P L D 1989 Supreme Court 771 (PLP)

Mst. SAFIA BEGUM‑‑Petitioner versus IBRAHIM and others‑‑Respondents (For the review of judgments dated 30‑10‑88 and 26‑2‑1989 passed in C.A.No.290/88 and C.P.No.1142/88 respectively). Civil Petition for Leave to Appeal No.435‑R/1988 MUQARRAB KHAN‑‑Petitioner versus GHULAM RASOOL KHAN and others‑‑Respondents (From the judgment of High Court, Lahore dated 19‑9‑1988 passed in R.S.A. 280/83). Civil Petition for Leave to Appeal No.463‑R/1988 MUHAMMAD YASIN and others‑‑Petitioners versus KHAN MUHAMMAD and others‑‑Respondents (From judgment of Lahore High Court, Lahore dated 20‑9‑1988 passed in R.S.A. 11/1987). C. P. L. A. No.20‑R of 1989 SHER MUHAMMAD‑‑Petitioner versus MUHAMMAD HUSSAIN‑‑Respondent (From the judgment of Lahore High Court dated 15‑11‑1988 passed in C.R.279‑D/88). C. P.L.A. No.68‑R/1989 NIAMAT BIBI and 2 others‑‑Petitioners versus MUHAMMAD TUFAIL and 2 others‑‑Respondents (From the judgment of Lahore High Court, dated 4‑1 2 1988 passed in C.R.1038‑D/88). C. P. L. A. No.120‑R/1989 RASHID KHURSHID and 2 others‑‑Petitioners versus ALLAH DAD and 11 others‑‑Respondents (From the judgment/order of Lahore High Court, Multan Bench, dated 8‑10‑1988 passed in R.S.A. No.99/1988). C. P. L. A. No.188‑R/1989 SARDAR MUHAMMAD‑‑Petitioner versus Mst. Naseeran and 9 others‑‑Respondents (From the judgment of Peshawar High Court, Circuit Bench, Abbottabad, dated 6‑2‑1989 passed in C.R.No.115/88). C. P. L. A. No.215‑R/1989 KHAN MUHAMMAD and another‑‑Petitioners versus MUHAMMAD RIAZ‑‑Respondent (From the judgment of Lahore High Court, Rawalpindi Bench, dated 19‑2‑1989, passed in R.S.A. No.197/87). C. P. L. A. No. 125 of 1986 BARKAT ALI‑‑Petitioner versus BASHIR AHMAD and others‑‑Respondents (From the judgment/order of Lahore Lahore High Court, Lahore dated 2‑12‑1985 passed in C.R.No.450‑D of 1985). C. P. L. A. No.140 of 1986 BAHADAR KHAN‑‑Petitioner versus MUHAMMAD ISHAQUE‑‑Respondent (From the judgment/order of Lahore High Court, Lahore dated 30‑11‑1985 passed in Review Application No.15/C/1985). C. P. L. As. Nos.651 and 652/ 1987 MAQSOOD ALI and others‑‑Petitioners versus JAMAL‑UD‑DIN (deceased) through Mst. Fattian and others‑‑Respondents (From the judgment of Lahore High Court Multan Bench, dated 3‑6‑1987 passed in R.S.A. No.614/79). C. P.L.A. No.401/1988 BASHIR AHMAD‑‑Petitioner versus LAL KHAN and others‑‑Respondents (From the judgment/order of the Lahore High Court, Lahore dated 17‑4‑1988 passed in F.A.O. No.297/79). C. P. L. As. Nos.1134 and 1135 of 1988 SARDAR MUHAMMAD‑‑Petitioner versus IJAZUL HASAN‑‑Respondent (From the judgment/order of Lahore High Court, Lahore dated 20‑9‑1988 passed in R.S.As. Nos.139 and 140 of ?988 respectively). C. P. L. A. No.1144 of 1988 BAKHRA and others‑‑Petitioners versus ALAMA and others‑‑Respondents (From the judgment dated 24‑9‑1988 of the Lahore High Court, Lahore passed in C . R . No.173‑D /84) . C. P. L. A . No. 1200 of 1988 MUHAMMD SHARIF‑‑Petitioner versus MUHAMMAD SHARIF‑‑Respondent (From the judgment/order of Lahore High Court, Lahore dated. 5‑10‑1988 passed in F.A.O.No.115/85). C. P. L. A. No.1201 of 1988 RIAZ AHMAD KHAN‑‑Petitioner versus BASHIR AHMAD and others‑‑Respondents (From the order of Lahore High Court, Multan Bench, dated 1‑10‑1988 passed in R.S.A. No.56/88). C. Ps. L. A. Nos.1235 and 1243 to 1245 of 1988 C.P.L.A.No.1235 of 1988 MUHAMMAD BASHIR and others‑‑Petitioners versus MUHAMMAD NAWAZ and others‑‑Respondents AND C. P. L. As. Nos. 1243 to 1245 of 1988 MUHAMMAD HANIF and others‑‑Petitioners versus BAGH DIN and others‑‑Respondents (From the judgment of Lahore High Court, Lahore