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FEDERAITON OF PAKISTAN VS MUSHTAQ ALI ADVOCATE, 1992

PLD-SUPREME-COURT 153 (1991)
Feb. 19, 1991 SUPREME COURT 1992 PLD 153
1992 PLD-SUPREME-COURT 153

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FEDERAITON OF PAKISTAN VS MUSHTAQ

ALI ADVOCATE

P L D 1992 Supreme Court 153

[Shariat Appellate Bench]

Present: Justice Nasim Hasan Shah, Chairman, and Justices

Shaftur Rahman, Abdul Qadeer Chaudhry, Pir Muhammad Karam Shah

and Maulana Muhammad Taqi Usmani, Members

FEDERATION OF PAKISTAN through Secretary,

Ministry of Financc, Islamabad---Appellant

 versus

Shaikh MUSHTAQ ALI, ADVOCATE---Respondent

Shariat Appeal No.9 of 1989, heard on 19/02/1991.

(On appeal from the judgment of the Federal Shariat Court dated 15-6-1989 passed
in Shariat Petition No.5-K of 1984).

Per Justice Shafiur Rahman, Member--

(a) Penal Code (XLV of 1860)---

----S. 294-A---Constitution of Pakistan (1973), Arts. 203-D and 203-F--Repugnancy to

Injunctions of Islam---"Lottery"---Definition---Lottery of a particular description is
hit by Injunctions of Islam---Categories of Lotteries which are not prohibited by
Injunctions of Islam outlined.

In dictionary a lottery is defined to be a "distribution of prize

prizes by lot or chance".

This .dictionary definition of lottery has come to acquire a legal' meaning for the
purposes of section 294-A of the Pakistan Penal Code. Section 294-A of the Pa‐
kistan Penal Code prohibits lottery except where it is operated or conducted as a
State Lottery or is authorised by Provincial Government. Lottery of a particular
description is hit by injunctions of Islam is undisputed. There is yet a category of
Lotteries which are not prohibited by Injunctions of Islam. A definition of Lottery
which is sought to be prohobited in the context of Islamic injunctions is, there‐
fore, called for, so as to leave others outside the purview of prohibition and to dis‐
tinguish them. There can be a number of instances where decision by drawing of
lots may be permissible in the modern context as was earlier. No exhaustive list
can be provided but where a contentious matter is required to be decided and
there are no vested rights involved or statutory rules available, for determining eli‐
gibility and priority, such a recourse to lottery may be permissible. However,
where vested rights

are involved, where guidelines for the exercise of public power are readily ascer‐
tainable or where some form of property is put at risk, lottery cannot be and is not
an approved system according to the injunctions of Islam as a mode of decision.

Chap. 37 V. 139 to 141; Chap. 3 V. 44; Chapter 68 V. 48 to 50 arid Taylor v. Smetten

(1883) 11 QBD 207 ref.

(b) Words and phrases--

---=Lottery"---Definition of.
(c) Penal Code (XLV of 1860)---

----S. 294-B---Constitution of Pakistan (1973), Art. 203-B(c)---National Prize Bonds

Scheme ---Repugnaney to Injunctions of Islam---Matter happened to be the outside
the jurisdiction of the Federal Shariat Court at the time when the same was exam‐
ined by that Court---Findings recorded by the Federal Shariat Court were without
jurisdiction in view of the bar contained in Art. 203-B (c) of the Constitution and
were liable to be set aside.

The Presidential Order No.l of 1980 which is Constitution (Amendment) Order,

1980 for the first time introduced on the 27th May, 1980 Chapter 3-A of the Consti‐
tution. It is a complete code itself. It establishes an exclusive Court to deal with
speed matters and to grant remedies in forms specified on which consequential
action is to be taken by the authorities nominated therein. The whole of this Chap‐
ter is to take effect notwithstanding anything contained in the Constitution. It per‐
mits the Federal Shariat Court and enjoins upon it to examine law with a view to
determine whether it is repugnant to the Injunctions of Islam or not. Law has
been defined so as to limit and control the general and ordinary meaning of law.

By a subsequent amendment, the expression "three years" was substituted by "ten

years". A fiscal law, therefore, would not qualify, under this definition of "law" till
26th of May, 1989, as available for examination and challenge under Chapter 3-A
of the Constitution. A jurisdictional bar would exist.

