P L D 2022 Balochistan 36
Before Muhammad Hashim Khan Kakar and Nazeer Ahmed Langove, JJ
CHURCH MISSIONARY TRUST ASSOCIATION through Authorized representative -
--Petitioner
Versus FEDERATION OF PAKISTAN through Ministry of Religious Affairs, Islamabad and
others ---Respondents
Constitution Petition No. 1037 of 2021, decided on 7th September, 2021.
(a) Balochistan Protection of Communal Property of Minorities Act (XI of 2018)---
----S. 3 ---Property of minorities ---Bar on sale/transfer of---Scope ---Petitioner/Church
Missionary Trust Association challenged the Deputy Commissioner's order restraining the
revenue authorities from issuing revenue entries/documents regarding communal properties of Christian Community to anyone except the person authori sed---Validity ---Minorities,
particularly of Christian community, owned numerous properties all across the province and
various fake/fictitious groups of encroachers/land mafia having power of attorneys of Church
Missionary Trust Association and different Dioceses had been emerging from time to time
falsely claiming to be representatives of the said organisations and Christian community and asserting wrongful title and ownership in respect of the properties of community spreaded
across the province and in t hat regard a number of civil suits were pending before different
Courts ---High Court disposed of the Constitutional petition in the terms that firstly, property
of a minority community meant for its communal use should not be bought/sold/transferred by any person; secondly, every person belonging to minorities was entitled to receive
certified copies of revenue entries/document in respect of communal properties of minorities, but no one could buy the same; thirdly, Deputy Commissioner or any other authority was not
empowered to approve the transfer of communal properties of minorities; fourthly, petitioner or representative of different Dioceses could transfer/sell/buy/alienate the communal properties of minorities; fifthly, impugned order/letter was set -aside being
illegal/unlawful/void ab initio; sixthly, all judges/qazis of province were directed to decide
the fate of pending suits regarding the communal properties of minorities in the light of
provisions of Balochistan Protection of Communal Property of M inorities Act, 2018.
(b) Constitution of Pakistan ---
----Arts.20, 21, 22, 26, 27 & 36---Religious minorities, protection of---Islamic law ---Respect
for the basic rights of minorities would create a harmonious environment in the society---Such harmony would need ethical firmity in the norms of society and strong/ rigid law to
help minorities from all the flaws that emerge from inertia of the status -quo---Islamic law
granted non- Muslim communities the right to considerable autonomy of self- determination in
their internal affairs regarding education, tax collection, law and religion--- Treatment meted
out by the Holy Prophet (PBUH) to the enemies of Islam at the conquest of Makkah was
actually what Islam stood for---Constitution had made it obligatory on the Sta te to safeguard
legitimate rights and interest of minorities including their due representation in Federal/Provincial services.
(c) International Law ---
----Religious minorities, protection of--- Every State was duty bound to take necessary
measures to e nsure that the persons belonging to minorities may exercise fully/effectively all
their human rights and fundamental freedoms without any discrimination and in full equality before law ---States were required to create favourable conditions to enable minori ties to
express their characteristics and to develop their culture, language, religion, traditions and customs, except where specific practices were in violation of national law and contrary to international standards.
Muhammad Mansoor Mir for Petitioner.
Syed Iqbal Shah, Deputy Attorney General for Respondent No.1.
Syed Ayaz Zahoor for Respondents Nos.6, 7 and 9.
Shai Haq Baloch, Additional Advocate General for Official Respondents.
Date of hearing: 24th August, 2021.
JUDGMENT
MUHAMMAD HASHIM KHAN KAKAR, J .---Through this petition, the petitioner
has challenged the validity of the letter dated 3rd January, 2019, issued by the Deputy Commissioner Quetta, whereby, the Revenue Authorities are restrained from issuing revenue
entries/documents, regarding communal properties of Christian Community to anyone except
respondent No.9 i.e. Mian Abdul Latif. The letter reads as under:
"The undersigned is directed to refer to the subject captioned above and to forward a
copy of letter No. CMTA/Verification/ Abdul Latif/Quetta/01/2018 dated 02- 01-2019,
received from Ms. Ruby Barkat Massey, General Secretary for Trust and to state that
Mr. Abdul Latif son of Muhammad Sharif bearing CNIC No.91400- 0136212-5 has
been authorized/appo inted by the Trust Association for Balochistan Province.
