Legal Advice on the Principles of Waqf in Pakistan

Legal Alert: Changes with the Introduction of Sindh Waqf Properties Act 2020

Josh and Mak International would like to bring to your attention the recent developments in the legal landscape concerning  waqf properties in Sindh, Pakistan.

The Sindh government has initiated the registration of various privately-managed waqf properties in the province under the newly introduced Sindh Waqf Properties Act, 2020. This action is in response to the requirements of the Financial Action Task Force (FATF), an international watchdog agency combatting money laundering and terrorist financing.

The Sindh Waqf Properties Act, 2020, aims to ensure transparency in financial affairs of privately-run waqf properties, including shrines, mosques, and religious seminaries operated via trusts throughout Sindh. The law obligates private waqf administrations to follow the government’s instructions to prevent any instances of fund concealment. The Act defines waqf properties as those permanently dedicated for religious, pious, or charitable purposes recognized by Islam.

While the government’s intentions to enhance transparency are commendable, some privately-managed waqf properties have raised concerns about the department’s need to make its own affairs more transparent before scrutinizing privately-run institutions. This is the first time that any mention of money laundering and terror financing has been addressed in relation to waqf properties.

It is essential for individuals and organizations involved in NGO activities or waqf properties in Sindh to stay updated with the changing regulations and laws. Compliance with these laws is crucial to avoid any legal implications or penalties.

At Josh and Mak International, we can provide legal guidance and assistance on matters related to NGO regulations, waqf properties, and other legal issues in Pakistan. For any legal queries or concerns, feel free to reach out to our experienced team of lawyers.

Note: This legal alert is for informational purposes only and should not be considered as legal advice. It is advisable to consult with a qualified legal professional for specific legal matters.

(2) Legal Alert: The Islamabad Capital Territory Waqf Properties Act, 2020 has been enacted to provide for the proper management, supervision, and administration of waqf properties within the territorial limits of the Islamabad Capital Territory (ICT). The Act also aims to ensure transparency and prevent money laundering and terrorist financing. Here is a summary of the key provisions of the Act:

1. Short title, extent, and commencement: The Act is called the Islamabad Capital Territory Waqf Properties Act, 2020. It extends to the Islamabad Capital Territory and comes into force immediately.
2. Definitions: The Act provides definitions for various terms, including administrator, beneficiary, beneficial owner, chief administrator, competent authorities, district courts, High Court, investigation or prosecuting agency, legal person, natural person, person, prescribed, reporting entity, waqf property, waqif, and waqf manager, among others.
3. Appointment of chief administrator of auqaf: The Chief Commissioner of ICT appoints a chief administrator of auqaf for ICT. The chief administrator is a corporation sole with perpetual succession and has administrative control over waqf properties within the ICT.
4. Appointment of administrator and deputy administrators: The Chief Commissioner may appoint administrators and deputy administrators for waqf properties to assist the chief administrator.
5. General appointments: The chief administrator determines the number, designation, and grade of officers and servants required for the purpose of the Act.
6. Registration of waqf property: Waqf managers must register waqf properties with the chief administrator in the prescribed manner. Failure to register results in the property being deemed as notified under section 8.
7. Waqf manager to obtain and hold information: Waqf managers are required to obtain and hold information related to waqf properties and update it in a timely manner.
8. Takeover of waqf property: The chief administrator may, by notification, take over the administration, control, management, and maintenance of waqf properties in certain circumstances.
9. Provision of miscellaneous information: Waqf managers are required to disclose their status as such to reporting entities before entering into a business relationship or carrying out transactions.
10. Eviction of persons wrongfully in possession of waqf properties: Unauthorized persons in possession of waqf properties may be summarily evicted by the administrator.
11. Termination of tenancy: The administrator may order the termination of lease or resumption of tenancy if the lessee or tenant breaches the lease conditions.
12. Appeal: Persons aggrieved by eviction or termination of lease may appeal to the chief administrator, whose decision shall be considered final.
13. Petition to High Court: Any person claiming interest in a waqf property may file a petition in the High Court within a specified time for a declaration regarding the property’s status.
14. No temporary injunction or order without prior notice: No court or forum shall issue an injunctive order without hearing the Government first.
15. Decision of the High Court shall be final: The decision of the High Court or the appellate decision shall be final if no appeal is preferred.
16. Scheme for administration of waqf property: The chief administrator may settle a scheme for the administration and development of certain waqf properties.
17. Sale process of waqf property: The Chief Commissioner may sell or dispose of waqf properties for specific purposes.
18. Use of waqf property and application of income therefrom: Waqf properties shall be used for the purpose they were dedicated or for any purpose recognized by Islam as religious, pious, or charitable.
19. Accounts: The chief administrator shall maintain records and accounts of waqf properties and submit an audited report to the Federal Government.
20. Rents and lease moneys in respect of waqf property: Unpaid rent or lease money may be recovered as arrears of land revenue.
21. Power of chief administrator to issue instructions: The chief administrator may issue instructions or directions to waqf managers for proper administration, control, management, and maintenance of waqf properties.
22. Provision of information to competent authorities: The chief administrator shall provide prescribed information about waqf to competent authorities in the prescribed manner.
23. Provision of information to reporting entities: The chief administrator shall provide information about waqf properties to reporting entities upon request.
24. Bar of jurisdiction: No court or authority shall have jurisdiction over matters specified in this Act.
25. Offences: Penalties are prescribed for various offenses, such as obstruction, non-compliance with information requirements, or intentionally providing false information.
26. Administrative sanctions: Penalties are imposed for failure to comply with the Act for any reason.
27. Power to make rules: The Chief Commissioner may make rules for carrying out the provisions of this Act.
28. Repeal: The Auqaf (Federal Control) Act, 1976 is repealed.
29. Continuance of actions done under the Auqaf (Federal Control) Act, 1976: Actions taken under the repealed Act shall continue in force and be deemed to have been done under this Act, as far as not inconsistent.

