MIAN MUHAMMAD AJMAL, J.---Through this petition judgment of the Lahore High Court, Multan Bench dated 15-3-1999 has been assailed, whereby Writ Petition No,8204 of 1995 filed by the petitioner was dismissed.
2. Brief facts of the case are that the petitioner instituted a petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 before the Lahore High Court, Multan Bench with the following prayer:- "Therefore, in the light of my above said explanation, it is most humbly requested that a Writ of Mandamous be kindly issued to the respondents to decide the cases regarding inheritance according to Customary Laws under the existing laws and all the cases regarding inheritance decided under the Shariat Law, may be directed to be reviewed and decided according to existing Customary Law of inheritance or any other relief liked by this Hon'ble Court may kindly be granted." The writ petition was dismissed vide judgment impugned herein.
3. The petitioner who appeared in person contended that the customary laws be given preference over Shariat laws with regard to the inheritance and all the Courts be directed to review their decisions on inheritance based on Sharia laws and be decided afresh in accordance with customs.
4. The contentions are not only frivolous but hypocritical as well. The Objectives Resolution which is now substantive part of the Constitution of Islamic Republic of Pakistan as Article 2A, besides other principles provides that 'wherein the Muslims shall be enabled to order their lives in the individual and collective spheres in accordance with the teachings of Islam as set out in the Holy Qur'an and Sunnah. The legislative bodies both Federal and Provincial cannot legislate any law which is inconsistent with the Injunctions of Islam. After addition of Article 2A in the Holy Qur'an and Sunnah have become the Supreme Law of Pakistan and the Courts are obliged to enforce the existing laws with such adaptations as are necessary in the light of Holy Qur'an and Sunnah to uphold the holy provisions thereof. Article 31 of the Constitution contemplates that steps shall be takin to enable the Muslims of Pakistan, individually and collectively, to order their lives in accordance with the Fundamental Principles and basic concept of Islam, and to provide facilities whereby they may be enabled to understand the meaning of life according to Holy Qur'an and Sunnah and under Article 227 of the Constitution all existing laws shall be brought in conformity with the Injunctions of Islam as laid down by the Holy Qur'an and Sunnah and no law shall be enacted which is repugnant to such injunctions. Under Article 203-D of the Constitution, Federal Shariat Court can examine and decide the question whether or not any law or provision thereof is repugnant to the Injunctions of Islam as laid down in the Holy Qur'an and Sunnah of the Holy Prophet (p.b.u.h.) and if any law or provision thereof is held to be repugnant to the Injunctions of Islam, it ceases to have effect on the day on which the decision of the Court takes effect.
5. The above provisions of the Constitution abundantly manifest thatno law repugnant to the Holy Qur'an and Sunnah can be enacted and all existing laws have to be brought in conformity with the Injunctions of Islam as enunciated in the Holy Qur'an and Sunnah. The existing laws or any provision thereof, on examination by the Federal Shariat Court, if declared repugnant to the Injunctions of Islam, such law or provision thereof ceases to have effect on the day on which the decision of the Court takes effect. In the present case, the petitioner's assertions are wholly un-Islamic and against the explicit mandates of the Holy Qur'an and Sunnah, thus are not worth - consideration. In view of Article 2A of the Constitution every organ of the State is duty bound to act and implement the Islamic principles as enshrined in the Holy Qur'an and Sunnah. It is the duty of the State to do social justice to the people. Islam in its inheritance system has provided social justice to both the sexes as both male and female are entitled to inherit in prescribed manner whereas in customs only males would inherit as absolute owners while the females are denied that right and they are given limited rights and that, too, as of grace. The customs were done away with the enactment of Muslim Personal Laws (Shariat) Act as amended from time to time which provided that whenever question relating to the succession upon the death of a Muslim arises in any Court, the rule of decision shall be according to Muslim Personal Laws (Shariat) Act as if that law had been applicable at the time of such death and Shariat Laws were made applicable with retrospective effect.
6. The Muslim Law of Succession has been derived from the mandates laid down in the Holy Qur'an and the traditions approved by the Holy Prophet (p.b.u.h.). In Ghulam Ali v. Ghulam Sarwar Naqvi PLD 1990 SC 1, it has been observed on Islamic Law of Inheritance as under:-- Islamic Law. Of Inheritance: "The Muslim Law of Succession, Ilm-ul-Faraiz, which has been derived from the rules of succession to be found in Qur'an' (See the Text of the Qur'an at pp.98--101 of the 2nd Edition of Muslim Law by Saksena), 'or in the Traditions, as well as from such of the Pre-Islamic customs, as were approved of by the Prophet (p.b.u.h.) is a great achievement of the Muslim Jurists. As coherence and logic have imparted perfection to the system, it deserves our admiration'. F.B. Tyabji observes, 'The Muslim Law of Inheritance has always been admired for its completeness as well as the success with which it has achieved the ambitious scheme of providing not merely for the selection of a single individual or homogenous group of individuals, on whom the estate of the deceased should devolve by universal succession, but for adjusting the competitive claims of all the nearest relations." and on female's position in Muslim Law, it has been observed as under:-- Female's position in Muslim Law: "We shall deal briefly with the rights of females to inheritance as given in the Qur'an. The Prophet (p.b.u.h.) lays down in effect, that blood relationship is the cause of title to succession. Then the Qur'an goes on to describe the rights of females to succession. ' 'Covet not the grace by which God hath preferred some of you to others; unto men there is a portion of what they have earned, and unto women the portion of what they have earned'. Men ought to have the portion of what their parents and kindred leave, women a part of what their parents and kindred leave, whether it be little or much, let them have a determinable portion.' With regard to children, God commandeth you (to give) the male portion of two females, and if there be females more than two, they shall have 2/3rd of that which the deceased leaves; and if there be only one, she shall have a half'. 'Half of what, your wives leave, shall be yours, if they leave no issues, but if they leave issues, then a fourth of what they leave shall be yours. And your wives shall have a fourth part of what you leave if you have no issues, but if you have issues, they shall have an eight (1/8th) part of what you leave after paying the bequests and debts.' In short, Qur'anic heirs called 'sharers' consist of those relations who were previously excluded in favour of the customary heirs, but whose claim on the score of proximity was not inferior to them. They may be grouped under the following heads:--
(1) husband or wife.
(2) female agnatic descendants,
(3) ancestors, including female ancestors, who are not customary heirs,
(4) collaterals, such as full and consanguine sisters and uterine sisters and brothers."
In view of above, the prayer of the petitioner is not only against the provisions of the Holy Qur'an and Sunnah but against the Constitution as well, therefore, the same are fallacious and are thus rejected. This petition being without any substance is dismissed and leave is refused.