1992 PLP 1865 (CLC)

BASHARAT AHMAD SHAIKH, J.‑‑‑Since a short point is involved in this petition for leave to appeal it is converted as appeal. Mst. Ghulam Fatima and others moved an application before the learned Sub‑Judge that the provisions "firstly" and "secondly" of clause (b) of section 14 of the Jammu and Kashmir Right of Prior Purchase Act were repugnant to Sharia'ah and prayed that this question may be referred to the High Court under section 4 of the Azad Jammu and Kashmir Enforcement of Shariat Act, 1989. The trial Court rejected the application. A revision petition was thereupon filed in the High Court which has also been dismissed. The ground on which the trial Court and, subsequently, the High Court declined to accede to the prayer for making a reference was that Full Bench of the High Court had already decided on a reference that the aforesaid provisions of the Act are repugnant to Shai'ah in Muhammad Jamil Niazi v. Nazar Hussain and others (Shariat Reference No.46 of 1990). In the order under appeal the learned Judge in the High Court has expressed the following view:‑ "A reference on these points has already been answered by the Full Bench of this Court and there is no fun of referring the same matter to the High Court again." It is correct that the High Court declared in Muhammad Jamil Niazi's case that provisions "frstly" and "secondly" mentioned above are repugnant to Shari'ah, but in that judgment the High Court failed to fix a date on which the judgment of the Court was to take effect. The relevant provision of the Enforcement of Shariat Act, 1989 is contained in subsection (5) of section 4, which is as follows:‑ "(5) If the High Court decided that any such law or provision of law is repugnant to Shari'ah it shall set out in its decision‑‑ (a) the reasons for its holding the 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: Provided ................................................. It is laid down in the above extracted provision that if the High Court decides that any provision of law is repugnant to Shari'ah it shall specify on which day the decision shall take effect. The Full Bench in Muhammad Jamil Niazi's case did not specify any date on which the decision was to take effect, The effect of failure of the High Court to fix a date as aforesaid was examined in Mst. Fatima Bi v. Farzand Ali and another (Civil Appeal No.108 of 1991, decided on 27‑4‑1992 and it was held that the result of this failure was that the judgment of the High Court was only an academic exercise having no practical effect. The Government has also not arranged to have the relevant provisions repealed. Consequently the aforesaid provisions continue to be the law of the land. Therefore, the High Court was not right in holding that there was no justification for making a reference in respect of the provisions under reference. Consequently, the order of the High Court is set aside. It is directed that the trial Court shall accept the application moved by Mst. Ghulam Fatima and others and send a reference to the Court which is competent to decide the matter. There would be no order as to costs in this Court. A.A./337/S.CA. Order accordingly.