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Petitioner: Mst. SAFIA BEGUM VS Respondent: IBRAHIM and 4 others
Court Name: Supreme Court of Pakistan Judge(s): Muhammad Afzal Zullah, Syed Usman Ali Shah Title: Mst. SAFIA BEGUM vs IBRAHIM and 4 others Case No.: Civil Petitions for Leave to Appeal Nos.1142 and 1147 of 1988, Date of Judgment:1989-02-26 Reported As: PLD 1989 Supreme Court 314 Result: Petitions dismissed
Judgment ORDER ' MUHAMMAD AFZAL ZULLAH, J.--Leave to appeal has been sought by pre-emptors/plaintiffs, against the dismissal by the High Court of Regular Second Appeal in one case and Civil Revision in the other. 2. They have failed on account of fact that their suits having been filed before 31st July, 1986 under the then existing law of pre-emption, no decree had been passed in their favour till that date. 3. Both the learned counsel have tried to re-open the questions which already stand concluded by various judgments of this Court; some only of which have been referred in the petitions for leave to appeal. 4. We having found no justification for re-opening the same questions did not find any merit in these petitions, leave to appeal accordingly is refused. 5. However as both the learned counsel thought, though mistakenly, that the points raised in these petitions have not so far been dealt with, we consider it proper to briefly deal with this submission. 6. The relevant questions of law mentioned in Civil Petition No,1142 are: (i) that a co-sharer-pre- emptor, notwithstanding failure throughout till 31st July, 1986, could pursue his suit despite the judgments of this Court in the case of Said Kamal PLD 1986 SC 360 and Sardar Ali PLD 1988 SC 287; (ii) that the question of "Talabs" could arise in this case only after the controversy; whether the transaction in question was a sale or exchange, had been resolved; (iii) and similar point related to the foregoing. 7. The points raised in the other petition, namely, CP-1147 are: (a) that after the previous pre-emption law became ineffective on account of judgment in Said Kamal's case, this Court had no jurisdiction to enforce by its own orders the Islamic Law (relatable
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to Talabs)-the vacuum could only be filled up by the legislature; (b) that the operative judgment/order in the case of Said Kamal at page 461 of the report (in the PLD), in para 105 thereof, does not contain a direction to the effect that {{URDU TEXT}} ' therefore, the Islamic Law of Shufa cannot be enforced in place of "Un-Islamic and nullified Laws" by the Courts including Supreme Court; (c) that the right of a co-sharer as pre-emptor having not been nullified in the case of Said Kamal, "as per list given in para. 103 at p. 460", the rule laid down in the subsequent case of Sardar Ali was not applicable to co-sharer/plaintiffs; therefore, they could pursue their cases even after 31st July 1986, without having ever obtained a decree prior thereto; (d) that the condition of 'Talabs' in such like cases could not be enforced as it was not a part of the Punjab Pre-emption Act at the time of the institution of the suit, particularly "when it has not been enforced so far by the Punjab legislature"; (e) that in any case it cannot be enforced with retrospective effect as the plaintiff, at the time of the filing of the suit, could not have,at all asserted or relied upon the Islamic TalabsThe Punjab Pre-emption Law did not require it. Nor the legislative amendment could have introduced them with retrospective effect; (f) that the new legislation in the Province of N.-W.F.P. As a result of the judgment of this Court in the case of Said Kamal; namely N,-W.F.P. Pre-emption Act (X) of 1987 also, as interpreted in the case of Asmat Ullah 1988 CLC 828 (Pesh. S.B.), has provided for the continuance of the pre-emption suits without there being any decree ever in favour of the pre-emptors before 31st July 1986,-- nor for that there is the imposition of condition of Talabs; (g) that in this behalf "the saving subsection (3) of section 35 is just an additional ground" and would not affect the interpretation by the learned Judge of the Peshawar High Court; (h) that the rule laid down by this Court in the subsequent two short orders passed in the cases of Sher Muhammad PLD 1988 SC 412 and Muhammad Shuaib PLD 1988 SC 355 requires reconsideration in view of the foregoing submissions with the further contention that they have "the practical effect of closing statute book of pre-emption in the Punjab Province;" (i) that the effect of the afore-referred judgments of this Court is that in the Province of Punjab no fresh suit for pre-emption can be maintained after 31st July 1986, "under section 15(b) fourthly and section 16 of the Punjab Pre-emption Act", as the Islamic Talabs cannot be asserted in a new plaint, because these have neither been enforced by the legislature nor by this Court and thus no right of pre- emption is enforceable in the Punjab; (j) that the foregoing submission if accepted would lead to a contravention of the fundamental right of equality before law relatable to co-sharer/pre-emptor in the Punjab because in the N.