under law. These rights, so vesting under the decrees validly obtained can be realized and the provisions contained in Section 9 or Section 14 as such place no obstacle in the way of such decree- holder to obtain the requisite relief. We are, therefore, constrained to hold that these two Sections (Sections 9 and 14 of Act XIII of 1975), as well do not contain anything in themselves which can be said to be in derogation of the Injunctions of Islam laid down in Holy Qur'an and Sunnah of foe Holy Prophet (peace be upon him).
43. The only question now left for consideration is whether these provisions can be declared to be repugnant to the Injunctions of Islam as laid down in Qur'an and Sunnah of the Holy Prophet (peace be upon him) for foe reason that no right of appeal has been provided against foe order passed by foe Chairman declaring a property as 'evacuee trust property'. The remedy of revision to foe Federal Government, it was contended, was neither effective nor adequate as Secretary or the Additional Secretary who hear and decide these revisions are prone to be influenced by the Political Government and are otherwise incapable of infusing confidence into foe mind of a litigant that his grievance is likely to receive independent and judicial application of mind which otherwise is exhibited by members of judiciary in foe hearing of complicated and complete legal issues.
44. Th objection that right of appeal having not been provided foe immunity sought to be granted to foe order of Chairman passed under Section 8 of Act XIII of 1975 violates the principles of administration of justice has merit. The principle of administration of justice deducible from the Holy Quran, Sunnah of the Holy Prophet (peace be upon him) and the conduct of Righteous Caliphs, warrant that at least one right of appeal, effective, not illusory, be provided to party to have the order/judgment passed against him scrutinized to obtain the satisfaction that his cause has received the due attention and that justice should seem to have been done.
45. Verses 58 and 59 of Surah Ai-Nisa are relevant on the point which read as under:- "Behold, God bids you to deliver all that you have been entrusted with unto those who are entitled thereto, and whenever your Judge between people to Judge with justice. Variety, most excellent is what God exhorts you to do: verily, God is all hearing, all seeing!
46. O you who have attained to faith! pay heed unto God, and pay heed unto the Apostle and unto those from among you who have been entrusted with authority; and if you are at variance over any matter, refer it unto God and the Apostle, if you (truly) believe in God and the Last Day. This is the best (for you), and best in the end."
47. The well-known Hanbali jurist Ibn-e-Qudamah has discussed the issue of scrutinizing of the order passed by one Judge by the other in his Encyclopaedia work Al-Mughani (volume 14, Cairo, 1992, pages 34-39). His views (English translation) are summarized as under:-- "A Judge shall not set aside the decision of another Judge when it is submitted to him, except a judgment or decision violating the text of the Quran, the Sunnah or the Ijma. It means that whenever a decision or a case decided by a Judge is submitted to another Judge and he reaches the conclusion that the judgment is wrong or same decision is resubmitted to him and he comes to the conclusion that his earlier decision was wrong, the decision will be re-examined in both the cases. If the fault is because of any violation of the text of the Divine Book or the Sunnah or the Ijma, the earlier judgment shall be set aside. This is also the view of Imam Shafi'e who adds that if the earlier judgment is violative of a clear or express analogy (Qisas-i-Jali) it will also be set aside. It has been reported about Imam Malik and Imam Abu Hanifa that they have said: ' An earlier decision shall not be set aside in the case where it is not violative of any consensus of opinion."
48. Their argument is that if a decision is not violative of the Ijma it should not be set aside because it means that this is a question in which difference of opinion is possible and permissible. Therefore, the earlier decision (based on a possible view) cannot be set aside, just like such decisions in which there is no express text of Quran or the Sunnah. It has been reported from Abu Thawr and Daud that the latter Judge shall set aside every such judgment which appears to him to be faulty.
49. Their argument is that Hazrat Umar-(God be pleased with him) had written in his well-known document addressed to Abu Musa: Your decision yesterday should never prevent you from returning to what is right view whenever you have a chance to review your decision today and you are led to a more righteous view. Moreover, the return to the right is better than the continuance of the wrong. Furthermore, a fault has to be reviewed in any case. There is no difference between the violation of Ijma and fault on any other account.
50. This principle applies to situations where the fault in the earlier judgment becomes clear beyond any shadow of doubt. But it will not apply to a situation where the opinion based on Ijtehad has changed without any violation of the text of the Qur'an or the Sunnah or the Ijma. A later Ijtehad cannot set aside the earlier Ijtehad, as it has been an agreed principle among the companions.
