Mst. HUSSAN JAMALA Versus GOVERNMENT OF KHYBER PUKHTUNKHWA through Secretary, Home and Tribal Affairs

Mrs. IRSHAD QAISER, J.--- Petitioner Mst. Hussan Jamala and Samandroz Khan parents of deceased/Shaheed Muhammad Ayaz filed the present writ petition for seeking relief to the effect that they being parents and legal heirs of Shaheed Muhammad Ayaz are entitled to get their shari share in the Shaheed Package announced by the Government and that the Shuhada Package to the extent of grant of 60 salaries to widow and excluding parents be declared as ultra vires and against the principle of inheritance.

2. Succinctly stating the fact of the case are that Muhammad Ayaz/son of petitioners and husband of respondent No 5 has been martyred due to the indiscriminate firing of the terrorists on Police party and a case F.I.R. No 122 dated 11-3-2010, Police Station Takht Bhai under sections 302/324/353/34 P.P.C., 7 ATA was registered. That respondents Nos. 1 to 4 had given 60 salaries in Shuhada Package to the widow of deceased and deprived the petitioners being parents and legal heirs of the martyred. Respondents were summoned. They attended the Court and respondents Nos. 1 to 4 submitted their reply wherein they denied the rights of the petitioners and contended that the Shaheed Package which is special financial assistance for the family of the Shaheed Official and it is only payable to the widow (if not married) and children as per Rule 4.7 of the Pension Rules and according to this rule the parents does not come within the definition of family.

3. Now the question for determination is that whether the "uniform compensation package" announced by Government vide notification No.FD/SOSR-11)4-199-2011 dated 22-2-2011 comes within the definition of "Tarka" and all the legal heirs to the extent of their respective shares are entitled to receive the compensation package. The "Uniform Compensation Package" is a death compensation allowance given by the Government (State) to those who embraced "Shahadat" and sacrificed their lives for the security/cause of nation and home-land. This compensation may come with in the definition of Diyat amount payable in a normal murder case. Tarka ( ) has been fully discussed by the Shariat Appellate Bench in case Federal Government v. Public at Large reported in PLD 1991 SC 731. The relevant para therefrom is reproduced herein below for convenience:--

4. Applying above test on the facts of instant case we are persuaded to hold that the compensation package comes within the definition of Tarka, and after the death of Shaheed his legacy has to be devolved amongst the Quranic legal heirs.

5. In the opening para. of notification dated 22-2-2011 it is declared that this uniform compensation package is for the "legal heirs" of:--

(a) Provincial Police Personnel and

(b) All the civil servants of the Provincial Government.

6. In para No. 6 of the above notification it is stated "for the purpose of this notification the terms "legal heirs" shall have the same meaning as in the Pension Rules of Government of Khyber Pakhtunkhwa. The term legal heirs has not been defined any where to the Pension Rules. Only the term "family" has been defined in Rule 4.7. This term "family" is definitely and absolutely different from the terms of the legal heirs of the deceased, who are entitled to get their shares as laid down in Sura Nisa of Holy Quran. According to Muhammadan Law there are seven classes of legal heirs of the deceased. They are as followed.

(i) Sharers.

(ii) Residuaries.

(iii) Distant kindred.

(iv) Successor by contract.

(v) Fictitiously acknowledged kinsman.

(vi) Universal legatee.

(vii) Escheat to Government.

7. In the present case deceased is survived by widow, father and mother, widow is entitled to her shares to the extent of 1/4 (in the absence of child) as sharer while the father and mother are entitled to take each one sixth 1/6 as sharers if there is any child or son's child how low so ever while for the remaining share the parents are entitled to receive the same as residuary as according to Muhammadan Law in default of residuaries of first class i.e. sons and son's sons how low so ever. Daughters and son's daughter how low so ever when not sharers, the residue devolves on the father as class 11 of residuaries while the widow cannot claim any share as residuary etc.

8. It is settled principle of law that the principle qua inheritance of Muhammadan Law would and should be applicable instead of any rule or, notification. The Holy Quran is a complete code of life and the verdicts in Holy Quran and the saying of Holy Prophet Muhammad (P.B.U.H) are the supreme law for Muslim Ummah. No preference could be given to the rules/orders/notification against the supreme law laid down by Allah in Holy Quran and Holy Prophet Muhammad (P.B.U.H). As it is discussed earlier that the terms "legal heirs" has not been defined in Pension Rule, therefore it is directed that this para. No.6 of notification be deleted. It is also on record that succession certificate in respect of the legacy of deceased Muhammad Ayaz in respect of outstanding salary, G.P. Fund, Benevolent fund, Gratuity, group insurance, pension and other funds left by deceased Muhammad Ayaz has been issued by the competent Court of law (Senior Civil Judge/Guardian Judge Mardan) in favour of all the legal heirs of deceased including the present petitioners.

9. Keeping in view the above facts and circumstances of the case writ petition is allowed with the direction to Competent Authority to distribute the shares amongst the legal heirs of the deceased in accordance with sharia.

MH/330/P Petition allowe