1990 PLP 748 (MLD)

Aziz Akbar Baig for Respondents. Date of hearing: 7th October, 1989. This Regular Second Appeal is directed against the judgment and decree, dated 7‑11‑1966, by which Malik Gulbaz Khan, Additional District Judge, Montgomery (now Sahiwal) accepting the appeal of Muhammad Shaf, plaintiff respondent No.1, decreed his suit based on custom after setting aside the judgment and decree dated 28‑10‑1965, whereby Senior Civil Judge, Montgomery, had dismissed his suit.

2. The plaintiff‑respondent No.1 had challenged the validity of two sale transactions, one embodied in Sale Mutation No.202 attested on 2‑7‑1956 in respect of 119 kanals of land situated in the area of village Mulla Hamza, Tehsil Montgomery, and the other incorporated in Sale mutation No.107 of the same date in respect of 43 kanals 17 marlas situated in the area of village Killi, Tehsil Montgomery, alleging, that his father Shamir was not competent to sell the ancestral land without legal necessity.

3. The suit was contested by the defendant‑appellant and ultimately it was dismissed by the learned Senior Civil Judge on 28‑10‑1965. The plaintiff respondent preferred an appeal and the learned Additional District Judge, Montgomery, accepting the same, set aside the judgment and decree of trial Court and decreed the suit. Aggrieved by this decision the defendant‑appellant filed this appeal.

4. At the out set the learned counsel for the defendant‑appellant, with reference to section 2‑A of Ordinance No.XIII of 1983, which in turn amended the West Pakistan Muslim Personal Law (Shariat) Application Act of 1962, which was promulgated pursuant to the decision of the Supreme Court reported as PLD 1983 SC (Shariat Appellate Bench) 272, submits that the impugned decree passed by the learned Additional District Judge, Montgomery, in favour of the plaintiff respondent stands abated and has become in-executable.

5. The learned counsel for plaintiff‑respondent No.1 concedes this legal position .but he doubts the validity of the amending Ordinance on the ground that according to the directions contained in the aforesaid judgment of the Supreme Court, the legislation was to be carried out by 30th of June, 1983 whereas the Ordinance was issued on 1‑8‑1983 and for that reason it is not enforceable.

6. Article 203‑D of 1973 Constitution empowers the Federal Shariat Court and the Appellate Bench of the Supreme Court to specify time limit for bringing about the necessary legislation in order to make the existing law to conform with the tenets of Islam but no legal consequence is indicated in that provision or any A other provision of the Constitution, if such directions are not complied with. In the absence of any specific provision to that effect, any person can, at the most, invoke the provisions of Contempt of Court Act, 1976 and do nothing more.

7. In view of the above, the legal objection raised by the learned counsel for the defendant‑appellant is upheld, the appeal is accepted and the impugned judgment and decree dated 7‑11‑1966 of the learned Additional District Judge, Montgomery, are set aside, having abated, with no order as to costs. H.B.T./J‑61/L Appeal accepted.