1. ' This is a Revision Petition against the order, dated 16-3-1986 of the Additional Commissioner, Hazara, whereby the appeal of the petitioners against the order, dated 29-12-1985 of the Revenue EAC/ Collector, Abbottabad was dismissed.
2. ' The apple of discord in the instant Revision Petition is the sale Mutation No. 830, attested on 24-10- 1983 whereby the suit land was sold by Muqaddas Ahmad Khan in favour of Muhammad Hassan and Gul Zaman petitioners. The respondents Muhammad Yousaf and Muhammad Yunus the tenants-at-will having prior right of pre-emption conferred and recognized by clause (d) of sub- para. (3) of para. 25 of the Land Reforms Regulations 115 of 1972 brought a pre-emption suit on 13- 11-1983 in the Court of Collector Abbottabad, who vide his order, dated 29-12-1985, decreed the suit land in favour of the respondents. The petitioners appealed against the order of Collector, Abbottabad before the Additional Commissioner, Hazara at Abbottabad, which was dismissed vide his order, dated 16-3-1986. The petitioners have now come in Revision Petition before this Board.
3. ' Since the lodging of the suit for possession of land through pre-emption on 1983 much water has flowed in Abasin under the Attock Bridge and the very right of tenant has been put to judicial test and scrutiny before the Shariat Courts. In N.-W:F.P. The subject of the right of pre-emption of a tenant appeared for adjudication before the Federal Shariat Court in 1979 and the right was declared to be repugnant to the injunctions of Holy Qur'an and Sunnah. The Government of N.- W.F.P. Went in appeal before (Shariat Appellate Bench) Supreme Court of Pakistan.
4. ' The Honourable Judges of the Supreme Court (Shariat Appellate Bench) heard the appeals lodged by the N.-W.F.P. Government alongwith other appeals preferred before the Court. The Supreme Court (Shariat Appellate Bench) dismissed the appeals todged by the N.-W.F.P.
5. Government and accepted the other appeals vide judgment, dated 23-2-1986 appearing in PLD 1986 SC 360. The right of pre-emption conferred on the tenants was held to be repugnant to the Injunctions of Islam. It was ruled.
6. "Law of pre-emption in Islam is a specified exception to general law of freedom of contract and purchase in Islam and would be repugnant to Injunctions of Islam if new exceptions are created-- There being only three categories of pre-empts, it would be repugnant to relevant injunctions if exceptions were curtailed property-wise or increased, person-wise--Injunctions of Islam and such infringement would not be able to co-exist in context of definition of 'repugnancy'. The Court also held". {{URDU TEXT}} ' The Appellate Shariat Bench of Supreme Court of Pakistan on declaring the pre-emption laws particularly the rights of pre-emption conferred on the tenants as repugnant to the Injuncitons of Islam as laid down in the Holy Qur'an and the Sunnah of the Holy Prophet fixed 31st July, 1986 as the dead line to amend the law of pre-emption to bring it into confirmity with the Injunctions of Islam under Article 203-D Chapter (3)(a), of the Constitution of Pakistan.
7. ' Since the Supreme Court (Shariat Appellate Bench) has ruled that the right of pre-emption afforded to the tenant under the Land Reforms Regulation, 1972 is a flagrant violation of Injunctions of Islam, no case for pre-emption before any Court pending after this landmark decision can be entertained. Article 203-D, para. (3)(b) of the Constitution of Pakistan speaks of the affect of such a decision in the following words:- "If any law or provision of law is held by the Court to be repugnant to the Injunctions of Islam, such law or provision shall, to the extent to which it is held to be so repugnant, cease to have effect on the date on which the decision of the Court takes effect."
8. ' The order of the Supreme Court (Shariat Appellate Bench) has to take effect on August,1986.
9. Therefore. Any case pending before any Court after the due date wherein the right of a tenant is entertained in a pre-emption suit conferred on him under the Land Reforms Regulation 115 of 1972, has to be filed.
10. ' In pursuance of the orders of the Supreme Court (Shariat Appellate Bench), it is held that the respondents have no right of pre-emption. The Revision Petition is accepted and the decree passed in favour of the respondents by the Collector, Abbottabad on 29-12-1985 and the orders of Additional Commissioner, Hazara, dated 16-3-1986 are set aside. Parties to bear their own costs.