The Islamabad Capital Territory Waqf Properties Act, 2020 aims to ensure proper management and administration of waqf properties within the ICT, prevent misuse, and promote transparency and accountability in waqf affairs.

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Waqf, an Islamic religious institution, is a form of charitable endowment where property is dedicated for religious, pious, and charitable purposes, and its income is utilized for the benefit of the community. In Punjab, Pakistan, several laws and rules govern waqf properties, their administration, and related matters. This legal note provides an overview of key Waqf laws and rules in Punjab.

1. The Music In Muslim Shrines Act, 1942: The Music In Muslim Shrines Act, 1942, is an important piece of legislation that regulates the playing of music at Muslim shrines in Punjab. Under this act, playing of music at such shrines is subject to certain restrictions, and permissions must be obtained from the competent authorities. The act aims to ensure that the music played at shrines adheres to Islamic principles and does not violate religious norms.
2. Punjab Waqf Properties Ordinance, 1979: The Punjab Waqf Properties Ordinance, 1979, is a comprehensive law that governs waqf properties in the province. It provides for the registration, administration, and management of waqf properties. The ordinance outlines the procedure for registering waqf properties with the Chief Administrator and the responsibilities of Administrators and Deputy Administrators appointed by the Government. It also empowers the Chief Administrator to lease out waqf properties and use the derived income for religious, pious, or charitable purposes.
3. The Punjab Holy Quran (Printing And Recording) Act, 2011: The Punjab Holy Quran (Printing And Recording) Act, 2011, regulates the printing and recording of the Holy Quran in the province. It aims to maintain the sanctity and authenticity of the Quranic text. The act imposes restrictions on unauthorized printing and recording of the Quran and provides penalties for violations.

Rules:

1. The Punjab Waqf Properties (Accounts) Rules, 1982: The Punjab Waqf Properties (Accounts) Rules, 1982, prescribe the manner in which accounts of waqf properties are to be maintained. These rules require proper record-keeping, annual financial statements, and audits of waqf properties to ensure transparency and accountability in their administration.
2. The Punjab Auqaf Organization (Appointment & Conditions of Services) Rules, 1994: The Punjab Auqaf Organization (Appointment & Conditions of Services) Rules, 1994, deal with the appointment, service conditions, and other employment-related matters of the personnel working in the Punjab Auqaf Organization. These rules aim to ensure the smooth functioning of the organization responsible for managing waqf properties.
3. The Punjab Waqf Properties (Administration) Rules, 2002: The Punjab Waqf Properties (Administration) Rules, 2002, provide guidelines for the administration and management of waqf properties. These rules specify the role and responsibilities of Managers, procedures for eviction of unauthorized occupants, and the process for the termination of leases or resumption of tenancies for breach of conditions.

