' TASSADUQ HUSSAIN JILLANI, J.---Petitioner/plaintiff's suit for pre-emption stands concurrently dismissed by the three courts below primarily on the ground that he did not mention the time and place where he came to know about the impugned sale transaction and the name of persons in whose presence, the Talb-e-Muwathibae was made.
2. It is argued that the learned High Court did not appreciate that in terms of Section 13 of the Punjab Pre-emption Act, 1991, a pre-emptor is merely to prove the performance of Talb-e- Muwathibat and Talb-e-Ishhad and the omission to mention the place and the time where Talb-e- Muwathibat was made is not mandatory nor the same is required under the Islamic Law. It was further argued that any provision of Punjab Pre-emption Act, 1991, has to be interpreted in accord with Sharjah law and according to D.F. Mullah in Islamic law time and place for performance of Talb-e-Muwathibat is not a sine qua non to prove it. With the insertion of Article 2-A of the Constitution, it was contended, any provision of law which is not in consonance with Islamic Law cannot be enforced.
3. Learned counsel for the respondent who was on watching brief submitted that this Court has reiterated more than once that the non-mentioning of time or place and witnesses before whom Talb-eMuwathibat was made is fatal for a pre-emption suit. In support of this contention, he referred to this Court's judgments reported at Pir Muhammad v. Faqir Muhammad (PLD 2007 SC 302), Bashir an Begum v. Nazar Hussain (PLD 2008 SC 559), Haq Nawaz v. Muhammad Kabir (2009 SCM R 630) and Ghafoor Khan v. Israr Ahmed (2011 SCM R 1545).
4. Having heard learned counsel for the petitioner at some length, we find that a bare reading of Para 2 of the plaint in the suit filed by the petitioner/pre-emptor indicates that petitioner did mention that he came to know about the impugned sale on 5-3-1996 and immediately declared A that he would preempt but neither mentioned the place where he acquired knowledge of the sale nor the time or the witnesses in whose presence he performed Talb-e-Muwathibat.
5. The question whether the non-mentioning of time, place and the witnesses before whom Talb- e-Muwathibat was made is a sine qua non to prove it has already been considered by this Court in several judgments. In a Fall Bench judgment of this Court reported at Pir Muhammad v. Faqir Muhammad (PLD 2007 SC 302), this Court held as follows:-- "4. It is observed that great emphasis and importance is to be given to this word in making of Talb-i-Muwathibat and it is necessary that as soon as the pre-emptor acquired knowledge of the sale of preempted property he should make immediate demand for his desire and intention to assert his right of preemption without the slightest loss of time. According to the dispensation which has been reproduced hereinabove alter performing Talb-i-Muwathibat in terms of section 13(2) of the Act, the pre-emptor has another legal obligation to perform i,e, making of Talb-i- Ishhad as soon as possible after making Talb-iMuwathibat but not later than two weeks from the date of knowledge of performing Talb-i-Muwathibat, therefore, the question can conveniently be answered by holding that to give full effect to the provisions of subsections (2) and (3) of section 13 of the Act, it would be mandatory to mention in the plaint date, place and time of performance of Talb-i-Muwathibat because from such date, the time provided by the statute i,e, 14 days under subsection (3) of section 13, of the Act shall be calculated. Supposing that there is no mention of the date, place and time of Talb-i-Muwathihat then it would be very difficult to give effect fully to subsection (3) of section 13 of the Act, and there is every possibility that instead of allowing the letter of law to remain in force fully there-emptor may attempt to get a latitude by claiming any date of performance of Talb-iMuwathibat in his statement in Court and then on the basis of the same would try to justify the delay if any, occurring in the performance of Talb-i-Ishhad. It is now a well-settled law that performance of both these Talbs successfully is sine qua non for getting a decree in a pre-emption suit." (Emphasis is supplied).
