THE STATE Versus MUHAMMAD RAMZAN
Before I proceed to record the facts of this case I may note here that following persons were made respondents in this Suo Motu Civil Revision vide order, dated 23‑11‑1994 of this Court. Hereon onwards the respondents shall be referred with reference to the numbers noted below:‑‑
(1) Muhammad Ramzan son of Ch. Khuda Bakhsh, resident of 9‑Turner Road, Lahore.
(2) Muhammad Hussain son of Noor Muhammad, resident of Mauza Korey, Walton Road, Lahore Cantt.
(3) Ch. Gulab Din son of Chiragh Din, resident of Mauza Korey.
(4) Shah Muhammad son of Nawab Din, resident of Mauza Korey.
(5) Muhammad Siddique son of Muhammad Alain Din, resident of Mauza Korey.
(6) Mosque Committee Mauza Korey through Muhammad Rafique, General Secretary, Walton Road, Lahore Cantt.
2. On 23‑5‑1988 plaintiff/respondent No. 1 filed a suit against defendants/respondents Nos. 1 and 2. In the plaint it was stated that the suit land measuring 9 Kanals, 9 Marlas described in para. 1 of the plaint situate in village Korey, Tehsil Lahore Cantt. from part of the Shamlat Deh as per copies of Register Haqdaran Zamin for the year 1975‑76 and was owned by the proprietors of the village as Hasab Rasad Khewat. .According to the plaint a list of the said owners was annexed therewith and it was stated that the suit land has fallen to the short of "Dhool Jaats"; that Maulvi Chiragh Din and Maulvi Abdur Rehman used to lead the prayers in the mosque of the village and since they had no means of sustainance, the suit land was made over to them to cultivate and to take its produce while the land revenue and cess were paid by the landowners; that the suit land remained in the cultivating possession of the said Maulvis till it was rendered barred some years ago on account of organization. A residential colony was developed around the land. Because of the said development some of the residents of the village proposed that the suit land be sold and the consideration be utilized for the own welfare of the residents. A Punchait was convened where decision was taken to sell the land; that one and a half years earlier respondents Nos. 2 and 3 under the authority of the proprietors of the village, Dhool Jaats and the said Maulvis entered into an agreement for the sale of the suit land in favour of respondent No.1 for a consideration or Rs. 50,000. This deal was consented to by all the residents of the village and respondent No.1 paid Rs.10,000 as earnest money to respondents Nos.2 and 3 and the possession was delivered to him while the balance amount was to be paid within one month and according to the plaint it was paid; that respondents Nos.2 and 3 were approached for executing the sale‑deed but he was informed that some residents of the village did not intend to sell the land. With these averments a decree for specific performance of the said agreement was claimed.
3. This suit came up before the Court on 23‑5‑1988 when it was registered. It was ordered that notices be issued to the persons mentioned in the list for 11‑6‑1988. Respondent No.1 was also directed to make up the deficiency in the court‑fee till the said date. Service by beat of drums was also ordered. Notices in the stay application were issued for 28‑5‑1988. On this date order for the service by beat of drums was repeated for 11‑6‑1988. The office made a note that the beat of drums as well as service by affixation has been effected. On 11-6‑1988 an application was filed under sections 148/149, P.P.C. for extension of time to make up the deficient court‑fee. On the same date Mr. Ghulam Murtaza, Advocate for respondents Nos. 2 and 3 gave a statement that he has no objection to the suit being decreed. The application for grant of extension of time for payment of court‑fee was allowed. Another statement was recorded that there is no objection to acceptance of application under Order 1, rule 8, C.P.C. The case was adjourned to 13‑6‑1988. On this date one Amjad Aftab, Advocate for the residents of the village made a statement that he has no objection to the suit being decreed. The case was adjourned to 16‑6‑1988 on which date the learned' Judge was on leave and the case was adjourned to 21‑6‑1988. On 21‑6‑1988 the case was adjourned to 25‑6‑1988 for ex parte evidence. On this date the case was adjourned to 2‑71988. Statement of respondent. No. 1 was recorded and decree was passed in the following terms:‑‑
4. After the said decree, dated 2‑7‑1988 there was a spate of applications under section 12(2), C.P.C. One application was filed by Muhammad Siddique i.e. respondent No.5 on 6‑6‑1989. This application was withdrawn. Another application was filed by respondent No. 6 which was also withdrawn. Another application was filed by one Gulab Din (respondent No.3) which was also withdrawn. The order allowing withdrawal of applications by respondent No.6 was recalled on 11‑5‑1991 but the application was again withdrawn on 8‑1‑1992.
