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Official Citation: 1990 PLD 899
Court / Jurisdiction: Supreme Court of Pakistan
Year of Decision: 1989
Decision Date: 1989-12-31
This judicial decision was delivered by the Supreme Court of Pakistan on 1989-12-31. The matter involves proceedings between Petitioner and Respondent, officially reported as 1990 PLD 899. The court reviewed applicable Pakistani statutes, procedural requirements, and governing case-law authorities. The full text below contains the complete facts, arguments, and legal reasoning rendered by the honorable bench.
Case cited as PLD 1990 Supreme Court 899
Court Name: Supreme Court of Pakistan Judge(s):Naimuddin, Nasim Hasan Shah, Ajmal Mian, Abdul Qadeer Chaudhry,
JUDGMENT
Reported As: PLD 1990 Supreme Court 899 Result: Order accordingly Judgment JUDGMENT ' NASIM HASAN SHAH, J.---In all the above-noted cases the basis of the pre-emption suits filed by the petitioners is either that of being co-sharers or of being contiguous owners of the suit land. The High Court has not accepted their claims on the ground that section 15 of the Punjab Pre-emption Act having ceased to have legal effect in its entirety from 31-7-1986 as held by the Shariat Appellate Bench of this Court in the case of Government of N.-W.F.P. v. Said Kamal Shah (PLD 1986 SC 360) (as subsequently interpreted in a number of other cases) and dismissed their appeal or revision. Hence they have come to this Court. ' The plea of the petitioners/appellants is that the interpretation placed on the case of Said Kamal Shah (PLD 1986 SC 360) in the cases which have been relied upon for dismissing their suits stand overruled by the recent judgment of a Full Bench of this Court reported as Ahmad v. Aziz Ahmad etc. (PLD 1989 SC 771) wherein it has been found that the true effect and scope of the judgment in
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Said Kamal Shah's case is that it is only those parts of section 15 of the Punjab Pre-emption Act have become ineffective which were expressly declared to be repugnant to the Injunctions of Islam namely those parts where ownership in the estate or the patti was not coupled with contiguity and co-sharership. Accordingly, the said parts of section 15 were still operative and remain preserved. ' The above-mentioned case viz. Ahmad v. Aziz Ahmad etc. And other connected matters, it may be pointed out, were heard by this Court on 30-5-1989 but judgment in all these matters was reserved after the conclusion of the hearing. Meanwhile, the Shariat Appellate Bench of this Court took up this very matters in a Suo Motu Shariat Review Petition and on 5-7-1989 passed the following order:- "In deciding the case of Said Kamal Shah a direction was given for enacting/enforcing pre- emption law in accordance with the Injunctions of Islam as from 1-8-1986. However, no such law has been enacted by the Province of Punjab till now. Difficulties have arisen in interpreting/ implementing the said decision. We, therefore, consider it just and expedient to examine various questions connected therewith and/or arising out of it. The office is directed to fix the matter before this Bench at an early date at Karachi. ' In the meanwhile, notice of this hearing shall be issued to all the parties in the said case of Said Kamal Shah and other cases connected therewith. ' Notice to the Federal Government and the Government of Punjab shall be issued. ' A public notice shall also be issued." ' To fully appreciate the circumstances necessitating this order it should be recalled that Shariat Petitions were instituted in the Federal Shariat Court impugning certain provisions of Martial Law Regulation 115, Act II of 1977, Punjab Pre-emption Act, 1913 and N.-W.F.P. Pre-emption Act, 1950 on the ground of their repugnancy to the Injunctions of Islam but the above petitions were dismissed by the Federal Shariat Court vide judgment given in the case of Hafiz Muhammad Ameen etc. v. Islamic Republic of Pakistan and others (PLD 1981 F SC 23). Against the above judgment, six appeals were filed before the Shariat Appellate Bench of this Court which were disposed of by the judgment given in the case of Said Kamal Shah. The operative order passed herein said:-- "We while agreeing with the reasoning in the judgment of Shafi-urRehman, J. That the Federal Shariat Court had the jurisdiction to entertain, adjudicate and decide the petitions out of which these appeals had arisen; . ' On merits, following the majority point of view, Appeals Nos. 4 and 5 of 1979 are dismissed, and all other appeals are allowed in terms of the formal last part of the judgment of Maulana Muhammad Taqi Usmani, J. If possible, a consolidated law of pre-emption be enacted accordingly till 31-7-1986. There shall be no order as to costs." ' After announcement of the above judgment differing interpretations were placed as to the effect of this judgment on the then pending cases relating to the pre-emption. The above controversy was firstly examined by the Full Bench (of 5 Judges) of the Supreme Court in the case of Sardar All and others v. Muhammad All and others and the judgment delivered