P L D 1998 Lahore 321 (PLP)

This revision petition is directed against the judgment and decree dated 8-11-1995 passed by the learned Additional District Judge, Rahimyar Khan, whereby he affirmed the judgment and decreed dated 9-9-1991 passed by the learned Civil Judge, Sadiqabad.

2. Nizam Din and others filed a declaratory suit against Mst. Mai Madal and others wherein they challenged the legality of Mutation No. 1301 attested on 8-4-1975 and also that of Mutation No. 1697 dated 3-3-1983, which was attested as a result of the review of the earlier mutation. Through the disputed mutations defendants Nos.2 to 10 were given the share from inheritance of Data son of Bahadar, the grandfather of plaintiffs Nos. l to

6. The petitioners-plaintiffs alleged that the respondents-defendants were not entitled to any share from inheritance of Dad as their predecessor-in-interest Imam Bakhsh and Mst. Qaima had died during the life time of Dad.

3. The learned counsel for the petitioner while relying upon the case of Mst. Farishta v. The Federation of Pakistan through Ministry of Law, Islamabad PLD 1980 Pesh. 47 submitted that the defendants being the offsprings of predeceased son/daughter were not entitled to inherit from their grandfather Dad as section 4 of the Muslim Family Laws Ordinance, 1961, had been found to be repugnant to the Injunctions of Islam.

4. There is no dispute about the fact that the respondents-defendants are the legal heirs of the son/daughter of Dad, who inheritance is disputed. The only question which needs determination is whether or not the heirs of pre-deceased son/daughter are entitled to inheritance? In the cited case it was held as under:- "To sum up we are of the considered opinion that section 4 of the Muslim Family Laws Ordinance is against the Injunctions of Islam and that it should be repealed and to relieve distress of the son/daughter of a predeceased son the legislation suggested by us may be considered. The law repealing section 4 shall come into force as from today and that we give to the Government a period of three months for necessary legislation. "

5. Any order passed under Article 203-D is appealable to the Supreme Court as provided in Article 203-F of the Constitution of the Islamic Republic of Pakistan, 1973. In the above referred case the Federation of Pakistan fled an appeal, which was accepted and the judgment and order of the Shariat pench of the Peshawar High Court dated 1-10-1979 was set aside in the following words:- "Holding accordingly, we accept this appeal and without expressing any opinion on the merits of the case or the law challenged herein, set aside the order of the High Court as being without jurisdiction, leaving the parties to bear their own costs." Federation of Pakistan v. Mst. Farishta PLD 1981 SC 120.

6. The judgment of the Shariat Bench of the Peshawar High Court mentioned in para. 3 was even referred before the learned Additional District Judge, who was not aware that it had been set aside/overruled by the Supreme Court. I am constrained to observe that the Lawyers/Advocates are also the Officers of the Court and their prime duty is to assist the Court in correctly adjudicating the matter in accordance with law. They, therefore, before citing any precedent must satisfy themselves that it still holds the field and has not been set aside or overruled. The practice of referring a precedent overruled by the apex Court, intentionally or unintentionally, is highly objectionable and is strongly disapproved. If it is referred intentionally, it is a professional misconduct and if unintentionally then it reflects height of negligence and irresponsibility. All possible care should be taken to ascertain that the case/judgment being cited as a precedent has not been overruled or set aside in j appeal.

7. At present, section 4 of the Muslim Family Laws Ordinance, 1961 holds good as a valid law. The inheritance, in the case in hand, having been distributed according to the said provisions, no exception can be taken to the impugned judgments. There is absolutely no illegality or material irregularity in them. The revision petition is, therefore, dismissed in limine having no merits. A.A./N-86/L Revision dismissed.