5. Messrs Muhammad Usman and Muhammad Yousaf filed an application in this Court bringing to its notice the said facts. The application was ordered to be registered as a suo motu revision petition vide order, dated 16‑2‑1993 of this Court (Mr. Justice Khalilur Rehman Khan).
6. Notices were issued to the said respondents. Mr. Muhammad Ramzan who is himself practising Advocate in this Court is represented by Ch. Muhammad Ashraf wahla, Advocate whose name stands duly listed in the cause list for today but he has not turned up.
7. Learned A.A.‑G. assisted by Mr. Muhammad Nawaz, Advocate has taken me through the file of the civil suit and other proceedings' to demonstrate the manner in which the learned trial Court has dealt with this matter.
8. I have already reproduced above the plaint filed by respondent No. 1 in detail. The statement of Muhammad Ramzan respondent No. 1 is also in line with the said plaint. However, no witness was produced to prove the said complex arrangement ending ultimately in the oral agreement to sell in favour of respondent No. 1 by the entire proprietary body of the village. Be that as it may, in the course of his statement on oath the said Muhammad Ramzan has produced Revenue Records and got the same exhibited. Exh. P.7 is the Jamabandi for the year 1936 37 and the suit land as described in the plaint (Khasra No.557 measuring 9 Kanals, 9 Marlas) is stated to be owned and possessed by the mosque of the village Korey. I may state here that this Jamabandi in fact appears to be settlement record ( ﺕﻘﻳﻗﺣﻞﺛﻣ ) pertaining to the Shan‑flat of village Korey. Now the entire Shamlat land is separately entered while the suit land is separately entered as a Khewat land, not owned by the proprietary body but by the said mosque and Abadi Deh of the village is also separately entered. Exh. P.3 is the settlement record for the year 1891‑92 and the suit land again is entered as owned and possessed by the said mosque. Copy of the Register Haqdaran Zamin for the `year 1975‑76 (referred to in the plaint) is available at page 65 of the trial Court file and it also records the said mosque to be the owner in possession through a tenant who is paying half share of the produce to the mosque. Exh. P.2 is the settlement record for the year 1911‑12 and again the mosque is recorded to be owner in possession. Thus according to the evidence led by respondent No. 1 himself the land is owned and possessed by the mosque. Despite the said established fact on record the learned' trial Court has proceeded to decree the suit of respondent No. 1.