in this case is reported as PLD 1988 SC 297. Herein it was, inter alia, held that the effect of the judgment in Said Kamal Shah's case was that the proceedings in which decrees were obtained by the parties from any Court i.e, either original or appellate or revisional prior to the above target date of 31-7-1986 were saved, but all proceedings in the other cases had become infructuous and stood abated. A direction was issued that pending cases should be placed before the relevant Benches of the Court for disposal. ' However, while disposing of the pending cases, difference of opinion again arose amongst different Benches of this Court as to the true effect and scope of the judgment in Said Kamal Shah's case in regard to some aspects, not fully dealt with in the case of Sardar Ali and others v. Muhammad Ali and others (PLD 1988 SC 297). This necessitated the constitution of an even a Fuller Bench. Accordingly, a Full Bench of 7 Judges was constituted to resolve this controversy. These
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matters were eventually heard, as mentioned already, on 30-5-1989 and the judgment was reserved which was ultimately announced on 4-9-1989 and is reported as Ahmad v. Abdul Aziz etc. (PLD 1989 SC 771). ' But in the meanwhile, the Shariat Appellate Bench had Suo Motu, as stated earlier, initiated review proceedings to examine the various vexed questions which had arisen from the judgment in Said Kamal Shah's case and had given birth to the difficulties in interpreting/implementing the said decision. ' The aforesaid review petition was heard from 20th February to 22nd February, 1990 and after hearing all the interested parties it recorded unanimously the following findings vide judgment announced on 26-5-1990:- (1) The Shariat Appellate Bench of the Supreme Court is empowered to explain, clarify or review its own orders. (2) The Shariat Appellate Bench in Government of N.-W.F.P. v. Said Kamal Shah (PLD 1986 SC 360) found that all clauses of section 15 of the Punjab Pre-emption Act, 1913, were against the Injunctions of Islam. Accordingly, the effect of the said judgment was that after 31-7-1986 no part of it (section 15) continued to have any legal effect. (3) Section 30 of the Punjab Pre-emption Act, 1913, having been found in Said Kamal Shah's case to be wholly against the Injunctions of Islam; the effect of this finding was not that the limitation of one year for instituting pre-emption suits prescribed therein stood removed but its true effect was that without fresh legislation on the subject the whole of the Punjab Pre-emption Act, 1913, became unworkable. (4) Sections 15 and 30 of the Punjab Pre-emption Act, 1913, having ceased to have legal effect from 31-7-1986 in their entirety no suit, therefore, can be continued on the basis of the said provisions after the said date except those pre-emption suits wherein decrees had been passed before 31-7- 1986. However, in so far as before the announcement of the judgment in this Review Petition the Punjab Pre-emption Ordinance, 1990 was promulgated (on 28-3-1990) the provisions of the said Ordinance will have their due legal effect as from the date of its coming into force, namely, 28-3- 1990. ' It is now, therefore, in the light of this clear and authoritative explanation of the Shariat Appellate Bench of its own judgment in Said Kamal Shah's case that these petitions/appeals fall to be decided. ' To overcome this disastrous prospect for the petitioners/appellants, Dr. A. Basic and other learned counsel for the petitioners/appellants submit that the Shariat Appellate Bench of this Court exceeded its jurisdiction in delivering this judgment, in purported exercise of Suo Motu review jurisdiction and it is, therefore, non esse. ' A somewhat similar objection was also taken before the Shariat Appellate Bench (PLD 1990 SC 865 and it has been elaborately dealt with in the judgment of Ajmal Mian, J, as follows:-- "M/s. Maqbool Elahi Malik and Muhammad Nawaz Abbasi, Advocate-General, Punjab and Assistant Advocate-General, Punjab, respectively, and M/s. Khalilur Rehman, Ch. Mushtaq Ahmad, Muhammad Bilal, Zafar Awan and Ghulam Mustafa Awan, learned A.S.C./Advocates have contended that the Shariat Appellate Bench has the power to clarify its judgment given in Said Kamal Shah's case, and/or to supply obvious omission therein whereas M/s. Bashir Ahmad Ansari and Muhammad Munir Paracha, learned A.S.C., have urged that the Shariat Appellate Bench has no such power. The latter in support of their above submissions, have submitted that under Clause 9 of Article 203-E of the Constitution the F.S.C. Has been expressly given the power to review but this power has been deliberately denied to the Shariat Appellate Bench as in Clause 2 of Article 203-F though the provisions of Clauses 4 to 8 of Article 203-E have been made applicable to the Shariat Appellate Bench but the above Clause 9 of Article 203-E, which confers the powers of review on the
