P L D 1994 Lahore 13 (PLP)

The only question, calling for determination, is this Regular Second Appeal is "whether the judgment of Shariat Appellate Bench of the Supreme Court in Said Kamal's case PLD 1986 SC 360 became effective from 31st July, 1986 or 1st August, 1986" as urged by the learned counsel for the appellant.

2. The facts, briefly stated, giving rise to this regular second appeal are not much in dispute. These are that respondent No.l purchased agricultural land measuring 196 Kanals 0 Marla sitauted in Mauza Akalgarh, Tehsil Wazirabad, District Gujranwala, vide registered sale‑deed, dated 11‑3‑1973 in consideration of Rs. 1,30,

000. On 10‑12‑1974 the appellant instituted a suit for pre‑empting the above sale on the basis of superior right of pre‑emption/being owner in the estate. The learned trial Judge, on examining the evidence of the parties, held that the appellant had established the superior right of pre emption against the respondents/vendees to the extent of 85 Kanals 11 Marlas out of the suit land. In view of this, the learned trial Court partly decreed the suit vide decision, dated 31‑7‑1986. On appeal, the learned first Court of appeal came to the conclusion that in view of rule laid down in Said Kamal's case, (supra) the Punjab Pre‑emption Act, 1913 (hereinafter referred to as Act of 1913) stood obliterated from the Statute book from 31st July, 1986 and the First Court, therefore, had no jurisdiction to decree the suit. On this basis, the learned First Court of Appeal accepted the appeal, set aside the judgment and decree passed by the learned first Court and dismissed the suit. This decision is the subject‑matter of challenge in this second appeal.

3. The learned counsel for the appellant in support of this appeal, raised the following points: Firstly; that the Shariat Appellate bench of the Supreme Court in Said Kamal's case declared section 15 of Act, 1913 repugnant to the provisions of Islam and directed the appropriate legislature to bring consolidated law of pre‑emption in consonance with the principles of Muslim Law of Pre‑emtpion till 31st July, 1986. On the strength of this circumstance it was contended that the Courts below were entitled to decree the suit till 31‑7‑1986 when the Act of 1913 was in the field. Reliance was placed on Government of N: W.F.P. v. Said Kamal Shah PLD 1986 SC 360, Sardar Ali v. Muhammad Ali PLD 1988 SC 287; Ahmad v. Abdul Aziz PLD 1989 SC 771; Suo Motu Shariat Review Petition No. 1‑R of 1989: PLD 1990 SC 865, Sultan v. Habib Ahmad PLD 1990 SC 897 and Muhammad Yasin v. Khan Muhammad PLD 1990 SC 1060. Secondly; Relying upon section 34(2) of Punjab Pre‑emption Act, IX of 1991, it was argued that the judgment and decree passed by the Courts below before 1‑8‑1986 were saved and it was directed that if any proceedings were to take place pursuant to such decrees these were to be regulated by the provisions of Act of 1913. On the strength of this circumstance it was suggested that the Courts had jurisdiction to decree the suit up to 31‑7‑1986 and not afterward.

4. On the contrary, the learned counsel for the respondents submitted that the rule laid down in Said Kamal's case (supra), became effective from 31st July, 1986 and therefore, the first appellate Court was correct in coming to the conclusion that the trial Court had no jurisdiction to decree the suit filed by the appellant, on 31‑7‑1986. Reliance was placed on Said Kamal's case PLD 1986 SC 360; Kareem Bakhsh v. Abdur Rehman 1988 SCMR 1237; Razzaq Ahmad v. Muhammad Ajmal 1988 SCMR 1306; Sardar Ali v. Muhammad Ali PLD 1988 SC 287; Bashir Ahmad v. Fazal Ilahi 1989 SCMR 934; Imtiaz Ahmad v. Binya Amin 1989 SCMR 1733; Suo Motu Shariat Review Petition No.l/R of 1989: PLD 1990 SC 865; Sultan v. Habib Ahmad PLD 1990 SC 897, Muhammad Yasin v. Khan Muhammad PLD 1990 SC 1060; Massu v. United Bank Ltd. 1990 MLD 2304; Muhammad Ismail v. Sakina Bibi PLD 1991 Lah. 60, Rozi Khan v. Karim Shah 1992 SCMR 445 and Muhammad Sharif v. Muhammad Sharif 1992 SCMR 1129.

