GOVERNMENT OF N.-W. F. P. Versus PUBLIC AT LAGRE

1. NASIM HASAN SHAH, J. ‑‑This judgment. will dispose of Shariat Appeals Nos.31, 32 and 33 of 1984, as all of them involve somewhat similar questions and arise out of the Provincial Local Government Ordinances promulgated in 1979 in the N.‑W.F.P., Punjab and in 1980 in Baluchistan.

2. SHARIAT APPEAL N0.31 OF 1984

3. This appeal has been preferred by the Government of N.‑W.F‑P to challenge the judgment dated 21st June, 1984, passed by the Federal Shariat Court in S.S.M.Nos.88/109/110/N.‑W.F.P./1984. whereby certain provisions of the N.‑W.F.P. Local Government Ordinance, 1979 (Ordinance IV of 1979), as amended by Ordinance 11, of 1981 and Ordinance IX of 1983 were found repugnant to the Injunctions of Islam.

4. The Federal Shariat Court in its abovementioned judgment dated 21‑6‑1984 held that:‑

(a) Section 162 of the N.‑W.F.P. Local Government Ordinance (IV of 1979) as amended by Ordinance III of 1981, whereby the mode for the conduct of business of the District Co‑ordination Committee was provided; and

(b) Section 28‑A of the same law as amended by Ordinance (X of 1983), which provided a code for candidate contesting elections; were not in confirmity with the Injunctions of Islam and ordered that the said sections be amended as indicated in its judgment aforementioned.

5. In so far as Section 162 of the N.‑W.F.P. Local Government Ordinance (IV of 1979) is concerned, the Court noted that the provisions relating to constitution of the Co‑ordination Committee in Section 161, as contained in the said Ordinance, were changed by Ordinance III of 1981 and subsections (2) and (3) of section 162 were substituted by the following four subsections:‑

6. "(2) The District Co‑ordination Committee shall conduct its business in such manner as may be prescribed.

(3) The decision by the District Co‑ordination Committee shall be taken by consensus of opinion, but where such consensus is not achieved, the decision made in the same meeting by the Chairman, in consultation with the Head of the Department concerned shall be final.

(4) Any decision taken by the District Co‑ordination Committee concerning Local Councils shall be communicated to the Local Council concerned for implementation.

7. (5)Observations regarding the working of Government Departments shall be communicated to the Provincial Heads of the Departments."

8. It Went on to observe that ‑---

9. "It is very strange that on the one hand there is provision for constitution of the District Co‑ordination Committee to perform the function as envisaged in section 162 subsection (1) and on the other hand the decision making power has been vested practically only in the Chairman who has to exercise it in consultation with the Head of the Department concerned. Thus, virtually the Head of the Department has been given the power to override and veto the decision of the District Co‑ordination Committee, whose function is now reduced to a mere advisory function. This provision is contrary to the principle of the Qur'an and the Sunnah, about Shoora.

10. The concept the theory of Shoora and the binding nature of the opinion of the majority of a consultative body was considered in the judgment of this Court on S.S.M.No.140 of 1982 and connected.

11. It is clear from the judgment that this Court favoured the theory of the opinion of the majority of the Shoora being binding upon the Head of the State (see paras 122 to 130, 140, 141).

12. We would like to emphasise that the opinion of the majority in Shoora is binding on the Head of the State, Amir or Imam unless it is repugnant to the Qur'an and the Sunnah of the Holy Prophet (p.b.u.h.).

13. This principle will apply to other institutions also in which a Shoora is constituted, particularly those which have a representative character.

14. In view of this the provision in subsection (3) is absolutely contrary to the Qur'an and the Sunnah. There are two alternatives before the Government. One is to do away with the Co‑ordination Committee and to treat the matter envisaged in subsection (1) of section 162 as being administrative matter which can be decided on executive instructions. The other is to repeal subsection (3) of Section 162 and substitute it by a provision that the decision of the District Co‑ordination Committee taken by a majority shall be binding."

