Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: ABDUL GHAFFAR KHAN and others VS Respondent: SAGHIR AHMAD ASLAM and OTHERS
Court Name: Lahore High Court Judge(s): Ghulam Mujaddid Mirza, Manzoor Hussain Sial, Abaid Ullah Khan Title: ABDUL GHAFFAR KHAN and others vs SAGHIR AHMAD ASLAM and OTHERS Case No.:C.Rs, Nos. 76 and 77 of 1987 Civil Revision No,76 of 1987 Regular First Appeal
JUDGMENT
Reported As: PLD 1987 Lahore 358 Result: Order accordingly Judgment JUDGMENT ABAID ULLAH KHAN, J.--- This Full Bench has been constituted to determine the scope, effect, extent and application of judgment of the Shariat Appellate Bench of the Supreme Court, dated 26-2- 1986 (hereinafter to be referred to as the judgment) in Shariat Appeals Nos.4 and 5 of 1979, 2,5,7 and 15 of 1981, reported as Government of N.-W.F.P. v. Malik Said Kamal Shah PLD 1986 SC 360. ' The necessity of constituting this Full Bench (hereinafter to be referred to as the Bench) prose because of the conflicting views of various Benches of this Court and the lack of proper appreciation and application of the judgment by the subordinate Courts. It, therefore, became essential to resolve this controversy in order to attain uniformity. 2. The Shariat Appellate Bench defined the law of Shufa and declared certain provision of the law of pre-emption embodied in the Punjab Pre-emption Act, 1913 (I of 1913) and the Land Reforms, Regulation, 1972 (Martial Law Regulation No,115 of 1972), in so far as they are operative within the Province of the Punjab, to be repugnant to the Injunctions of Islam. 3. The judgment precisely declares the following provisions of statutory law to be repugnant to the Injunction of Islam,-- (i) clause (d) of sub-para. (3) of para. 25 of the Land Reforms Regulation, 1972, endowing upon a tenant the first right of pre-emption in respect of the land comprised in the tenancy;
---
## Page 2
(ii) section 15 (a) and (b) upto thirdly of the Punjab Pre-emption Act, relating to the enjoyment of right of pre-emption by the heirs of the vendor; (iii) subordinating the right of pre-emption of a co-sharer to that of others as envisaged by section 15 (b) fourthly of the Punjab Pre-emption Act; (iv) conferment of right of pre-emption on the owner of the Patti or other sub-division of the estate within the limits of which the land or property sold is situate, or upon the tenant or any other person except a co-sharer or neighbour as contemplated by section 15 (c) of the Punjab Pre-emption Act, and (v) section 30 of the Punjab Pre-emption Act as it does not lay down the necessary reasonable time limit for claiming pre-emption . 4. The Bench set down the following points on which it invited the learned members of the Bar to address arguments,-- (i) Is the decision to take effect only after the President or the Governor, as envisaged by Article 203-D (3) (a) of the Constitution, has taken steps to amend the law of pre-emption so as to bring it into conformity with the Injunctions of Islam or is it to take effect, notwithstanding absence of such amendment by the President or the Governor, on the day the Court has desired it to take effect? (ii) Is the decision to apply to pending suits, appeals, revision petitions, writ petitions, or other proceedings or its application restricted to the newly instituted suits? (iii) It may happen that a pre-emptor, though having preferential right of pre-emption by virtue of qualification recognized by Islamic law and enumerated in the judgment, e.g., co-ownership of the property sold, might have ignored to base his claim on such a qualification and might have pleaded any other superior qualification contained in the Punjab Pre-emption Act, 1913 (I of 1913), e.g., right to inherit the property as heir. Should he in such an event be allowed to amend the plaint, memorandum of appeal, revision or any other petition so as to assert superiority of his pre- emptive right on the basis of the first mentioned qualification? (iv) Should a party, who has acquired superiority of pre-emptive right as a result of taking effect of the judgment be permitted to resist his opponent's claim which was valid under the provisions of the Punjab Pre-emption Act? If so, at what stage of litigation can he be allowed to throw successful challenge to the opponent's right? (v) When and how is the judgment to take effect? Is it to operate retrospectively? Which transactions would be susceptible to and which immune from its effects? 5. We told the learned members of the Bar participating in the debate that they were at liberty to raise any other important point which might help resolve the controversy. Though the learned members advanced arguments of their choice we have confined ourselves to dealing with only relevant portions thereof. 