1983 PLP 370 (CLC)

RAJA MUHAMMAD KHURSHID KHAN, ACTG. C. J This order will dispose of Civil Review Petition No. 1/M. R. of 1981.

2. The petitioners herein as defendants have been throughout, even upto this Court, unsuccessful in protecting the land, obtained by them, against a pre-emptive claim of Muhammad Ibrahim non-petitioner to this petition. The petition for leave to Appeal (No. 8!M. R. of 1981), to impugn the judgment passed by the High Court on 4-2-1981, was disallowed by me on 14-6-1981. This review petition is directed against the said order.

3. The facts of the case are sufficiently stated in the impugned judgment and need not be recapitulated here. Mr. Basharat Ahmed Sheikh, the learned counsel for the petitioners, to support the petition maintained :- "(i) that `kinship' which is one of the recognized qualifications under the Right of Prior Purchase Act, 1993 Bik. (Hereinafter to be referred as Prior Purchase Act) is alien under the Mohammedan Law and as this Court in case Azad Government v. Kashmir Timber Corporation P L D 1979 S C (A J & K) 139 expounded the law to the effect that an un-Islamic law, when challenged, is to be struck down, but this aspect having not been properly attended, the judgment suffers from an apparent error which necessitates reversal by way of review. Elabo rating the point it has been submitted that the aforesaid case, particularly in para. No. 62 of the judgment, lays down that this Court is completely obligated to declare a law as void if the same is repugnant to the teachings and requirements of Islam as set out in the Holy Qur'an and Sunnah ; (ii) that subsection (5) of section 31 of the Azad Jammu & Kashmir Interim Constitution Act, 1974 (hereinafter to be referred as Constitu tion Act), contemplates all the pre- and post-constitutional laws and an apparent incorrect interpretation of section 31(5) of the Constitu tion Act has been made by me to say that pre-constitutional laws cannot be questioned on the ground that they are violative of the requirements of Islam as set out in the Holy Qur an and Sunnah ; (iii) that Faqir Ali's case., reported as Faqir Ali v. Standard Bank Ltd. Muzaffarabad P L D 1979 S C (A J & K) 62, after the decision in Kashmir Timber Corporation's case, mentioned above, had ceased to be a good law ; and (iv) That I, sitting as Single Judge, was incompetent to review or modify the law set out by the Court in Kashmir Timber Corporation's case."

4. In the first instance it requires consideration as to whether the criticism levelled by Mr. Basharat Ahmed Sheikh is available to him as a ground for review? The argument solely turns around the interpretation of substantive part of the judgments, reported as Azad Government v. Kashmir Timber Corporation (PLD1979SC(AJ&K)139) and Faqir Ali v. Standard Bank Ltd. Muzaffarabad (PLD1979SC(AJ&K)62). According to the learned counsel a wrong interpretation has been given by me to the aforementioned first judgment to say that pre-constitutional laws, even if they are not in conformity with the dictates of Islam, shall hold the field until altered, repealed or amended by an Act of the appropriate authority. According to him under section 31(5) of the Interim Constitution Act, 1974, all laws are necessarily to be brought in conformity with the injunctions of Holy Qur'an and Sunnah and if a law is not brought so, it has to be struck down as unconstitutional.

5. The study of both the cases would show that this point has been fully dealt with in the impugned order. It, therefore, constitutes no ground for grant of a review. The petition is merely an effort to re-canvass some points arising in the earlier case. I am not prepared to re-open the case to afford a re-hearing to the learned counsel for the petitioners especially when no effect, muchless than error apparent on the face of the record, is disclosed in the impugned judgment.

6. Apart from the above, the incorrectness of a view had never been considered to be a valid ground for review petition. Correctness of view has been challenged in a case, reported as Haji Nawab Din v. Qazi Abu Saeed (1973 S C M R 143), before the Supreme Court of Pakistan seeking the review of an order. Disallowing the point it has been observed :- "We are not impressed by this contention, because, it really amounts to challenging the correctness of the view taken by this Court in the order now sought to be reviewed, and this cannot be ct ground for review."

7. This view was also accepted in Muhammad Zafarullah Khan v. Muhammad Khan and another (1975 S C M R 473). In this case it was observed :- "We have noticed these contentions but we do not propose to deal with them as a review cannot be made a pretext for rearguing the whole case. We are not prepared to re-open the question of interpretation of section 104 of the National and Provincial Assemblies (Elections) Act, 1964."