The Waqf laws and rules in Punjab play a crucial role in the proper administration and management of waqf properties. These legal instruments aim to uphold the sanctity of waqf properties, ensure their efficient utilization for religious and charitable purposes, and maintain transparency and accountability in their administration. Compliance with these laws and rules is essential for safeguarding the interests of the waqf community and preserving the religious and charitable objectives of waqf properties in Punjab.
style=”text-align: justify;”>The Punjab Waqf Properties Ordinance, 1979, is a legal enactment aimed at providing for the proper management and administration of waqf properties in the Province of Punjab, Pakistan. The key provisions of the ordinance are as follows:

• Short title, extent, and commencement: The ordinance may be referred to as the Punjab Waqf Properties Ordinance, 1979. It applies to the Province of Punjab and comes into force from the date notified in the official Gazette.
• Definitions: The ordinance provides definitions for various terms used in it, such as “Administrator,” “Chief Administrator,” “Government,” “prescribed,” and “waqf property.” It explains that waqf property refers to any property permanently dedicated by a person professing Islam for religious, pious, or charitable purposes.
• Appointment of Chief Administrator of Auqaf: The government appoints a Chief Administrator of Auqaf for the Province of Punjab, who is responsible for managing waqf properties. The Chief Administrator is a corporation sole with perpetual succession and subject to the general control of the government.
• Appointment of Administrators and Deputy Administrators: The government may appoint Administrators and Deputy Administrators for specific areas to assist the Chief Administrator in managing waqf properties. These appointed individuals have powers and privileges similar to the Chief Administrator.
• General Appointments: The Chief Administrator can determine the number, designation, and grade of officers and servants required for the administration of the ordinance. All employees under the ordinance are considered public servants.
• Registration of Waqf Property: Any person in charge of or exercising control over waqf property and any person creating a new waqf property must get it registered within the prescribed time and with the designated authority.
• Chief Administrator’s Authority to Take Over Waqf Property: The Chief Administrator has the authority to take over and assume the administration, control, management, and maintenance of a waqf property by issuing a notification. However, certain restrictions apply, and during the life of the person dedicating the waqf property, the Chief Administrator requires consent before taking over.
• Eviction of Unauthorized Occupants: The Administrator has the power to summarily evict any person who wrongfully occupies waqf property or uses it without entitlement.
• Termination of Lease or Resumption of Tenancy for Breach of Conditions: The Administrator can terminate a lease or resume a tenancy if a lessee or tenant breaches the conditions of the lease or tenancy.
• Appeal and Finality: Any person aggrieved by an order of eviction or termination of lease can appeal to the Chief Administrator. The Chief Administrator’s decision in appeal is considered final.
• Petition to District Court against Notification: Any person claiming an interest in a waqf property can petition the District court for a declaration related to the property within a specific time frame.
• Appeal against the Decision of District Court: An appeal can be filed with the High Court against the decision of the District court.
• District Court and High Court’s Power to Issue Temporary Injunctions: The District court and High Court do not have the power to issue temporary injunctions or orders regarding any proceeding under the ordinance.
• Chief Administrator to Prepare Scheme for Waqf Property: The Chief Administrator must prepare a scheme for the administration and development of waqf properties with a gross annual income exceeding a specified amount.
• Sale of Waqf Property and Application of Proceeds: The government may permit the Chief Administrator to sell or dispose of waqf property in certain circumstances and invest the proceeds according to government directions.
• Use of Waqf Property and Application of Income: Waqf properties are to be used for their dedicated purposes or any other purpose recognized by Islam as religious, pious, or charitable.
• Chief Administrator to Maintain Accounts: The Chief Administrator must maintain a complete record of properties under their control, accounts of income and expenditure, and an Auqaf fund.
• Recovery of Rents and Lease Moneys: The Chief Administrator can recover rents and lease moneys due for waqf properties as arrears of land revenue.
• Chief Administrator’s Powers and Instructions: The Chief Administrator has the authority to call for returns, issue instructions, and give directions regarding waqf properties.
• Bar of Jurisdiction: No civil or revenue court or any other authority has jurisdiction over matters under the ordinance unless expressly provided otherwise.
• Effect of Orders Inconsistent with the Ordinance: Actions taken under the ordinance prevail over anything inconsistent in other laws, documents, or orders.
• Protection of Actions Taken Under the Ordinance: No legal proceeding can be instituted against any person acting in good faith under the ordinance.
• Offences: Obstruction or resistance to actions taken under the ordinance is punishable, as is non-compliance with instructions issued by the Chief Administrator.
• Power to Frame Rules: The government may frame rules to implement the provisions of the ordinance.
• Continuance of Actions Under Act LVI of 1976: Actions taken under the previously repealed Auqaf (Federal Control) Act, 1976, continue to have effect, subject to compatibility with the present ordinance.