51. Hazrat Abu Bakar (God be pleased with him) declared many cases based on his own Ijtehad.
52. Hazrat Umer (God be pleased with him) held different views but he did not set aside the decisions of Hazrat Abu Bakar (God be pleased with him). Likewise, Hazrat Ali (A.S.) held views different from those of Hazrat Umar (God be pleased with him) based on his own Ijtehad but he did not set aside his earlier decisions. In some cases Hazrat Ali (A.S.) disagreed with both of them but did not set aside their decisions."
53. The issue of scrutiny ot' the judgments passed has also been discussed in details by contemporary scholars. Dr. Walbah Zuhaili, a well-known scholar from Syria in his treatise has made certain comments on this question, English translation of which is as under:-- "The basic principle requires that there should be only one stage of adjudication so that the disputes are resolved within the earliest possible the. However, in order to ensure justice and realization of right and in view of the dearth of piety and shortage of knowledge there has developed the practice of multiplicity of the stages in judiciary. There is nothing in Islamic Law to prevent the principle of multiplicity. The arguments in support of this principle is that Hazrat Ali (A.S.) decided a case between two litigants in Yemen and allowed them to go to the Messenger of Allah (peace be upon him) if they are not satisfied with his own judgment. Both of them accordingly went to the Messenger of Allah (peace be upon him) who upheld the decision of Hazrat Ali (A.S.) In his well-known memorandum addressed to Abu Musa Ashari, Hazrat Umar writes: your decision yesterday, if you review it and come to the conclusion that it needs correction, must not prevent you from coming back to the truth, because the truth is permanent and coming back to the truth is better than the continuance of wrong.
54. The Jurists of the tour legal schools have elaborated upon this subject in the context of their discussion on the setting aside of Ijtehad or setting aside of a decision. Their views are as follows:-- If the earlier decision is based on a definite and certain argument based on the text of the Qur'an and a Sunnah, the Ijma, or on the express analogy it shall not be set aside; because its setting aside would mean that a definite Shariah argument is ignored which is not permissible in any case.
55. However, if the earlier decision/judgment is violative of any certain and definite argument it shall be set aside under the unanimous view, of all the scholars, whether it is by the same Judge (i.e. Review) or any another Judge (i.e. Appeal) in view of its violation of the argument. On the other hand, if the judgment relates to questions which are not certain and definite but relates to the area of the freedom of Ijtehad or is based on a probable argument it should not be set aside so that the laws of Shariah are not unnecessarily disturbed and the confidence in the judgments of the Court is not weakened and the litigants should not face protracted delays in the decision of their cases.
56. Nevertheless, under the system of the multiplicity of Courts, the litigants know before hand that the judgment (of the Court of first instance) does not acquire, finality and it may be appealed against or submitted for review and may be set aside. In this situation there is no fear of any disturbance in the application of the law because the decision has not yet become mature. This thinking may be supported by the opinion of the jurists who allow the setting aside of a judgment if it is issued inadvertently or if a mistake is found in it. When a judgment gets finality from the Court of Appeal it should not affect earlier decisions in similar cases. This is in pursuance of the legal maxim which says that an Ijtehad cannot be set aside by another Ijtehad. This maxim is based on the ruling of Hazrat Umar (God be pleased with him) who had said in a similar situation: 'that (judgment) shall remain according to our earlier decision and this (judgment) will be decided according to our decision today.'
57. In nutshell, our jurists know the concept of appeal and revision and the modern system of judicial organization is not opposed to the principles of Islam. It is rather fully consistent with Islamic principles because the Fuqha had already approved this principle in respect of such decisions and judgments which may be set aside or appealed against on grounds of partiality, etc. Of the Judge.
58. In the Muslim Spain, the judiciary knew the principle of setting aside the judgments/decisions at a higher level."
59. Reference may pertinently be made to the case of Federation of Pakistan and others v. Public-at- Large (PLD 1988 SC 202) wherein certain provisions of West Pakistan Press and Publication Ordinance, 1963 and the plea that the law did not provide right of appeal came to be considered and it was held that non-conferment of a right of appeals is violative of the principles of administration of justice in Islam and the law must be amended so as to provide a right of appeal.
