KARACHI, Jan 20: The Supreme Court asked the Sindh High Court on Wednesday to rehear a case involving takeover of two Thatta shrines in the light of the evidence adduced by the parties.

The 700-year-old shrines (dargahs) of Shah Yaqiq (Jia Shah) and Abdullah Shah (Tillan Shah) at Shah Bandar, district of Thatta, with the attached mosques, agricultural land and other assets were declared waqf (trust) properties and their administration, management, control and maintenance taken over by the Sindh auqaf (trusts) department in January 1975. The take-over notification was withdrawn in March 1975 but reissued in April 1977.

The alleged custodians of the shrines challenged the notification, issued under the (Sindh) Waqf Properties Ordinance, 1961, saying that the properties were acquired and developed by several generations of their ancestors with their own income. The land surrounding the tombs was used as a family graveyard. All the attached assets, they said, were private and personal, having been inherited by them. None of them was ever gifted or set aside as waqf property nor any waqf created in any manner. The auqaf department had no authority under the law to interfere with their ownership or possession of the attached properties, they said.

The provincial government categorically denied all the averments, including the claimants' possession and ownership. Relying on revenue and other record, the Thatta district judge framed issues on the pleadings of the parties. He dismissed all the claims after considering the evidence and hearing the arguments by a consolidated judgment in 1991, which was challenged by the alleged custodians in the Sindh High Court. An SHC judge allowed the appeals by a consolidated judgment in 1996 and the provincial government went in appeal to the Supreme Court.

Arguing the auqaf department's case before a Supreme Court bench comprising Justice Javed Iqbal and Justice Mohammad Nawaz Abbasi, Additional Advocate-General Dr Qazi Khalid Ali submitted that it was a case of non-reading of evidence by the appellate court. The high court should have decided the case on the basis of the evidence produced by the two parties but the record submitted by the department was not properly taken into consideration. The impugned judgment travelled beyond the pleadings and the issues framed by the trial court.

Dealing with the merits of the case, he said the shrines had been waqf properties since time immemorial. Yaqiq Shah died issueless about 700 years ago. The same was true of the other saint, Abullah Shah, who was a brother of Yaqiq Shah. They were buried at places of their residence and tombs were raised by their followers by raising public subscriptions.

The followers, the AAG said, also organized the 'urs' of the two saints, which developed into 'melas' with the passage of time. The 'melas' attracted big crowds and devotees offered cash, jewellery, chaddars, etc, all the year round. Dargahs, mosques, musafirkhanas, langars and hotels were constructed for the convenience of visitors out of the offerings made by them. The land around the shrines also remained in the use of visitors and followers since time immemorial.

As for graveyards, the law officer submitted that graveyards could never be a private property. Acting on public complaints, the auqaf department took over the control and maintenance of the shrines for the benefit of their visitors.

The SC bench remanded the case to the high court for rehearing on the basis of the evidence produced by the two parties, which were directed to maintain status quo in the meanwhile.