6. This Court reiterated the same view in. Bashiran Begum v. Nazar Hussain (PLD 2008 SC 559) wherein it was observed as follows: "It is to be noted that this controversy has been finally settled by. a Full Bench of this Court comprising five Hon'ble Judges in Civil Appeal 1Vo.1951 of 2000 decided on 12-12-2006 in case of Mian Pir Muhammad and another v. Fair Muhammad through L.Rs, and others (PLD 2007 SC 302), wherein all these authorities and references have been plausibly discussed and it was held that in a suit for pre-emption mentioning of date, place and time of making Talb-i-Muwathibat, in the plaint, is mandatory because in the absence of proper date, place and time, the time given in section 13(3) of the Punjab Pre-emption B Act, 1991 (hereinafter referred as the Act) for making Talb-iIshhad.Which is 14 days, cannot be correctly calculated. It is necessary that as soon as the pre-emptor acquires knowledge of sale of pre-empted property, he would make immediate demand about his desire and intention to assert his right of pre-emption without slightest loss of time and after making Talb-iMuwathibat in terms of section 13(2) of the Act, the pre-emptor has another legal obligation to perform i,e, Talb-i-Ishhad as soon as possible after making of Talb-i- Muwathibat, but not later than two weeks from the date of knowledge/ performance of Talb-i- Muwathibat. The mentioning of date, place and time in the plaint in a suit for pre-eruption is mandatory regarding Talbi-Muwathibat because from such date the time provided by the C statute for making of Talb-i-Ishhad i.e, 14 days, can be calculated. If there is no mention of date, place and time of knowledge about sale and making of Talb-i-Muwathibat, then it would be very difficult to give effect to section 13(3) of the Act and there is every possibility that instead of allowing letter of law to remain in force, the pre-emptor may attempt to get a latitude by claiming any date of .Performance of Talb-iMuwathibat in his statement in court and then on the basis of the same, try to justify the delay, if any, occurred in the performance of Talb-i-Ishhad.
Performance of both these Talbs is a sine qua non for getting a decree in a pre-emption suit. This Court has approved the view that a plaint wherein date, place and time of making of Talb-i- Muwathibat and date of issuing notice of Talb-i-Ishhad in terms of section 13 of the Act, D is not provided, it would be fatal for the pre-emption suit. The Hon'ble Bench of five Judges has dissented from the cases of Haji Noor Muhammad v. Abdul Ghani and 2 others (2000 SCMR 329), Altar Husain v. Abdul Hammed alias Abdul Majeed through Legal Heirs and another (2000 SCMR 314) and has approved the view expressed in the cases of Haji Muhammad Saleem v. Khuda Bakhsh (PLD 2003 SC 315), Fazal Subhan and 11 others v. Mst. Sahib Jamala and others (PLD 2005 SC 977)."
7. Again in Haq Nawaz v. Muhammad Kabir (2009 SCM R 630), the afore-mentioned view was reiterated and the latest judgment on the point is Ghafoor Khan v. Israr Ahmed (2011 SCM R 1545).
8. So far as argument with regard to section 13 of the Punjab Pre- emption Act, 1991, section 236 of Mahtomedi Law, 1981 by D.F. Mullah and Article 2A of the Constitution is concerned, the same would be of no avail because Article 2A of the Constitution is not a self-executor provision. By virtue of insertion of this Article the. Objectives Resolution was made part of the Constitution. It is at best a beacon light to guide the Legislature to enact the law in accord with the aspirations reflected therein and for all those concerned with the governance in the country to regulate their affairs accordingly. In Hakim Khan v. Government of Pakistan (PLD 1992 SC 595 at page 634), it was held as follows:-- "The provisions of Article 2A were never intended at any stage to be self-executor or to be adopted as a test of repugnancy or of contrariety. It was beyond the power of the Court to have applied the test of repugnancy by invoking Article 2A of the Constitution for striking down any other provision of the Constitution.
' The Court's primary duty is to adjudicate by reference to positive law in a manner to lend certainty, clarity and precision to the application of law to concrete questions of law and fact necessarily required to be decided. The Court should not undertake examination of theoretical and academic questions nor should ordinarily look for anomalies in the Constitution with a view to suggest to Parliament amendment or improvement in the Constitution. If the introduction of Article 2A of the Constitution as a substantive provision of the Constitution does not by itself authorize The Court to adopt it as a test of repugnancy with regard to the other Constitutional provisions it would be better for the superior Courts not to undertake this exercise or to record Opinions on merits with regard to such repugnancy. That would be a commitment not conductive to the purely judicial function's that the Courts are required to perform under the Constitution."
9. The afore-referred view was concurred in Mst. Kaneez Fatima v. Wali Muhammad (PLD 1993 SC 901).
10. For what has been discussed above, we do not find any merit, in this petition, which is dismissed and .