6. At the very beginning, Sheikh Ghias Muhammad, Advocate, pointed out that the Shariat Appellate Bench, though required by Article 203-D (2) of the Constitution, had not specified the day on which the judgment should take effect and, therefore, the judgment could not be said to have taken effect. Referring to para. 105 of the Judgment of Maulana Muhammad Taqi Usmani, J. (at page 491 of the report) and the operative portion of the order of the Shariat Appellate Bench (at page 476 of the report), which are reproduced below, he contended that the Shariat Appellate Bench had issued directions to the Federal and the Provincial Governments of the Punjab and North West Frontier Province for amending the laws which it was not authorised by the Constitution to do and had omitted to specify the day the judgment was to take effect which fact it was required by Article 203-D (2) to mention in the judgment: {{URDU TEXT}} "ORDER OF THE COURT
---
## Page 3
' We while agreeing with the reasoning in the judgment of Shafiur Rahman, 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 at to costs." ' This view was not shared by other lawyers taking part in the discourse. They were of the view that the Shariat Appellate Bench had set down, though not in unequivocal words, the day the judgment had to take effect. They argued that a reading of para. 105 in juxtaposition with the operative portion of the order of the Shariat Appellate Bench would indicate that the Shariat Appellate Bench allowed the Government time till the 31st July, 1986, to amend the laws declared to be repugnant to the Injunctions of Islam so as to bring them in conformity with the Injunctions of Islam failing which the aforesaid provisions of law would, as provided by sub-clause (b) of clause (3) of Article 203-D, cease to have effect from the said date. The observations of the Supreme Court appearing in its order declining to grant leave to appeal in the case of Piran Ditta v. Member, Revenue Board 1987 SCMR 406 indicating that the judgment came into effect on the 31st July, 1986, and the repugnant pre-emption laws became ineffective from that date were brought to our notice. 7. Mr. Muhammad Arif, Advocate, submitted that since the Government had been given time by the Shariat Appellate Bench till the 31st July, 1986, to amend the laws the judgment would take effect on the failure of the Government to make the requisite amendments by the 31st July, 1986, from the following day, i,e,, from the 1st of August, 1986. 8. In order to ascertain whether the Court specified the day and if so which precise day for the purpose of its decision to take effect a reference will have to be made to para 105 of Justice Maulana Muhammad Taqi Usmani's judgment alAd the operative portion of the 'order of the Court' reproduced above. According to the order of the Court the appeals were decided in terms of the formal last part (para. 105) of the judgment of Maulana Muhammad Taqi Usmani, J. In para 105 the Federal Government and the Provincial Governments of the Punjab and North-West Frontier Province were advised to amend the repugnant laws so as to bring them into conformity with the Injunctions of Islam by the date which was mentioned in the order of the Shariat Appellate Bench and it was stated that otherwise, that is to say, in case of failure of effecting the necessary amendments, those laws would cease to have effect from the said date (mentioned in the order of the Court). It was suggested that better way of making amendments would be that the repugnant laws should be E repealed and fresh law of pre-emption in conformity with the Injunctions of Islam should be promulgated or the law of pre-emption should be left to operate as Muslim Personal Law. The penultimate sentence of the operative portion of the 'order of the Court' sets down the date of the 31st. July, 1986, by which a consolidated law of pre-emption was desired to be enacted. This is the date by which the Federal and the Provincial Governments were asked, vide para. 105 of Maulana Muhammad Taqi Usmani's Judgment, to make necessary amendments in the laws failing which the repugnant provisions of laws were to cease to have effect. Consequently, it can be safely inferred that the Shariat Appellate Bench did specify the day of the 31st July, 1986, when the judgment was to take effect. 9. In order to appreciate the contentious arguments of the learned counsel on the point whether or not the repugnant laws have ceased to have effect it may be advantageous to keep in view the relevant provisions of clauses (2) and (3) of Article 203-D of the Constitution: "203-D.-- (1)..................................................................... (2) If the Court decides that any law or provision of law is repugnant to the Injunctions of Islam, it shall set out in its decision:-
---