-W.F.P. Such a right has not only been conferred by the Statute of 1987 for the fresh cases but also for the cases which were filed before 31st July 1986 and in which no pre- emption decree had yet been passed; (k) that admittedly the law of Islamic Shufa being based on the Sunnah of the Holy Prophet (p.b.u.h.) there is no certainty about the condition of Talabs having been imposed by any of the Sunnah--reference in this behalf has been made to some treatises on Sunnah including Seha Sitta. It has also been contended in this behalf that in order to impose the condition of Talab on a pre-emptor it is necessary to impose the condition of a notice to be served on him about the transaction before he is required to make Talabs; and that on account of so- called wrong enunciations of law earlier referred to, the petitioners/plaintiffs have been deprived of their valuable rights. 8. The relevant arguments in CP-1142 except that relating to the impossibility of Talabs without first determining the nature of the transaction as sale or exchange, are also involved in CP-1147 and are being dealt with thereunder. The one pertaining to CP-1142 in particular, is misconceived as it is the case of the petitioner herself in the plaint which would give rise to the question of the Talabs as an integral part of the right of pre-emption. She had asserted that it was a sale. Therefore, the argument about 'Talabs' becoming relevant only subsequent to determination of the character of the transaction, is of no avail to her.
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9. Coming now to the main points raised in the other petition, it is to be observed right away that as held in Said Kamal's case and also reiterated in subsequent cases including that of Sultan Ali Khan PLD 1988 Pesh. 111 from the Peshawar High Court, the failure to make the Talabs at proper times extinguishes the so-called right of pre-emption. Hence it is not a part of procedural law but falls in the substantive field-- rather an integral part of the right of Shufa-- this term has been distinguished from "pre-emption", in the case of Said Kamal. 10. In para. 102 (p. 459) of Said Kamal's judgment it was held as follows :- {{URDU TEXT}} 11. The above two reproductions would show that the Supreme Court had held that without all the demands being made on time there would be no Shufa as it (the right to Shufa) would come into existence only through proper Talabs {{URDU TEXT}} are the keywords in this behalf. 12. It was also held that a law of Shufa which is devoid of this essential element of demands on time, is against Sunnah and thus repugnant to the injunction of Islam : {{URDU TEXT}} 13. It is to be clarified here that the law of Talabs was also clearly laid down in this judgment so as to guide the Legislatures and the litigants. Nowhere it was held that a notice from the vendor or vendee was a necessary condition to invoke the condition of Talabs. The mention in para. 102 aforereferred, of a notice, is a possibility visualised on behalf of the pre-emptor to the vendee/defendant before the filing of the suit. The Sunnah relied upon in CP-1147 also goes against the contention that a notice to all the pre-emptors is necessary for application of the condition of Talabs. The words {{URDU TEXT}} ' are very signifcant. They imply that, failure to inform the pre-emptor would not deprive him of the Shufa which of course would be demanded by him in the manner discussed in the judgment in para. 95 (p.457) read with several other references including that at pages 398 to 402. Para. 95 is reproduced below: {{URDU TEXT}} ' It is in connection with the Talabs and their philosophy that another aspect of the Islamic Law of Shufa has been examined in Said Kemal's' case. It deals with greed of the pre-emptor and his motive of enrichment which if and when established, as distinguished from the Islamic need and basis for seeking Shufa, the right gets extinguished (in the former case). In paras. 85 and 101 (pages 455, 459) it is held as follows :- {{URDU TEXT}} ' Earlier it was also observed that : ' See also last part of para. 102 : {{URDU TEXT}} ' Same aspect is more highlighted at page 400/401 as follows :- {{URDU TEXT}} ' It incidentally also deals with the question of notice to the pre-emptor as not a condition precedent for Tahibs. 15. The reason for the aforediscussed strictness is that the right of Shufa is an exception to the rights of contracting parties in a transaction, as envisaged in the Holy Qur'an and Sunnah. The following exposition in this behalf cannot at all be ignored :- {{URDU TEXT}} ' The pre-emptor's intervention : (i) to stifle other lawful contract ; and (ii) to deprive the vendee of his benefit under the contract, is commented thus {{URDU TEXT}}