9. Once it is established that, the land was owned by the mosque then even if the entire contents of the plaint are admitted to be correct that is to say that the entire proprietary body of the village orally agreed to sell the land through respondents Nos.2 and 3 to respondent No. 1; is admitted to be correct, the suit could not have been decreed. The reason for this observation is that the mosque in Islamic Law is Waqf and the suit land being a property of a Waqf could not have been sold even by the authorised trustees, without the leave of the Court. Reference be made to the case of Zahid Farooq and another v. Anjuman Jamia Masjid and 4 others (1995 SCMR 1584). In the said case a plot belonging to a mosque was sold by its Mutwali and it was proved on record that the plot was sold with the consent of the entire Administration Committee of the mosque and that the proceeds were spent on the mosque. The sale was held to be void by this Court. The Supreme Court of Pakistan upheld the rule that a Mutwali whether the Waqf be public or private cannot transfer the Waqf property without the sanction of the Qazi, with the following observations occurring in para. 12 of the judgment at page 1590 of the report:‑‑
12. This rule of 'Islamic Law' is of great antiquity and, as we shall venture to show it stems directly from the consciences of the creation of Waqf and can be supported on first principles as alos on the authority of the Holy Quran. Relevant it would be to reproduce the following experts occurring in paras. 13 and 16 of the said judgment:‑‑
13. The effect of a consecration or Waqf of a property by the owner is to extinguish absolutely and for ever all his rights therein. The act of consecration, which is irrevocable in its character, transfer the property for ever into the legal ownership of the Almighty Allah for the benefit of His creatures. On general principle, only the person in whom the ownership of the property vests can lawfully deal with it. And, as the Waqf property vests in the Almighty Allah. He alone can deal with it. It follows logically that the Mutwali, whose status, in the relation to the Waqf property is no more than that of Manager or Superintendent, even thought he be the Waqf, cannot in any way deal with it. But the Almighty Allah, may, like any other owner, deal with the Waqf property through his delegates.
16. What imparts significance to this trust theory, in the context of Waqf property, is the fact that as in the case of legal sovereignty, so in the case of Waqf property, the entire body politic, that is the State, becomes a trustee and it is the State, through its State functionaries, that has to discharge the functions in regard to Waqf properties on behalf of Almighty Allah. The Kazi is one of the State functionaries one of the persons in authority "' ﻡﻛﻧﻣﺭﻣﻻﺍﻰﻟﻭﺍ " within the meaning of the Holy Qur'an V.4:
60. The reason why it was the Kazi who was entrusted with the function of dealing with Waqf Properties was that function is judicial function and the Kazi was, therefore, the most appropriate State functionary to be entrusted with its performance. Thus the Islamic Law seems to proceed on the basis that it is the Kazi as delegate of Almighty Allah who has to perform the function of its carrying the Waqf into execution and to deal with the Waqf property.
10. It is with some regret that I feel constrained to note here that as against the said position of Kazi vis‑a‑vis Waqf property, particularly the property of a mosque as stated by the Hon'ble Supreme Court of Pakistan in the said judgment, in the present case, the plaintiff, a prominent lawyer of this Court, rather a leader of his fraternity, in league with another Kazi, a Civil Judge stated to be the brother of respondent No. 1 who lent the services of his father‑in‑law (respondent No.3) proceeded to usurp the property of the mosque vesting in Allah Almighty with the blessing of the Civil Judge who decreed the suit in the face of the evidence of f ownership of the mosque produced, by respondent No.1 himself. This is an act of fraud and liable to be declared as such. The learned Civil Judge has proceeded to exercise the jurisdiction not vesting in him while decreeing the suit filed by respondent No. 1 in the said circumstances.
11. This civil revision is accordingly allowed in exercise of suo motu jurisdiction and the said judgment and decree, dated 2‑7‑1988 passed by the Senior Civil Judge, Lahore is set aside. The result would be that the land shall be immediately restituted to the mosque and entries in the Revenue Records shall be accordingly corrected and restored. A copy of this judgment shall be sent to the learned trial Executing Court for compliance.
A copy of this judgment and decree shall also be sent to the Sub‑Registrar, Lahore Cantt. who shall cancel the sale‑deed, if any, executed and registered on the basis of the said decree, dated 2‑7‑1988. A copy of this judgment and decree shall also be sent to the District Collector, Lahore as also to the Sub- Divisional Collector with direction to correct and restore the entries regarding the suit land in favour of the mosque. S.S.P., Lahore is also directed to see to it that arrangements are made for preservation of the said land and to prevent any encroachment thereon.
12. A copy of this judgment shall also be sent to the Chief Administrator of Auqaf, Punjab, Lahore who shall order an inquiry into the affairs of the said mosque and its said property and pass appropriate orders for the management and control thereof.
Revision allowed.
Q.M.H./M.A.K./S‑398/L