1990 PLP 2207 (MLD)

This revision petition is directed against the judgment of Additional District Judge, Abbottabad dated 22‑6‑1989 who while maintaining and confirming the judgment and decree of the Civil Judge‑III, Abbottabad dated 31‑1‑1989 has dismissed the appeal of the petitioner in limine.

2. The facts of the case arc that under the Court decree vide Mutation No.729, dated 13‑7‑1986 the suit land was transferred to the Principal, Pakistan International Public School, Abbottabad. The plaintiff‑petitioner filed pre- emption suit in which he challenged the alienation of the suit land in favour of Principal Pakistan International Public School Abbottabad, on various grounds, one of which was that he was `khata sharik' in the suit land. The respondent defendant namely, Ejaz Akbar Principal Pakistan International Public School Abbottabad contested the suit and filed written statement on all the points raised m the plaint. The file would show that number of applications were filed by the plaintiff‑petitioner on which issues were framed and lists of witnesses were also filed by the parties and the case was fixed for recording of evidence of the petitioner. The various order sheets would show that upto 22‑1‑1989 no evidence could be recorded nor any effective proceedings took place, when on that very date the defendant‑respondent submitted an application with which Notification No.18978/Rev. V/M‑232, dated 27‑11‑1988 was attached. Under the above notification the suit property was exempted from pre‑emption by the Government of N.‑W.F.P. In view of the aforementioned Notification the learned trial Court was of the view that the suit of the plaintiff‑petitioner has become infructuous and deserves dismissal. But before dismissing the suit of the plaintiff‑petitioner he heard certain objections raised by the plaintiff‑petitioner and the learned trial Court after dealing with those objections came to the conclusion that the notification is neither un Islamic nor collusive. The learned trial Court was also of the view that if the plaintiff wants to challenge the notification on the ground that it is against Qur'an and Sunnah then he should approach the Federal Shariat Court which is the proper forum for the purpose. The learned trial Court also stated in the judgment that the notification is not collusive because the plaintiff petitioner has submitted a copy of the representation alongwith the replication who has made representation to the authority before the afore‑mentioned notification was issued and the plaintiff had actively participated in the proceedings before the Authority, but his representation was turned down and the said notification was issued on 27‑11‑1988. Accordingly all the objections of the plaintiff‑petitioner were over‑ruled and his suit was declared as infructuous on account of the notification issued by the Government of N.‑W.F.P. exempting the suit land from pre‑emption.

3. I have heard Oazi Abdur Rashid, Advocate and Kh.Abdur Rashid, Advocate learned counsel for the petitioner as also Ch. Ahmad Ahsan, Advocate' assisted by Farakh Jawad Panni, Advocate for the respondent and have perused the record.

4. Learned counsel for the petitioner submitted that under section 29 of the N.‑W.F.P. Pre‑emption Act, 1987 the Provincial Government is competent only to exempt those transactions which arc in public interest. They further contended that the notification exempting the instant sale 'transaction from pre‑emption is ultra vires and is repugnant to the injunction of Qur'an and Sunnah as already held so in the Judgment of the Supreme Court reported as P L D 1986 S C: 3

60. They submitted that the omission of public interest in the said notification is deliberate because if the public interest was mentioned and at the same time the notification says that it is for private Institutions there would have been obvious contradiction in the said notification. It is further submitted that section 29 is subject to all pervasive of section 3 of Pre‑emption Act, 1987 which means that if section 29 is not in accordance with Our'an and Sunnah, the Court is not bound by it. They also submitted that the said notification is strictly in accordance with Section 7(2) of the Repealed Act of N.‑W.F.P. Pre‑emptibn Act, 1950 which has been declared by the Supreme Court of Pakistan as against Qur'an and Sunnah as laid down in P L D 1980 S C

360. They quoted case law in support of their contentions and also referred to certain Articles of the Constitution of Islamic Republic of Pakistan and Finally contended that this Court while exercising its revisional jurisdiction can declare section 29 of the New Act as repugnant to Qur'an and Sunnah and finally requested for the acceptance of the revision petition.