The record of the impugned judgment shows that the hearing of this matter took
place in the Federal Shariat Court on 30-6-1987, 19-2-1989, 20-2-1989 and 21-2-1989,
i.e., at a time when the Federal Shariat Court was not competent to examine the
question or adjudicate on it. The decision was given on 15-6-1989 when in fact the
jurisdiction in the matter was possessed. May be, it is for this reason that the Fed‐
eral Shariat Court examined the scheme of Prize Bonds but did not examine
whether it was statutory fiscal instrument or not, and whether it had jurisdiction
at the relevant time to examine it, recorded the finding but did not give the decla‐
ration or the directions as it was required to do under Art. 203-D (2) and 203-D (3).
It only directed that if the

amendment in sections 294-A and 294-8 of the Pakistan Penal Code was not made
to conform to the decision of the Court, they shall cease to have effect. No men‐
tion of the Prize Bonds Scheme was made, though the finding was definitely
recorded that it was against the Qur'anic injunctions.

As the matter happened to be outside the jurisdiction of the Federal Shariat Court
at the time when the matter was examined, the findings recorded in the form in
which it had been recorded with regard to the National Prize Bond Scheme could
not be recorded. The findings recorded with regard to the Scheme of National
Prize Bonds and its being against injunctions of Islam were set aside.

Per Justice Pir Muhammad Karam Shah, Member--

(d) Penal Code (XLV of 1860)---

----Ss.294-A & 294-B---Constitution of Pakistan (1973), Art. 203-D---Lottery--Nation‐

al Prize Bonds Scheme ---Repugnancy to injunctions of Islam.

Per Justice Maulana Muhammad Taqi Usmani, Member--

(e) Words and phrases---

----QAMMMAAR---Definition, nature and necessary ingredients of' QAMMAAR

detailed.

(f) Penal Code (XLV of 1860)---

----S. 294-A-=-Constitution of Pakistan (1973), Art. 203-D---Lottery---

Repugnancy to injunctions of Islam---Lottery---Definition.. .

.??????????

Chamber's Dictionary; Webster 1977, V 2. pp.753-754; Pocket

Oxford Dictionary 6th Edit. 1978, p.516 and Black's Law Dictionary 5th

Edn. p. 853 ref.

(g) Penal Code (XLV of 1860)---

----S. 294-A---Constitution of Pakistan (1973), Art. 203-D---Repugnancy to injunc‐

tions of Islam---Lottery---Section 294-A, P.P.C. in so far as it exempts "State Lottery
or a lottery authorised by the Provincial Government" is repugnant to the injunc‐
tions of Islam ---Shariat Appellate Bench observed that necessary steps be taken by
30th June, 1992 to give effect to the decision failing which the said provision shall
cease to have effect.

(h) Penal Code (XLV of 1860)---

----S. 294-B---Constitution of Pakistan (1973), Art. 203-D---Repugnancy to injunc‐

tions of Islam---Provision of S. 294-B, P.P.C. in so far as it by its generality prohibits
free trade in commodities on fair market price also, is repugnant to injunctions of
Islam ---Shariat Appellate Bench observed that necessary steps be taken by 30th
June, 1992 to give effect to the decision failing which the said provision shall cease
to have effect.
Hartz SA. Rehman, Advocate Supreme Court, Mumtaz Ahmad Mirza, Advocate
Supreme Court and Ch. Akhtar AIL Advocate-on-Record for Appellant.

Nemo for Respondent.

K.G. Sabir, Advocate Supreme Court and Zafar Awan,- Advocate Supreme Court for
Public.

Dates of hearing: 18th and 19th February, 1991.

JUDGMENT

JUSTICE SHAFIUR RAHMAN, MEMBER---The Federation of Pakistan has appealed

as of right under Article 203-F(1) of the Constitution of the Islamic Republic of Pa‐
kistan, 1973 against the judgment of the Federal Shariat Court dated 15-6-1989
whereby, on a Petition filed by the respondent seeking the declaration that section
294-A of the Pakistan Penal Code was in part repugnant to the injunctions of Is‐
lam, it not only held that part of that section of the Pakistan Penal Code to be re‐
pugnant to injunctions of Islam but also proceeded to examine the contents of sec‐
tion 294-B of the Pakistan Penal Code and the Scheme of the Prize Bonds enforced
in the country and held them also to be repugnant to the injunctions of Islam.

