MUHAMMAD KHAN and otherss vs MUHAMMAD ISHAQ and others
This civil revision petition arises out of a dispute regarding inheritance under Section 4 of the Muslim Family Laws Ordinance, 1961. The core legal question raised by the petitioner was whether the children of a pre-deceased son are entitled to inherit from the grandfather, given that Section 4 of the Muslim Family Laws Ordinance, 1961, was declared repugnant to the Injunctions of Islam by the Federal Shariat Court in the case of Allah Rakha v. Federation of Pakistan and others (PLD 2000 FSC 1). The Peshawar High Court dismissed the petition in limine, holding that pursuant to the proviso to clause (2) of Article 203-D of the Constitution of the Islamic Republic of Pakistan, the judgment of the Federal Shariat Court does not take effect until the disposal of the appeal pending before the Supreme Court of Pakistan. The key principle laid down is that the provisions of Section 4 of the Muslim Family Laws Ordinance, 1961, remain fully operative and enforceable until the Supreme Court confirms the Federal Shariat Court's judgment.
- Whether Section 4 of the Muslim Family Laws Ordinance, 1961 remains operative while an appeal against the Federal Shariat Court's judgment is pending before the Supreme Court of Pakistan?
- Are the children of a pre-deceased son entitled to the inheritance of their grandfather under Section 4 of the Muslim Family Laws Ordinance, 1961?
- What is the effect of the proviso to clause (2) of Article 203-D of the Constitution of the Islamic Republic of Pakistan on a judgment of the Federal Shariat Court declaring a law repugnant to Islam?
- Section 4, Muslim Family Laws Ordinance 1961
- Article 203-D, Constitution of the Islamic Republic of Pakistan 1973
ORDER
The learned counsel for the petitioner contended that section 4 of the Muslim Family Laws Ordinance, 1961, by which the sons and daughters of the pre-deceased son of a deceased was declared entitled to the inheritance of the deceased, has been declared against the. Injunctions of Islam vide the judgment of the Federal Shariat Court reported as Allah Rakha v. Federation of Pakistan and others PLD 2000 FSC 1. He relied on 1990 SCM R 1677 and submitted that the case be remanded to the original Court for recording evidence of the parties, after framing the issues and for decision on merits.
2. The above-mentioned decision of the Federal Shariat Court in the light of the proviso to clause
(2) of Article 203-D of the Constitution of the Islamic Republic of Pakistan was not to take effect before the disposal of an appeal preferred to the august Supreme Court of Pakistan. As is mentioned in PLD 2003 SC 475, referred to by the learned District Judge in his order, dated 14-1- 2005, an appeal has been filed before the august Supreme Court of Pakistan against the said judgment. The provisions of section 4 of the Muslim Family Laws Ordinance, 1961, therefore, are still operative and shall remain operative until the appeal is disposed of by the august Supreme Court of Pakistan to the effect that the decision in the said judgment is confirmed.
3. In these circumstances, the heirs of Mula Khan son of Ayub Khan, who had pre-deceased his father, were entitled to the inheritance of Ayub Khan and the said inheritance has been acted upon.
4. In the light of the above legal position, I do not find any merit iniC the civil revision in hand, which I dismiss in limine.
Cited by 6 cases
- Mst. Hayat Begum vs Rehman Malik and others 2022 PHC 256, 2022 PLJ Peshawar 189
- Mst. Hayat Begum vs Rehman Malik and others 2023 PLD Peshawar 6
- Mst. GHULAM AISHA and others vs KALIMULLAH and others 2016 CLC 118
- Judicial-VIII Mst. SAIRA YOUSAF and another vs SHER MtJHAMMAD 2012 CLC 1593
- BAHADAR SHER and another vs FARHAD RASOOL and 3 others 2009 PLJ Peshawar 145
- BAHADAR SHER and another vs FARHAD RASUL and 3 others 2009 YLR 906