2. In this regard, you are required to avoid issuance of Fard or any other documents in
respect of properties belonging to Church Missionary Trust Association of Pakistan
and be vigilant (sic) of unauthorized persons. Furthermore, necessary documents be issued to authorized person i.e. Mr. Abdul Latif son of Muhammad Sharif with regard
to trust properties.
3. In addition to above, the Trust Properties shall not be transferred to any private
individual until approval of competent authority or resolution passed by the body of
CMTA in this regard".
2. Admittedly, the letter in question has been issued by the De puty Commissioner,
Quetta, to protect the interests/properties of the Christian Community, which are under
threat. To protect and safeguard the interests and rights of minorities is a complex and
perplexing question which requires serious consideration.
Every country has one or more minority groups with characteristic ethnic, linguistic,
and religious identity different from that of the majority population. The respect (in the beliefs and eyes of the majority) for the basic rights of the minorities creates a harmonious
environment in the society. This harmony, however, not only needs ethical firmity in the norms of society but also a strong, rigid, and ever helping law to help minorities from all the flaws that emerge from inertia of the status -quo now and then. Like rest of the country, a
good number of people, particularly belonging to Hindu, Sikh and Christian communities are
living in this province of our beloved country and are facing a number of problems. Since
more than 95% of the population of our country is Muslim, as such, it would be appropriate to trace the history of the rights and interests of minorities in the early period of Islam. Historically, right from the conquest of Makkah, the minorities were enjoying their legitimate interests and righ ts including the right to live, property, practice of faith, freedom
of movement, vocation, association and freedom of religion and culture. While structurally speaking, Islamic law granted non- Muslim communities the right to considerable autonomy
of self- determination in their internal affairs regarding education, tax collection, law and
religion. The treatment meted out by the Holy Prophet (PBUH) to the enemies of Islam at the conquest of Makkah is actually what Islam stands for. Such practice was also followed by the
subsequent Muslim empires.
3. Similarly, under the Universal Declaration of Human Rights, the Convention on the
Prevention and Punishment of the Crime of Genocide, the International Convention on the Elimination of All Forms of Racial Discrimination, the International Convention on Civil and Political Rights, the international Covenant on Economic, Social and Cultural Rights, the Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief, and t he Convention on the Rights of the Child, it is duty of every state to
take necessary measures to ensure that the persons belonging to minorities may exercise fully and effectively all their human rights and fundamental freedoms without any discrimination and in full equality before the law. States are also required to create favorable conditions to enable persons belonging to minorities to express their characteristics and to develop their culture, language, religion, traditions and customs, except where s pecific practices are in
violation of national law and contrary to international standards.
4. Likewise, Article 24 of the Constitution guarantees protection of property rights and
Article 36 of the Constitution has made it obligatory on the State to safeguard legitimate
rights and interests of minorities including their due representation in the Federal and
Provincial Services. The Constitution provides equal rights to religious minorities and prohibits discrimination on the ground of religion, caste, cree d, gender or place of birth.
5. Undoubtedly, the minorities, particularly the religious groups of Hindus, Parsis and
Christian were living and enjoying a very peaceful life in the Province of Balochistan, and
due to tribal culture and rich traditions, they were part and parcel of the main stream society.
They, however, now are facing some threats and we have come across a number of cases, where they have been deprived of their churches, schools and crematorium/shamshan ghaat by the members of land mafia aft er joining hands with the so- called representatives of
Christian community and revenue officials. We have noticed that some of the individuals while posing themselves to be the representatives of the Church of Pakistan and different dioceses are trying to dispose of properties belonging to Christian Community, particularly in Quetta, Sibi, Chaman and other cities of Balochistan.
6. Despite above mentioned Islamic, legal and constitutional protections, the places of
worship, monasteries, seminaries, vicarage s, dharamshalas, gaoshalas, burial places,
community centers, social welfare, educational, health and recreational institutions meant for
communal use of minority communities including side buildings, vacant places, lands,
residential places or offices ann exed to the said properties are all under a continuous threat.
7. We have noticed that the minorities, particularly of Christian community own
numerous properties all across the province and various fake and fictitious groups of
encroachers and land mafia having power of attorneys of Church Missionary Trust Association and different Dioceses have been emerging from time to time falsely claiming to be representatives of the said organizations and Christian community and asserting wrongful title and ownership in respect of the properties of community spread across the province and
in this regard a number of civil suits are also pending before different Courts.
