P L D 1991 Supreme Court 215 (PLP)

MUHAMMAD AFZAL ZULLAH, CJ.‑‑‑Leave to appeal has been sought by a plaintiff in a suit for pre‑emption against the dismissal by the High Court, of his Civil Revision, the petitioner's suit for pre‑emption was dismissed on account of a Notification by which the right of pre‑emption of the plaintiff had ceased to exist; as the transaction sought to be pre‑empted was such that the suit for pre‑emption in that behalf could not proceed. The petitioner's appeal and revision having been dismissed he has now sought leave to appeal. The point urged in this Court is the same as was advanced before the High Court. It was noted in the impugned judgment and dealt with as follows:‑‑ "Learned counsel for the petitioner submitted under section 29 of the N.‑W.F.P. Pre‑emption Act, 1987 the Provincial Government is competent only to exempt those transactions which are in public interest. They further contended that the Notification exempting the instant sale transaction from pre‑emption is ultra vires and is repugnant to the injunction of Quran and Sunnah as already held so in the judgment of the Supreme Court reported as PLD 1986 SC

360. They submitted that the omission of public interest in the said Notification is deliberate because if the public interest was mentioned and at the same time the Notification says that it is for private institutions there would have been obvious contradictions in the said Notification. It is further submitted that section 29, is subject to all pervasive of section 3 of Pre‑emption Act, 1987 which means that if section 29, is not in accordance with Quran a Sunnah, the Court is not bound by it. They also submitted that the & notification is strictly in accordance with section 7(2) of the Repeal Act of N.‑W.F.P. Pre‑emption Act, 1950 which has been declared by the Supreme Court of Pakistan as against Quran and Sunnah as laid down PLD 1986 SC

360. They quoted case‑law in, support of their contentions and also referred to certain Articles of the Constitution of Islamic Republic of Pakistan and finally contended that this Court while exercising its revisional jurisdiction can declare section 29 of the New Act as repugnant to Quran and Sunnah and finally requested for the acceptance of the revision petition ‑‑‑‑ ‑‑‑ ‑‑‑ ‑‑‑ ‑‑‑ ‑‑‑ ‑‑‑ ‑‑‑ ‑‑‑ ‑‑‑ ‑‑‑ ‑‑‑ ‑‑‑ ‑‑‑ ‑‑‑ "After hearing the arguments of the. learned counsel for both the parties as also the perusal of the record I am of the considered opinion that this Court has got no jurisdiction to declare section 29 of the N.‑W.F.P Pre‑emption Act, 1987, as against Quran and Sunnah because it is the function of the Federal Shariat Court as declared under Articles 203‑A 203‑D and 203‑G of the Constitution of Islamic Republic of Pakistan." In so far as it goes the view expressed by the High Court that the said Court has no jurisdiction to declare the exemption under the newly‑enancted 1987 N.‑W.F.P. Pre‑emption Act as being against the injunctions of Islam as contained in the Quran and Sunnah is correct. Without disputing this proposition learned counsel however insisted that another round of litigation for seeking a declaration from the Federal Shariat Court on the same lines as held by the Supreme Court in the case of Said Kamal Shah was not intended by the Constitution. When pointed out that newly‑added Chapter 3‑A of the Constitution kept separate and apart the Court functions and the legislative functions, it was not possible for the Court to go beyond the declaration and the it was for the legislature to enact proper and correct legislation, learned counsel could not advance the case any further. He however, rightly stated that if the petitioner again moves the Federal Shariat Court on the assumption that there is some provision in the new enactment which is against Quran and Sunnah, he himself might not be benefited. This by itself is no ground for interference where the question involved is covered by a Constitutional mandate. With these observations we find no force in this petition. Leave to appeal, accordingly, is refused. AA./M‑1447/S Leave refused.