dated 16‑10‑1988 passed in Civil Revisions Nos. 859‑D/87 and 856‑D/87 to 858‑D/87 respectively). C. P. L. As. Nos.34 and 35 of 1989 Rana KHUSHI MUHAMMAD and others‑‑Petitioners versus SARFRAZ KHAN and others‑‑Respondents (From the judgment of Lahore High Court, Lahore dated 23‑10‑1988 passed in R.S.A.No.58/88). C. P. L. A. No.37 of 1989 ISMAIL‑‑Petitioner versus MUHAMMAD HANIF and others‑‑Respondents (From the judgment/order of Lahore High Court, Lahore dated 24‑9‑1988 passed in C.R.No.1161/83). C. P. L. A.65 of 1989 MUHAMMAD HANIF and others‑‑Petitioners versus MUHAMMAD ISHAQ and others‑‑Respondents (From the judgment/order of Lahore High Court, Lahore dated 15‑11‑1988 passed in C.R.No.1535‑D/88). C. P.L.A.No.67 of 1989 MUHAMMAD SHAH and others‑‑Petitioners versus SARDAR SHAH arid others‑‑Respondents (From the judgment of Lahore High Court, Lahore, dated 11‑10‑1988 passed in C.R.No.319‑D/87). C. P. L. As. Nos.118 and 119 of 1989 REHMAT KHAN‑‑Petitioner versus FAZAL DAD and, another‑‑Respondents (From the judgment of Lahore High Court, Lahore dated 19‑10‑1988 passed in C.R.1519 & 1520 of 1987 respectively). C. P. L. A. No.132 of 1989 RAMZAN and another‑‑Petitioners versus MUHAMMAD HANEEF and another‑‑Respondents (From the judgment of Lahore High Court, Bahawalpur Bench, dated 22‑10‑1988 passed in R.S.A. No.67/1988/BWP). C. P. L. A. No.155/1989 SAJAWAL Petitioner versus BASHIR AHMAD and others‑‑Respondents (From the judgment/order of Lahore High Court, Multan Bench, dated 23‑11‑1988 passed in C.R.No.890/1987). C. P. L. A . No. 175 of 1989 MUHAMMAD BAKHSH‑‑Petitioner versus MUHAMMAD SADIQ and another‑‑Respondents (From the judgment/order of Lahore High Court, Bahawalpur Bench, dated 7‑12‑1988 passed in R.S.A. No.39/87/BWP). C. P. L. A . No.285 of 1.989 MANAK‑‑Petitioner versus MUHAMMAD HAYAT and others‑‑Respondents (From the judgment/order of Lahore High Court, Lahore dated 6‑2‑1989 passed in C.R.No.2023‑D/87). C. P. L. A . No. 362 of 1989 Hafiz MUHAMMAD IBRAHIM‑‑Petitioner versus BASHIR AHMAD and others‑‑Respondents ((From the judgment/order of Lahore High Court, Lahore dated 30‑1‑1989 passed in C . R . No.1728‑D / 1988) . C. P. L. A. No.380 of 1989 TUFAIL MUHAMMAD‑‑Petitioner versus MANZOOR HUSSAIN and another‑‑Respondents (From the judgment/order of Lahore High Court, Lahore dated 21‑9‑1988 passed in C . R . No.1055‑D of 1981) . C. P. L. As. Nos. 449 and 450 of 1989 C.P.L.A. No.449 of 1989 SARDAR MUHAMMAD‑‑Petitioner versus MUHAMMAD BAKHSH‑‑Respondent AND C. P. L. A . No. 450 of 1989 SARDAR MUHAMMAD‑‑Petitioner versus MUHAMMAD BAKHSH and another‑‑Respondents (From the judgment bf Lahore High Court, dated 19‑2‑1989 passed in R.S.A. Nos.30 and 31 of 1988 respectively). C. P. L. A.Nos. 464 and 465 of 1989 C.P.L.A. No.464 of 1989 MUHAMMAD SARWAR and others‑‑Petitioners versus ALI BAHADUR and another‑‑Respondents C.P.L.A.No.465 of 1989 , MUHAMMAD SARWAR and others‑‑Petitioners versus MUHAMMAD ASLAM and another‑Respondents (From the judgment/order of Lahore High Court, Lahore dated 13‑2‑1989 passed in Civil Revisions Nos:1080 and 1079 of 1987 respectively). SUBA‑‑Petitioner versus FAZAL ELAHI and others‑‑Respondents (From the judgment/order of Lahore High Court, Lahore dated 19‑2‑1989 passed in Civil Revision No.205‑ D of 1989). C. P. L. A. No. 486 of 1989 SARDAR KHAN‑‑Petitioner versus MEHMOOD and another‑‑Respondents (From the judgment/order of Lahore High Court, Lahore dated 11‑3‑1989 passed in F.A.0. N o.216 of 1988). C.P.L.As. Nos. 493 to 496 of 1989 C.P.L.A. No.493 of 1989 AFTAB NAZIR and others‑‑Petitioners versus Mian MUHAMMAD SHAFI‑‑Respondent C.P.L.A. No.494 