PROVINCE OF N .W. F.P. Versus GENERAL PUBLIC OF PAKISTAN
1. SHAFIUR RAHMAN, J. ‑‑The North‑West Frontier Province through its Chief Secretary has preferred this appeal under Article 203‑F of the Constitution against the decision of the Federal Shariat court dated 27th of March, 1984 with regard to the provisions of
(i) N.‑W.F.P. Urban Planning Ordinance (IV of 1978).
(ii) The Punjab Excise Act, 1914 (Act I of 1914), as applicable to N.‑W.F.P.
(iii) The Land Acquisition Act, 1894 (Act I of 1894), as applicable to N.‑W.F.P.
2. The Federal Shariat Court took up on its own motion a number of laws in order to examine and decide whether these laws or any provision thereof, was repugnant to the injunctions of Islam as laid down in the Holy Quran and Sunnah of the Holy Prophet. As a result of such an examination in respect of the N.‑W.F.P. Urban Planning Ordinance, 1978, the Court held as follows:‑---
3. "This Act has the same feature as the Punjab Act and is generally free of all objections in regard to repugnancy to Shariah. The N.‑W.F.P. Government is directed to amend the Act and provide that each residential scheme shall make provision and earmark plot for mosque. As stated in relation to the Punjab Town Improvement Act, 1922 the Government is further directed to provide in this Act for payment of Additional compensation at the rate of 15$ per annum from the date of notice."
4. While examining the Punjab Excise Act, 1914 (I of 1914) as applicable to North‑West Frontier Province along with Sind Abkari Act (V of 1878) and the Baluchistan Excise Regulation (1 of 1915), it was held as follows:‑
5. "The Governments of the Punjab, N.‑W.F.P., Sind and Baluchistan are directed to add a section to the Act applicable to the respective Province that no licence under that Act or pass ‑where the Act provides for a pass, shall be issued to a Muslim. "
6. In respect of the Land Acquisition Act, the following decisions were recorded and directions given:‑
(i) "The notification under section 5 of the Act shall issue not later than one year from the date of publication of notification under section 4, failing which the acquisition proceedings shall be deemed to have come to an end. However, any time spent in the prosecution of a judicial remedy during which the acquisition proceedings are stayed by the Government before the issuance of notification under section 5 shall be computed to the prescribed period."
(ii) After the publication of notification under section 5, the Commissioner shall within six months issue a declaration under section 6 of the Act, and if no notification of such declaration is issued within the said prescribed date, the acquisition proceedings shall be deemed to have come to an end. However, any time spent in the prosecution of judicial proceedings in which a stay order is issued after the issuance of notification under section 5 and before the issuance of notification under section 6 shall be computed to the above period of six months."
(iii) "After the publication of declaration under section 6 of the Act, the Land Acquisition Collector shall announce the award within a period of six months, failing which the official/ officers found guilty for the inordinate delay shall reimburse the Government for the amount of additional compensation at the rate of 15$ per annum paid on account of said inordinate delay. "
(iv) "Every objection received by the Collector under Section 5‑A of the Act, shall be disposed of by the Collector with the least possible delay and his report under subsection (2) thereof or recommendations under subsection (3), as the case may be, shall be forwarded to the Commissioner within a period of ninety days from the date of publication of the Notification under section 5. The decision of the Commissioner on these objections shall be announced by him within a period of three months from the date of receipt of the report or the recommendations of the Collector, as the case may be. If the report of the Collector or his recommendations, as the case may be, are not forwarded to the Commissioner, or if the decision of the Commissioner is not announced within the period specified in this rule, the objection shall be deemed to have been carried and the acquisition proceedings shall come to an end."
(v) "In addition to the compensation fixed on the basis of market value as prevailing the date of notification under section an amount of 15$ per annum shall be paid as additional compensation to the person found entitled to compensation from the date of notification under section 4 of the date of payment of compensation."
(vi) "The person entitled to compensation shall be paid the cost incurred by him actually and reasonably for preparing his claim for compensation and putting his case before the Collector who may disallow, wholly or partly, the costs incurred by any person, if he considers that the claim made by such person for compensation is extravagant."
7. The amendments suggested in the Law relating to these sections were as follows:‑
8. "Consequential amendments necessitated by the above para shall be made in sections 18, 19, 20 and section 31 to the following effect : ‑
(i) That full stop at the end of subsection (1) of section 18 be changed to comma and the words "or the amount of costs allowed" be added.
(ii) After the words "amount of compensation" in clause (c) of section 19, the words "and of costs (if any)" be added.
(iii) After the words "amount of compensation" in clause (c) of section 20, the words "or costs" be inserted.
(iv) After the word "compensation" in subsection (1) of section 31 and after the words "the compensation" in subsection (2) the words "and costs (if any)" be inserted."
9. Mian M.Ajmal, the learned Assistant Advocate‑General ,N.‑W.F.P. contended that the jurisdiction possessed by the Federal.
