' SHAFIUR RAHMAN, J.--A number of Petitions in motion, and a few others after notice and in the presence of both the parties, have come up for consideration before this Court with a view to determine the effect and scope of the judgment given in Said Kamal ,Shah's case PLD 1986 SC 360 as interpreted .Subsequently in a number of other cases.
2. The Petitions which have been heard in the presence of both the parties are Civil Review Petition No,80-R/1988, Civil Petitions No,34 and 35 of 1989 and Civil Petitions No,464 and 465 of 1989.
3. The facts in the Review Petition (No,80-R/88) are that a sale of agricultural land took place on 15- 8-1978 in Tehsil and District Khanewal. It was subjected to a pre-emption suit by Ahmad, the Petitioner. He claimed superior right of pre-emption on the ground of being a co-sharer in the suit land. The suit was contested on numerous grounds but not with regard to the superior right of pre- emption on the ground of being a co-sharer in the land. No issue was, therefore, framed with regard to the superiority of the right of pre-emption but issues related to other subjects, one of them being whether the plaintiff/pre-emptor was estopped from bringing the suit. The trial Court came to the 'conclusion that the pre-emptor had waived his right of pre-emption and was estopped from suing. On this finding alone the suit was dismissed. The first appellate Court by its judgment dated 31-3-1987 reversed the finding on issue No,3 and decreed the suit. Abdul Aziz, the vendee preferred a Regular Second Appeal in the High Court which was dismissed. Leave to appeal was granted by this Court on 17-8-1988 to examine whether in view of the decision given in Sardar Ali's case PLD 1988 SC 287 the judgment rendered by the Court and impugned in the appeal to the Supreme Court was not liable to be set aside. The appeal ultimately was heard and allowed on 30th October, 1988 observing as hereunder:-- "This Court in a large number of cases has held that where no decree has been passed in favour of a Pre-emptor at any stage before 31st July, 1986, no decree could now be passed after the said date, i.e, 31-7-1986, in his favour on any ground -- co-ownership, contiguity, etc. These judgments are being repeated; Government of N.-W.F.P. v.. Said Kemal Shah PLD 1986 SC 360, Sardar All v.
Muhammad All PLD 1988 SC 287, Muhammad Shoaib v. Member (Revenue) PLD 1988 SC 355, Sher Muhammad v. Allah Ditta PLD 1988 SC 412, Ghulam Qadir v. Nawab Din PLD 1988 SC 701 and Aiwaz Khan and another v. Allah Bakhsh Civil Appeal No,288 of 1988 decided on 14th September, 1988 (PLD 1988 SC 730)."
' The Petitioner seeks review of this judgment.
4. In Civil Petitions No,34 and 35 of 1989 agricultural land was sold through a Mutation of sale No,23 attested on 6-7-1981 for a consideration of Rs,3,00,000. The plaintiffs who are now the Petitioners before us claiming to be possessed of a superior right of pre-emption on the ground of being co- sharer in the property sold; sought to pre-empt it claiming that only Rs,90,000 had been 'paid. The suit was contested by the vendees and a number of issues were framed. It is not necessary in these proceedings to go into the merits of the controversy. Suffice it to say that the Court while deciding the case on 21st of January, 1987 dismissed it observing as hereunder:-- "In view of my above detailed discussion, I am of the considered view that the vendee-defendants were in possession of the disputed land as non-occupancy tenants at the time sale took place and as such their right is superior to that of the plaintiffs. The question which now arises for consideration is as to what is the effect of PLD 1986 SC 360 on the rights of the vendee-defendants.
According to this authority, superior right of pre-emption given to the tenants has been repealed with effect from 31st July, 1986, which means that the tenants are now, debarred from instituting pre-emption suits. However, rights of tenants who purchased the land prior to 31-7-1986 are not affected by the above authority. I am supported in my view by Section 6(c) of the General Clauses Act, 1987. This section lays down that repeal of any act does not affect a right already acquired under any enactment so repealed. This issue is accordingly decided against the plaintiffs."
' An appeal was taken to the District Judge by the pre-emptor and it was allowed. The District Judge reversed the finding'on issue No,10 by observing as hereunder:-- "In view of the foregoing discussion; the finding of the learned Trial Court on issue No,10 is not sustainable. The claim of the respondents that they were tenant of the' suit land is not established from the evidence on record. The fact is that they entered upon the land in suit in pursuance of an agreement of purchase and they got themselves recorded as such ( ). The subsequent charge in the Girdawari is of no legal consequence, as the status of the respondents could not be altered from being in possession for part performance of the contract of sale to that of mere tenant. In PLD 1956 Lahore 245, it was ruled that there being new, entry in Revenue record as illegal, old entry vis of being in possession as intended vendee would remain in operation. I reverse the findings on issue No,10 and decide the issue in favour of the appellants."
