2017 PLP 327 (YLR)

CH. MUHAMMAD IBRAHIM ZIA, J.

These appeals by leave of the Court have been addressed against the judgment of the High Court dated 12.2.2013, whereby the case has been sent to the trial Court for fresh decision on merits.

2. The brief facts necessary for disposal of these appeals are that Manzoor Hussain, appellant, filed a suit for pre-emption on the basis of right of prior purchase in the Court of Civil Judge Dadyal on 04.09.2003 while challenging the sale-deed dated 06.08.2003. The learned trial Court, after necessary proceedings, dismissed the suit vide judgment dated 17.5.2005 being hit by section 6 of the Azad Jammu and Kashmir Right of Prior Purchase Act, 1993 (BK) (hereinafter to be referred as Prior Purchase Act). The appeal filed before the District Judge was dismissed through judgment and decree dated 12.08.2005. The learned High Court, in the second appeal, while accepting the appeal remanded the case to the trial Court for decision afresh on merits vide impugned judgment dated 12.2.2013. Both the contesting parties have preferred separate appeals challenging the validity and correctness of impugned judgment.

3. Haji Ch. Muhammad Anwar, Advocate, the learned counsel for the appellant, after narration of facts submitted that the plaintiff-appellant has filed a pre-emption suit against the sale-deed registered on 6.8.2003. The trial Court on merits of the case while recording findings on issue No.3 has concluded that the plaintiff-appellant being co-sharer has got preferential right but the suit has been dismissed on the sole ground that the pre-empted property being urban has been exempted from the operation of the right of Prior Purchase through a notification issued under section 6 of the Prior Purchase Act. The said provision at the time of execution of the sale-deed and institution of the suit was having no existence in the light of the Shariat Court's decision declaring the said provision as repugnant to the injunctions of Holy Qur'an and Sunnah. The judgment of the Shariat Court, under section 6 of the Shariat Court Act, became operative w.e.f. 5th October, 1999. However, this proposition was finally resolved by the High Court with the observation that on this ground the appellant cannot be non-suited. The learned High Court through the impugned judgment has remanded the case to the trial Court. To the extent of remand, the impugned judgment requires modification on the sole ground as on all the other issues, the trial Court has already recorded the findings in favour of the appellant which attained finality. The only proposition regarding exemption from operation of the Prior Purchase Act remains involved in the case, thus, by accepting this appeal, to the extent of remand the judgment be modified and the suit of the appellant be decreed according to the findings recorded on the said issue. He placed reliance on the cases reported as Government of N.W.F.P through Secretary, Law Department v. Malik Said Kamal Shah [PLD 1986 SC 360] and Hafiz Hasan Muhammad and 2 others v. Abdul Hameed and 2 others [PLD 1982 SC 159].

4. Conversely, Mr. Saadat Ali Kiani, Advocate, the learned counsel for the respondents and for the appellant in the counter appeal, submitted that arguments of the learned counsel for the appellant are misconceived. The learned Shariat court's judgment is only operative in relation to the direction issued by the Government to amend the law. Due to referred judgment, the law automatically will not be vanished from the statute book unless it is amended. Till the amendment, the statutory provision already existing on the statute book shall remain operative. He further submitted that law has now been changed and under section 33 of the Azad Jammu and Kashmir Pre-emption Act, 2016, the Government, even under the amended law, is empowered to exempt the property from operation of the Right of Prior Purchase. This Court has already enunciated the principle of law regarding amendments in the law. He further submitted that the impugned judgment of the High Court is incorrect as the pre-empted land is the property admittedly situate in the Municipal area which is urban property exempted from the claim of the right of prior purchase. Thus, the plaintiff-appellant has got no legal cause of action and his suit has rightly been dismissed by the trial Court as well as first appellate Court. The impugned judgment of the High Court on this point is illegal, hence, the same be recalled while restoring the judgment of the trial Court.

5. In the connected appeals titled Munshi Muhammad Qasim and others v. Zafar Sharif and others (Civil Appeals Nos. 2 and 3/2015), the legal proposition of taking effect of the judgment passed in Tanveer Hussain Shah's case was also involved. As regarding the effect of the Shariat Court's judgment, detailed reasons are going to be recorded, however, counsel for the appellant in the Munshi Muhammad Qasim's case, pressed the argument that the statutory provision declared by the Shariat Court against the injunctions of Islam shall be deemed non-existent on the statute book, therefore, the judgment in Tanveer Hussain Shah's case supra shall be applicable prospectively and not retrospectively. Hence, if the pre-empted property is proved to be within the town limits of Rawalakot, even then the appellant cannot be non-suited. He placed reliance on the cases reported as Faqir Ali v. Standard Bank Ltd. Muzaffarabad [PLD 1979 SC (AJ&K) 62] and Azad Govt. of the State of Jammu and Kashmir and others v. Kashmir Timber Corporation [PLD 1979 SC (AJ&K) 139].