2. Hafiz S.A. Rahman, Advocate, the learned counsel representing the appellant
has confined his challenge during the course of arguments only to the finding of
the Federal Shariat Court in so far as the Prize Bonds Scheme is concerned. The
challenge to the finding is that the Prize Bond Scheme is a fiscal statutory instru‐
ment and as such was immune from challenge and examination by the Federal
Shariat Court on a Petition that was filed in 1984, in view of Article 203-B(c) of the
Constitution defining `law' but excluding for a period of ten years from the com‐
mencement of Chapter 3-A of the Constitution, any fiscal law from the definition
of law open to challenge on the ground of repugnancy. The period of ten years ex‐
pired on 25-6-1990. On merits also, the finding that the Scheme of Prize Bonds is
repugnant to the injunctions of Islam has been disputed.

3. On the 18th of April, 1984, the respondent Shaikh Mushtaq Ali filed a Petition
under Article 203-D of the Constitution of Pakistan challenging only the provision
of section 294-A of the Pakistan Penal Code in the following words:

"Portion of Section 294-A of Pakistan Penal Code, put in Bracket and

underlined SECTION 294-A

"WHOEVER KEEPS ANY OFFICE, OR PLACE FOR THE PURPOSE OF DkAWING

ANY LOTTERY (NOT BEING A STATE LOTTERY OR A LOTTERY AUTHORISED BY
THE PROVINCIAL GOVERNMENT) SHALL BE PUNISHED WITH IMPRISONMENT
OF EITHER DESCRIPTION FOR A TERM WHICH MAY EXTEND TO SIX MONTHS,
OR WITH FINE, OR WITH BOTH."

THAT the above-mentioned provision of Law amounts to mixing of right .with

wrong and is a clear contradiction with the following provision of the Holy Quran
?"

4. While examining this provision, the learned Judges of the Federal Shariat Court
adopted the ordinary dictionary meaning of `Lottery' and came to the conclusion
that not all Lotteries were prohibited in Islam. The sort of Lotteries found permit‐
ted by Islam were as mentioned in Chapter 37 V. 139 to 141, Chapter 3, V. 44, Chap‐
ter 68 V. 48 to 50 of the Holy Quran. The Court concluded as hereunder:

"Thus we find two contradictory forms of lotteries and in that situation it is neces‐
sary that a test be devised to see as to which one is permitted and which is not. A
scrutiny of the above verses and traditions would show that in the approved forms
no one should have any personal right or vested interest in the matter and no one
was to be deprived of what he already had or contributed in that process. Further,
if the exigency of a situation dictated that some out of them had to forego any
right, the solution was to make not arbitrarily but through drawing of lots, in the
absence of any other valid or agreed form as in the case of Hazrat Younas. Again,
wherever a donor, grantor or a man in authority had to select some of those per‐
sons who had equal footing in order to confer some right, privilege or concession
on them, the matter could be decided by drawing of lots. Such a form of lottery in
such cases will be permissible. However, wherever it was a question of causing
loss to some in the drawing of lots with the result that others would benefit at the
cost of those who lost the lottery, it will be the prohibited type."

The Court thereafter proceeded to examine the prevalent forms of the Lotteries
and particularly attended to those operated for charitable and philanthropic pur‐
poses, but these were held to be repugnant to the injuctions, of Islam because the
incentive provided to the investors was not the profit accuring on the investment
but the disproportionate prize
prizes distributed by drawing of lots. Besides, the attrac‐
tion was not so much to the lending of a helping hand to charitable and phil‐
anthropic purposes but to avail a chance at prizes
prize detracting thereby the com‐
mandment of the Holy Quran on the subject. The Scheme of Prize Prizes Bonds was also
examined, and though in such a Scheme the investor's money is safe arid intact,
the prize
prizes being related to the interest generated from the capital so accumulated
it was held to be equally repugnant to the injunctions of Islam notwithstanding
that it could be demonstrated that it was for a definite purpose and for the benefit
of the community and State as such.

