P L D 1989 Peshawar 45 (PLP)

‑‑S. 24(2)‑‑Enforcement of Shari'ah Ordinance (I of 1988), S.4‑‑ Dismissal of pre‑emption suit‑ ‑Pre‑emptor directed by Court to deposit 1/3rd of sale price of property in cash and furnish Bank guarantee for remaining 2/3rd by a specified date Pre‑emptor failed to comply with order of Court and consequently suit stood dismissed‑‑Order dismissing suit impugned in appeal before District Judge on the main ground that provisions of S.24 of N.‑W.F.P. Pre‑emption Act requiring cash deposit and Bank guarantee were repugnant to injunctions of Islam‑‑No oral request or an application was made to refer matter to Federal Shariat Court or High Court under the Enforcement of Shariah Ordinance, 1988‑‑Held, the Appellate Court lacked jurisdiction and was under no obligation to refer question to Federal Shariat Court or High Court. (b) Enforcement of Shari'ah Ordinance (I of 1988) ‑‑‑S.4‑‑Question whether any law relating to Muslim Personal Law was repugnant to Shariah‑‑Determination of‑‑Jurisdiction. High Court may, either of its own motion or on the petition of a citizen of 'Pakistan or the Federal Government or a Provincial Government or on a reference made to it under the first proviso to subsection (1) of S.4 of the Ordinance examine and decide the question whether or not any law relating to Muslim Personal Law, any fiscal law or any law relating to the levy and collection of taxes and fees or banking or insurance practice and procedure or any provision of such law is repugnant to Shariah. Here in pre‑emption suit pre‑emptor‑petitioner was directed to deposit l/3rd of the sale price of the property in cash and to furnish bank guarantee for the remaining 2/3rd of the sale price to the satisfaction of the Court before the next date of hearing fixed in the cases. Since pre‑emptor failed in the compliance of the orders, resultantly his suits were dismissed under section 24(2) of the N.‑W.F.P. Pre‑emption Act, 1987 by the orders dated 21‑9‑1987 and 12‑3‑1988 ,respectively where against the pre‑emptor went in appeals before the District Judge and inter alia raised the question that the provisions of section 24 of the Pre‑emption Act, 1987 requiring deposit of cash and furnishing of bank guarantee,, were repugnant to the injunctions of Quran and Sunnah and that the said provisions of law were liable to be declared void. The learned appellate Court, however, by his judgments and decrees dated 28‑6‑1988 ruled that he lacked the jurisdiction to declare a certain law un‑Islamic and that the course provided under the Shariah Ordinance for declaring a law un‑Islamic was for the High Court to examine the law suo motu or on the application of any citizen of Pakistan or when the subordinate Courts refer a matter to the High Court for decision on the application of a party but since there has neither been made an oral request nor an application was made for this purpose so as to refer the question for decision of the High Court as such he was abstaining to make any such reference. The above orders of the Courts below have been impugned in the revision petitions.

2. Learned counsel for the petitioner argued that under the Shari'ah Ordinance promulgated on 15th June, 1988 or the Revised Shari'ah Ordinance promulgated on 16th October, 1988 whenever there is to arise a question before a Court meaning a Court subordinate to the High Court that a provision of law is repugnant to Shari'ah the Court shall after its satisfaction' that the question needs consideration make a reference to the Federal Shariat Court in respect of matters falling within the jurisdiction of the said Court and if the question relates to Muslim personal law or fiscal laws the question shall be referred to the High Court for decision. However, as observed by the learned appellate Court the pre‑emptor has neither made an oral request nor an application before the Court of District Judge to refer the question for decision to the Federal Shariat Court or the High Court but had called upon the learned appellate Court itself to decide the question as such he cannot be blamed if he has abstained to decide the question for want of jurisdiction and has consequently proceeded to dismiss the appeals. Besides, the original impugned orders of the trial Court were passed on 21‑9‑1987 and 12‑3‑1988 while the Shariah Ordinances were promulgated in June and October, 1988 and, as such at the time the Courts were not placed under obligation for refer a question to the Federal Shariat Court or the High Court for decision if a certain provision of law was repugnant to the injunctions of Quran and Sunnah. Again the question for determination was to fall within the jurisdiction of the Federal Shariat Court and at then under Article 203‑D of the Constitution the said Court has to take cognizance of the matter either of its own motion or on the petition of a citizen of Pakistan or the Federal Government or the Provincial Government and the subordinate Courts were not placed under obligation thereunder to refer a question for decision pf the Federal Shariat Court.

3. In view of the aforegoing enunciation of the law points this Court finds the revision petitions bereft of merit on points of law and accordingly dismisses the same in limine. M. B. A. /671 /P Petitions dismissed.