6. We have considered the arguments of the learned counsel for the parties and also gone through the record made available. The material legal proposition involved in this case is effect of the Shariat Court's judgment through which the provisions of section 6 of the Prior Purchase Act have been declared repugnant to the injunctions of the Holy Qur'an and Sunnah. So far as the claimed right of pre-emption of the plaintiff-appellant is concerned, there is no controversy as the trial Court has positively recorded the findings on issue No.3 and held that plaintiff, pre-emptor being co-sharer, has got right of pre-emption but dismissed the suit on the ground that by application of provision of section 6 of the Prior Purchase Act, the sale is exempted from pre-emption regarding the land being situated in the town area. These findings have attained finality to the extent of factual proposition of pre-emption right as co-sharer, being not challenged by the defendant, vendee hence, require no further deliberation.

7. The novel proposition as emerged is the effect of the Shariat Court's judgment dated 3.6.1999 handed down in Shariat Petitions No. 16/1994 titled Tanveer Hussain Shah and others v. Azad Govt. and others No.61/1997 titled Haji Suleman Khan v. Azad Govt. and others and No.30/1998 titled Abdul Rehman Khan v. Raja Muhammad Maqbool Khan (hereinafter to be referred as Tanveer Hussain Shah's case), on the case of the appellant. According to the admitted facts, the sale of the suit property was executed on 6.8.2003, when the Azad Jammu and Kashmir Shariat Court in the Tanveer Hussain Shah's case has already declared the provision of section 6 of the Prior Purchase Act repugnant to the injunctions of Holy Qur'an and Sunnah directing therein the Government to delete the same from statute book and amend the law while making the same in conformity with the injunctions of the Holy Qur'an and Sunnah. The judgment was given effect from 5.10.1999, thus, it is clear that sale-deed of the property, the subject matter of the suit, was executed much after coming in operation the judgment of the Shariat Court. For convenience, the operative part of the Shariat Court's judgment in Tanveer Hussain Shah's case is reproduced as under:-- It will also be useful to reproduce here section 6 of the Prior Purchase Act, which has been declared as repugnant to the injunctions of Islam in Tanveer Hussain Shah's case vide judgment of the Shariat Court dated 3.6.1999 reads as under:-- "

6. No right of prior purchase in certain areas. (1) Except as may otherwise be declared no right of prior purchase shall exist within any cantonment area. (2) His Highness' Government may declare by notification in the Government Gazette that in any local area or with respect to any property or class of property or with respect to any sale or class or sales no right of prior purchase or only such limited right as His Highness' Government may specify shall exist."

8. It is also established from the record that in compliance of the Shariat Court's judgment the Government failed to take legislative measures till promulgation of Ordinance IX of 2015 dated 9.3.2015 and subsequently Act, XIV of 2016 dated 9.2.2016. Prima-facie, it appears that these legislative steps have been taken in compliance of the judgment of the Shariat Court as is mentioned in the preamble of the Ordinance which reads as under:-- "An Ordinance to bring the law relating to pre-emption in conformity with the injunctions of Islam Whereas it is expedient to modify the existing law relating to pre-emption so as to bring it in conformity with the injunctions of Islam as set out in the Holy Quran and Sunnah;" Be that as it may, however, we are concerned with the main legal proposition involved in this case i.e. the effect of the judgment of Shariat Court on the case in hand. According to the statutory provision of section 6 of the Azad Jammu and Kashmir Shariat Court Act, 1993 while declaring any provision of law repugnant to the injunctions of Holy Qur'an and Sunnah, the Shariat Court has to mention the date from which the decision shall take effect. It will be useful to reproduce here section 6 of the Shariat Court Act as under:-- "

6. Powers, jurisdiction and functions of the Court.

(1) The Court may, on the petition of a citizen of Azad Jammu and Kashmir or the Azad Jammu and Kashmir 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 Quran and the Sunnah of the Holy Prophet, hereinafter referred to as the Injunctions of Islam. (2) If the Court decides that any law or provision of law is repugnant to the Injunctions of Islam, it shall set out in its decision. (a) the reasons for its holding that opinion; and (b) the extent to which such law or provision is so repugnant and specify the day on which the decision shall take effect. (3) If any law or provision of law is held by the Court to be repugnant to the Injunctions of Islam:- (a) the President in the case of a law with respect to a matter not enumerated in Council List, shall take steps to amend the law so as to bring such law or provision into conformity with the Injunctions of Islam, and (b) such law or provision shall, to the extent to which it is held to be so repugnant, cease to have effect on the day on which the decision of the Court takes effect." (underlining is ours)