of 1989 AFTAB NAZIR and others‑‑Petitioners versus Mian MUHAMMAD SHAFI and others‑‑Respondents C.P.L.A. No.495 of 1989 AFTAB NAZIR and others‑‑Petitioners versus Mian MUHAMMAD LATIF‑‑Respondent. C.P.L.A. No.496 of 1989 AFTAB NAZIR and others‑‑Petitioners versus Mian MUHAMMAD SAEED‑‑Respondent (From the judgment of Lahore High Court, Lahore. dated 18‑1‑1989 passed in Civil Revisions Nos. 2074‑D to 2077‑D of 1988). C.P.L.A.No.516 of 1989 INAYAT and another‑‑Petitioners versus MUHAMMAD BAKHSH‑‑Respondent (From the judgment of Lahore High Court, dated 7‑3‑1989 passed in Civil Revision No.317‑D of 1989). Civil Review Petitions Nos. 80‑R/88, 20/89, C.P.L.A.Nos. 435‑R, 463‑R of 1988, C.P.L.As. Nos.20‑R, 68‑R, 120‑R, 188‑R, 215‑R of 1989, 125, 140 of 1986, 651, 652 of 1987, 401, 1134, 1135, 1144, 1200, 1201, 1235, 1243 to 1245 of 1988, 34, 35, 37, 65, 67, 118, 119, 132, 155, 175, 285, 362, 380, 449, 450, 464, 465, 484, 486, 493 to 496, 516 of 1989, decided on 4th September, 1989. Per Shafiur Rahman, J.; Muhammad Haleem, C.J., Javid Iqbal, Saad Saood Jan, Usman Ali Shah and Ali Hussain Qazilbash, JJ. agreeing‑ (a) Constitution of Pakistan (1973)‑‑ ‑‑‑Art. 203‑A to 203‑J & 2‑A‑‑Provisions of Arts.203‑A to 203‑J of the Constitution are not subordinate to Art.2‑A, Constitution of Pakistan. The jurisdiction conferred by Chapter 3‑A of Part VII of the Constitution transcends the other provisions of the Constitution. The supremacy and the pre‑eminence of the provisions of Chapter 3‑A of Part VII has been placed by Art.203‑A beyond any doubt. It is therefore, not possible on any reasoning to subordinate the provisions of this Chapter to another provision of the Constitution, viz. Article 2‑A. (b) Constitution of Pakistan (1973)‑‑ ‑‑‑Part VII, Ch.3‑A‑‑Scheme of Chapter 3‑A‑‑Challenge to the "law" or to a provision of "law"‑‑Requirements‑‑Exercise of jurisdiction is adjudication, an entirely judicial duty to be discharged in the manner prescribed in Art. 203‑D(2)‑‑Consequences to follow when Art.203‑D(2) fully complied with‑‑Effect. The expression quite often used in Chapter 3‑A of Part VII of the Constitution is "any law or provision of law". The word 'law' has been defined in this Chapter. The expression "any law or provision of law" implies law as a whole or a portion (provision or provisions) of the law‑‑a part of it: How a challenge to the law or to a provision of law is to be made is provided in clause (1) of Article 203‑D of that Chapter. What the Court is required to do when such a challenge is made or the question comes up before it is indicated in clause (1‑A) of Article 203‑D. What is to be noted in particular in this clause is that "a notice specifying the particular provisions" that appear to be repugnant is to be given with a view to afford "adequate opportunity" for placing before the Court the Government's point of view. The next stage in the exercise of the jurisdiction is the adjudication, an entirely judicial duty. It has to be discharged in the manner prescribed in clause (2) of Article 203‑D. The points to be noted in clause (2) of Art.203‑D are that in the decision apart from the reasons, there must be set out the extent to which such law or provision is so repugnant, and the day on which the decision shall take effect. After clause (2) of Article 203‑D has been fully complied with certain consequences follow, and the consequences follow as a matter of course without the intervention of the Court or any other authority. The two consequences which are enumerated are both non‑judicial, and legislative in character, one of framing a law, and the other of