5. On the other hand the learned counsel for the respondent submitted that mutation is not in the name of particular person but the vendee, as entered in the mutation, is International Public School, Abbottabad. He submitted that it is not in the name of the Principal but in the name of the Institution. Learned counsel for the respondent further submitted that the notification exempting the land from pre‑emption is issued under section 29 of the Act. He submitted that under section 29 of the New Act specific purpose has been mentioned whereas in the N.‑W.F.P. Pre‑emption Act, 1950 in section 7(2) there is no mention of public interest. He submitted that in the notification in question no language of section 7(2) of the Old Act has been used. He further submitted that section 3 of the N. W.F.P. Pre‑emption Act, 1987 interprets the preamble and does not say that section 29 of this Act is against Qur'an and Sunnah. He also referred to eertaitt Articles of the Constitution of Islamic Republic of Pakistan and submitted that under its revisional jurisdiction this Court cannot sit as a Constitutional Court or exercise the power of Federal Shariat Court to declare section 29 of the New Act as repugnant to Our'an and Sunnah. He made a submission that the two Courts below had arrived at a concurrent finding and this Court will see whether the notification which has been issued under section 29 of the New Act has exempted the suit land from Pre‑emption. And he finally requested that the revision petition may be dismissed and the" findings of the learned lower Courts be maintained

6. After hearing the arguments of the learned counsel for both the parties; as also the perusal of the record I am of the considered opinion that this Court has got no jurisdiction to declare section 29 of the N.‑W.F.P. Pre‑emption Act, 1987 as against Qur'an and Sunnah because it is the function of the Federal Shariat Court as declared under Articles 203‑A, 203‑D and" 203‑G of the Constitution of Islamic Republic of Pakistan. For the sake of convenience Articles 203‑D(1) and 203‑G of the Constitution of Islamic Republic of Pakistan arc reproduced below:‑ "203‑D(1). The Court may, `either of its own motion' or on the petition of a citizen of Pakistan or the Federal Government or a Provincial Government, examine and decide the question whether or not any law or provision of law is repugnant to the Injunctions of Islam, as laid down in the Holy Qur'an and Sunnah of the Holy Prophet, hereinafter referred to as the Injunctions of Islam." "203‑G. Save as provided in Article 203‑F, no Court or tribunal, including the Supreme Court and a High Court, shall entertain any proceedings or exercise any power of jurisdiction in respect of any matter within the power of jurisdiction of the Court."

7. So far as the factual side is concerned the notification dated 27‑11‑1988 has mentioned section 29 of the N.‑W.F.P. Pre‑emption Act, 1987 which is reproduced as follows:‑ "No.18978/Rev:V/M‑232.‑‑In exercise of the powers conferred by section 29 of the North‑West Frontier Province Pre‑emption Act, 1987, the Government of North‑West Frontier Province, is pleased to declare that no right of pre‑emption shall exist with respect to the landed property purchased vide Mutation No.729, dated 13th July, 1986, village Jhangi, Tehsil and District Abbottabad measuring 108 Kanals for the construction of Private School named `International Public School Abbottabad', which could be utilized for construction of the School Building, Hostels and Playgrounds. This Notification shall also apply to all suits pending on the date of publication of this Notification in respect of the said property but shall not effect the decrees already obtained by Pre‑emption prior to such date." No doubt under the above quoted notification the words `Public Interest' have not been used but by mentioning section 29 of the Act would show that it is for public interest and the notification says that the purchase of 108 kanals by the International Public School Abbottabad is for the construction of Private School which could be utilized for the construction of the School Building, Hostel and Playgrounds. So, in this case the `public interest' is explained in the afore mentioned notification.

8. The two learned lower Courts have by writing elaborate judgments discussed all the points raised by the learned counsel for the petitioner and have taken into account the said notification and have come to the conclusion that the suit of the plaintiff‑petitioner in view of the notification has become infructuous. The finding of the learned two Courts below does not suffer from any lack of jurisdiction or misreading/non‑reading of evidence. Therefore, this Court will not interfere with the concurrent finding arrived at by the two Courts below.

9. Resultantly finding this revision petition without any merit it is hereby dismissed with no order as to costs.

10. However, the points of the learned counsel for the petitioner to the effect that section 29 of the New Act is against Our'an and Sunnah and should be declared as such by this Court while sitting in the revisional jurisdiction have been noted down in the body of the judgment and these points can be agitated before the Federal Shariat Court, if so advised, under section 203‑D(1) of the Constitution of the Islamic Republic of Pakistan. A.A./l 104/P Revision dismissed.