9. The phraseology of the statutory provision clearly speaks that after coming into effect the judgment of the Shariat Court, the law declared to be repugnant to the injunctions of Holy Qur'an and Sunnah shall cease to have effect. Resultantly, all the actions of exempting the property from the exercise of right of pre-emption taken by the Government while deriving powers from such provision will become in-operative. The statutory provisions of Shariat Court Act, 1993 are parimeteria to the provision of Article 203-D of the Constitution of Islamic Republic of Pakistan, 1973. The Federal Shariat Court in the case reported as Pakistan v. General Public [PLD 1988 SC 645] while interpreting the scope and effect of this provision has observed as under:-- "12.The next question relates to the remedial amendment in these provisions. During the arguments, it was at one stage thought, that once repugnancy to Islamic injunctions is found in a provision of law, there is no escape from the same "ceasing to have effect"; and, that the Government/Legislature cannot be allowed option to make necessary amendment in order to save that effect. It was, on examination, ultimately agreed and, rightly so, that consistent with the spirit of the Constitutional provisions in this behalf, the said serious consequence can be saved, by the Court permitting the amendment to be indicated in its judgment, with or without conditions. This would, however, be possible only if such amendment has positive nexus with the provision in question; and supplies the omission without which it would remain repugnant to the injunctions of Islam." While dealing with the identical proposition, the Division Bench of the Peshawar High Court in a case reported as Muhammad Iqbal and others v. Ghaunsullah Khan and others [2002 CLC 1533] has observed as follows:-- "

7. A perusal of the above quoted provision of the Constitution and the General Clauses Act would reveal that the expression "ceased to have effect" cannot be held synonymous with repeal as is envisioned by Article 264 of the Constitution and section 6 of the General Clauses Act. In the former eventuality even pending cases cannot be dealt with in accordance with the law which has been so held repugnant to the Injunctions of Islam and ceases to have effect after the date mentioned in the decision while in the latter eventuality a proceeding pending in a Court or any such right, privilege, obligation or liability, acquired, accrued or incurred under any enactment so repealed are fully protected unless a different intention appears from repealing enactment." In another case reported as Salah-ud-Din Qureshi v. Federal Land Commissioner and others [1992 CLC 2362], the Court observed as under:-- "....In Qazalbash Waqf v. Chief Land Commissioner, Punjab, Lahore and others (PLD 1990 SC 99), a judgment of the Supreme Court (Shariat Bench), the provisions of sections 4, 5, 6, 7(5), 8, 9, 10, 11 to 17 have been declared as violative of Injunction of Islam which declaration is effective from and after 23-3-1990. This writ petition is, therefore, accepted, the order dated 9-2-1980 passed by respondent No. 1 is declared illegal, without lawful authority and of no legal effect and as such set aside. In consequence all subsequent orders in pursuance thereof are quashed. There shall, however, be no order as to costs." In the case reported as Federation of Pakistan v. N.W.F.P. Government and others [PLD 1990 SC 1172] the Shariat Court appellate bench while dealing with the identical proposition of legal vacuum in view of the Shariat Court's judgment declaring the provision of law repugnant to the injunctions of the Holy Qur'an and Sunnah held that:- "...The new Ordinance incorporat-ing the provisions relating to Qisas and Diyat shall be promulgated by 5th September, 1990 and all the provisions thereof shall be enforced at the latest by 12th Rabi-ul-Awwal 1411 A.H. Accordingly, it is ordered that the decision of this Court dated 5th July, 1989, whereby the provisions declared and held therein as repugnant to the injunctions of Islam, and which was to take effect on 23rd March, 1990, would now, on the disposal of this Review Petition, shall take effect on 12th day of Rabi-ul-Awwal 1411 A.H.; on which day the said provisions to the extent they have been declared and held to be repugnant to the injunctions of Islam, shall cease to have effect. It is also held and ordered that even if the required law is not enacted and/or enforced by 12th Rabi-ul-Awwal 1411 A.H., the said provisions would nevertheless cease to have effect on 12th Rabi-ul-Awwal. In such state of vacuum, vis- -vis, the statute law on the subject, the common Islamic law/ the injunctions of Islam as contained in the Qur'an and Sunnah relating to the offence of Qatl and Jurh (hurt) shall be deemed to be the law on the subject. The Pakistan Penal Code and the Criminal Procedure Code shall then be applied mutatis mutandis, only as aforesaid. The same will be the position if an Ordinance for the law of Qisas and Diyat is enforced on or before 12th Rabi-ul-Awwal and the same lapses or otherwise becomes unenforceable due to any reason, creating a similar vaccum in the statute law on the subject. In the aforevisualised situations, the Courts, while hearing and deciding the cases of Qatl and Jurh (hurt) in accordance with common Islamic law/injunctions of Islam as contained in Qur'an and Sunnah may also seek guidance from the provisions of the aforementioned Ordinance, if it is the meanwhile, having once been enforced, had lapsed or otherwise had become un-enforceable. All these matters stand disposed of" (underlining is ours)