8. Same view prevailed in Ghulam Hussain v. Qadir Khan (1980 S C M R 136), in which Mr. Justice Ghulam Safdar Shah, J., observed :- "Each one of the said grounds urged by the learned counsel have been elaborately dealt with in the judgment of this Court. And consequently what the learned counsel is evidently seeking is the rehearing of the case on these points which clearly lie beyond the scope of the review application."

9. It would, thus, appear that review cannot be allowed to have re-hearing of the points already agitated and decided. In the instant case the contentions of the learned counsel have been repelled after due analysis of the legal position and even if the interpretation given by me is erroneous it cannot be regarded as an error apparent on the face of the record so as to invite interference in review jurisdiction. Both the cases, Azad Government v. Kashmir Timber Corporation and Faqir Ali v. Standard Bank Ltd., Muzffarabad mentioned above, in my view, have laid down identical law that pre-constitu tional laws until they are brought in conformity with the dictates of Islam shall hold the field.

10. I may state here that a plethora of case-law, on the subject, has been cited to make me believe that judgment suffers from errors apparent on the face of record in so far as it has upset the judgment of this Court in Kashmir Timber Corporation's case.

11. A detailed study of case-law is not necessary for the disposal of this case. The reason is simple. The point as to whether Prior Purchase Act, which creates preferential right in respondents on the basis of `kinship' with the vendor, is violative of section 31(5) of the Azad Jammu & Kashmir Interim Constitution Act, 1974, was argued at length and properly attended to in the petition for leave to appeal. The argument was repelled with the following observation:- "Mr. B. A. Sheikh, the learned counsel for the petitioner, had based his arguments on a reported case of this Court captioned 'Azad Government of The State of Jammu & Kashmir and another v. Kashmir Timber Corporation. It is reported in P L D 1979 S C (A J & K)

139. That case is distinguishable and have no similarity with the facts of the present case. In that case it was argued that section 3 of Timber Trade (Nationalization) Ordinance of 1976, which provides that `the trade of felling, extraction and conversion of trees shall only be carried on by the Government or a corporation wholly owned or controlled by the Government to the total exclusion of other persons, and the Government, or any person acting on behalf of the Government, shall not enter into any agreement with any other person for sale of trees whether standing, Celled or fallen', and which was enacted after the enforcement of the Constitution Act (hereinafter to be referred as the Constitution Act) being repugnant to the mandate of Holy Qur'an and Sunnah, is ab inhio void. On these premises of the arguments it was observed by this Court :- "It was also contended that in subsection (5) it is not stated that no law shall be made which is repugnant to the teachings and require ments of Islam but what is stated is that no law shall be repugnant to the teachings and requirements of Islam. On these premises it was argued that subsection (5) does not relate to the future laws but has reference to the existing laws. It is strange that the Constitution Act should provide for the existing laws to be brought in conformity with the teachings and requirements of Islam as set out in the Holy Qur'an and Sunnah but should leave the Legislature free to make any law in future against the teachings and requirements of Islam." It would be thus noticed that the law enunciated in that case has no relevancy to the controversy in the instant case. Unlike Timber Trade Nationalisation Ordinance, 1976, the Right of Prior Purchase Act was on the statute book even before the enforcement of the Constitution Act and the Legislature had only wished that all the pre-Legislative laws should be brought in conformity with the injunctions of Holy Qur'an and Sunnah. The Constitution Act nowhere visualizes that if these laws are not brought in conformity with the requirements of Holy Qur'an and Sunnah, they will bet deemed to be null and void. On the point I have direct authority of this Court. In a case entitled Fagir Ali v. Standard Bank Ltd. the issue which fell for determination was as to whether the interest on the loan advanced by the Bank to the appellant can be realised from him, as it is against the mandate of Holy Qur'an and Sunnah. Repelling the argument it was observed by the Court :- "We have given due consideration to the arguments addressed in this respect and our view is that the stand taken by the learned counsel for the appellant is not tenable. There can be no question that the Holy Quran and the Sunnah contain the Supreme divine law for all Muslims in Azad Kashmir as elsewhere but the whole law contained therein has not as yet been enacted as the `Law of the country' since all the commands and prohibitions contained in the Holy Quran and the Sunnah have not been codified in Azad Kashmir. According to the very definition cited by the learned counsel for the appellant the term `codify' means `A systematic collection or digest of the Laws of country, or of those relating to a particular subject'. The laws of a country would mean the laws enacted by the parliament or some other secular authority vested with such powers under the Constitution or other machinery as distinguished from divine laws which cannot termed as laws of a country unlless they are so enacted or codified." It was further observed :- "Thus unless and until the Divine Laws are brought` on the statute book through proper legislation, they cannot be regarded as codified laws of the country however desirable or even necessary it might be for a Muslim country. Our Legislature has already covered a good ground in this respect by enacting 'Azad Jammu & Kashmir Sanctity of Ramzan Act, 1971', 'Azad Jammu & Kashmir Prohibition of the Use of Intoxicants Act, 1973', 'Azad Jammu & Kashmir Prevention of Gambling (Masiri) Act, 1971' 'Azad Jammu & Kashmir Zakat Act, 1974', 'Azad Jammu & Kashmir Zakat Produce (Agriculture) Act 1974', `The Azad Jammu & Kashmir lslami Tazeerati Nifaz Act, 1974', 'Azad Jammu & Kashmir Khumar Act' and 'Azad Jammu & Kashmir Ramzan Act' etc. These Acts have teen brought on the statute book in compliance with mandate contained in subsection (5) of section 31 of the Constitution Act. These Acts are in conformity with the Holy Qur'an and the Sunnah. But so far as the Contract Act is concerned it has not been Islamised so far. Therefore the terms of a contract relating to loan is not hit by either section 31 (5) or section 48 of the Courts and Laws Code Act. Azad Jammu & Kashmir Islamic (Penal Laws Enforcement Act, 1974, is an example of such an enact ment whereby certain 'Hadoods' have been brought on the statute book. But so far as 'Riba' is concerned no such enactment has been made so far. Rather after the Courts and Laws Code of 1949, in 1959, Azad Jammu & Kashmir Adaptation of Laws Act. 1959 was passed in Azad Jammu & Kashmir whereby certain laws of Pakistan were adapted. Contract Act is one of such adapted laws which does not debar interest as a term of contract. Hence we are unable to agree to the proposition that charging of interest is legally barred in Azad Kashmir." Section 31 (5) of the Constitution Act which reads :- "No law shall be repugnant to the teachings and requirements of Islam as set out in the Holy Qur'an and Sunnah and all existing laws shall be brought in conformity with the Holy Qur'an and Sunnah." ., shows that the existing laws will remain on the statute book till they are amended or repealed to bring them at par with the requirements of the Holy No other interpretation is possible because the words intention of the law makers. It is settled that a law is to be interpreted in accordance with the intention of the Legislators and the Court should refrain to be wiser than the Law makers."