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F.S.C. Has not been mentioned therein. In my view, the above contention is devoid of any force as under Article 203-F appeal has been provided to the Supreme Court though by virtue of its clause 3 of the same is to be disposed of by the Shariat Appellate Bench. It is a well-settled principle of law that when an established Court without more is provided as a forum for a particular redress, it will be implied that the ordinary incidents of the procedure of that Court are to attach, and also that any general right of appeal or a review or other remedy from its decision likewise would be attracted to. In this behalf, reference may be made to the following cases:-- (1) National Telephone Company Limited (In Liquidation) and another v. His Majesty's Postmaster- General (1913 AC 546). (ii) Secretary of State for India v. Chellikani Rama Rao and others (AIR 1916 PC 21). (iii) Maung Ba Thaw v. Ma Pin (1961 I A 158). (iv) Hussain Bakhsh v. Settlement Commissioner and others (PLD 1970 SC 1). ' In the above first case, the House of Lords held that as the Commission acting under the Telegraph (Arbitration) Act, 1909, was referred to as a Court of record under the above statute, an appeal against its decision would be competent to the Court of Appeal. In the second case, the Privy Council while construing the provisions of Madras Forest Act (No, V of 1882) held that since under section 10(2) of the aforesaid Act, the appeal was provided to the District Court as one of the ordinary Courts of the country, the ordinary rules of Civil Procedure Code would be applicable. In the third case, the Privy Council while construing sections 4 and 75 of the Provincial Insolvency Act, 1920, held that as the above Act gave a right of appeal to the High Court, an appeal from the decision of the High Court would lie to the Privy Council under and subject to the Code of Civil Procedure. It was also held that where a Court is appealed to, as one of the ordinary Courts of the country, the ordinary rules of the Code of Civil Procedure apply. In the last case, the Supreme Court of Pakistan quoted with approval the observation referred to hereinbelow from the above judgment of the House of Lords. It may be advantageous to reproduce the relevant portion of the above Supreme Court judgment, which reads as follows:-- ' The view taken by me as regards power to review also finds support from the dictum laid down by the House of Lords in the case of National Telephone Company Limited. Postmaster-General. The dictum laid down in that case, in the words of Viscount Haldane, is as follows:-- "When a question is stated to be referred to an established Court without more, it in my opinion, imports that the ordinary incidents of the procedure of that Court arc to attach, and also that any general right to appeal from its decision likewise attaches." ' As the High Court has been found to have power under clause (b) of section 114 of the Code of Civil Procedure to review an order made in its writ jurisdiction in a civil matter, the appeal succeeds. I would, therefore, allow this appeal, set aside the judgment and order of the High Court and declare that, apart from the High Court's power to correct errors apparent on the face of the record in the exercise of its inherent jurisdiction, it has power under the Code of Civil Procedure to review its own order made in writ jurisdiction in a civil matter. The High Court will now hear the application for review according to law. Having regard to the intricacy of the point of law involved, I would not make any order as to costs." ' I am, therefore, inclined to hold that since under Article 203-F of the Constitution an appeal is provided to the Supreme Court, and as the Shariat Appellate Bench is a part of the Supreme Court, it can press into service Article 188 of the Constitution, which provides that the Supreme Court shall have power subject to the provisions of any Act and of any Rules made by the Supreme Court to review any judgment pronounced or any order made by it. The above Article 188 of the Constitution is to be read with Order XXVI Rule 1 under Part IV of the Pakistan Supreme Court Rules, 1980, which lays down that subject to the law and practice of the Court, the Court may review its judgment or order in any civil proceedings on grounds similar to those mentioned in Order XLVII, Rule 1 of the
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Code of Civil Procedure and in a criminal proceeding on the ground of an error apparent on the face of the record. The above view, which I am inclined to take is fortified by clause 6 of Article 203- F, which provides that "While attending sittings of the Shariat Appellate Bench, a person appointed under paragraph (b) of clause (3) shall have the same power and jurisdiction, and be entitled to the same privileges, as a Judge of the Supreme Court and be paid such allowances as the President may determine". I am, therefore, of the view that the Shariat Appellate Bench can take upon itself exercise of clarifying the effects of its judgment given in Said Kamal Shah's case and/or to supply any obvious omission in any part thereof in the above suo motu review petition. ' If any authority is needed in support of the above view, reference may be made to the case of Keshav Talpade