P L D 1975 Peshawar 22 (PLP)

The State v. Muhammad Sharif P L D 1960 Lah. 236 and Crown v. Haveli P L D 1949 Lah. 550 ref. D. M. Kamil for Appellants. Fazal Elahi Khan for Respondents. Date of hearing : 30th September 1974. Rahimullah (since dead and now represented by Saleh Muhammad etc.) and three others brought a suit for joint possession of 2/9 share in the land in suit contending that life-estate held by Mst. Tajriyan daughter of Hareef stood terminated by the West Pakistan Muslim Personal Law (Shariat) Application Act, 1962 (hereinafter called Principal Act) and they being heirs of the last full owner were entitled-to the same.

2. Several issues were settled in the case but the suit was dismissed on the ground that Tajriyan's life estate did not stand terminated by section 3 of the West Pakistan Shariat Application Act, 1962, and in this respect reliance was placed on a Single Bench authority of the High Court of West Pakistan in Sarwar Bibi v. Said Ahmad and others (P L D 1969 Lah. 414). There was an appeal but that was also unsuccessful. The plaintiffs were still not satisfied and they preferred the present Regular Second Appeal and the only point that arises for consideration is as to whether the view taken in the authority cited by the two Courts below holds good.

3. Apart from the fact that West Pakistan Muslim Personal Law (Shariat) Amendment Ordinance, 1963 (hereinafter called the Ordinance) (X KXIX of 1963) was a temporary piece of legislation, it is noteworthy that enactment that followed it, that is to say, West Pakistan Muslim Personal Law (Shariat) Application (Amendment) Act, 1964 (XXVIII of 1964) only re-enacted that part of the Ordinance that deleted section 7(2) of the Principal Act and allowed the proviso to section 3 of the Principal Act to go out by default. If the Ordinance was to hold the field, there was no necessity for omitting subsection (2) of section 7 of the Act V of 1962 through Act XXVIII of 1964. It would follow that the Legislature itself treated the Ordinance to be temporary.

4. There is also a Division Bench authority in The State v. Muhammad Sharif (P L D 1960 Lah. 236), which in its turn followed the Full Bench authority of the Lahore High Court in Crown v. Haveli (P L D 1949 Lah. 550), which lays down that a legislation by Ordinance is a temporary measure and further holds that a permanent statute A repealed by a temporary statute emerges again on the expiry of latter. This authority was not brought to the notice of the learned Single Judge who decided P L D 1969 Lah. 412 ibid.

5. Furthermore, it appears to me that the Ordinance stood repealed by the Governor on the enactment of Act XXVIII of 1964 and therefore Article 79(4) of the Constitution of 1962 was not applicable in terms.

6. Be that as it may the matter stands finally concluded by the weighty B observations of the Supreme Court in Muhammad Yaqub v. Member, Board of Revenue, Lahore and 3 others (P L D 1973 S C 304), wherein their Lordships have referred to the aforesaid ruling and observed that they were unable to agree to the interpretation placed by the learned Single Judge on section 3 of the Principal Act.

7. For the reasons, the appeal is accepted and the judgments and decrees of the two Courts below are set aside and the case is remanded under Order XLI, rule 23 of the C. P. C. with the remarks that the trial Court should now give its findings on the other issues settled in the case. Parties are directed to appear before the trial Court on 31-10-1974. Costs should follow the event. K. B. A. Appeal accepted.