' The appellate Court decreed the claim of the plaintiffs on a payment of Rs,3,22,800.
5. Two Regular Second appeals were filed against this judgment of the first Appellate Court, one was by the successful pre-emptors plaintiffs who challenged the amount they were required to pay for pre-empting the sale. The other was by the vendee challenging the very right of the pre-emptor to obtain a decree. Both these appeals were disposed of by the High Court by a common judgment dated 23-10-1988 by observing as hereunder:-- "The suit of the pre-emptors was decreed on the ground of co-sharers on 2-3-1988. It is not denied that on this date no decree of pre-emption could be granted in view of the pronouncement of the Supreme Court in the cases of Government of N.-W.F.P. v. Said Kamal Shah PLD 1986 SC 360, Sardar Ali and others v. Muhammad Ali and others PLD 1988 SC 287 and Ghulam Qadir v. Nawab Din PLD 1988 SC 701. In view of above the impugned judgment and decree is not sustainable and the same is, therefore, set amide with the result that the decree of dismissal of the suit stand's restored. The appeal of the vendee-defendants, therefore, succeeds while the other appeal is dismissed. The parties are however left to bear their own costs."
' Hence the two Petitions impugning these judgments.
6. Ahmad Din, the predecessor-in-interest of the Petitioners in Civil Petitions No,464 and 465 of 1989 pre-empted by two separate suits, two sales by the same vendor in favour of different vendees. The first in point of time was the sale effected by registered deed No,1936, dated 12-8-1981 for a consideration of Rs,2,00,000 and the second was against the sale effected by registered deed No,2485 dated 6-10-1981, for a consideration of Rs,2,38,000. In both the suits he claimed his superior right Of pre-emption, being owner in the estate, having land contiguous to the land sold and also sharing with the land sold the source of irrigation and the approach road of path common to both the lands. The suits were contested and a number of issues were framed. The learned trial Court by examining the judgment of this Court in Said Kemal Shah's case PLD 1986 SC 360 as interpreted in Muhammad Sherif v. Member (Revenue), Board of Revenue, Punjab, Lahore and 2 others PLD 1987 Lahore 58 and Khan Muhammad and 3 others v. Ghulam Rasool and 5 others PLD 1987 Lahore 71 dismissed the suits on the grounds as hereunder:-- "From the above-quoted para it is crystal clear that the plaintiff's alleged right of pre-emption does not exist any more. The contention of the learned counsel for the plaintiff that his suit falls under para. C ( ) of the observations of Mr. Justice Muhammad Taqi Usmani's judgment and is exempt from the operation of the judgment of Hon'ble Supreme Court of Pakistan, is also not tenable because this ground has not yet been enforced by the Legislatures. It has clearly been held in the judgment that the Shariat Appellate Bench has the jurisdiction to declare any law as repugnant to the injunctions of Holy Qur'an and Sunnah, under the Constitution.
' In view of the above observations I am of the firm view that the case of the plaintiff is clearly hit by the judgment of Supreme Court of Pakistan reported in PLD 1986 SC (SAB) page 360 and therefore further proceedings in the suit will be merely a wastage of time. The application of the defendant is therefore accepted and the suit of the plaintiff is dismissed."
' Against this decision in two separate suits two appeals were taken to the District Judge and both were heard in the absence of the counsel for the appellant and dismissed in limine by the following observations of the District Judge:- "The plaintiffs on their own admission are owner in the estate which right is no more available to get a decree for pre-emption. The right of irrigation from the same water-course or the land being contiguous are not a part of statute and this right cannot be pressed into action, therefore, in view of the law given by PLD 1986 Supreme Court (Shariat Appellate Bench 360) how a decree can be passed on such pre-emptory right and the trial Court, had rightly dismissed the suit which judgment and decree are hereby upheld and the appeal having no force is hereby dismissed in limine."
' Two revisions were taken to the High Court and these two Revision Petitions were heard alongwith seven others and these were dismissed observing as hereunder:-- "Learned counsel for the petitioners argued that as per the observations made in para .103 of the judgment of Mr.Justice Muhammad Taqi Usmani right of pre-emption can successfully be claimed by an owner of the contiguous land as well as by the participator in the amenities. This question need not be gone into as concededly talabs in the mode prescribed by Islamic Jurisprudence were neither made by the pre-emptor at the relevant time nor any such averment as to the talabs has been made in the plaints. It is not denied that, in these circumstances suits of the pre- emptors/petitioners cannot succeed."
