P L D 1988 Federal Shariat Court 35 (PLP)

Rao Muhammad Yousaf Khan Attorney for Punjab Government. S.M Abdul Wahab and S.M. Naeem for Advocate‑General Punjab. Mian Muhammad Ajmal, Assistant Advocate‑General for Advocate‑General N.W.F.P. Dates of hearing: 4th, 7th and 8th October, 1987. FAKHRUDDIN H. SHAIKH, J.‑‑Petitioner Faquir Muhammad has filed this Shariat Petition to challenge Section ‑7 of the Punjab Pre‑emption Act (I of 1913) (hereinafter referred to as the said Act) on the ground that it is repugnant to the Injunctions of Islam as laid down in Quran and Sunnah. Section 7 of the said Act is reproduced hereunder:‑ "7: Exists under certain conditions in urban immovable property.‑‑ Subject to the provisions of section 5, a right of pre‑emption shall exist in respect of urban immovable property in any town or sub‑division of a town when a custom of pre‑emption is proved to have been in existence in such town or sub‑division at the time of the commencement of this Act, and not otherwise."

2. The grievance of the petitioner is that the right of pre‑emption in respect of urban immovable property has been restricted by the above section only to those areas where a custom of pre‑emption is proved to have been in existence.

3. In order to determine the vires of Section 7, it is necessary to refer to Sections 5 and 6 of the said Act, which are as under:‑ "

5. No right of pre‑emption in respect of certain buildings.‑ No right of pre‑emption shall in respect o the sale of, or the foreclosure of a right to redeem‑‑ (a) a shop, Serai or Katra; (b) a Dharmasala, Mosque or other similar building.

6. Exists in agricultural land and village immovable property. ‑‑A right of pre‑emption shall exist in respect o agricultural land and village immovable property, but every such right shall be subject to all the provisions and limitations in this Act contained.

4. From perusal of the above three sections of the said Act it would appear that the right of pre‑emption in respect of agricultural land and village immovable property has been allowed. So far as urban immovable property is concerned, the right of pre‑emption has been made subject to proof of custom in this behalf and further shops, Serai or Katra, Dharmasala, Mosque and other similar buildings have also been excluded from the right of pre‑emption.

5. So far as the right of pre‑emption in respect of rural and urban immovable properties are concerned, Islam has not recognised any distinction. The right of pre‑emption is equally available in respect of both urban as well as immovable rural properties. This proposition of Islamic Law has been finally settled by the Shariat Appellate Bench of the Supreme Court in the case of Government of N.‑W.F.P. v. Saied Kamal Shah (P L D 1986 SC 360). The above case was heard by five learned Judges of the. Shariat Appellate Bench and it was held that the right of pre‑emption is available to three categories of pre‑emptor namely (1) co‑sharers, (2) sharer in the right of way of properties and (3) neighbours. This right has been recognised in respect of all immovable properties whether situated in rural or urban areas. However, certain exceptions have been allowed by Islam. This aspect of the matter has also been dealt with in the above case. In his Judgment Pir Karam Shah, J. of the Appellate Bench observed as under in respect of exceptions to the right of pre‑emption:‑

6. Majority of the Hon'able Judges constituting the Appellate Bench agreed with the above view. Section 7 of the said Act is, therefore, repugnant to injunctions of Islam.

7. Although section 5 of the said Act has not been challenged in the petition, but it has restricted the scope of pre‑emption in respect of certain urban immovable properties, which is subject‑matter of section 7 of the said Act. While determining the vires of the later section, the vires of the former has also to be adjudicated upon. Section 5 exempts certain properties from the right of pre‑emption although they are not so exempted accord to injunctions of Islam as observed by the Shariat Appellate Bench. We, therefore, hold that section 5 of the said Act is also repugnant to injunctions of Islam.

8. Consequently, we low this petition and direct that sections 5 and 7 of the said Act shall be amended by the Provincial Government within a period of four months from the date of this Judgment, so as to bring them in conformity Pith the Injunctions of Islam as laid down in Qur'an and Sunnah. M.B.A./383/F. Sh. Petition allowed.