achieving a result akin to abrogating the law or a portion of it. These consequences are described in clause (3) of the same Article. This completes the scheme of the Chapter 3‑A, Part VII of the Constitution. (c) Constitution of Pakistan (1973)‑‑ ‑‑‑Arts. 188 & 203‑A to 203‑J‑‑Punjab Pre‑emption Act (I of 1913)‑ North‑West Frontier Province Pre‑emption Act (XIV of 1950) Land Reforms Regulation, 1972 [M.L.R. 115]‑‑Effect and scope of judgment of Supreme Court given in Said Kamal Shah's case reported as PLD 1986 SC 360 as interpreted subsequently in a number of other cases. The expression quite often used in Chapter 3‑A of Part VI: of the Constitution is "any law or provision of law". The word 'law' has been defined in this Chapter. The expression "any law or provision of law" implies law as a whole or a portion (provision or provisions) of the law‑‑a part of it: How a challenge to the law or to a provision of law is to be made is provided in clause (1) ‑of Article 203‑D of that Chapter. What the Court is required to do when such a challenge is made or the question comes up before it is indicated in clause (1‑A) of Article 203‑D. What is to be noted in particular in this clause is that "a notice specifying the particular provisions" that appear to be repugnant is to be given with a view to afford "adequate opportunity" for placing before the Court the Government's point of view. The next stage in the exercise of the jurisdiction is the adjudication, an entirely judicial duty. It has to be discharged in the manner prescribed in clause (2) of the same Article. The points to be noted in this clause are that in the decision apart from the reasons, there must be set out the extent to which such law or provision is so repugnant, and the day on which the decision shall take effect. After clause (2) of Article 203‑D has been fully complied with certain consequences follow, and the consequences follow as a matter of course without the intervention of the Court or any other authority. The two consequences which are enumerated are both non‑judicial, and legislative in character, one of framing a law, and the other of achieving a result akin to abrogating the law or a portion of it. These consequences are described in clause (3) of the same Article. This completes the scheme of the Chapter 3‑A, Part VII of the Constitution. Said Kamal's decision conforms in all particulars to this Scheme. In that case not the whole law but certain specific provisions of the laws, the Land Reforms Regulation, the Punjab Pre‑emption Law and the N.‑W.F.P. Pre‑emption Law were brought under challenge. Notice only in respect of them was given to the Governments concerned. These are enumerated with particularity in para.103 of the judgment of Mr. Justice Muhammad Taqi Usmani, and at page 462 of judgment of one of us (Mr. Justice Shafiur Rahman). The relevant portion of Court's order in that case is expressed to be in the following words:‑‑ "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." The formal last part of the judgment of Mr. Justice Maulana Muhammad Taqi Usmani incorporated by reference as Court's order is as follows: Summarized, the following provisions of laws enforcible in Punjab were held to be repugnant to Injunctions of Islam. (i) The whole of clause 3(d) of Para 25 of Land Reforms Regulation, 1972 conferring on the tenant of the land the first right of pre‑emption; (ii) Section 15, clauses (a) and (b) with all the first three preferences of the Punjab Pre‑emption Act, conferring on the persons in order of succession, who but for such sale would be entitled on the death of the vendor