H.I. SHEIKH Versus MAHMOOD A. HAROON, FEDERAL MINISTER, RELIGIOUS AFFAIRS
The appellant filed a Shariat Application in the Shariat Bench of the Sind High Court under Article 203-B of the Constitution of 1973, challenging the Haj Policy (1980) of the Government of Pakistan, specifically objecting to the selection of pilgrims through a ballot system and the requirement of a non-refundable deposit for handling charges. The High Court dismissed the petition for lack of jurisdiction. The appellant appealed to the Supreme Court under Article 203-C of the Constitution. The Supreme Court held that the matters in issue pertain to Muslim Personal Law, and following its precedent in Federation of Pakistan v. Mst. Farishta, the scrutiny of Muslim Personal Law falls beyond the jurisdiction of Shariat Benches, Shariat Courts, and the Appellate Bench. Consequently, the Supreme Court dismissed the appeal, affirming that the original petition before the High Court was incompetent and properly dismissed.
- Does the scrutiny of Muslim Personal Law fall within the jurisdiction of Shariat Benches and Courts?
- Whether the Haj Policy of the Government relating to the selection of pilgrims through ballot pertains to Muslim Personal Law?
- Is a Shariat application challenging the Haj Policy competent before the Shariat Bench of the High Court?
- Article 203-B, Constitution of Pakistan 1973
- Article 203-C, Constitution of Pakistan 1973
ORDER
KARAM: ELAHEE CHAUHAN, MEMBER. ‑The appellant filed a Shariat Applica tion No. 17/80 in the erstwhile Shariat Bench of the Sind High Court (Karachi) under Article 203‑B (unamended) of the Constitution of 1973 "For removal of certain lacunae in the Haj Policy (1980)" of the Government of Pakistan which according to the appellant was not in confirmity with the Injunctions of Islam as laid down in the Holy Qur'an and the Sunnah/Hadith of the Holy Prophet. He particularly took exception to the practice and policy of the Government in selecting persons for performing Haj by a system of "ballot" and also to the requirement of that policy whereby every applicant had to deposit an unrefundable amount of Rs. 50 as handling charges of his application and for other similar services.
2. The petition was dismissed by the High Court on 4‑8‑1980 on the short ground that "these are ‑ obviously matters which do not fall within our jurisdiction", though, it earlier observed that (generally speaking) some policy of selection in the very nature of things would appear to be quite in order in view of large number of applicants, limited extent of foreign exchange at the disposal of the Government for this purpose, coupled with the inability of Saudi Arabia to accommodate unlimited number of. persons, and a number of similar other considerations.
3. The appellant has come up in an appeal to this Court under Article 203‑C of the Constitution.
4. We have heard the appellant who appeared in person and argued his case with great zeal and seriousness of a pious intention and motive. However, we are of the opinion that the matters in issue herein pertain to that branch of law which is known as Muslim Personal Law, which is applicable and is being applies to the community of Muslims alone as distincr from general law which applies to all the citizens of Pakistan. As recently held by this Court in Federation of Pakistan v. Mst. Farishta ( P L D 1981 S C 120 ) scrutiny of such law namely Muslim Personal Law is beyond the jurisdiction of Sharia Benches/Courts as well as this Appellate Bench.
5. The result is that as the petition filed by the appellant before the Shariat Bench of the High Court was incompetent, it was liable to be dismissed as such. Similarly we are also unable to enter into the controversy agitated by the appellant and accordingly dismiss the appeal, with no order as to costs.
Appeal dismissed.
(1) P L D 1981 S C 120