## Page 4
(a) the reasons for its holding that opinion; and (b) the extent to which such law or provision is so repugnant, and specify the day on which the decision shall take effect: (3) If any law or provision of law is held by the Court to be repugnant to the Injunctions of Islam,- (a) the President in the case of a law with respect to a matter in the Federal Legislative list or the Concurrent List, or the Governor in the case of a law with respect to a matter not enumerated in either of those lists, shall take steps to amend the law so as to bring such law or provision into conformity with the Injunctions of Islam; and (b) such law or provision shall, to the extent to which it is held to be so repugnant, cease to have effect on the day on which the decision of the Court takes effect." 10. An attempt was made by some of the members of the Bar to interpret clause (3) of Article 203- D to mean that it was only after the President or the Governor had taken steps to amend the law so as to bring it into conformity with the Injunctions of Islam that the repugnant law would cease to have effect on the day on which the judgment takes effect. They tried to read the word 'and' occurring between sub-clauses (a) and (b) of clause (3) of Article 203-D conjunctively and submitted that sub-clause (b) was dependent upon and could not exist independently of sub- clause (a) and unless action required by sub-clause (a) had been taken the operation of sub- clause (b) could not follow. They thought that it was only after the President or the Governor had taken steps to amend the law so as to bring it into conformity with the Injunctions of Islam that the impugnant law would cease to have effect. The words 'if possible' found in the penultimate sentence of the order of the Court were interpreted by some lawyers in a way to leave it to the discretion of the President or the Governor to take or not to take steps to amend the law. 11. Ch. Muhammad Farooq, Advocate, contended that it was not intended nor it could be imagined that the outcome of the whole exercise of examining and adjudging the law to be repugnant to the Injunctions of Islam should be placed at the mercy of five persons in Pakistan, namely, the President and four Governors of the provinces, who by their inaction in amending the law might be able to destroy the fruits of the Shariat Appellate Bench's labour and frustrate the process of islamization of laws which the Government and the Legislature had so avidly undertaken to accomplish. He as well as the majority of the learned counsel tried to read the word 'and' between sub-clauses (a) and (b) of clause (3) of Article 203-D disjunctively and treating the two sub- clauses (a) and (b) independent of each other advice argument that if the President or the Governor were to fall to take steps to amend the law the judgment would take effect from the specified day and the law declared to be repugnant to the Injunctions of Islam would cease to have effect on that day. 12. We are of the view that the Court was not supposed to undertake the exercise of examining and deciding the question whether or not any law or provision of law was repugnant to the Injunctions of Islam in futility. When the Court holds any law or provision of law to be repugnant to the Injunctions of Islam, the President, in the case of a law with respect to a matter in the Federal Legislative List or the Concurrent Legislative List or the Governor of the Province, in the case of a law with respect to a matter not enumerated in either of those Lists, is given option under sub-clause (a) to take steps to amend the law so as to bring the repugnant law into conformity with the Injunctions of Islam. However, inaction on the part of the President or the Governor to take steps to amend the law would not stand in the way of the judgment to take effect as envisaged by sub- clause (b). The word 'and' inserted between sub,-clauses (a) and (b) is to be read disjunctively and what has been laid down in sub-clause (b) would become operative. In that view of the matter the repugnant laws ceased to have effect on the 31st July, 1986. 13. Syed Zainul Abidin and Dr. Abdul Basit, Advocates, tried to assail the very creation of the Federal Shariat Court and canvassed for treating the judgment. (which was pronounced by the Supreme
---
## Page 5
Court on appeal against the judgment of the Federal Shariat Court) to be a nullity in law. They argued that insertion of Chapter 3-A in Part VII of the Constitution creating the Federal Shariat Court and laying down the effect of its decision as also of the Supreme Court in appeal by the Constitutional Amendment Order, 1979 (President's Order No,3 of 1979) and later on substitution of this chapter by another chapter through the Constitutional Amendment Order, 1980 (President's Order No,1 of 1980), was wholly unconstitutional because the President was not competent to amend the Constitution in that way. Syed Zainul Abidin also drew our attention to Part IX of the Constitution and especially to the functions of the Islamic Council which, according to him, could have performed the job of advising as to which of the laws was repugnant to the Injunctions of Islam in as good a Manner as the Federal Shariat Court was supposed to do. He submitted that when machinery for examining the repugnancy of and amending law already, existed in the Constitution there was no idea in creating the Federal Shariat Court for performing duplicate job. Nevertheless, as Mr. Muhammad Arif, Advocate, and other learned counsel, with whom we find Ourselves in agreement, contended, the judgment was pronounced by the Supreme Court of Pakistan and according to Article 189 of the Constitution it was binding on all Courts, including this Court. We, therefore, do not consider it necessary to dilate upon this contention any further. 