This legal note outlines the key provisions of the Punjab Waqf Properties Ordinance, 1979, and the mechanisms for the management and administration of waqf properties in the province. It aims to ensure transparency, proper utilization, and protection of waqf properties dedicated for religious, pious, or charitable purposes.

The Punjab Waqf Properties (Amendment) Act 2020 (hereinafter referred to as “the Amendment Act”) is an act further amending the Punjab Waqf Properties Ordinance, 1979 (IV of 1979) to introduce new provisions and amend existing ones related to waqf properties in the province of Punjab, Pakistan. The Amendment Act was passed by the Provincial Assembly of Punjab on September 2, 2020, and received assent from the Governor of Punjab on September 8, 2020. It was published in the Punjab Gazette (Extraordinary) on September 10, 2020.

Summary of Amendments:

1. Section 2 of the Punjab Waqf Properties Ordinance, 1979 is amended to introduce new definitions, including “authorities,” “beneficial owner,” “beneficiary,” “Collector,” “investigating or prosecuting agency,” “Manager,” and “reporting entity.”
2. Section 4 of the Ordinance is amended to allow Government to appoint Administrators and Deputy Administrators for specific areas to assist the Chief Administrator in discharging duties related to waqf properties.
3. Section 6 of the Ordinance is substituted to require every person creating a waqf or Manager to register the waqf property with the Chief Administrator within ninety days of its creation. Failure to do so may result in fines.
4. Section 7 of the Ordinance is amended to require the Chief Administrator to maintain a centralized record of all registered waqf properties and submit an annual report to the Government.
5. A new section, 7-A, is inserted to require disclosure of the status as a waqf creator or Manager before entering into business relationships or transactions with reporting entities.
6. Section 8 of the Ordinance is substituted to empower the Chief Administrator to lease out waqf properties for prescribed periods, with income used for religious, pious, or charitable purposes.
7. Section 9 of the Ordinance is substituted to outline the power of the Administrator to terminate a lease or resume a tenancy for breach of conditions and provisions for compensation.
8. New sections, 20-A and 20-B, are inserted to require the Chief Administrator and Managers to provide information about waqf properties to the authorities and reporting entities as prescribed.
9. Section 24 of the Ordinance is amended to increase penalties for contravening provisions and introduces new penalties for intentional failure to comply or provide information.
10. An extraordinary measure is introduced, requiring all existing waqf properties to be registered with the Chief Administrator within ninety days of the commencement of the Amendment Act.

The Punjab Waqf Properties (Amendment) Act 2020 brings significant changes to the administration and management of waqf properties in Punjab. The new provisions aim to enhance transparency, accountability, and regulation related to waqf properties. Those involved in waqf properties, including waqf creators, Managers, reporting entities, and authorities, should comply with the amended provisions to avoid penalties and ensure proper functioning of waqf properties in the province.

Law of Waqf as it applies to Islamabad Federal Capital territory

The Waqf Properties Act 2020 defines “waqf property” as any property permanently dedicated by a person professing Islam for religious, pious, or charitable purposes recognized by Islam, excluding property where any current benefit is claimable by the creator or their family under the Mussalman Waqf Validating Act, 1913. It includes properties historically used for recognized purposes, properties acquired with waqf property sale proceeds or income, and properties acquired through subscriptions for religious, pious, or charitable purposes. Additionally, property allotted in exchange for waqf property left in India is also deemed waqf property. The Act identifies “waqif” as the person who dedicates the waqf property and “waqf manager” as the individual(s) responsible for its day-to-day management. Furthermore, it specifies that income from boxes at shrines, offerings, subscriptions, and articles presented at shrine premises are considered waqf property. It also recognizes property permanently dedicated for purposes like mosques, Takias, Khankahs, Dargahs, and other shrines as waqf property. Lastly, the Act highlights that charitable purposes encompass relief for the poor and orphans, education, workshops, medical relief, maintenance of shrines, and the advancement of other charitable, religious, or pious objectives, or those of general public utility.