7. The learned counsels for the petitioners contended that the Shariat Appellate Bench of the Supreme Court of Pakistan was exercising an overriding constitutional jurisdiction while deciding Said Kamal's case. There was a whole Chapter (3-A of Part VII) in the Constitution devoted to this jurisdiction. Article 203-D contained in this Chapter empowered the Federal Shariat Court to examine, on a petition of a citizen of Pakistan or the Federal Government, or a Provincial Government or of its own motion any law or provision of law to determine its repugnance to the injunctions of Islam. In no other manner except on the application made by citizens of Pakistan, not the whole of it, but specified and particularised provisions of the Punjab Pre-emption Act, Land Reforms Regulation 1972 and the N.-W.F.P. Pre-emption Act were brought under challenge on the ground of their repugnancy to injunctions of Islam. The Federal Shariat Court as well as the Shariat Appellate Bench of the Supreme Court confined the examination and the application of the test of repugnancy to these specified provisions alone and declared some of them to be repugnant to injunctions of Islam. Having prescribed the date on which the decision shall take affect [Article 203- D(2)b, on the expiry of that date (31-7-1986) as mandated by the Constitution [Article 203-D(3)(b)I such kovisions and no other "ceased to have effect". That consequence having followed, the whole of the Pre-emption law will not cease to have effect, nor will anything in the judgment get engrafted on the left over law as a part of that law. Only the portions declared repugnant will be treated as otiose, of no effect, non-existent after the prescribed date. If the law, so pruned and truncated, is found to be incapable of being administered then the Court applying/administering the left over slaw will point out the effect of it and proceed accordingly. On that 'view of the jurisdiction, it has been contended that deletes from the Punjab Pre-emption Law the right of an owner in the estate, a prospecti4 heir and the period prescribed in section 30 of the Limitation Act. None of the Courts applying/administering the Pre-emption law have held as a fact that after deleting these specific provisions, the left over provisions have become unworkable. On the contrary a conclusion about its unworkability has been recorded by reading into the left over provisions of the statute law, the observations made in the judgment of the Shariat Appellate Bench. Such an 'engrafting of the observations or even of the findings of the Appellate Benches on the left over statute could not take place nor could it be allowed to take place within the framework of the jurisdiction conferred and consequences contemplated by the Constitution. For that reason, according to the learned counsel none of the Talabs can be read into the left over statute and the judgments of this Court reading it as a part of the law require reconsideration.
8. The learned counsel for the respondents on the other hand contended that the reasoning and the findings recorded in the judgment govern and also control the manner and the extent to which the provisions of the laws impugned .Have been struck down. For example on the strength of the judgment in Said Kamal's case it can be said that without Talab requirements being satisfied even a co-sharer cannot under the left over provisions of the statute seek or obtain a decree. What was more forcefully contended was that in any case incorporation of Article 2-A in the Constitution gives a few dimension and amplitude to Chapter 3-A of Part VII of the Constitution and what has definitely been held to be the injunction of Islam will stand incorporated/engrafted on every relevant law and the Courts must give effect to it. The learned Counsel relied on decisions given in Messrs Bank of Oman Ltd. v. Messrs East Trading Co. Ltd. And others PLD 1987 Karachi 404, Habib Bank Limited v. Muhammad Hussain and others PLD 1987 Karachi 612, Ali Muhammad v. Taj Muhammad (1 Allahabad 283), Naresh Chandra Dutta v. Girish Chandra Das and another AIR 1936 Calcutta 17 in support of their propositions.
9. The jurisdiction conferred by Chapter 3-A of Part VII of the Constitution transcends the other provisions of the Constitution. Article 203-A reads as hereunder:-- "The provisions of this Chapter shall have effect notwithstanding anything contained in the Constitution."
' The supremacy and the pre-eminence of the provisions of Chapter 3-A of Part VII has been placed by this Article beyond any doubt. .It is therefore, not possible on any reasoning to subordinate the provisions of this Chapter to another provision of the Constitution, viz. Article 2-A.
10. The expression quite often used in Chapter 3-A of Part VII of the Constitution is "any law or provision of law". The word 'law' has been defined in this Chapter. The expression "any law or provision of law" implies law as a whole or a portion (provision or provisions) of the law--a part of it: How a challenge to the law or to a provision of law is to be made is provided in clause (1) of Article 203-D of that Chapter' as hereunder:- *The Court may, either of its own motion or on the petition of a citizen of Pakistan or the Federal Government or a Provincial Goverfnment, examine and decide the question whether or not any law or provision of law is repugnant to the Injunctions of Islam, as laid down in the Holy Qur'an and the Sunnah of the Holy Prophet, hereinafter referred to as the Injunctions of Islam."