14. The most important question upon which divergent views were expressed is whether the judgment is prospective or retrospective in its operation and how it is to be applied to and how the cessation of repugnant laws is to affect the pending cases including suits, appeals, revision petitions, writ petitions, execution applications and miscellaneous petitions. Broadly speaking there are three different schools of thought. One view was that cessation of the repugnant laws amounted to their repeal and the normal consequences of repeal would regulate the fate of the pending cases. That the repeal keeps intact the right, privilege, obligation or liability acquired, accrued or incurred and ensures that the pending lis, including appeals, etc. , is to be decided by the law existing before repeal is beyond dispute. The pending proceedings are governed by the law which prevailed when the lis, e.g. Suits, started. However, some learned counsel entered caveat to this principle saying that in the pre-emption cases if the pre-emptor had been stripped of the right of pre-emption as a result of taking effect of the judgment before he was able to secure decree in the suit filed by him he would be non-suited. They based their contention on the principle of law peculiar to pre-emption case developed, recognized and applied by this Court that the pre- emptor must have a subsisting right of pre-emption at the time of sale, at the time of institution of suit and at the time of passing of the decree. The cases referred to by them in this connection, some of which are reported as Bishen Singh v. Ganda Singh 10 P R 1909; Atma Ram v. Deiv Dyal 49 P R 1901; Het Ram v. Dal Chand I L R 14 Lah. 421 and Abdul Rahman v. Wahid Bakhsh PLD 1977 Lah. 1243, mostly dealt with the situation arising as a result of Government declaration by notification issued under section 8 (2) of the Pubjab Pre-emption Act that in any local area or with respect to any land or property or class of land or property or with respect to any sale or class of sales no right of pre-emption or only such limited right as the Government might specify would exist. Though in the beginning for some time the view prevailed that such a notification granting exemption from pre-emption was prospective in nature and applied only to suits which were instituted after and could not affect any right of pre-emption in respect of which suits had been brought before its publication yet later on consensus developed on the point that for a pre-emptor to succeed in a suit he must prove that he possessed subsisting right of pre-emption at the time of sale, institution of suit and passing of the decree and any loss of right during the pendency of suit by the notification or otherwise before passing of decree in the suit would non-suit him. Once the decree was passed in his favour, any subsequent notification or loss of right would not adversely affect him in appeal or further proceedings. This law was applied by this Court till the judgment took effect. On this basis it was argued that once the pre-emptor is shown to have carried his right
---
## Page 6
till the stage of the decree the judgment should not interfere with his right in appeal, revision, execution, writ or other proceedings. 15. As extreme view was put forth by Mr. S.M. Masood, Chaudhry Muhammad Farooq and Dr. Abdul Basit as well as by some other Advocates who participated in this discussion and that was that the laws declared to be repugnant might be treated as void ab initio and they would be deemed never to have existed right from their inception and except for past and closed transactions the judgemnt would be applicable to all the pending proceedings including suits, appeals, revision petitions, writ petitions, execution applications, miscellaneous petitions and if the pre-emptor was found to have lost his right of pre-emption in view of the judgment, his suit, appeal, revision petition, writ petition or execution application should be dismissed. Reference in this connection was made to the provisions of West Pakistan Muslim Personal Law (Shariat) Act (Amendment) Ordinance, 1983 (XIII of 1983), which amended the West Pakistan Muslim Personal Law (Shariat) Act, 1962 (V of 1962), as a result of declaration of custom