15. The Government is directed to amend the above law by choosing either of the two alternatives.

16. As regards section 28‑A, the said Section, in its existing form, to the extent relevant, was as follows:‑--

(1) No candidate contesting election under the provisions of this Ordinance, shall directly or indirectly:‑

(a) give himself out as a candidate or nominee of a political party; or

(b) claim or draw or receive any financial or other assistance from any political party; or

(c) bear, display or carry any document, sign, insignia, flag or other thing indicating his association with or affiliation to, any political party; or

(d) seek votes or support of the people on party basis or on the basis of the manifesto of any political party; or

(e) seek votes or support of the people by attributing party affiliation to any of his opponents.

(2) Whoever ‑

(a) is found to have contravened the provisions of subsection (1) shall stand disqualified for being a candidate for elections under this Ordinance for a period of four years;

(b) having been elected under this Ordinance is found by Government to have contravened the provisions of subsection (1) shall cease forthwith to hold office to which he was elected and ., shall also stand disqualified for being a candidate for elections under this Ordinance for a period of four years.

17. By Ordinance IX of 1983, clause (f) was added in subsection (1) which reads as follows:‑

(f) indulge in subversive activities or activities against the ideology of Pakistan or instigate students or labour or public to indulge in such activities or any act of lawlessness or anti‑State activities;" and an explanation was added in subsection (2) which reads as follows:‑

18. "Explanation. ‑ If at least three persons‑of the electoral ward concerned, relied upon by Government affirm on affidavit that a candidate has contravened any of the provisions of subsection (1) , it will be sufficient for Government to hold him guilty for the purposes of this subsection."

19. The Federal Shariat Court found the above‑mentioned "Explanation" added to subsection (2) to be offensive. In this connection, it observed that the effect of the "Explanation" is that the action of holding a person guilty of making him liable to disqualification for being a candidate for election under the Ordinance for a period of four years and entails his ceasing to hold office to which he was elected and for being a candidate for election under the Ordinance for a period of four years merely on the affidavit of three persons of the electoral ward concerned who affirm that a candidate had contravened any of the provisions of subsection (1). According to the Court, these provisions were repugnant to the Qur'an and Sunnah of the Holy Prophet (p.b.u.h.) because:

(1) The provision gives the Government unrestrained power to decide a matter of far‑reaching importance and to condemn a person for having committed an offence under subsection (1) without following the Sharia procedure. In Sharia no, person can be condemned unheard and without sufficient evidence. The authenticity of evidence is to be determined by Tazkiya-al‑Shahood which can be accomplished by cross‑examination of the deponent. In addition, opportunity is to be given to the accused to produce defence evidence. Mere affidavits cannot be a substitute for these requirements.

(2) The provision permits the Government to act on the deposition in affidavit of any three persons who may be relied upon by the Government. It means that qualification of adl in a witness can be totally ignored.

(3) The affidavit is not required to give particulars and facts of the contravention of any provision. The requirement is that it should be deposed that the candidate had contravened any of the provisions of subsection (1) of section 28‑A, in a general form which in the eyes of Sharia is no evidence."

20. It, therefore, ordered that these provisions may be struck off and substituted by a provision which provides for inquiry into the guilt of the person according to the dictates of the Qur'an and, Sunnah.

21. Mian M.Ajmal, in support of this appeal, has submitted that so far as the last mentioned provision is concerned, namely, section 28‑A, the direction given by the Federal Shariat Court had been carried out and "Explanation" appearing at the end of subsection (2) has been omitted by the N.‑W.F.P. Local Government (Amendment) Act, 1987 (Act XXI of 1987). And as far clause (f) of subsection (1) is concerned it has been amended as follows by the aforesaid .Act XXI of 1987: ‑

(iii) the full‑stop appearing at the end of clause (f) shall be replaced by colon and thereafter the following proviso shall be added, namely:‑---

22. "Provided that notwithstanding any judgment of any Court or Tribunal, a candidate shall not be disqualified for contesting election by reason only of his being a member of a political party."

