1992 PLP 2023 (MLD)

‑‑‑‑Regln. 4‑‑‑North‑West Frontier Province Pre‑emption Act (XIV of 1950), S.12‑‑‑Repugnancy of certain provisions of Act XIV of 1950 to Injunctions of Qur'an and Sunnah‑‑Petitioner's application for dismissal of respondent's suit on the ground that certain provisions of Act XIV of 1950 were declared to be repugnant to Injunctions of Islam was dismissed by Deputy Commissioner‑‑ Effect‑‑‑Such application being itself liable to dismissal as being incompetent, orders passed by Deputy Commissioner in dismissing such application containing certain observations on merits of case would have no bearing on the decision of case before Jirga and afterwards. Nasirul Mulk for Petitioners. S. Mir Muhammad Shah for Respondent No.1. Malik Hamid Saeed, Addl. A.‑G. for Respondents Nos.2 to 4, Date of hearing: 16th March, 1992. ABDUL KARIM KHAN KUNDI, J: ‑‑This writ petition arises in the background of facts that a pre‑emption suit filed by Mst. Chaman Ara respondent on the basis of co‑sharership under the N.‑W.F.P. Pre‑emption Act, 1950 extended in application to Provincially Administered Tribal Area vide Regulation II of 1974 was contested by the petitioners, the vendees, on grounds inter alia want of jurisdiction and that the N.‑W.F.P. Pre‑emption Act, 1950 to have since been declared repugnant to the Injunctions of Quran and Sunnah by the Federal Shariat Court and the Shariat Appellate Bench of the Supreme Court of Pakistan and that the pre‑emption suit was not maintainable. Along an application for dismissal of the pre‑emptor's suit was filed as she did not have the cause of action because of the repeal of the pre -emption laws. In the said application once again the non‑maintainability of the pre‑emption suit was agitated under the N.‑W.F.P. Pre‑emption Act, 1950 which has since been allegedly declared repugnant to the Injunctions of Qur'an and Sunnah and was no more a law of the land in the light of Article 203‑D of the Constitution of the Islamic Republic of Pakistan, 1973. This application was dismissed by the EA.C. with powers of Deputy Commissioner under PATA Regulation under observations that judgment given by the Federal Shariat Court has only declared some of the provisions of N.‑W.F.P. Pre‑emption Act, 1950 in section 5(c) etc. as repugnant to the Injunctions of Qur'an and Sunnah and that rest of the Act was very much intact and still operative. He had accordingly proceeded to frame issues and referred the case for adjudication to Jirga. Amongst the issues there were framed issues whether the N.‑W.F.P., Pre‑emption Act, 1950 has been declared repugnant to the Injunctions of Qur'an and Sunnah by the Shariat Appellate Bench of the Supreme Court of Pakistan; if the Court under the PATH Regulation has the jurisdiction to entertain the case and if the pre‑emptor was entitled to the decree prayed for.

2. This writ petition was admitted to hearing inter alia on the ground that N: W.F.P. Pre‑emption Act, 1950 extended in application to PATA vide Regulation 11 of 1974 has since been repealed by the N.‑W.F.P. Pre‑emption Act, 1987 which has not been extended to PATA and, as such, no pre‑emption suit was competent under the repealed law.

3. At the hearing we straightaway posed to the learned counsel for the petitioners that N.‑W.F.P. Pre‑emption Act, 1950 has not been declared as a whole repugnant to the Injunctions of Qur'an and Sunnah and that only certain provisions have been declared as such and vis‑a‑vis the vacuum created regarding those provisions of law having ceased to exist the parties shall be governed by the general Mohammadan Law. Learned counsel for the petitioners was found with no plausible answer to the query. Hence N.‑W.F.P. Pre‑emption Act, 1950, certain provisions of which have not been declared void A, under Sharia shall still continue to operate along general Mohammadan Law in PATA. As for the point that N: W.F.P. Pre‑emption Act, 1950 has been superseded and repealed by the N.‑W.F.P. Pre‑emption Act, 1987, the position is that the latter Act has not been extended in application to PATA and, as such, the said law shall not operate to have the effect of repealing the N.‑W.F.P. Pre‑emption Act, 1950 in PATH.

4. Besides herein there have been framed a specific issue on the subject point whether the N.‑W.F.P. Pre‑emption Act, 1950 has been declared violative of the Injunctions of Quran and Sunnah by the Shariat Appellate Bench of the Supreme Court of Pakistan and with effect which issue along other issues have been referred to Arga for adjudication. Learned counsel for the petitioners demonstrated his apprehension that since the EA.C. Malakand with powers of Deputy Commissioner has expressed his opinion vis‑a‑vis the effect of the decision of the Shariat Appellate Bench of the Supreme Court of Pakistan in the case, as such, the Jirga would be prejudiced by his opinion and after receiving award the E.A.C. with .powers of Deputy Commissioner would hismself follow the same view point to his prejudice. In fact, under Regulation 11 of 1975 in section 4(1) the Deputy Commissioner is required to constitute a Jiraga by order in writing and to refer the case for adjudication of matters in issue and under subsection (2) ibid he can only adjudicate upon the suit vis‑a vis the question of limitation if he finds the suit time‑barred under Riwaj, custom or usage having the force of law that he shall dismiss the suit instead of referring the case to Jirga for adjudication. This application made by the, petitioners soliciting orders of the dismissal of the pre‑emption suit by EA.C. with powers of Deputy Commissioner under PATA Regulation on a question other than limitation was by itself unwarranted and the subject point was mandtarily referable for adjudication along other issues to Jirga by the Deputy Commissioner and, as such, this application was by itself liable to dismissal as being incompetent and any orders made by the Deputy Commissioner in dismissing the application containing certain observations on the merits of the case shall have no bearing on the decision of the case before the Jirga and afterwards. Petitioners' apprehension thus stands duly answered.

5. In view of the foregoing discussion we have not found any merit in this writ petition filed against an interim order dismissing an application and the writ petition is hereby dismissed with no order as to costs. A.A./1384/P Petition dismissed