Legal Note on Islamic Banking Perspectives on Cash Waqf (Supplementary Information)

Waqf, habs, and tasbil, all refer to the devotion of property in the way of Allah (fi sabil Allah). The Waqf Properties Act 2020 defines “waqf property” as any property permanently dedicated for religious, pious, or charitable purposes recognized by Islam. All schools of fiqh agree on the legitimacy of waqf and cash-waqf, including immovable and movable properties as subjects. Creating waqf requires certain conditions to be met, such as being of sound mind, an adult, and owning the property to be transferred. The appointment of a mutawalli (trustee) and specifying beneficiaries are also necessary.

Evidence from the Sunnah supports the basis of waqf being recurring charity, and its perpetuity, irrevocability, and inalienability are vital features. The mixing of cash-waqf of Muslims and non-Muslims is permissible as long as the legal conditions for waqf creation are met. Waqf property must be administered following principles highlighted in the Hadith, ensuring perpetual dedication, specified beneficiaries, and reasonable administration.

In the context of Islamic banking, various cash-waqf models have emerged, including Waqf Shares Model, Waqf Takaful Model, Direct Model, Mobile Model, Compulsory Model, Corporate Cash Waqf Model, Deposit Product Model, and Co-Operative Model. The institution of waqf and the creation of movable cash-waqf have experienced significant revival worldwide in Muslim-majority and minority countries. These models have been practiced in numerous countries and international organizations, contributing to the advancement of charitable, religious, and pious objectives within Islamic finance.

Legal Note on Creation and Completion of Waqf

According to Abu Hanifa’s tradition, waqf is the detention of a specific thing in the ownership of the waqif (appropriator), with the profits or usufruct being devoted to charity for the benefit of the poor or other good causes. The waqif, the person creating the waqf, must be a Muslim, of sound mind, and the owner of the property. A waqf can be created through dedication, a will, during illness, or by user.

Under Sunni law, a waqf is completed by a mere declaration of endowment by the owner, while under Shia law, possession of the waqf property must be given to either the mutawalli (superintendent) or the first beneficiary for completion. The waqf can be made in favor of the waqif himself, the waqif’s descendants, family, or the public.

A mutawalli, the superintendent or manager of the waqf property, can be appointed by the waqif, the executor, or through a court order. The mutawalli must be Muslim, of sound mind, and of the age of majority. The waqif may also constitute himself the first mutawalli, and in such a case, transfer of possession is not necessary.

The mutawalli can be removed by the court from his office due to corruption or mental disorder. In Pakistani law, a waqf can be void for uncertainty if the object of the waqf is not certain. However, if a charitable intention is clearly expressed in the waqf instrument, mere vagueness or uncertainty in the instrument will not lead to the failure of the waqf, as established in the case of Ghulam Shabbir v. Mst. Nur Begum P.L.D. 1977 S 75.

Commentary on the Law of Waqf in Pakistan:

The cases presented below highlight various legal aspects and issues related to the law of Waqf in Pakistan.

In the first case (PLJ 1996 Lahore 1505), the court examines the legality of a Waqf where the waqif reserved income for herself during her lifetime, with the majority of the income to be used for religious and charitable purposes after her death. The court clarifies that the waqif is covered by Explanation-6, which allows for the entire income to be used for religious and charitable purposes.

In the second case (PLJ 1991 SC 287 and PLD 1969 SC 223), the court addresses the question of whether a Waqf was created through dedication. The court concludes that there was no dedication by the owner of the property, and therefore, no Waqf under Islamic Law came into existence.

The third case (2004 MLD 532) deals with the classification of Waqf property and the distinction between a Waqf with roots in immemorial dedication and one created through a registered deed. The court determines that the conditions and limits specified in the registered Waqf deed prevail over any conflicting notifications.

The fourth case (PLJ 1991 Lahore 122) revolves around the assumption of administrative control and management of Waqf property. The court emphasizes that the transfer of property to the Auqaf Department is in the public interest and not subject to denotification.