23. Coming to Section 162, it is submitted that the District Co ordination Committee is not a representative body but was merely a co‑ordination body. The main purpose of this body is to enable the members to come to the conclusion by consensus. It is not right to think that the impugned provisions were designed to empower the Chairman in consultation with the Heads of the Departments to make decisions. In fact, the provisions in question were quite beneficial as it enabled the members of the Committee to discuss issues and come to a more democratic conclusion. In any case, even the Federal Shariat Court itself has allowed discretion to the Government to do away with the provisions altogether if it so wanted.

24. We are inclined to agree. The Federal Shariat Court has misconceived the nature of the District Co‑ordination Committee and the role it plays and erroneously assumed that it was a representative body and on that assumption held the provision relating to its functioning as un‑Islamic by applying the principles of the Qur'an and the Sunnah in regard to Shoora, wherein the opinion of the majority can have binding effect. The District Co‑ordination Committee is merely an advisory body and there is nothing in the impugned provisions which can be regarded as repugnant to any Islamic Injunction. The directions of the Federal Shariat Court for amending the provisions of section 162 are, therefore, not warranted and are, accordingly, set aside.

25. SHARIAT APPEAL N0.32 OF 1984

26. The Federal Shariat Court, in its judgment dated 21‑6‑1984, has also directed that certain amendments be made in sections 29, 49, 51, 74, 77, 78, 79(2), 114 and 121 of the Punjab Local Government Ordinance VI of 1979 while disposing of S.S.M. No.231‑P of 1984.

27. Section 29 deals with the removal of Chairman, Vice‑Chairman and a Member of Local Council and to the extent relevant reads as follows: ‑--

28. "29. Removal. (1) A Chairman, a Vice‑Chairman or a Member of a Local Council shall be liable to be removed from office if he

(a) ceases to possess the qualifications laid down in section 20 or incurs any of the disqualifications enumerated in section 21 ;

(b) absents himself without reasonable cause from three consecutive meetings of the local council;

(c) is guilty of misconduct;

(d) refuses to take oath under section 27;

(e) fails to submit without reasonable cause the declaration of his assets and liabilities under section 27‑A or submits a false or incorrect declaration or fails to supply any additional information required in respect thereof;

(f) contravenes any of the provisions of subsection (1) of section 21‑A ;

(g) propagates or declares his association with any political party; and

29. Explanation.‑ In this subsection 'misconduct' includes bribery, corruption and misappropriation or wilful diversion of funds of the local council or any attempt at, or abetment of such misconduct. "

30. According to the Federal Shariat Court the existing provision is against the Shariah because it does not provide for hearing to the person affected. It has, therefore, directed the Government of Punjab to amend the section to provide for hearing to the affected person.

31. The learned Advocate‑General, Punjab, has submitted that the procedure for the removal of Chairman, Vice‑Chairman and Members' of the Local Councils and complaints against them have been elaborately provided for in the Punjab Local Councils (Removal of Chairman, Vice‑Chairman or Member) Rules, 1982. These Rules have been promulgated under the provisions of section 167 of the Punjab Local Government Ordinance, 1979. These rules provide for issuance of a show‑cause notice and personal hearing and enquiry. Rule 5 of the Punjab Local Councils (Removal of Chairman, Vice‑Chairman or Member) Rules, 1982, lays down:‑

32. "5. Action by Government .‑‑On receipt of the report of the Enquiry, Government may pass such order as it deems fit:

33. Provided that the respondent shall not be removed under subsection (2) of section 29 of the Ordinance without issuing a show‑cause notice to him and giving him an opportunity of being heard if he so desires."

34. It will, thus, be seen that the objections raised in relation to section 29 of the Punjab Local Government Ordinance, 1979, by the Federal Shariat Court already stand answered by the Punjab Local Councils (Removal of Chairman, Vice‑Chairman or Member) Rules, 1982 and the criticism of the Federal Shariat Court in regard to this provision is misplaced.

35. Section 49 deals with the functions of the Union Council while section 51 deals with those of the Zila Council. The Federal Shariat Court has observed that in addition to the functions already being performed by the Union Councils and Zila Councils it should also undertake the following functions:‑---

36. "Construction and maintenance of mosques."