5. In order to answer the question noted above, it seems necessary to examine in depth Said Kamal's case. In this case Malik Said Kamal and Syed Murad Shah had filed petition under Article 203‑B of the Constitution/challening clauses (a), (c) and (d) of sections 5 and 7(2) of N.‑W.F.P. Pre‑emption Act (XIV of 1950). The Shariat Bench of Peshawar High Court vide its decision, dated 1‑10‑1979, accepted the petition and declared the above referred provisions as repugnant to Injunction of Islamic Law of Pre‑emption. The Government of N.‑W.F.P. filed Shariat Appeals Nos. 4 and 5 of 1979 against the above decision before Shariat Appellate Bench. Haji Sadiq Baig and Husan Pail in Shariat Appeals Nos. 5 and 2 of 1981 had challenged the provisions of para. 25(3)(d) of Land Reforms, 1972 (MLR 115) as contrary to Islamic Law of Pre‑emption. Their petitions were dismissed by the Federal Shariat Court. Against that decision they had filed the above‑noted appeals before the Shariat Appellate Bench. Mst. Khalda Adeeb and another had filed petition before the Federal Shariat Court/alleging therein that Articles 10 and 120 of the Limitation Act, were not in conformity with the provisions of Islamic Law. This petition was dismissed by the Federal Shariat Court. Feeling dissatisfied they had filed appeal before ‑ the Shariat Appellate Bench. One Ali Bakhsh appellant in Shariat Appeal No.15 of 1981 had moved the Federal Shariat Court for seeking declaration to the effect that section 15(c) of Act I of 1913 pertaining to preferential right of owner was opposed to provisions of Qur'an and Sunnah. His application was dismissed. He too filed an appeal before the Shariat Appellate, Bench. These appeals were taken together and disposed of by the Shariat Appellate Bench vide celebrated judgment known as Said Kamal's case, reported in P L D 1986 S C

360. The majority judgment was delivered by Mr. Justice Taqi Ahmad Usmani with whom his Lordship Mr. Justice Muhammad Afzal Zullah (the then Chairman of Shariat Appellate Bench) and Mr. Justice Pir Muhammad Karam Shah, concurred. While his Lordship Mr. Justice Shafiur Rahman and Mr. Justice M.S.H. Qureshi (as then Members of the Shariat Appellate Bench) took different view. While delivering opinion his Lordship Mr. Justice Taqi Ahmad Usmani, summed up his conclusion in following words: The order of the Court was expressed in following words; "We while agreeing with the reasoning in the judgment of Shafiur Rahman, J., that the Federal Shariat Court had the jurisdiction to entertain, adjudicate and decide the petitions out of which these appeals had arisen, order accordingly. On merits, following the majority point of view, Appeals Nos. 4 and 5 of 1979 are dismissed and all other appeals are allowed in terms of the formal last part of the judgment of Maulana Muhammad Taqi Usmani, J. If possible a consolidated law of pre‑emption be enacted accordingly till 31‑7‑1986. There shall be no order as to costs."

6. As number of controversies cropped up out of decision of Shariat Appellate Bench in Said Kamal's case, these were examined by the Supreme Court of Pakistan in Sardar Ali's case reported as PLD 1988 SC

