Chief Administrator Auqaf, Punjab, Lahore being aggrieved from the judgment and decree dated 26.6.1996 passed by the learned District Judge, Attock, filed the present appeal under Section 12 of the Punjab Waqaf Property Ordinance IV of 1979.
2. Vide notification dated 16.5.1988 issued under Section 7 of the Punjab Waqaf Properties Ordinance, 1979, administration, control, management and maintenance of Khanqah Sakhi Sultan Sardar-ud-Din situated in the revenue estate of Mauza Jabbar Tehsil & District Attock was taken over and the Waqaf Properties attached thereto were also taken over. The description of the Waqaf Properties is given in the schedule of notification which is reproduced hereunder:-- Sch&ule
1. Shrine of Sakhi Sultan Sadar-ud-Din alongwith a mosque, five rooms and a graveyard measuring an area of 252-Kanals and 14 Marlas Bearing No, 39 Khatooni No, 112 in the Revenue Estate of Mauza Jabbar, Tehsil & District Attock according to the Revenue Record for the year 1975-76.
2. Income from the Cash Boxes placed at the shrine.
3. Offering and subscription made to the said shrine."
3. Syed Baqir Ali Shah, the respondent, filed a petition under Section 11 of the Waqaf Property Ordinance, 1979 on 29th May, 1988 and prayed in the following terms :-- "In the circumstances it is prayed that Notification No, SOP-1(674) Auqaf/70 dated 16.5.1988 for an area measuring 04-Kanals which is within the boundry wall and wherein are the graves of the family of the petitioner-respondent and which is being used from a time immemorial as a graveyard has assumed the character of Waqaf-ul-Aulad. The notification to the extent of this property be declared of no legal effect and this property be declared as the personal property of the petitioner."
4. The appellant resisted the application and from the pleadings of the parties issues in the following terms were settled:-- 5. Issues. 1. whether the land measuring four Kanals, within the boundary wall around the shrine is "Waqaf- ul-Aulad" and cannot be taken over by the Auqaf Department ? OPP
2. Whether the impugned notification issued by the Chief Administrator Auqaf is liable to he set aside as a whole or in part ? OPP
3. Whether the impugned act of the respondents is tainted with malafides ? if so with what effect ?
OPP
4. Relief.
6. The respondents adduced five witnesses namely Syed Matloob-ul-Hassan PW-1, Muhammad Rafique PW-2, Pir Bukhsh PW-3, Noor Ahmad PW-4, and Baqar Ali Shah petitioner-respondent himself has appeared as PW-5. None appeared on behalf of respondent-defendant so they were proceeded against ex-parte and the application of the petitioner-respondent was accepted by the learned District Judge, Attock vide his judgment dated 21.3.1989. The F.A.O. No, 31 of 1989 against the said judgment was filed by the Auqaf Department which was accepted by the learned Single Judge in chamber of this Court vide his order dated 24.5.1994. The F.A.O. was allowed and the case was remanded to the learned District Judge, Attock that the direction that the respondent be allowed to produce evidence. After remand the petitioner-respondent has also examined Sher Alam PW-6 thereafter the respondent-appellant adduced RW-1 Muhammad Munawar Khan, District Manager, Auqaf and produced documents Ex. R-1 to Ex. R-5. Vide impugned judgment dated 26th June, 1996 the learned District Judge, Attock accepted the petition to the extent of four Kanals of land enclosed by the compound wall and notification dated 16th May, 1988 to the extent of 04- Kanal was declared to be null and void against the rights of the petitioner.
7. The learned counsels appearing for both the parties relied on the provision of Section 2 Sub- Clause (III) of Punjab Waqaf Property Ordinance, 1979 and also placed reliance on the provisions of Muslim Waqaf Validating Act, 1913. The judgment of Sheikh Mumtaz Ahmad v. Chief Administrator of Auqaf, West Pakistan, Lahore. (PLD 1975 Lahore 1147) was also relied from both the sides. The definition of Waqaf Property is given in Section 2 of the Punjab Waqaf Property Ordinance, 1979 which reads as follows :-- "Waqf Property" means property of any kind permanently dedicated by a person professing Islam for any purpose recognized by Islam as religious, pious and charitable, but does not include property of any Waqf such as desciibed in Section 3 of Muslim Waqf Validating Act, 1913 (VI of 1913) under which any benefit is for the time being claimable for himself by the person by whom the Waqf was created or by any member of his family or descendants. Explanation-I--If a property has been used from time immemorial for any purpose recognized by Islam as religion pious or charitable, then inspite of there being no evidence of express dedication, such property shall be deemed to be Waqf Property". Explanation-2 to 6 8. The other provisions relevant for decision of this case are contained in Muslim Waqf Validating Act, 1913. Section 3 of the Muslim Validating Act, 1913 is relied by the learned counsel for the respondent. Section 3 is reproduced as under :-- Sec.
3. "Power of Mussalmans to create certain Wakfs. It shall be lawful for any person professing the Mussalman faith to create a Wakf which in all other respects is in accordance with the provisions of Muslim Law, for the following among other purposes :-- (a)for the maintenance and support wholly or partially of his family, children or descendents, and (b)where the person creating Wakf is Hanafi Mussalmans also for his own maintenance and support during his lifetime or for the payment of his debts of the rents and profits of the property dedicated : Provided that ultimate benefit is in such cases expressly or impliedly reserved for the poor or for any other purpose recognized by the Mussalmans Law as a religious, pious or charitable purpose of a permanent character."