v. Emperor (AIR (30) 1943 Federal Court 72) and the case of Muhammad Akram Sheikh, Advocate v. Federation of Pakistan and others PLD 1989 SC 229. In the above first case, the Federal Court of India entertained a reference made by the Bombay High Court for seeking clarification of the Federal Court's an appellate order, and it clarified the same, whereas in the above second case, the Supreme Court has clarified its judgment given in the case of Federation of Pakistan and others v. Haji Muhammad Saifullah Khan and others PLD 1989 SC 166 and held that the Press Note issued by the Federal Government did not correctly reflect the view taken in the aforesaid judgment in the case of Haji Muhammad Saifullah Khan as to the effect on the appointments in the absence of the Prime Minister between the period from 29th May, 1988 to 2nd December, 1988, and ordered the deletion of the offending portion of the above Press Note. Additionally, the Shariat Appellate Bench can press into service any recognized principle of the Islamic Jurisdiction, which is not in conflict with the Holy Qur'an and Sunnah. It is a well-recognized principle of Islamic Jurisprudence that an Islamic Court can review its own judgment in order to bring it more effectively in consonance with the Holy Qur'an and Sunnah or to rectify any omission or error. Even the Supreme Court in the case of Mian Ariz A. Sheikh v. The Commissioner of Income Tax, Investigation, Lahore PLD 1989 SC 613 while construing the provisions of the Income Tax Act and the rules framed thereunder with reference to an assessment order on the question of proof of the factum of increase in the dower amount by a husband, has pressed into service the principle of Islamic Jurisprudence by virtue of Article 2-A and Article 227(2) of the Constitution." ' However, Dr. A. Basit, who presented the leading argument from the side of the petitioners/appellants still maintained that the Shariat Appellate Bench was not right in considering that it was empowered to clarify and/or supply omissions in its own judgments by way of review and had, in fact, transgressed its jurisdiction in doing so. According to the learned counsel, the Shariat Appellate Bench is a Court which is distinct from the Supreme Court possessing only a special and limited jurisdiction which is clearly defined and controlled within which it can act and it cannot enlarge it. The right of review, he pointed out, had not been conferred on it and, therefore, it was not competent to review any order made by it. In this connection he drew attention to clause (9) of Article 203-E of the Constitution which deals with the powers and procedure of the Federal Shariat Court and confers on it the "power to review any decision given or order made by it". It is argued that without such express conferment of powers the Shariat Appellate Bench had no jurisdiction to initiate proceedings for review or to pass any order in purported exercise of review jurisdiction. As a corollary it is submitted that after the Court has delivered the judgment it becomes functus officio and is not competent to issue clarifications of its orders. ' These submissions, we note, stand already answered by the Shariat Appellate Bench, as is evident from the passages extracted from its judgment reproduced above. Additionally, we may point out that the question of the status of the Shariat Appellate Bench vis-a-vis the Supreme Court has been the subject-matter of consideration in two earlier judgments of the Court namely B.Z. Kaikaus v. Federal Government of Pakistan PLD 1982 SC 409 and Abdul Hameed v. The State PLD 1983 SC
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130. In the last mentioned judgment this matter was considered quite elaborately and the following passage therefrom may be re-produced below:- "The precise argument of the learned counsel is that when hearing a petition for leave to appeal under sub-Article (2-B) of Article 203-F, the Shariat Appellate Bench i.e, this Bench, assumes an independent status as an appellate forum, different from the Supreme Court. Therefore, the rules framed by the Supreme Court, under Article 191 of the Constitution which, inter alia, provided for limitation for filing a petition for leave to appeal in criminal matter, would not be attracted. ' We do not agree with him. Article 203-F deals with three types of appeals. All these appeals as are apparent from clear language used in the relevant Sub-Article lie to "the Supreme Court". The first type of appeal lies "to the Supreme Court" when the decision by the Federal Shariat Court is in respect of a matter provided in Article 203-D of the Constitution. The appeal of the second category as provided in Sub-Article (2-A) of Article 203-F "lies to the Supreme Court" from any judgment, final order, or sentence of the Federal Shariat Court as specified in Sub-clauses (a) and (1)) of Sub-Article (2-A) of Article 203-F. The third category of appeal which is visualized in sub- Article (2-B) of Article 203-F, would cover the present case. In this category "an appeal to the Supreme Court" would lie "only if the Supreme Court grants leave to appeal". ' The