60. In support of this proposition, the observation of this Court in the case of Pakistan through Secretary, Ministry of Defence v. The General Public (PLD 1989 SC 6) may also be made. In this case the provisions barring appeal against certain orders were declared repugnant to Injunctions of Shariah after recording the conclusion that Islamic Injunctions of Adi, Qist and Ehsan warranted that an aggrieved party should be entitled to test the correctness of a decision.
61. The providing of right of appeal against order of the Chairman passed under Section 8 of Act XIII of 1975 should have been provided to comply with the requirements of principles of administration of justice in Islam as immunity sought to be granted to such an order by providing an inadequate remedy of revision would be repugnant to the Injunctions of Islam. The appellant is accordingly directed to suitably amend the Evacuee Trust Properties (Management and Disposal) Act, 1975 (Act XIII of 1975) by inserting a provision providing right of appeal against the order passed by the Chairman under Section 8 of the Act XIII of 1975. Such an appeal can be provided to lie before the High Court in line with the recourse adopted in the Displaced Persons (Compensation and Rehabilitation) Act, 1958 and the Displaced Persons (Land Settlement) Act, 1958. If the declaration as to the nature of the property made by the Chief Settlement Commissioner and later by the Chairman could be made scrutable through an appeal to the High Court, no possible objection can be raised to the providing of the same remedy now under Act XIII of 1975. It is also to be noted that against the orders passed on other matter by the officers appointed by the Board, appeal has been provided to the higher officers of the hierarchy including the Chairman and against orders so passed the revision lies to the Federal Government. .The said course of action can continue as before, as final order so passed is further assailable before the High Court by invoking the constitutional jurisdiction vesting in it under Article 199 of the Constitution and a further petition for leave to appeal before the Supreme Court under Article 185 of the Constitution of Islamic Republic of Pakistan, 1973. The remedies, so provided, considering the nature of the legislature are in such matters sufficient and adequate. The amendment directed in the above terms shall be made in Act XIII of 1975 by the appellant by the 30th July, 1999.
62. The accordingly.
63. (Sd.)
64. Khalil-ur-Rehman Khan, J.
65. (Sd.)
66. Munir A. Sheikh, J.
67. (Sd.)
68. Wajihuddin Ahmed, J.
69. (Sd.)
70. Maulana Muhammad Taqi Usmani, Member-I (Sd.)
71. Mahmood Ahmed Ghazi, Member-II WAJIHUDDIN AHMED, J.-- I have had the advantage of going through the main judgment authored by the learned Chairman. Respectfully agreeing, I am tempted to add a fee words of my own.
72. Pertaining to Sections 8, 10 and 21 of the Evacuee Trust Properties* (Management of Disposal) Act, XIII of 1975, in the background of the Punjab Province v. L. Sita Ram and others (PLD 1956 Federal Court 157), Ata Ullah Malik v. The Custodian Evacuee Property, West Pakistan and others (PLD 1964 SC 236) and Rauf Ahmed v. Secretary to the Government of Pakistan, Ministry of Religious Affairs and Minorities Affairs, Islamabad and 9 others (PLD 1991 Lahore 33), it seems to me that the Chairman of the Evacuee Trust Property Board, in the context of the quoted provisions, does not at as a judge strict senso but, more or less, in a (quasi-judicial capacity. Besides, the proceedings, before him are inquisitional in nature rather than of an adversary character. On this plane alone the concept of one becoming, a Judge in his own cause does not apply to the Chairman and the opinion of the Federal Shariat Court, resulting in striking down of the referred provisions, cannot be upheld. In the same context, it does not appear relevant to me that the person or persons, agitating contextual grievances before the Chairman, are not equipped with any vested right. Such a scenario, even though material in other respective, has no bearing on the Chairman, disqualifying himself on the score of becoming a Judge in his own cause.
73. While fully agreeing with the conclusion that there should be a right of at least one appeal, against an original order of the Chairman, Evacuee Trust Board, a circumstance, which immediately strikes the mind, is the subsistence of vast powers in the Chairman and the Board and the necessity of a stricter control, both judicial and administrative. Even though we are concerned, essentially, with the judicial aspects of the case, it seems necessary to point out that the huge resources, which are obviously available with the Evacuee Trust Board and which can only be utilized towards the cherished objectives of the Trust have not readily been visible. Those concerned, therefore, are expected to attend to this vital area of the operation of Act XIII of 1975 and ensure that the modified trusts of those, who are no more in the country, are duly honoured in letter and spirit by the Board and its Chairman.