relating to succession to and restrictions on the powers of alienation of agricultural land by the Supreme Court in the Federation of Pakistan v. Muhammad Ishaque PLD 1983 SC 273 to be repugnant to the Injunctions of Islam. Section 2-A inserted in the last mentioned Act rendered all decrees, judgments and order of Courts affirming the right of any reversioner under Custom or usage to call in question alienation or directing delivery of possession of agricultural land on the basis of custom to be void, inexecutable and of no legal effect to the extent H they were contrary to Muslim Personal Law (Shariat) and all suits and other proceedings of such a nature pending in any Court and all execution proceedings seeking possession of land under such decrees were made to abate forthwith. The transactions past and closed where possession of land had already been delivered under such decrees were left undisturbed. 16. One set of lawyers took the words 'ceased to have effect' used in sub-clause (b) of clause (3) of Article 203-D to be synonymous with the word 'void' found in Article 8 of the Constitution. The case of Saiyyid Abul Aga Maudoodi v. Government of West Pakistan PLD. 1964 SC 673 explains the incidents of law which due to inconsistency with the fundamental rights is void. ' Chaudhry Muhammad Farooq took us through the observations of the Supreme Court to the effect that when a Court declares a law to the void for unconstitutionality it does not repeal the statute but merely holds it to be ineffective in the premises and that when it is said that a particular existing law has become void owing to its conflict with a fundamental right it does not mean that it was ab initio void or that it was effaced from the statute book, it only means that such law becomes unenforceable so long as conflict with a fundamental right exists and if the fundamental right for some reason or the other disappears the law would become operative again. To bring out the significance of 'void' the learned counsel cited All Muhammad v. Hussain Bakhsh PLD 1976 SC 37 where the order passed in excess of jurisdiction of authority making the order was described to be void and non-existent. The word 'void' as used in section 2 (g) of the Contract Act, 1872, was explained in the Chairman, District Screening Committee, Lahore v. Sharif Ahmad Hashmi PLD 1976 SC 258, referred to by the learned counsel, as meaning 'absolutely null, that is to say, incapable of ratification or confirmation and of no effect whatever. 17. Chaudhry Muhammad Farooq submitted that the laws held to be repugnant to the Injunctions of Islam should be taken to be so repugnant since the advent of Islam and, therefore, no person could be considered to have ever acquired any right under them. Mr. S.M. Masood and Mr. Asif Ranjha were of the same view. 18. Dr. Abdul Basit contended that if the law had been amended as envisaged by sub-clause (a) of clause (3) 'of Article 203-D, the law held to be repugnant would be considered to have been repealed and consequences of repeal of law would have flowed, the rights and privileges which the parties had acquired before the amendment would have survived and would have been
---
## Page 7
enforced but in the absence of such an amendment, sub-clause (b) was to have its way and the repugnant laws ceasing to have effect the doctrine of ultra vires would come into play and the repugnant laws would be deemed to have been void ab initio and on that account any right of the parties arising out of the repugnant laws would be taken to have not existed and to have vanished. In such an eventuality, he submitted, all pending pre-emption cases including suits, appeals, revision petitions, writ petitions, execution applications, miscellaneous petitions, if the pre-emptive rights were based on the repugnant laws, would be decided against the pre-emptors because their rights would have been taken never to have existed. 19. In order to show how the Courts had perceived the effects of the judgment, Chaudhry Muhammad Farooq cited cases which, in chronological order of verdict, are listed as under:- (i) Khurshid Ali v. Doctor Abdul Malik 1986 CLC 2995. (ii) Ali Hussain v. Mir Zaman 1987.0 L C 127. (iii) Muhammad Amin Shah v. Haji Muhammad 1986 MLD 2747. (iv) Muhammad Sharif v. Member (Revenue), Board of Revenue, Punjab, Lahore PLD 4987 Lah. 58. (v) Abdullah Khan v. Member, Board of Revenue, N.-W.F.P 1986 SCMR 2006, (vi) Khan Muhammad v. Ghulam Rasool PLD 1987 Lah. 71. 20. In Khurshid Ali v. Doctor Abdul Malik the petitioner claimed right of pre-emption on the basis of his being tenant of the land in dispute under para. 25 (3) (d) of the Land Reforms Regulation 1972. He succeeded to secure decree from the Collector but was non-suited in appeal brought by the opposite party. Having failed in revision before the Board of Revenue he invoked the extraordinary…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.