foregoing analysis makes it clear that the appeal, in any case, whether direct by way of right or, through, special leave to appeal, lies to "the Supreme Court". This is not all. The appeal, in the third category of cases lies to the Supreme Court only when "the Supreme Court grants leave to appeal". Therefore, there is no doubt, in our mind that notwithstanding the provisions contained in Article 203-F(3)(4)(5)(6) for constituting a Special (Shariat) Bench of the Supreme Court, this appellate forum i.e, the Shariat Appellate Bench, is and remains a Bench of the Supreme Court." ' In view of this clear enunciation of the position it is not possible to accept the plea that the Shariat Appellate Bench is an entity distinct from the Supreme Court and not merely one of its Benches. ' In this view of the matter, the argument that in the absence of any express conferment of power of review on the Shariat Appellate Bench in terms similar to the power conferred on the Federal Shariat Court (by clause (9) of Article 203-E of Constitution), the Shariat Appellate Bench cannot exercise any review jurisdiction, loses all force. The Shariat Appellate Bench is an integral part of the Supreme Court and is one of its Benches and, therefore, empowered under Article 188 of the Constitution to review its judgments and orders. The Federal Shariat Court, on the other hand, owes its existence entirely to the provisions of Chapter 3-A introduced into Part VII of the Constitution and can exercise only such jurisdiction and powers which are expressly conferred on it by I' the provisions of that Chapter. Accordingly, when it was felt that it should also have power to review, clause (9) was added to Article 203-E of the Constitution by President Order 5 of 1981. The submission that without a similar provision in Chapter 3-A aforementioned, to empower the Shariat Appellate Bench to exercise review jurisdiction and without such express conferment it cannot review its own judgments and orders is, therefore, wholly misconceived. ' The further argument of Dr. A. Basit was that the order passed by the I Shariat Appellate Bench in any case could have effect as from 26-5-1990 when C it was pronounced. It other words, it should he given effect only prospectively. It is submitted that the order of the Shariat Appellate Bench purports to clarify its earlier judgment in Said Kamal Shah's case and supply omissions therein. In fact it is in the nature of a substitutive order and hence will have effect as from the date it was pronounced, namely, 26-5-1990. ' Unfortunately, this submission too is not well based. The order of the Shariat Appellate Bench dated 26-5-1990 is not an order which has substituted its order passed in the case of Said Kamal Shah but its effect is only to explain it. It is, therefore, in the nature of an explanatory order rather than an order of substitution. It merely clarifies the purport of the order already passed and is, therefore, effective as from 31-7-1986 as decided therein earlier. In fact, this matter has been
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placed beyond the pale of controversy by the order of the Shariat Appellate Bench itself as in the said order it has been specifically stated that "Sections 15 and 30 of the Punjab Pre-emption Act, 1913 having ceased to have legal effect from 31-7-1986 in their entirety no suit, therefore, can be continued on the basis of the said provisions after the said date except those pre-emption suits wherein decrees have been passed before 31-7-1986." ' The above order having been found to have been competently passed no Court or Tribunal including Supreme Court can entertain any proceedings or exercise any power or jurisdiction in respect of any matter within the power or D jurisdiction of the Court. Hence we cannot go into the correctness or otherwise of the decision of the Shariat Appellate Bench or vary in any way its order that it shall have effect as from 31-7-1986. It was then submitted that even under the order of the Shariat Appellate Bench due legal effect has to be given to the provisions of the newly-promulgated Punjab Pre-emption Ordinance, 1990 and this Ordinance by Section 34 thereof repeals the Punjab Pre-emption Act, 1913, the normal incidents of the repeal contained in Section 6 of the General Clauses Act would apply with the result that pending cases should be decided in accordance with the repealed law. ' This plea too is of no avail to the petitioners/appellants as under the judgment of the Shariat Appellate Bench their suits abated on 31-7-1986 and clause (a) of Section 6 of the General Clauses Act itself provided that the repeal of the Act does not revive anything not in force or existing at the time at which the repeal took effect. As no part of the Punjab Pre-emption Act, 1913 was in force on 28-3-1990 the fact that the said Act has been repealed does not improve matters. ' In the end, Dr. A. Basit drew attention to the aspect of grave hardship resultingirom giving effect to the judgment of the Shariat Appellate Bench, dated 26-5-1990. According to learned counsel,…
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