1989SCMR915 (PLP)

MUHAMMAD AFZAL ZULLAH, J.‑‑This appeal through leave of the Court, by Vendees' side in a pre‑emption suit, is directed against the judgment dated 30th April, 1983, of the Peshawar High Court; whereby petitioners' Civil Revision wherein the pre‑emption decree passed in favour of the respondent's side had been challenged, was dismissed. Leave to appeal was granted to examine the plea of miss‑reading of evidence on the question; whether, the petitioners were residents of the village in which the land in dispute is situate so as to claim exemption under section 5(c) of A the N.‑W.F.P., Pre‑emption Act, 1950. The leave granting order reads as follows:‑ "The Petitioners (appellants) purchased land measuring 3 Kanals and 19 Marlas from one Abdur Rehman. Faiz Alam respondent filed a suit to pre‑empt the sale. One of the issues (No.7‑A) was: "Whether the suit land is exempt under section 5 the N: W.F.P. Pre- emption Act"? "

2. The petitioner's counsel contends that in view of the clear evidence on the record that the petitioners were residents of the village in question, finding on Issue No.7‑A was not justified. Section 5 of the N. W.F.P. Pre‑emption Act reads as follows:‑ "

5. Property exempted from pre‑emotion.‑‑No right of pre‑emption shall exist in respect of the sale of, or the foreclosure of right to redeem: (a) ........................(b) (c) agricultural land or village immovable property, consisting of an area measuring not more than two kanals purchased by a resident of the village in which such land is situated, where he neither owns house nor a vacant site measuring more than one kanal, for constructing a house for his own occupation;" 3 On going through the relevant portion of the evidence we felt that the matter needs consideration. Leave is, therefore, granted for the said purpose." As was done at the stage of the granting of leave, we have again gone through the entire evidence with the help of the learned counsel. It appears that the concurrent findings of fact rendered against the petitioners were based on misreading of evidence on the point; whether, the appellants were residents of village Pano Dheri or of Grimary. If they were residents of the former village, they would have admittedly succeeded in their defence of exemption. It appears that an admission made by the plaintiff/respondent in his cross‑examination regarding the petitioners and their fathers being residents of village Pano Dheri, which was spread over several sentences was considered without putting them in juxta‑position. When correctly read, there is a clear admission by the respondent that the appellants were the residents of the village in question. On the other hand it also appears that the so‑called admission made by the attorney (father) of the petitioners was also misread. No doubt, he had stated that originally the family belonged to village Grimary but he had clearly stated that about half a century earlier they had migrated to the village in question and were permanently residing therein without owning any property in either village. It is true that the Vernacular/Urdu record of statement of the attorney of the appellants is in Shakasta script, he however have carefully deciphered ‑the context. There is absolutely no admission contrary to the appellants' interest. It appears that the learned Courts below could not properly deciphered the context. This having been realised, the. learned counsel for the respondent could not advance the case of the respondent/pre‑emptor any further‑‑nor could be validly rely on the so‑called concurrent findings fact which are based on misreading of evidence. He then contended that in view of the judgment of this Court in the case of Govt. of N.‑W.F.P. v. Said Kamal Shah (P L D 1986 S C 360) in Shariat Appellate Bench the concerned law having become ineffective, the appellants can no more challenge the decree passed in respondent's favour. This despite the de6sion in the case of Sardar Ali and others v. Muhammad Ali and others (P L D 1988 S C 287), is extraordinary plea. Although the relevant law became ineffective after 31st July, 1986, as declared in the judgment of the Shariat Appellate Bench, it shall continue to apply to the pending appeals in the cases like the present one as held in the latter case of Sardar Ali and others. In the light of foregoing discussion this appeal is allowed with costs throughout. As the result thereof the impugned judgments and decree are set aside. AA./M‑739/S Appeal allowed.