8. This Court, as protector and defender of the Constitution has an inherent duty to
ensure that the provisions of the Constitution regarding the interest/rights of minorities are enforced. In this connection, it would be appropriate to mention here regarding returning a 200- year old temple back to the local Hindu community on the directions of the then C hief
Justice of High Court of Balochistan, Justice Jamal Khan Mandokhail, who during his visit of Zhob was requested by the Hindu community for return of temple. The temple was used as a government school for 30 years but now the school has been shifted to another place. The
keys to the doors of the four- room temple building were handed over to the Hindu
community leaders by Maulana Allah Dad Kakar, the Khatib of the central mosque of Zhob in a well- attended ceremony held outside the temple. This historical event of religious
harmony was organized by a young talented Deputy Commissioner Mr. Taha, who also apologized for 70- year delay in handing over the temple to the Hindu community. This act of
grace and harmony was not only appreciated within the country but also by the international community and this news also originated in the international print and electronic media, while portraying soft image of the country.
9. Keeping in view the importance of the issue and realizing the unfortunate results of
such business on the part of land grabbers, the federal government in order to protect the properties of minorities has promulgated " THE PROTECTION OF COMMUNAL PROPERTIES OF MINORITIES ORDINANCE, 2002." and sections 3 and 5 whereof read as under:
3. Ban on sale or transfer of minority communities properties. ---(1) No property of a
minority community meant for its communal use shall be bought, sold or transferred
by any person without N.O.C. from the Federal Government:
Provided that nothing contained herein shall apply to a property bought, sold or
transferred for a Housing Scheme, meant for a minority community approved by a Provincial or Federal Government.
(2) The N.O.C. referred to in subsection (1) may be given by the Federal Government on the recommendation of the National Commission for Minorities.
5. Punishment. - Whoever buys, sells or transfers any property belonging to a minority
community meant for its communal use in violation of section 3, shall be punished with imprisonment of either descripti on which may extend to seven years and shall
also be liable to fine which not be less than one hundred thousand rupees and the sale or transfer transaction shall be of no legal effect."
10. While following the Federal Government, besides, the sister Provinces of Khyber
Pakhtunkhwa, Punjab and Sindh, the Government of Balochistan, in order to protect the rights/interests and communal properties of minorities promulgated the Balochistan Protection of Communal Property of Minorities Act, 2018 (the Act of 2018) . Sections 3 and 5
of the same read as under:
3. Ban on Sale or transfer of Minority Communities Property .---No Property of a
minority community meant for its communal use shall be bought, sold or transferred
by any person
Provided that nothing contained herein shall apply to a property bought, sold or
transferred for a Housing Scheme, meant for a minority community, approved by the
Government.
Section 5. Punishment.--- Whoever buys, sells or transfers any property belonging to a
minority community meant for its communal use in violation of section 3, shall be
punishable with imprisonment of either description which may extend to seven years and shall also be liable to fine which not be less than one hundred thousand rupees
and the sale or transfer transac tion shall have no legal effect."
11. Although such persons, involved in grabbing the properties were required to be dealt
with iron hands, yet they could not be dealt with properly due to absence of law on the subject in the Province of Balochistan, to curb this menace and to meet with the situation, as such, on the repeated directions of this Court and imposing red entries in the revenue record in respect of the communal properties belonging to the minorities, the Government has promulgated the Act of 2018 in order to protect the properties of minorities.
In such view of the matter, the petition is disposed of in the following terms.
1. No property of a minority community meant for its communal use shall be bought, sold or transferred by any person.
2. Every person belonging to minorities are entitled to receive certified copies of
revenue entries/documents in respect of properties meant for communal use of the
minorities, however, as stated above no one can buy, sell or transfer the said properties.
3. Neither the Deputy Commissioner, nor any other authority is empowered to approve
the transfer of properties meant for communal use of the minorities.
4. Neither the petitioner i.e. Church Missionary Trust Association of Pakistan, nor representative of different dioceses can transfer/ sell, buy or alienate the properties meant for the communal use of minorities.
5. The impugned letter dated 3rd January 2019, vide reference No.23-RB/Misc/2018/025, being illegal, unlawful, void ab initio and of no legal effect, is set aside.
6. All the Civil Judges/Qazis of the Province are directed to decide the fate of pending suits, regarding the communal properties of minorities in the light of provisions of The Balochistan Protection of Communal Property of Minorities Act No.XI of 2018.
The Registrar of this Court is directed to send the copies of this judgment to Senior
Member Board of Revenue, all Commissioners, Deputy Commissioners, Sub- Registrars,
Tehsildars and all the Civil Judges/Qazis of the Province, for information and necessary
action.
ZH/155/Bal. Order accordingly.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
let us know.