10. Shariat court under Article 203‑D was first of all to determine as to whether the existing provisions of law are repugnant to the injunctions of Islam, as laid down in the Holy Quran and Sunnah of the Holy Prophet, or not, and the reasons for holding that opinion are to be set out and the extent to which such law or provision is so repugnant is to be specified Thereafter it is to be left to the respective designated authorities to undertake appropriate steps to bring it in conformity with the injunctions of Islam failing which such law or :, provision to the extent to which it has been held to be so repugnant, shall cease to have effect on the day on which the decision of the court takes effect. In view of such parameters of jurisdiction and authority possessed by the Federal Shariat Court it should not have given any direction whatsoever where the law was itself found to be not repugnant to the injunctions of Islam as in the case of Urbar. Planning Ordinance. Similarly, the actual amendments to be made, the exact percentage of compensation to be allowed, the time schedule to be observed in the case of Land Acquisition Act, should all have been left to the designated authority for decision and enactment. To this extent, according to the learned Assistant Advocate‑General the Federal Shariat Court has over‑stepped its jurisdiction and thereby encroached on the jurisdiction of the appropriate designated authority to its embarrassment and resettling in abridgement of its discretion in the matter.
11. The appeal is shown to be barred by 139 clays for which an application for condonation of delay has been filed. Considering the subject‑matter of these appeals, we condone the delay.
12. It is clear from what has been noted in the case of N.‑W.F.P. Urban Planning Ordinance that the Federal Shariat Court found no provision of it to be repugnant to the injunctions of Islam yet it directed the Government to provide in that Act, that each residential scheme shall make provision and earmark plot for mosque, and payment of additional compensation at the rate of 15$ per annum from the date of notice.
13. We had occasion twice earlier to examine such a handling of the cases by the Federal Shariat Court in the case of Federation of Pakistan v. General Public P L D 1986 S C 240 and in Shariat Appeal No.22 of 1984, and held that the specific repugnance and the extent of it should be clearly specified and the direction given should be in terms of the constitutional authorisation contained in clause (2) of Article 203‑i3 of the Constitution so that the consequences provided in clause (3) of the same Article follow. The decision of the Federal Shariat Court does not satisfy the requirements of Article 203‑B of the Constitution and for that reason cannot be sustained.
14. As regards the Excise Act, we have already in a difference context, while examining section 17 of the Excise Act, in Shariat Appeal No.17 of 1981 held as follows.
15. "From the entire discussion of the question raised before the Federal Shariat Court and the findings recorded by the Court, it is clear that the prohibition concerns the use and consumption of liquor by human beings as an intoxicant. There is no other indication in any Injunction of Islam, express or implied that the prohibition extended to its manufacture or sale for a purpose which is permissible in Shariat for Muslims also. Hence tile exclusion of the Muslims from its bona fide medicinal, scientific, industrial or other such use would not be strictly in conformity with the Injunctions of Islam.
16. Section 17 of the Order as at present worded permits the Government itself or a licensee from it to manufacture liquor, import, transport, sell or possess it even for the purposes of consumption by non‑Muslim citizens of Pakistan or as a part of their religious ceremonies or by non‑Muslim foreigners. The human consumption of liquor as intoxicant being prohibited in Islam, a Muslim cannot be permitted to engage himself in the manufacture etc. of such an offensive material for its being meant for human consumption as an intoxicant. Therefore, this part of Section 17 is clearly violative of the Injunctions of Islam, the other part where bona fide manufacture, import, transport, sale or possession for medicinal scientific, industrial or similar other purposes is concerned, there is no such requirement which may render this provision repugnant to the Injunctions of Islam.
17. This appeal is, therefore, partly allowed and that portion of the Section is declared to be against Injunctions of Islam which leaves a scope for the Government or a Muslin licensee to manufacture, import, transport, sell or possess any intoxicant or article containing intoxicating liquor meant for human consumption by a non‑Muslim citizen of Pakistan as a part of religious ceremonies or by a non‑Muslim foreigner But such an act of manufacture, import, transport, sale or possession will not be against the Injunctions of Islam if the material is for bona fide use for medicinal, scientific, industrial or similar other purposes as provided for in section 17 of the Order. The necessary amendment shall be made in Section 17 within six months from today failing which the provisions declared to be repugnant shall cease to have effect."
18. The above decision of this Court rendered under Article 203‑E of the Constitution will substitute and supersede the impugned decision of the Federal Shariat Court on the question of the repugnancy of the Excise Act.
19. As regards the decision with regard to provisions of the Land Acquisition Act, we find that the same Act and its provisions as are under consideration in this appeal came up for consideration before us in Shariat Appeal No.22 of 1984 and by reference to our decision in Pakistan v. Public at Large in P L D 1986 S C 240 we held as follows: ‑
20. "The question common being whether the value of the land to be acquired could be fixed by relating it to the notification or to the date when what is intended is only survey of the land for determination of its suitability for acquisition and has not much to do with the actual acquisition of the land. In the judgment under appeal we find that this aspect of the question has not at all been taken into consideration. Instead a notification under section 4 which only expresses an intention or likelihood of acquisition of land coupled with appropriation of certain powers of the survey and entry on the land has been made the basis for, determining the value of the land. As this question is already before the Federal Shariat Court for a fuller examination, we consider it more appropriate that this case should also be remanded to the Federal Shariat Court for examining the question in the light of the remand order in the earlier case of the Capital Development Authority referred to above."
21. That appeal was allowed and a remand as ordered and the matter has already gone to the Federal Shariat Court. The same reasoning and the same decision resulting in remand will follow in this appeal as well.
22. As a result of the discussion above, this appeal is allowed, the decision of the Federal Shariat Court relating to these three laws is set aside and a remand is ordered in respect of Urban Planning Ordinance (IV of 1978) and Land Acquisition Act of 1894. In respect of Excise Act, section 17, a period of one year is allowed from today to make appropriate amendments as indicated for the Federation in our judgment in Shariat Appeal No.17 of 1981. No order as to costs.
23. K.B.A/P‑54/S Order accordingly.