12. I have again studied the judgment passed in Kashmir Timber Corporation mentioned above. In para. 63, of the judgment it has been observed :-- "These provisions impose a prohibition against enacting laws incompatible with the principles of Islam as expounded in the Holy Qur'an and Sunnah and enjoins on all concerned to bring all the existing laws in conformity with the dictates of Islam."' The above observation, in my view, provides a complete answer to the arguments of Mr. Basharat Ahmed Sheikh that even pre-constitutional laws should be struck down if they are unconstitutional. The reading of aforementioned passage would show that law was declared to the effect that section 31 (5) of the Constitution Act imposes a total bar against enacting laws incompatible with the principles of Islam arid also enjoins on all concerned to bring all the existing laws in conformity with the disctates of Islam. The word `enjoins', in the passage, is used to show that in view of the urgency it is a wish of the law makers and not a direction with authority to bring all the existing laws in conformity with the dictates of Islam.

13. Section 51 of the Constitution Act also strengthens my view. It reads :- "Subject to the provisions of this Act, all laws which, immediately before the commencement of this Act, were in force in Azad Jammu & Kashmir shall continue in force until altered, repealed or amended by an Act of the appropriate authority." This section makes it abundantly clear that all the existing laws at the time of the enforcement of the Constitution Act, until they are altered, repealed or amended, shall remain on the statute book. In view of this provision the arguments advanced by Mr. Bashnrat Ahmed Sheikh are not available to him in support of the review petition.

14. The other points that the judgment of the Court is binding on the Single Judge ; and that `ratio decidendc' and `obiter dicta' passed by the Supreme Court are also binding on the Single Judge, therefore, lose all importance and need not be decided in this case. The review petition, therefore, merits no consideration which stands rejected. The rejection of review petition automatically causes the death of the stay order. This Judgment alongwith the file shall be sent to Deputy Registrar, Mirpur, for announcement after due notices to the concerned. S. Q. Petition rejected.