5. The Court also proceeded to examine of its own, section 294-B of the Pakistan
Penal Code and divided it into two parts; one permissible according to the injunc‐
tions of Islam and the other not so. The permissible group covered by this section
was of the those products which were sold for a price and additional product was
given as an incentive, the same or other commodity either in larger quantity or in
bulk without any scheme of drawing of prize
prizes or lots. This was held to be a part of
the sale because the purchaser knows what he is purchasing and the vendor
knows what he is offering for sale and what is its price. The price being known
and the property being sold available for inspection no element or risk of chance
was involved. Such a sale, though induced and publicised with a reward to attract
customers was not hit by any provision or injunctions of Islam.

As regards the prohibited category, it included those where certain tickets,

coupons or tabs were found or given on purchase of the product which led further
to the drawing of lots or these by themselves exchangeable for known products. In
such cases the inducement is by an uncertain and unknown event, depending on
chance and such a promotion of sale was clearly hit by the injunctions of Islam,
generally prohibiting gambling, wagering and swearing etc.

6. On these findings supported extensively from the injunctions of Islam/Quran

and the Sunnah of the Holy Prophet (PBUH), the Federal Shariat Court held sec‐
tions 294-A and 294-B of the Pakistan Penal Code and the Scheme of the Prize
Bonds to be opposed to the injunctions of Islam, at the same time limiting the di‐
rection to the President to take steps to amend sections 294-A and 294-B of the Pa‐
kistan Penal Code suitably on or before the Ist of December, 1989 failing which
they shall cease to have effect. The statutory instrument relating to Prize Bond was
not struck down or ordered to be suitably amended.

7. The word `lottery' used in section 294-A of the Pakistan Penal Code introduced
in the Penal Code in the year 1870 has not been legally defined. The dictionary
meaning of the word `lottery' came up for consideration in Taylor v. Smetten
(1883) 11 Queen Bench Division 207 and was dealt with. as hereunder:

"In Webster's dictionary a lottery is defined to be a "distribution of prize

prizes by lot or
chance," and a similar definition is given in Johnson; such definitions are in our
opinion correct, and in such sense we think the word is used in the statute, and in
this view we are justified by the language of some of _ the earlier statutes directed
against unlawful games and lotteries."

8. This dictionary definition of lottery has come to acquire a legal meaning for the
purposes of section 294-A of the Pakistan Penal Code. Section 294-A of the Pa‐
kistan Penal Code prohibits lottery except were it is operated or conducted as a
State Lottery or is authorised by Provincial Government. Lottery of a particular
description is hit by injunctions of Islam is undisputed. There is yet a category of
Lotteries which are not prohibited by injunctions of Islam. A definition of Lottery
which is sought to be prohibited in the context of Islamic injunctions is, therefore,
called for, so as to leave others outside the purview of prohibition and to distin‐
guish them. The Federal Shariat Court in the impugned judgment has reproduced
a number of instances where decision by drawing of lots may be permissible in
the modern context as was earlier. No exhaustive list can be provided but where a
contentious matter is required to be decided and there are no vested rights in‐
volved or statutory rules available, for determining eligibility and priority, such a,
recourse to lotterv may be permissible. However, where vested rights are involved,
where guidelines for the exercise of public power are readily ascertainable or
where some form of property is put at risk, lottey cannot b and is not an approved
system according to the injunctions of Islam as a mod of decision.
9: So far as the issue of prize bonds is concerned, the Federal Sharia Court dealt
with the subject and while discussing the matter of prize bonds, the Court con‐
cluded as hereunder:

"The net result is that luring people to contribute for pious any charitable causes
on the temptations of monetary and wordl; gains in such schemes would not only
amount to paying exorbitant interest in that form but also defeating the Qurani~
dictates."

10. The Scheme and Accounting Procedure in respect of issue o~ National Prize
Bonds describes the Scheme as hereunder:

"This Bonds will be called the National Prize Bonds. The Bonds will be issued as a
Central Government Loan, as a form of Government Security, which would give
investors a chance of winning a prize,
prize instead of yielding them interest. The bonds
will be issued by the Government of Pakistan with effect from Ist October, 1960
and w:11 remain on tap till such time as the Government notifies closure of their
sale in the Gazette of Pakistan.

This and the further provisions of the Scheme clearly show that it has been given
effect to, is operated, managed and controlled under a statutory instrument which
is fiscal in character. It appears to have been issued in 1956 or near about and
amended thereafter from time to time. The portion reproduced above describing
the Scheme remains unamended todate.