10. The survey of the above referred case law clearly reveals that the judgment in Tanveer Hussain Shah's case under section 6 of the Shariat Court's Act had attained finality and it shall have to take effect from the date specified in the decision. On coming into effect of the judgment of Shariat Court, the statutory provision declared against the injunctions of Holy Qur'an and Sunnah shall have to cease its effect. Either the legislature has deleted the said statutory provision from the statute book while taking legislative steps for making it in conformity with the injunctions of Holy Quran and Sunnah, in compliance of the judgment or not, but after taking effect of the judgment of the Shariat Court, such statutory provision shall have no legal status and value. We also find support from the referred judgments that even due to failure of legislature in compliance of the judgment, in the state of vacuum, the common law of Islam i.e. the injunctions of Islam as contained in the Holy Qur'an and Sunnah shall be deemed to be the law on the subject as held by the Supreme Court of Pakistan in the Federation of Pakistan's case supra.

11. In view of the above enunciated principle of law, on the strength of the statutory provision as well as the principle of law enunciated in the referred judgment, we hold that the judgment of the Shariat Court in Tanveer Hussain Shah's case had taken effect on 5.10.1999, thus the statutory provision of section 6 of the Prior Purchase Act, as was enforced earlier in the Azad Jammu and Kashmir had ceased to have its effect. Consequently, the discretionary power of the Government to exempt the property from operation of the right of pre-emption in the town area becomes in effective w.e.f. 5.10.1999. Therefore, after this date the exemption of town property notified under the provisions of section 6 of the Prior Purchase Act, ceased, hence, the pre-emption suit relating to sale of such property which took place after 5.10.1999 is maintainable.

12. So far as the argument of the counsel for the appellant in Munshi Muhammad Qasim's case is concerned, in our opinion the same is not sustainable. As discussed hereinabove, the statutory provision of section 6 of the Shariat Court Act clearly speaks that the judgment will take effect from the date specified in the judgment and not retrospectively. Moreover, there is yet another statutory provision i.e. section 51 of the Azad Jammu and Kashmir Interim Constitution Act, 1974 (hereinafter to be referred as Constitution Act) which also makes this argument in effective. Under the provision of section 51 of Constitution Act the laws enforced have been given protection and continuity till alteration, repeal or amendment by the Act of an appropriate authority. When the provision of section 51 of the Constitution Act in juxtaposition with section 6 of the Shariat Court Act, are appreciated, obviously result is that the judgment of the Shariat Court in Tanveer Hussain Shah's case has prospective effect and not the retrospective. Therefore, the argument having no force stands repelled.

13. According to the admitted facts of this case, the pre-empted sale-deed has taken place on 6.8.2003, thus, after the date of taking effect of Tanveer Hussain Shah's case i.e. 5.10.1999, the exemption of suit property from operation of right of prior purchase has ceased. The plaintiff-appellant cannot be non-suited on the ground of exemption of property from right of prior purchase, therefore, findings of the Courts below on this point are not according to law, hence, not sustainable.

14. As we have held hereinabove that factual issue relating to the right of prior purchase being co-sharer has already been resolved in favour of the plaintiff-appellant. These findings have not been challenged by the vendee, hence, attained finality. According to the pleadings of the parties there is no dispute regarding sale consideration which is admitted, however, the additional issue No.2 was framed in the trial Court regarding costs of improvements upon the pre-empted property. The trial Court on the basis of appreciation of evidence of the parties determined the improvement costs as Rs.88,000/-. The findings of facts recorded by the trial Court have not been specifically challenged by the appellant in his appeal. However, we have made appreciation of evidence in this context and found the observations of the trial Court on additional issue No.2 quite in accordance with law, therefore, the same are upheld.

15. Resultantly, the suit filed by the plaintiff-appellant has to be decreed, therefore, while accepting this appeal, setting-aside the judgments of the Courts below, the suit is decreed. The plaintiff-appellant is directed to deposit Rs.400,000/- as consideration amount along with the expenditures incurred on the sale-deed i.e. Rs.14683/-, value of the stamp papers Rs.40,000/-, and the costs of improvement Rs.88,000/-, total amount of Rs.5,42,683/- (Five Lac forty two thousand six hundred and eighty three rupees) on or before 28th June, 2016. On depositing the decreetal amount, the vendee-respondent will hand over the possession of the suit property to the plaintiff-appellant. In case of failure to deposit the amount within the stipulated period, the suit of the plaintiff-appellant shall be deemed dismissed. ZC/25/SC(AJ&K) Appeal allowed.