Jirga decision cannot bypass Islamic jurisprudence, says SC

Published October 27, 2021
A file photo of the Supreme Court building. — Photo via SC website/File
A file photo of the Supreme Court building. — Photo via SC website/File

ISLAMABAD: The Supreme Court on Tuesday said neither the judiciary nor a jirga could be a substitute to the Islamic law of inheritance when “Deen-i-Elahi” (divine religion) had already settled the matter 1,400 years ago.

“The law of inheritance in Islam is final and neither the courts nor any jirga can change this,” observed Justice Qazi Faez Isa, adding that the settlement reached in the present case about distribution of the properties in question through a June 13, 2004 panchayat or jirga was not higher than the Islamic Shariah laws.

The observation came when a dispute over the distribution of properties in Swat, including some lands situated at Samar Bagh by the legal heirs, came up for hearing before a two-judge SC bench also consisting of Justice Yahya Afridi.

The decision came on a petition moved by Hayat Bibi, daughter of Habib Khan who died in 1986. Senior counsel Dil Mohammad Alizai represented Gul Sazza Begum, third wife of Habib Khan, who claimed that her deceased husband had gifted the entire property situated at Samar Bagh to her in haq mahar (dower amount).

The court, however, set aside the Jan 18, 2016 judgement of the Peshawar High Court which had upheld the Jan 15, 2015 order of a civil judge and ordered equal distribution of the properties among all the legal heirs of two former wives with whom Habib Khan married during his lifetime.

According to the fresh order, the properties will have to be divided among eight legal heirs, mostly the daughters of Habib Khan from two earlier wives.

The civil judge had dismissed the writ by the legal heirs on the grounds that the family had already settled the dispute over distribution of the properties through a 20-member jirga. Besides, the judge observed, the claim had been made 27 years after the death of Habib Khan and nine years after the settlement of dispute by the jirga.

The jirga had accepted Gul Sazza Begum’s plea that though her late husband had gifted the entire property to her, still she could further distribute the property to any of the heirs on humanitarian ground if she wanted to.

During the hearing, Justice Faez Isa observed that the decision taken by the 20-member jirga could not bypass the Islamic jurisprudence, adding that the documents relating to distribution of the properties contained the thumb impression of a seven years old as a witness when a minor could not be considered a witness, even awarded a capital punishment in a murder case. “A mockery was made of the laws of the land through such documents,” he regretted.

When the counsel pleaded that while deciding the matter the court should also consider ground realities, Justice Isa reminded that the ground realities of the area which the counsel was agitating did not even care about the due rights of the women by considering them lesser human beings.

Justice Isa observed that the military dictators had imposed martial laws in the country in the name of ground realities and even coerced the judges to sign documents on the basis of ground realities. He observed that the courts in Saudi Arabia settled matters relating to property in a month, but in Pakistan litigants had to suffer for decades for a decision of their cases.

Published in Dawn, October 27th, 2021

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