Law: Constitution of Pakistan, 1973

Section:

JUGDMENT

KARIMULLAH DURRANI, J.-Syed Qasim Shah, son of Muhammad Shah, resident of Mansehra Town, District Mansehra and Ismail son of Abdul Hamid, resident of village Jabbar, Tehsil and District Mansehra, have prefer red this petition under Article 203-B of the Constitution of the Islamic Republic of Pakistan, 1973, seeking a declaration from the Shariat Bench to the effect that the sharing of 'Malikana' in Biar, Diar, Pludar and Sum types of trees grown over the land of the petitioners by the entire proprietary body of the village is repugnant to the injunctions of Islam. The petitioners have claimed that they are tenant-in-common of land m Khasra No. 2401, situate in village Jabber, District Mansehra, inheriting the land from their forefathers as occupancy tenancy. That the petitioners became co-owners alongwith other occupancy tenants through statutory purchase by payment of compen sation under the N.-W. F. P. Tenancy Act, 1950 and by virtue of this purchase they enjoy the status of full owners of the land. That out of the different kinds of trees grown on the land comprising of Khasra No. 2401, four, namely Biar, Diar, Pludar, and Sum are being sold by the Government, who retain half of the sale proceeds as 'Malikana' and the other half is distributed among the proprietors of the entire village regardless of their ownership in the particular Khasra number on which the trees are grown . The petitioners have challenged the sharing of the proceeds of the sale of the, trees in question by the others of the village on the ground that this practice offends the sanctity attached by Islam to the right of an individual of holding of private property as the persons who are not owners in the property are allowed to enjoy its usufruct. This practice, according to the petitioners, is against the injunctions of Islam, as laid down by the Holy Quran and Sunnah.