to inherit the land or property sold, the right of pre‑emption; (iii) Section 15, clauses (a) and (b) preference expression 'fourthly' because a co-sharer cannot be made to rank fourth, in the matter of preference or priority; (iv) The whole of the clause (c) of section 15 of Punjab Pre‑emption Act in so far as it allows, irrespective of contiguity and co‑sharership, ownership in the Patti, estate and to a tenant or to an inferior proprietor a residual right of pre‑emption; and (v) Section 30 of the Limitation Act in so far as it allows a period of one year for filing of Pre‑emption suit. It was expressly made clear in the judgment that only those sections of the Pre‑emption Law had been examined which were specifically challenged and this did not imply that the other provisions of the Pre‑emption law were in accord with Injunctions of Islam. In other words the test of repugnancy was not applied at all to those other provisions. The effect of the decision was that as from 1‑8‑1986 the tenant, the occupancy tenant, the inferior proprietor in that capacity alone could not enforce any right of pre‑emption as they were left with none, the provisions recognizing their right ceasing to have effect. Similarly the prospective heirs of the vendors. The superiority of the claim of co‑sharer stood enhanced by deletion of other priority categories and by deletion of expression fourthly. As regards the claim based on the ownership of land in the estate or Patti, this was a very wide category and the judgment in Said Kamal's case had not the effect of effacing it in its entirety or of directing total deletion of this category. Only that part of it was declared to be repugnant to the injunctions of Islam where ownership in the estate of Patti was not coupled with contiguity or co‑sharership, a very restricted and a smaller category included within the larger‑‑a part of the whole. The whole having not been struck down, the part remains preserved. The result was that where it was contended or it could be contended that ownership in the Patti or the estate was coupled with contiguity, then such ownership in the estate or Patti continued to be a valid and available ground for pre‑empting the sale. For adjudicating this question of fact, opportunity shall be allowed to parties to amend their pleadings, where necessary or required. One thing that stands out in the Scheme of Chapter 3‑A of Part VII of the Constitution is that the Court has been given the power of applying the test of repugnancy, of giving a prospective declaration of repugnancy and of striking down prospectively 11 provision of the law under challenge or under examination. The Court has not been given any power whatsoever to legislate, to engraft its observations, findings, or declarations on the law not held to be repugnant, and otherwise allowed to hold the field. The Talabs, even if sine qua non for advancing successfully every claim based on Islamic Law of Pre‑emption, cannot be imported or engrafted into the left over statutory provisions of Pre‑emption Law rot challenged, not examined and allowed for the time being to remain intact. Pre‑emption suits have a feature which distinguishes them from all other suits. It is that a Pre‑emptor in order to succeed must have a subsisting right at three material stages, the first when sale takes place, the second when the suit is instituted and the third when the suit is decreed. It is in this background that the effect of loss of this right by repeal, abrogation or revocation of the right or otherwise wherever it lawfully takes place, is different from those in other suits. This was highlighted and fully given effect to in Supreme Court judgment in Sardar Ali's case PLD 1988 SC