9. The case set up by the petitioner-respondent is that the petitioner is the Sajjadah Nasheen of Shrine of Hazrat Sakhi Sultan Sadar-ud-Din and that he is living in adjoining room of the shrine alongwith his family. That there is no income from the shrine. That there is an area which is an area of shrine which is shown as ABCD in the attached plan and in this area is situated the shrine and the graves of the family of the petitioner and the said area is four kanals of land. It is further averred in the petition that from time immemorial this area is graveyard and it has assumed the character of Waqaf-ul-Aulad.
10. By virtue of Muslim Waqf Validating Act, 1913 it was provided that it would be lawful to a person professing the Muslim faith to create. a Waqf which in all other aspect is in accordance with the provisions of Mussalmans Laws in the' following among other purposes. For the maintenance and support wholly or partially of his family, children or descendants and where the persons creating Waqf is Hanfi Mussalmans also for his own maintenance and support during his life time or for the payment of his debts out of the rents and profits of the property dedicated. Provided that ultimate benefit in such cases expressly or impliedly reserved for the poor or for any other purpose recognized by the Mussalmans Law as a religious, pious or charitable purpose of a permanent character.
11. A perusal of the notification shows that an area of 252-Kanals and 14-Marlas of land including shrine, a mosque, and five rooms, and graveyard was taken over alongwith income from the Cash Box. It is admitted in the petition by the respondent that there exist a shrine of Hazrat Sakhi Sultan Sadar-ud-Din and he also claimed to be Sajjadah Nasheen of that shrine. It is also categorically stated that there is no income from the shrine. The area of four Kanal which is mentioned in the petition and deletion whereof a prayer has been made through the petition is four Kanals of area wherein it is clearly mentioned in the petition that this area contain the shrine, and graves of the encestors of the respondent-petitioner. The respondent-petitioner has further asserted that this area of four Kanals has assumed the character of Waqaf-ul-Aulad. In order to succeed the respondent was required to prove that the property comprising of four Kanals of land containing the shrine and graveyard of his encestors was a Waqf created by a person in favour of their family, children and descendents and ultimately for the benefit of poor or other relevant charitable special purposes as spelled out in Section 3 of Validating Act, 1913. Admittedly the nature of the property is a Waqf property and it falls within the definition of Waqf property as given in Section 2 sub-clause
(e) of the Punjab Waqf Properties Ordinance, 1979 and only exclusion is the kind of Waqf which is described in Section 3 of the Validating Act, 1913. From his own showing it is admitted by the respondent-petitioner that 'the property has been used from time immemorial as a shrine and graveyard which is recognized in Islam as religious, pious and charitable purposes but no evidence. has been produced on the record to show that this property of four Kanals constituted a Waqf the maintenance and support wholly or partially of his family, children, or descendants by a person creating Waqf or in any manner was being used as such Waqf and that ultimately was reserved for poor or for any purpose recognized by the Mussalmans Law as a religious, pious or charitable purposes.
12.Conversely the evidence produced by the respondent-petitioner is that the property comprising of shriee and graveyard has no income and that he is a Sajjada Nasheen of the shrine and that the graveyard is only meant for the graves of the ancestors of the respondent-petitioner.
All the six witnesses produced by the respondent-petitioner merely stated that within the compound of four Kandls shrine, a mosque and a graveyard is located. The petitioner-respondent while appearing as PW-5 has admitted that he is engaged in cultivation, that he has personally no land and Annual Urs is held at the shrine of Hazrat Sakhi Sultan in August every year and general holiday on the occasion of the Urs is observed in the District Locality. He also admitted that many people come to shrine to pay homage to the shrine including people from North West Frontier Province and from other parts of the Punjab. It is also stated in the cross-examination by the respondent-petitioner that people do offer "Nazrana" to Bibi Sahiba and not to the shrine of Hazrat Sakhi Sultan. According to him Syeda Inam Bibi looks after the shrine and manage its affairs and she is his real "Khala".
13. From the evidence on the record I do'nt find any supportive evidence whereby four Kanals area containing shrine, a mosque and the graveyard is proved not to be a kind of a Waqf created by the Waqif in terms Section 3 of the Muslim Waqf Validating Act, 1913. There is no evidence that shrine, a mosque and graveyard in the area exist for the benefit, maintenance and support of the family, children or descendents of Hazrat Sakhi Sultan. On the contrary it is admitted by the respondent-petitioner that the shrine has no income as is evident from the admission contained in the petition as well as in the statements of PW-1 to PW-6. There is a shrine, a mosque and graveyard which is being used from time immemorial, as such therefore, it is safely deduced that it is a Waqf property as is admitted by the respondent-petitioner and the other PWs. It is not a case of Waqf-ul-Aulad as this Waqf property is not meant to provide maintenance and support wholly or partially to the successors of Hazrat Sakhi Sultan. Accordingly it is held that it is not Waqf-ul- Aulad. The learned District Judge, Attock has not advanced any plausible reason to exclude the property from the notification dated 16.5.1988.
14. On the question of limitation neither of the parties has touched the question of limitation in filing the present F.A.O. There is an application for condonation of delay of 17 days in filing the present F.A.Q. The application was allowed by the order of this Court dated 18.2.1997 and the delay was condoned. Against the order passed by this Court on 18.2.1997, the respondent-petitioner filed a petition for leave to appeal before the Hon'ble Supreme Court. Leave was granted on 9.12.1997 but while finally disposing of Civil Appeal No, 1461 of 1997 the leave granted was withdrawn. As the delay in filing 17 days in filing the F.A.O. has been condoned by this Court vide order dated 18.2.1997 was neither set aside nor modified by the Hon'ble Supreme Court of Pakistan. Keeping in view the ratio of the said order, the delay in filing the F.A.O. is condoned for the reasons already given in the said order.
15.Resultantly, the appeal succeeds and the judgment of the learned District Judge, Attock dated 26.6.1996 is set, aside and the application filed by the respondent-petitioner is dismissed.