11. As pointed out earlier in the judgment, the petition filed in the Federal Shariat
Court on 18-4-1984 which led to the impugned decision, did not directly or indi‐
rectly attack the Prize Bonds Scheme. It was during the course of the proceedings
and while examining the repugnance of section 294-A of the Pakistan Penal Code
that the Federal Shariat Court itself proceeded to examine the Prize Bonds Scheme
and called certain witnesses in order to ascertain its nature, philosophy and im‐
plementation. The Presidential Order No. 1 of 1980 which is Constitution (Amend‐
ment) Order, 1980, for the first time introduced on the 27th May, 1980 Chapter 3-A
of the Constitution. It is a complete Code by itself. It establishes an exclusive Court
to deal with specified matters and to grant remedies in forms specified on which
consequential action is to be taken by the authorities nominated therein. The
whole of this Chapter is to take effect notwithstanding anything contained -in the
Constitution. It permits the Federal Shariat Court and enjoins upon it to examine
law with a view to determine whether it is repugnant to the injunctions of Islam or
not. Law has been defined so as tc limit and control the general and ordinary
meaning of law and it reads a; hereunder:-

"`law' includes any custom or usage having the force of law but does not include
the Constitution, Muslim personal law, any law relating to the procedure of any
Court or Tribunal or, until the expiration of three years from the commencement
of this Chapter, any fiscal law or any law relating to the levy and collection of taxes
and fees or banking or insurance practice and procedure;"
12. By a subsequent amendment, the expression "three years" was substituted by
"ten years". A fiscal law, therefore, would not qualify, under this definition of `law'
till 26th of. May, 1989, as available for examination and challenge under Chapter 3-
A of the Constitution. A jurisdictional bar would exist.

The record of the judgment shows that the hearing of this matter took place in the
Federal Shariat Court on 30-6-1987, 19-2-1989, 20-2-1989 and 21-2-1989 i.e., at a
time when the Federal Shariat Court was not competent to examine the question
or adjudicate on it. The decision was given on 15-6-1989 when in fact the jurisdic‐
tion in the matter was possessed. May be, it is for this reason that the Federal
Shariat Court examined the scheme of Prize Bonds but did not examine whether it
was statutory fiscal instrument or not, and whether it had jurisdiction at the rele‐
vant time to examine it, recorded the finding but did not give the declaration or
the direction as it was required to do under Article 203-D(2) and 203-D(3). It only
directed that if the amendment in sections 294-A and 294-B of the: Pakistan Penal
Code is not made to conform to the decision of the Coui,~they shall cease to have
effect. No mention of the Prize Bonds Scheme was made, though the finding, as
reproduced above, was definitely recorded that it was against the Ouranic
injunctions.

13. As the matter happened to be outside the jurisdiction of the Federal Shariat
Court at the time when the matter was examined, the findings recorded in the
form in which it have been recorded with regard to the National Prize Bonds
Scheme could not be recorded. Hence, we accept the appeal only to the extent as
is being challenged before us namely, the finding recorded with regard to the
Scheme of National Prize Bonds and its being against injunctions of Islam and set
it aside. The appeal succeeds only to this extent. In other respects it is dismissed.
The amendments directed by the Federal Shariat Court in sections 294-A and 294-
B of the Pakistan Penal Code be made till 30th June, 1992.

ORDER OF THE COURT

The Court unanimously holds that-

(1)??????? Section 294-A of the Pakistan Penal Code in so far as it exempts "State
lottery or a lottery authorized by the Provincial Government" is rerpugnant to the
injunctions of Islam;

(2)??????? Section 294-B of the Pakistan Penal Code in so far as it by its generality
prohibits free trade in commodities on fair market price also, is repugnant to the
injunctions of Islam.

The Court holds by a majority that the findings and observations' recorded by the
Federal Shariat Court with regard to the National Prize Bonds Scheme being re‐
pugnant to the injunctions of Islam are without jurisdiction in view of the bar con‐
tained in Article 203-B(c) of the Constitution and sets it aside. The appeal succeeds
to this extent only.
Necessary steps be taken by the 30th of June, 1992 to give effect to this decision
failing which the aforesaid portions of sections 294-A and 294-B of the P.P.C. shall
cease to have effect.

M.BA./F-234/S

??????????? Order accordingly

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