The fifth case (PLJ 1996 Lahore 1505) examines the completion of a Waqf and the necessity of giving the date of the Waqfnama in the notification. The court rules that the property vested in the Auqaf Department upon the waqif’s death, and the notification of takeover was a mere formality.

The sixth case (PLJ 1996 Lahore 1074) focuses on the onus of proving the validity of a Waqf deed. The court finds no evidence to prove that the Waqf deed is forged and fake, accepting the appeal.

The seventh case (PLJ 1991 SC 287 and PLD 1969 SC 223) reiterates that there was no dedication by the owner of the property, and, therefore, no Waqf came into existence.

The eighth case (PLJ 1996 Lahore 1505) centers on the conduct of Waqf and its effect, emphasizing that once a Waqf is created, the property vests in Almighty Allah, and the owner cannot convert it into personal property.

These cases provide valuable insights into the legal intricacies and principles governing the establishment, administration, and control of Waqf properties in Pakistan.

History of the Waqfs’ Legal Regime in Pakistan

Waqf, a significant legal institution in the Islamic world, has played a crucial role in financing public services and supporting various aspects of religious and social life among Muslims. It has been utilized for providing welfare services and has encompassed both private and public functions. The term “waqf” is challenging to translate into a single English word due to its diverse meanings, sometimes referred to as a ‘charitable trust’ and other times as an ‘endowment’ with private dimensions resembling a ‘will’ or ‘settlement.’

Throughout the history of Islam, waqf has been instrumental in financing and managing essential public services, including mosques, schools, hospitals, highways, bridges, markets, and inns. Its unique nature as a legal institution makes it difficult to categorize, as it covers a wide range of functions spread across private and public spheres.

Two main types of awqāf can be identified: private/family and public/charitable. However, the boundaries between the two often blur as even private waqf ultimately benefits the poor or public services. The state has emerged as a contender to waqf over time, gradually taking over its functions and attempting to regulate it to establish its monopoly over its citizens.

In Pakistan, the regulatory framework for awqāf has witnessed changes since the late 1950s, with the state assuming control over public awqāf and challenging the legitimacy of private awqāf, thereby depriving them of tax benefits. This has led to the bureaucratization of existing awqāf, impacting their efficiency, and discouraging the establishment of new ones, except those serving religious purposes like mosques, shrines, and graveyards. The state’s intervention has had implications for the management and growth of waqf in the country.

The regulatory regime in Pakistan has undergone significant changes, shifting from minimal state intervention during the colonial era to absolute state control through different phases of modernization, nationalization, and Islamization under Ayub Khan, ZA Bhutto, and Zia ul-Haq, respectively. This transformation was driven by the unique political and economic contexts in Pakistan, particularly the influence of massive landholdings held as religious endowments by pirs (holy men) and sajjadahnashins (shrine holders). These endowments not only wielded religious and economic power but also translated into significant political influence by providing a vote bank to influential individuals from rural areas.

During the British colonial period, educated urban elites advocated for state regulation of religious endowments. However, the colonial administrators were cautious as they feared that any interference in religious affairs might lead to mass agitation among Muslims. As a result, state regulation during this period was limited to loose oversight by the courts. The Wakf Act of 1923 required the submission of endowment details and annual accounts but did not impose significant official supervision.

To avoid direct interference, the colonial administrators delegated the authority to regulate endowments to provincial legislatures. Thus, various provincial legislatures established separate public bodies with wider administrative powers to supervise endowments. Notably, no provincial legislation regarding awqāf was enacted in the Muslim-majority province of Punjab during colonial times.

After the creation of Pakistan in 1947, the Punjab Muslim Auqaf Act of 1951 was passed to govern the proper administration of Muslim endowments in Punjab. This Act established a Board with limited supervisory powers over awqāf. The Board’s main functions included registering awqāf, conducting inquiries into their administration, and appointing mutawallis (administrators) to manage them.

The regulation of awqāf in Pakistan saw significant changes over the years. The first major shift occurred after the military coup led by Ayub Khan in October 1958. The military regime introduced the West Pakistan Waqf Properties Ordinance 1959 and the West Pakistan Waqf Properties Rules of 1960 to curtail the powers of pirs and sajjadahnashins and regulate religious endowments under state control. The aim was to address concerns of exploitation by administrators, replacing their authority with that of an Awqāf Administrator, a state official.