287. While delivering the opinion his Lordship Mr. Justice Muhammad Afzal Zullah (the then Judge of the Supreme Court) formulated the following questions arising out of Said Kamal's case: "(1) Whether a pre‑emption suit not decided by the trial Court before 31st July, 1986, could be decreed after the said date? (2) Whether a plaintiff, in a pre‑emption suit having failed in the trial forum and having remained unsuccessful in obtaining a decree in his favour even in appeal, revision or writ petition before 31st July, 1986, can be granted a decree by any of the higher forums where his case was pending on that date including the Supreme Court? (3) Whether a plaintiff having failed to obtain a decree in the trial forum before 31‑7‑1986 and having challenged his failure in the higher forum, his case was remanded to lower forum where it was still pending without any decree in his favour till then, can be granted a decree for the first time? (4) Whether a plaintiff having obtained a pre‑emption decree in the trial forum before 31‑7‑1986 and a challenge to such decree was pending before the Supreme Court or a lower forum in appeal, revision‑or writ petition, can (the decree‑holder) be non‑suited on the ground that the relevant law ceased to have effect on 31st July, 1986? (5) Whether a plaintiff having failed in the trial forum, had in appeal or other proceedings in a higher forum, succeeded in obtaining a decree before 31st July, 1986, can be non‑suited in the still higher forum including the Supreme Court, on the ground that the relevant law had ceased to have effect on 31st July, 1986? (6) Whether a plaintiff having obtained a decree for pre‑emtpion in the trial forum lost the case in a higher forum, when pressing his appeal, revision or writ petition, can defend the decree granted in his favour before 31st July, 1986, and seek its restoration? (7) Whether a plaintiff having obtained a decree before 31st July, 1986 a higher forum remanded the case for fresh decision will be entitled to seek its restoration regardless of the tact whether the matter is pending before the trial or any higher forum?" After an elaborate extensive, and masterly analysis his Lordship rendered the following answers to the above‑referred questions: "In the opening part of this judgment, we visualised the questions vis‑a‑vis situations which have arisen or might arise in connection with the present controversy. In the light of the discussion and view on the points involved, the answers to Questions Nos. 1 to are in the negative, while Questions Nos. 6 and 7 are answered in the affirmative. These questions and answers would, in our view, resolve most of the controversies. However, if there is a different question, on any new situation, arises in any particular case, the same would be resolved by the forum concerned in accordance with the principles discussed in this judgment and those underlying the questions posed and answers already rendered."

7. There was yet no end to. Come arising out of the decision rendered in Said. Kamal's case. The Shariat Appellate Bench, accordingly re examined the matter in Suo Motu Shariat Review Petition No. 1‑R of 1989: PLD 1990 SC 865 and came to the following conclusions:

8. From the foregoing examination of precedents and Article 203‑D(2) of the Constitution of Pakistan (1973), following principles of law are deducible:‑‑‑ (i) That the above‑referred provisions of Pre‑emption Laws were declared repugnant to Injunction of Islam and appropriate legislatures/Governments were directed to enact they laws pertaining to pre‑emption in consonance with the Injunction of Holy Qur'an and Suanah. (ii) That no Court can decree any suit of pre‑emption based upon the above‑referred Pre‑emption Laws for the first time after 31‑7‑1986. (iii) That the suits wherein decrees were passed under the old Pre‑emption Laws prior to 31‑7‑1986, the successful pre‑emptors/decree‑holders were given right to defend their decrees before the superior judicial hierarchy. It was further enjoined that any proceedings in pursuance of such decrees were to be governed by old Pre‑emption Laws. (iv) That the Shariat Appellate Bench in Said Kamal's case specified 31‑7‑1986 as a date till that the appropriate legislatures/Governments were commanded to make the laws of pre‑emption in consonance with the Injunctions of Holy Qur'an and Sunnah. From the perusal of Article 203‑D(2) it becomes clear that the decision in Said Kamal's case became effective from 31‑7‑1986. From this date the old pre emption laws stood obliterated from the Statute Book. (v) That subsection (2) of section 34 of Pre‑emption Act, 1991, in fact gives effect to rule laid down in Sardar Ali's case wherein it was enunciated that the judgments and decrees passed in pre‑emption cases before the first day of August, 1986 were valid and any further proceedings in relations to such cases shall be governed by the old pre‑emption laws. This provision has no bearing whatsoever on the date specified in Said Kamal's case.

9. Applying these principles to the facts and circumstances of this case it is clear that the suit was filed by the appellant under the Act of 1913 i.e. much before the target date; that the suit was decreed on 31‑7‑1986; that on that date the Act of 1913 had become wholly unworkable in the terms of. judgment of the Shariat Appellate Bench in PLD 1990 SC 865 and, therefore, stood erased from the Statute Book. In view of this, the learned Appellate Court was correct in coming to the conclusion that the Court had no jurisdiction to decree the suit. As a result of the above discussion this R.SA. fails and is hereby dismissed. Since the question urged before this Court was not free from difficulty, there shall be no order as to costs. AA./B‑93/L Appeal dismissed.