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' This could lead to a supposition (though wrong) that Islamic Shufa also is a piratic right; but, it is not so because of the principles on which it is based and more important due to the limitations it imposes on the pre-emptor with minimum possibility of any loss, to the party to the original transaction, which can be avoided. Thus spirit-wise though it creates an exception to the general law of contract, at the same time it is loaded in favour of the vendee-- the doubts of interpretation are also, for the same reasons, to be resolved in vendee's favour. 16. The discussion so far, disposes of all questions of principles, vis-a-vis, the Islamic Law raised by the petitioners. In particular; points relating to so-called depriving the pre-emptor of his so-called "valuable" right, his duty to make Islamic demands; and their substantive character; their validity in Islam; and, the question of notice to the pre-emptor, stand repelled-- See point (k), para. 7 supra. 17. The next set of questions relates to the interpretation of the cases of Said Kamal and Sardar Ali. 18. Here also it needs to be emphasised in the outset that the judgment in Said Kamal's case made the relevant laws ineffective after 31-7-1986. All pending cases lost support of the contemporaneous laws in a peculiar constitutional mandatory exercise and command. One ordinary result could have been the abatement of all cases wherever at whatever stage. But for elaborate reasons recorded in Sardar case exception was made only for those cases in which the pre-emptor had obtained by that date, a decree at any stage. 19. The second major aspect appearing in the contentions raised in these cases relates to the interpretation of the law laid down by this Court in its Shariat Bench-- Said Kamal's case, in the context of the suits filed before 31st July, 1986 on the grounds of co-sharership and others, available under the Islamic law. The judgment in the case of Sardar All elaborately dealt with the question of continuance of such cases after the said date. An attempt was made in the arguments to show that while in the case of Sardar All such cases were permitted to continue, in the subsequent cases of Sher Muhammad and Muhammad Shuaib the decision is otherwise. This impression needs to be repelled straightaway. In para. 5 of the judgment (at page 310 of the report) the following first three questions out of the seven, relate to this issue:- "(1) Whether a pre-emption suit not decided by the trial Court L before 31st July, 1986, could be decreed after the said date. (2) Whether a plaintiff in a pre-emption suit having failed in the trial forum and having remained unsuccessful in obtaining a decree in his favour even in appeal, revision or writ petition before 31st of July, 1986, can be granted a decree by any of the higher forums where his case was pending on that date .Including the Supreme Court. (3) Whether a plaintiff having failed to obtain a decree in the trial forum before 31-7-1986 and having challenged his failure N in the higher forum, his case was remanded to lower forum where it was still pending without any decree in his favour till then, can be granted a decree for the first time. 20. The answers to these questions in para. 64 of the judgment (see page 344 of the report) are clearly in the negative. Thus a pre-emptor who had not succeeded at any stage before 31st of July 1986 could not obtain a decree in the suit filed prior thereto. It is, therefore, clear that the thousands of short orders passed by the Courts disposing of cases falling under these categories including hundreds by the Supreme Court and the High Courts, are in consonance with this Court's judgment in Sardar Ali's case,, which made no exception regarding Islamic grounds of Shufa in any case or form. Some capital was sought to be made out of summary nature of the orders passed in the cases of Sher Muhammad and Muhammad Shuaib-- summary, because the main subject had been dealt with elaborately in Sardar Ali's case. However, this impression was dispelled and an unfortunate trend of submitting false affidavits regarding Talabs was stopped by another judgment by this Court of Ghulam Qadir PLD 1988 SC 701. The points dealt with in this behalf do not need any further elaboration. Probably having realised this, a further attempt has been made
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to criticise the cases of: Sher Muhammad, Muhammad Shuaib and Ghulam Qadir-- though the last one is not mentioned in these petitions. ' Two major arguments have been advanced--One, relating to the verdict by the Shariat Appellate Bench in the case of Said Kemal; and Two, its interpretation in the case of Sardar All and subsequent cases. The main argument being that it was neither held; nor could it be deduced from the case of Said Kamal, that the suits filed on the grounds available under Islamic Law also, could not proceed beyond 31st July, 1986. 