37. The learned Advocate‑General, Punjab, submits that the Union Council and Zila Council are the lowest tier in the present Local Government system and have very limited financial resources and it is doubtful if it is at all possible for these institutions to construct and maintain mosques within their local areas within the limits of their financial, resources. Moreover, in the rural areas mosques already exist in every village, and the local communities are already looking after their repairs/maintenance. If the Local Councils are compulsorily forced to perform the function of construction and maintenance o; mosques, these institutions will be under constant pressure from various religious sects and it will be practically impossible for the concerned local councils to meet the demands of various religious; sects within every local area. The proposed amendment, as such, will tend to create sectarian discontent. and uneasiness and will place the Local Councils in an embarrassing position. Moreover, there is no prohibition in the law against the construction and maintenance of mosque. Besides this is a matter which really falls within the domain of a special department established by the Government i.e. the Auqaf Department.

38. We agree with the learned Advocate‑General to the extent that Islam has not assigned the duty of constructing and maintaining the mosques to‑ some particular functionary or department of the Government. No doubt, an Islamic State is under an obligation to arrange for construction of the mosques wherever needed, but the Government is at liberty to choose any of its agencies to undertake this task. It, therefore, cannot be said that under the Injunctions of Islam, the Union Councils or Zila Councils have been specifically entrusted the construction and maintenance of the mosques with this function. This can be carried out through any other agency also.

39. Keeping this in the view, the law in question cannot be held repugnant to the Injunctions of Islam on the basis that it does not provide for construction and maintenance of the mosques.

40. Section 74 of the Punjab Ordinance provides for the drawing of a Master Plan for any local area in order to provide development, expansion and improvement of the local area. A direction has been issued by the Federal Shariat Court for adding a clause (d) after clause (c) to the effect "earmarking land for mosque where necessary".

41. Here again we feel that section 74 cannot be held repugnant to the Holy Qur'an and Sunnah for not mentioning the mosques specifically. The section does not exclude "earmarking land for mosques" from the scope of "development, expansion and improvement of the local area". The effect of the addition proposed by the Federal Shariat Court is only to lay stress on this particular aspect of the development of the area. But the section with its wide scope, being not repugnant to the Islamic Injunctions, a mandatory order to amend the law is not called for.

42. We however, while allowing the appeal with regard to this section would observe that the Government should respect the o4serv:& a~ of the Federal Shariat Court and try to abide by it to the extent possible even though mandatory nature of the order has been set aside by this Court:

43. Section 77 deals with "erection and re‑erection of buildings" and subsection (5) of section 77 has been found to be offensive on the ground that it does not provide for hearing of the appellant before disposal of the appeal. This provision is as follows:

77. Erection and re-erection of buildings.

(1) to (4)----------------------------

(5) An urban local council may, for reasons to be recorded in writing, reject a site plan or a building plan but any person aggrieved thereby may prefer an appeal in the manner prescribed within thirty days of the order of rejection and the order passed in appeal shall be final."

44. It was pointed out to us that in exercise of the powers conferred under sections 166 and 167 of the Punjab Local Government Ordinance, 1979, the Government has promulgated the Punjab Local Councils (Appeal) Rules, 1980. Under these rules no appeal can be decided without giving the appellant an opportunity of being heard. Rule 5 of these rules provide as under: ‑

45. "5. HEARING AND DECISIO N OF APPEAL.‑‑(1) No appeal shall be decided under the rules without:‑---

(1) Notice to the authority passing the order appealed from.

(2) Considering any representation that may be made by such authority in respect of the matter under appeal.

(3) Giving an opportunity to the appellant and any other party to the proceedings in which the order appealed from was passed, of being heard in person or through duly authorised agent."

46. The objections of the Federal Shariat Court about section 77 appear to have already been met with by the Punjab Local Councils (Appeal) Rules, 1980, but it would be more appropriate if the terms of this rule are incorporated in the statutory provision itself and section 77 amended accordingly.

47. The similar objections made by the Federal Shariat Court to the provisions of subsection (2) of section 78 and subsection (2) of section 79 are also not well merited.