The centralization of awqāf aligned with the State’s social and economic objectives, including controlling religious elements associated with awqāf, accessing their financial resources, and denying autonomy to civil society. This policy challenged the influential position of shrine-saints (pirs) in Pakistan, a power religiously legitimized.

Following Bhutto’s time, nationalized endowments were initially organized on a provincial level, but later, they came under the direct control of the Central Government. The Awqaf Federal Control Act 1976 federalized all Provincial Awqaf Departments; however, power was returned to provinces in 1979 by the Awqaf Federal Repeal Ordinance 1979. This granted provincial Awqaf Administrators complete control over awqāf, making them legally unanswerable in court.

Under Zia ul-Haq’s military regime, four Waqf Ordinances were promulgated in 1979 for Punjab, Sindh, North West Frontier Province, and Baluchistan. Provincial Awqaf Departments were tasked with administration and control of waqf properties to ensure better management, improved religious services, appropriate usage of incomes, and enhanced religious education.

In Punjab, the Awqaf Department manages numerous shrines, mosques, and properties, including a hospital and dispensaries. The department in Sindh controls various shrines, mosques, and properties, including acres of land and various units like shops, houses, flats, and plots.

Historical Misappropriation of Waqf Properties by Awqaf Departments in Pakistan

The state’s regulation of awqāf in Pakistan has resulted in institutionalized corruption, leading to the misappropriation of waqf properties. Several reported judgments illustrate this issue, where officials of Awqaf Departments have unlawfully seized waqf properties for personal gain.

In the case of Malik Aslam Parveez v Province of Punjab, the Chief Administrator Auqaf unlawfully took control of waqf land, dividing it into plots and leasing them to individuals for 99 years at a nominal rent, in violation of the West Pakistan Waqf Properties Ordinance 1979. The court found no reasonable justification for such actions and declared them unauthorized.

Similarly, in Maulana Maqsood Anwar v Chief Administrator Auqaf, waqf land intended for Muslim education was unscrupulously taken over by the Chief Administrator through purported lease deeds for 99 years at an inadequate rent. The Chief Administrator benefited from this transaction by leasing a portion of the land to himself. The court ordered the repossession of the land.

In another case, the Chief Administrator misappropriated waqf land by granting an excessive long lease to the employees of the Auqaf department. The court held such actions to be without lawful authority.

Furthermore, in Muhammad Hashim v Chief Administrator Auqaf Punjab, Lahore, waqf land dedicated for religious and charitable purposes was leased for a petrol pump, contrary to the donor’s intentions. The lease duration and rate were not in accordance with the law, and the land’s commercial use did not align with its religious purpose. The court ruled that the lease was invalid and emphasized that waqf property must be used for religious or related educational purposes.

These reported judgments reveal the abuse of power and negligence in the administration of waqf properties by Awqaf Departments, undermining the intended religious and charitable purposes. Legal reforms are necessary to address and prevent such misappropriation and to ensure the efficient and lawful use of waqf properties in Pakistan.

The reported case of Abdur Rehman v Municipal Committee Shujjabad exposes the corruption and misuse of waqf properties by the state bureaucracy. The Municipal Committee vacated public school buildings to construct shopping centers, allegedly for the benefit of certain individuals seeking personal gains. The court ruled that converting a welfare institute, functioning as a school for the past 50 years, into a commercial venture violated the public purpose for which the land was meant.

This case reflects only a glimpse of the extensive corruption prevailing within the state bureaucracy responsible for administering awqāf. Numerous reported judgments highlight the mismanagement and abuse of waqf properties by state officials. The cases involve disputes over organizational and administrative arrangements of waqf properties, the powers of Chief Administrators of Awqaf, and the rights of leaseholders.

A significant issue highlighted in these judgments is the unauthorized conversion of waqf properties for personal use by state officials. The Lahore High Court, in one such case, clarified that while the Chief Administrator is authorized to take over and administer waqf properties under the West Pakistan Waqf Properties Ordinance 1979, they cannot convert such properties for their personal benefit.

These cases underscore the urgent need for comprehensive legal reforms to prevent corruption and ensure the appropriate use of waqf properties for their intended public and charitable purposes. The state must take stringent measures to curb corruption within the bureaucracy and safeguard waqf properties for the benefit of the society they are meant to serve.