287. Per Nasim Hasan Shah, J.‑‑ Undoubtedly, the Shariat Appellate Bench also observed that the declarations made above related only to those sections of the Pre‑emption Law which had been examined and which were specifically challenged and that this did not imply that the other provisions of the Pre‑emption Law were in accord with the Injunctions of Islam. Although in para.103 of the judgment of Maulana Muhammad Taqi Usmani, J. only some of the provisions were particularised, but the terms of Paras.104 and 105 show that the Court was of the opinion that the whole of the existing statutory laws on pre‑emption were against the Injunctions of Islam and, therefore, a fresh law, based on Islamic Injunctions should be framed. Thus, not even the Supreme Court can entertain any proceedings or exercise any power or jurisdiction in respect of any matter within the power or jurisdiction of the Federal Shariat Court and the Shariat Appellate Bench of the Supreme Court. Since the Shariat Appellate Bench had undoubtedly the power of declaring the entire law as invalid and has, in fact, said so, the mere fact that in doing so it has not strictly followed the prescribed procedure will not detract from the validity of the finding. Any error in this regard can only be corrected by it, in its review jurisdiction, and not by any other Court including the Supreme Court. It is not disputed that section 30 of the Punjab Pre‑emption Act which prescribed a period of one year within which suits to enforce the right of pre‑emption could be filed has been specifically found to be against the Injunctions of Islam and that the said provision of the law ceased to have effect as from 31‑7‑1986. Now, even if suits based on the right of contiguity or co‑sharership are competent and those instituted, wherein a decree before 31‑7‑1986 was not passed, continued, the question will still arise as to how such a right can be enforced today. Since it has been held in Said Kamal's case that the question of limitation in Islam is not a procedural but a substantive right, the question will arise as to what will be the requisite period .of limitation to enforce the right of co‑sharership or the right of contiguity after section 30 has ceased to have effect? Will resort be had to the Islamic Law on the subject for determining this matter because a decree in favour of the pre‑emptor can be granted only if his suit is within time. But since nothing can be engrafted into an existing law (as held by Shafiur Rahman, J) then the law which survives in its present truncated form, is not workable. Should the case be sent back for administering such a truncated law for enforcement of a claim based on co‑sharership or contiguity, even in such circumstances? I do not think so. (d) Constitution of Pakistan (1973)‑‑ ‑‑‑Art. 203‑G‑‑Jurisdiction of Supreme Court‑‑Supreme Court cannot entertain any proceedings or exercise any power or jurisdiction of the Federal Shariat Court and the Shariat Appellate Bench of the Supreme Court‑‑Shariat Appellate Bench of Supreme Court having the power of declaring the entire law as invalid, mere fact that in doing so it had not strictly followed the prescribed procedure would not detract from the validity of the finding‑‑Any error in this regard could only be corrected by Shariat Appellate Bench of Supreme Court in its review jurisdiction and not by any other Court including the Supreme Court. Ch.Qamar‑ud‑Din Khan Meo, Advocate‑on‑Record (in C. P. L. As. Nos. 651 and 652 of 1987).