48. The Federal Shariat Court has also found that section 114 of the Punjab Ordinance requires amendment and directed that after clause (g) another clause, namely, clause (h) shall be added which reads:‑ "provide and promote religious education."

49. However, as discussed earlier, since the section, as it stands, is not against any injunction of Islam, any amendment therein cannot be, ordered because none of its existing provisions are against or repugnant to the Injunctions of Islam.

50. The Federal Shariat Court has also found subsection (4) of section 121, which deals with "encroachment and subsisting Leases and Licences", to be against the Islamic Injunction because it does not provide specifically for hearing of the appellant. Subsection (4) of section 121 reads as follows:‑

51. "121. Encroachment and subsisting Leases and Licences.

(1) to (3) ........................

(4) Any person aggrieved by notice issued under subsection (3) may, within seven days of the service of notice, appeal to such authority as may be appointed by Government in this behalf and its decision thereon shall be final." The Federal Shariat Court has ordered that a provision that the appellant shall be heard should be added in subsection (4).

52. It pointed out that the right of hearing to the appellant is provided for by the Punjab Local Councils (Appeal) Rules, 1980, but as observed by us already, it would be more appropriate if this provision is incorporated in the statutory provision itself. Section 121 shall, therefore, be amended accordingly.

53. The last provision, to which objection has been taken is subsection (4) of section 152, which deals with "delivery or sale of animals". Subsection (4) of section 152 reads as follows:‑

54. "152. Delivery or sale of animals.‑

(1) to (3) .........................

(4) The proceeds of the sale of animals shall be paid to the owner if he later on appears within six months of the sale, after deduction of fines, feeding and other charges."

55. According to the Federal Sharit Court, the period of limitation in this subsection is contrary to the Shariah principle of Luqta, since the sale proceeds shall remain the property of the owner of the animal and they will be kept by the Local Government as trustee for him and has directed that the words "within 6 months of the sale" in this provision should be omitted. The Punjab Government has no objection to the carrying out of this amendment. The upshot is that this appeal of the Punjab Government succeeds, in the main.

56. SHARIAT APPEAL No.33 of 1984

57. In the same judgment dated 21‑6‑1984, the learned Federal Shariat Court in S.S.M. No.139‑B of 1984 found certain provisions of the Baluchistan Local Government Ordinance II of 1980 to be against the Shariah. Sections 78 and 82 of the Baluchistan Ordinance have been found repugnant to the Injunctions of Islam because no provision of "earmarking land for mosque" was provided for therein; while section 55 has been found to be bad insofar as it did not contain any provision for religious education. Similarly, in the Fifth Schedule of the Ordinance as "construction and the maintenance of the mosques" has not been provided for, a direction has been issued for the necessary addition, in this respect.

58. On behalf of the Baluchistan Government it is submitted that there is nothing in sections 78 and 82 of the Baluchistan Local Government Ordinance, 1980, which per se is against the Injunctions of Holy Qur an and the Sunnah. Moreover, the Government in its department of Auqaf is responsible for the administration, construction and. maintenance of the mosques and if this function is also given to 'the Local Councils there would be duplication of functionaries dealing with the same subject and unnecessary expenditures incurred resulting in "Israf" which is forbidden by the Holy Qur'an. Besids burdening the Local Councils with this function was likely to result in differences and disputes among different schools of thoughts prevalent amongst members of Local Councils. Furthermore, it is also emphasised that there is no injunction of the Holy Qurlan and Sunnah requiring the Local Councils to do what the Federal Shariat Court has ordained in its judgment.

59. The above questions have already been dealt with in the appeal filed by the Punjab Government (S.A.No.32 of 1984) and it has been found that the mere omission of a provision relating to earmarking of land and for construction and maintenance of mosques or for provisions relating to religious education would not make the impugned sections violative of the Injunctions of the Holy Qurlan and the Sunnah. Hence no amendment therein can be ordered by the Federal Shariat Court in exercise of its jurisdiction under Article 203‑D of the Constitution.

60. The result is that all these three appeals are accepted in the above terms leaving the parties to bear their own costs.

61. A. A./G‑140/S Appeals allowed.