21. There appears to be a basic misconception about what was held in Said Kamal's case in this behalf. An assumption has been made in the submissions in these petitions that except for the specific provisions mentioned in para. 103 (at pages 460 and 461 of the report), the entire statutory pre-emption law was kept intact and valid. This is not correct. Para. 103 cannot be read in isolation of pares. 104 and 105 (at page 461). Nor can these paragraphs be read in isolation of the Court order (at page 476 of the report). 22. The said operative Court order is to the following effect: "On merits appeals Nos. 4 and 5 of 1979 were dismissed and all other appeals were 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 31st July, 1986." 23. It is necessary here to reproduce the culminating operative directives of the formal, last part of the said judgment. {{URDU TEXT}} 24. In so far as the language is concerned there is no doubt that the Punjab Pre-emption Act, 1913 and N.-W.F.P. Pre-emption Act, 1950--(there is no mention of Islamic grounds of Shufa in the relevant provisions of the Limitation Act or the Land Reforms Regulation) which contain such partial provisions, which could be made the ground for Islamic Shufa, were declared to have become ineffective from the date mentioned in the Court order--31st July, 1986. The word though ordinarily means void but here it has been used in the context of the constitutional provision which renders the law ineffective-- as discussed in the case of Sardar Ali. No exception whatsoever has been made regarding any provisions which through some contrivance, could be kept operative like those relating to co-sharership and contiguity etc. The reasons are spread over in the very elaborate judgments of the two learned Ulema Judges of the Bench. It is riot neither necessary nor advisable to comment on those reasons in this judgment. ' However, it may be observed that the spirit, ethos and content of the Islamic Law of Shufa as discussed in these judgments is absolutely different from the then prevalent statutory laws of pre- emption. This aspect was also noted in the case of Ghulam Qadir with reference to another judgment of this Court on the nature of the Islamic Law of Shufa in the case of Azizur Rehman PLD 1988 SC 384. Amongst others in Said Kamal's case: (i) the order and priority, in which the so-called Islamic grounds were mentioned in the statutory laws, was found not to be in the same order as in Islam; (ii) the ground/right mentioned in the statutory provisions by itself would not create a right in Islam unless accompanied by another substantive part thereof, namely, Talabsin absence whereof, it was held the right is extinguished; (iii) the period of limitation within which the suits were filed under old law contravened substantively the basic Islamic Law of Shufa; (iv) thus the institution of the suits at particular time within the permissible statutory period of limitation, having itself been hit there could not be any occasion for continuing such like suits; (v) the rule of substitution in the statutory law of pre-emption was considered as non-existent in the Islamic Shufa;
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(vi) the very definition of pre-emption assumed in the statutory laws involving a concept of gain in property and otherwise enrichment was held as un-Islamic; (vii) while in the statutory laws there was no control on exceptions, in the Islamic Shufa they would not only be controlled but very rare; (viii) and many other considerations; particularly, when the suits under the annulled laws were filed, e.g. On grounds of co-sharership other pre-emptors who could also have filed suits (if Islamic law was criterion), on the basis of contiguity and co-ownership in way or watercourse, could not and did not file the suits; as they were not permitted to do so in the context of the right of pre- emption granted to various categories priority-wise in the annulled laws. 25. It is for such innumerable very weighty reasons that a confusion bordering on anarchy, in the law of pre-emption was sought to be prevented by the Shariat Appellate Bench in passing the operative orders in the case of Said Kamal reproduced above. 26. The technical objection that the points raised before the Shariat Appellate Bench related only to the validity of the specified provisions-- groundwise, of the statutory laws, the Shariat Appellate Bench could not have passed the omnibus orders discussed above, is beyond the scope of this examination. In such like cases the jurisdiction of the Shariat Appellate Bench in this behalf has already been considered in various judgments of this Court including those of Sardar Ali PLD 1988 SC 287.; Pakistan v. Public-at-Large and others PLD 1986 SC 240; Secruity and Press Laws PLD 1988 SC 645 and 202 and Service Laws PLD 1987 SC 304. It may also be mentioned here that the review by the Shariat Appellate Bench can be made only by that Bench and one review application having been filed, has since been disposed of. 27. It has been pointed out as a ground in these petitions, that Shariat Appellate Bench did not itself by decision, . Render the provisions of the statutory law relating