MIAN SHAKIRULLAH JAN, J.--- The respondents purchased some property through an unregistered sale-deed dated 25-11-1987 situated in Khwaza Khela. District Swat, the Provincially Administered Tribal Area (hereinafter to be called as PATA). This transaction was subsequently cancelled on 26-12-1987 by making an endorsement on the aforesaid sale-deed. However, the appellants instituted a suit for preemption on 30-12-1987 under the PATA Regulation No,II of 1975 by filing a plaint before the Deputy Commissioner, a forum established under the Regulation to decide such-like cases. The appellants' suit was decreed on 6-1-1988. The respondents filed an appeal before the Additional Commissioner, an Appellate Forum under the PATA. The appeal was allowed and the case was remanded back to the forum below for de novo proceedings in order to consider the factum of cancellation of the deed. Both the parties have filed two Revision Petitions before the Additional Home Secretary, a Revisional Forum under the Regulation and the Home Secretary disposed of both the Revision Petitions by a common short order, the interpretation of which has given rise to the present round of litigation and it is advantageous to reproduce the said order in extenso:- "ORDER.
' Counsel with parties present and heard. Record perused.
' There is nothing to warrant interference in the impugned order dated 29-1-1992 of the trial Court.
The version of the respondents is that no transaction has taken place.
' No transaction no pre-emption would hold good. Deposit of the pre-emption money would be consiuered as deposit in time and would remain to be computed from the existing date irrespective of the withdrawal of the pre-emption amount.
' My this order will dispose of both the revision petitions."
2. This order was challenged by the appellants before the High Court through writ petition which was subsequently withdrawn on the ground that the impugned order was in their favour. The appellants then filed execution application before the Civil Court, as by then the PATA Regulation had been repealed and the Civil Court had started functioning. During the execution proceedings, the respondents filed an objection petition on the ground that the appellants were having no executable decree in their favour but the same was dismissed with a similar result before the Appellate Court and who then filed a revision petition before the High Court which was accepted through the impugned judgment and now the appellants have filed the instant appeal with leave of the Court.
3. The moot point for consideration is as to whether the decree passed in favour of the appellants can be executed or not and in view of non-making Talabat in accordance with the Islamic Mode of Dispensation in such-like cases not governed by any statute and what would be its effect. The first line of the second paragraph which has been underlined by us, is of significance as it is these two sentences which have given rise to the present controversy. On one hand, the Home Secretary has observed as "there is nothing to warrant interference in the impugned order dated 29-1-1992 of the trial Court" and on the other hand he also observed "no transaction, no pre-emption would hold".
Though he has given the date of the order impugned as 29-1-1992 which is that of the trial Court but he has ,mentioned the word impugned and order challenged before him was that of the Appellate Court as it is the order of the Appellate Forum which had been challenged/impugned by both the parties before him. Hence the order which according to him do not warrant interference would be that of the Appellate Forum and which fact is having the support of his observation in the first line of the second paragraph as "no transaction, no pre-emption" relatable to the cancellation of the transaction as alleged by the respondents. This order has been held by the High Court as "not a speaking order and the most confused one," and it has further been observed by the High Court "that no transaction, no pre-emption would hold good and thus the matter closed here" and concluded that there was no order/decree to be executed.
4. In view of what has been discussed above, we agree with the findings of the High Court qua the interpretation of the order of the Home Secretary, however, such findings are not sufficient to conclude the matter. However, another aspect of the case i,e, of non-making of Talbs. The suit has been filed on 30-12-1987 and at that time the N.-W.F.P. Pre-emption Act, which was promulgated on 25-4-1987 had not been extended to the PATA and in view of the vacuum/absence of any law of pre-emption, it would be the Muslim Pre-emption Law which had to govern the field. In this respect, reliance can be placed on a judgment of this Court Sardar Ali and others v. Additional Secretary Home and TA Department and others 1996 SCM R 1480, relevant text whereof is reproduced hereinbelow:- "3. In support of this petition, the learned counsel for the petitioners contended that as the N.-W.F.P.
Pre-emption Act, 1987, has not been extended to the Provincially Administered Tribal Areas the judgment of the learned Peshawar High Court was untenable merely on the ground that Talbs had not been made by the preemptors/petitioners.
' The contention of the learned counsel for the petitioners is untenable, in that, it is now settled once for all that the requirement of Talbs being a sine qua non for the enforcement of the right of pre- emption recognized by the Muslim Law, its, non-compliance had the effect of extinguishing the pre-emptive rights of all the pre-emptors. This statement of law makes no distinction between the cases under the statutory law of preemption or under the Muslim Law, pure and simple. Admittedly, the areas under Regulation No,II of 1975 are governed by the pre-emption law under the general Muslim Law under which, as stated earlier, the requirement of Talb is one of the essentials for exercising the right of pre-emption. It would not, therefore, make any difference if the N.-W.F.P. Pre- emption (Act No,X of 1987) has not been extended to the Provincially Administered Tribal Areas."
5. In view of the aforesaid legal position in the light of the judgment in Sardar Ali and others v.
Muhammad Ali and others PLD 1988 SC 287, the pre-emption suit had to abate. So in view of what has been discussed above, if the case is again sent' back in view of the order of the Appellate Forum, the ultimate result would be abatement of the case as admittedly no Talbs have been made neither the same have been alleged in the plaint. Resultantly, this appeal has no merits and the same is dismissed with no order as to costs.