to the right of a co-sharer to file or continue the suits under the said laws, ineffective; therefore, the suits could continue without a decree. .This impression also is due to a misconception about the judgment and its operative part. As already stated paragraph 103 of the judgment (page 460 of the report) which mentioned the specific provisions brought under challenge cannot be read in isolation of paragraphs 104, 105 and the Court order. In paragraph 104 following words are highly important:- {{URDU TEXT}} ' This should leave no. Doubt that on account of innumerable reasons it was considered as impossible to keep alive and effective some parts of the challenged statutory law and annul the others. It would have left this branch of law in uncertainty. In various judgments of the Shariat Appellate Bench dealing with such like situations and issues, a positive view has been taken that the Court has the jurisdiction, while dealing with a specific challenged provision of law, to direct the amendments or other changes in the remaining law. See, amongst others well-known cases on the subjects of Press Laws, Security Laws as also Service Laws. It is in this very context that it was specifically held that the particularisation of some provisions {{URDU TEXT}}, , did not mean that the remaining provisions were not in conflict with the injunctions of Qur'an and Sunnah. It has already been demonstrated that if the remaining provisions would have been left operative, the results would have negated the decision of the Court itself. 28. Lastly, it has to be mentioned that the basis of the Punjab Pre-emption Act, are rooted in the customary law which in its major aspects derived strength from Hindu Law. In so far as some categories of pre-emptors under the N.-W.F.P. Statutory law, by and large are concerned, the position was not much different. This customary nature of the statutory pre-emption law has been dealt with in the recent case of Maula Bakhsh: Civil Petition No,26 of 1989 (decided on 7-3-1989). Reference therein has been made to earlier judgment of this Court in Mehr Allah Ditta's case PLD 1972 SC 59. Custom was sought to be done away with by the Shariat Appellate Bench in the case of Said Kamal; as also another one exclusively on Custom PLD 1983 SC 273.
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29. Before dealing with the next point it is necessary here to deal briefly with an impression as if the requirement of Talabs has been introduced by this Court for those cases which were instituted before 31st July, 1986 on the grounds of co-sharership etc., wherein pre-emptors had not obtained decrees. This misconception should have been removed by the judgment of this Court in the case of Ghulam Qadir v. Nawab Din PLD 1988 SC 701, wherein it was demonstrated in what context the short orders were passed in the cases of Sher Muhammad and Muhammad Shuaib. It was unfortunate tendency of some litigants who despite the Supreme Court judgment otherwise, persisted and wanted to pursue their cases without justification and would go to the extent of filing false affidavits in the pursuit of lust for enrichment and greed. On the other hand in the case of Sher Muhammad reference to the requirement of Talabs was in the context of the rule laid down in the case of Sardar Ali. It was in the sense that the Court had not permitted the continuance of the suits without decrees for various reasons e.g. The Talabs were not made in these cases and it is in this light that an example was given about a learned counsel himself who had not even heard of the expression "Talabs". It is, therefore, not correct to say that if the condition of Talabs would have been satisfied in these cases they could have proceeded; apart from the fact, that the Talabs could not have at all been made. 30. This has led to another point raised, namely, that the Talabs could not have been made by the pre-emptors at the time when the statutory law was in force as there was no requirement for the same. This is so. That is why amongst others it was one reason which le the Court (Shariat..Appellate Bench) not to keep alive the grounds relating to co-sharership etc., in the statutory laws. It was impossible to keep alive those grounds/suits under the umbrella of Islamic Law, the essential conditions whereof were neither fulfilled nor could be fulfilled with retrospective effect. Hence, neither the Court itself introduced the requirement by Talabs for the prior pending suits nor it ruled that the Talabs could then be made or now be made with retrospective effect. It was the insistence in the arguments raised repeatedly, case after case (that the ground of co- sharership, contiguity etc. Having not been annulled, they would continue to benefit the plaintiffs) that the obvious deficiencies including that Talabs were mentioned in the short orders. In any case this line of argument stands closed by the judgment in the case of Ghulam Qadir. Accordingly the further…
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