11. What the Court is required to do when such a challenge is made or the question comes up before it is indicated in clause (1-A)of Article 203-D in the following words:-- "Where the Court takes up the examination of any law or provision of law under clause (1) and such law or provision of law appears to it to be repugnant to the Injunctions of Islam, the Court shall cause to be given to the Federal Government in the case of a law with respect to a matter in the Federal Legislative List or the Concurrent Legislative List, or to the Provincial Government in the case of a law with regard to a matter not enumerated in either of those Lists, a notice specifying the particular provisions that appear to it to be so repugnant, and afford to such Government adequate opportunity to have its point of view placed before the Court." .
12. What is to be noted in particular in this clause is that "a notice specifying the particular provisions" that appear to be repugnant D is to be given with a view to afford "adequate opportunity" for placing before the Court the Government's point of view.
13. The next stage in the exercise of the jurisdiction is the adjudication, an entirely judicial duty. It has to be discharged in the manner prescribed in clause (2) of the same Article as hereunder:-- "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:-
(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: Provided that no such decision shall be deemed to take effect before the expiration of the period within which an appeal therefrom may be preferred to the Supreme Court or, where an appeal has been so preferred, before the disposal of such appeal."
14. The points to be noted in this clause are that in the decision apart from the reasons, there must be set out the extent to which such law or provision is so repugnant, and the day on which the decision shall take effect.
15. After clause (2) of Article 203-D has been fully complied with certain consequences follow, and the consequences follow as a matter of course without the intervention of the Court or any other authority. The two consequences which are enumerated are both non-judicial, and legislative in character, one of framing a law, and the other of achieving a result akin to abrogating the law or a portion of it. These consequences are described in clause (3) of the same Article as hereunder:-- "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 law with respect to a matter in the Federal. Legislative List or the Concurrent Legislative 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."
16. This completes the scheme of the Constitution. Said Kemal's decision conforms in all particulars to this Scheme. In that case not the whole law but certain specific provisions of the laws, the Land Reforms Regulation, the Punjab Pre-emption Law and the N.-W.F.P. Pre-emption Law were brought under challenge. Notice only in respect of them was given to the Governments concerned. These are enumerated with particularity in para.103 of the judgment of Mr. Justice Muhammad Taqi Usmani, and at page 462 of judgment of one of us (Mr. Justice Shafiur Rahman); The relevant portion of Court's order in that case is expressed to be in the following words:-- "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 as to costs."
17. The formal last part of the judgment of Mr. Justice Maulana Muhammad Tafqi Usmani incorporated by reference as Court's Order is as follows:-- {{URDU TEXT}}
18. Summarized, the following provisions of laws enforcible in Punjab were held to be repugnant to Injunction of Islam.
(i) The whole of clause 3(d) of Para 25 of Land Reforms Regulation 1972 conferring on the tenant of the land the first right of pre-emption;
(ii) Section 15 clauses (a) and (b) with all the first three preferences, of the Punjab Pre-emption act, conferring on the persons in order of succession, who but for such sale would be entitled on the death of the vendor to inherit the land or property sold, the right of pre-emption;
(iii) Section 15 clause (a) and (b) preference expression 'fourthly' because a co-sharer cannot be made to rank fourth, in the matter of preference or priority;
(iv) The whole of the clause (c) of section 15 of Punjab Pre-emption Act in so far as it allows, irrespective of contiguity and co-sharership, ownership in the Patti, estate and to a tenant or to an inferior proprietor a residual right of pre-emption; and
(v) Section 30 of the Limitation Act in so far as it allows a period of one year for filing of Pre-emption suit.
19. It was expressly made clear in fife judgment that only those sections of the Pre-emption Law had been examined, which were specifically challenged and this did not imply that the other provisions of the Pre-emption law were in accord with Injunctions of Islam. In other words the test of repugnancy was not applied at all to those other provisions.
20. The effect of the decisions was that as from 1-8-1986 the tenant, the occupancy tenant, the inferior proprietor in that capacity alone could not enforco any right of pre-emption as they were left with none, the provisions recognizing their right ceasing to have effect. Similarly the pfbspective heirs of the vendors. The superiority of the claim of co-sharer stood enhanced by deletion of other Priority categories and by dektion of expression fourthly. As regards the claim based on the ownership of land in the estate or Patti, this was a very wide category and the judgment in Said Kamal's case had not the effect of effacing it in its entirety or of directing total deletio of this category. The portion underlined in the judgment of Mr. Justice Maulana Muhammad Taqi Usmani and incorporated as Order of the Court clearly shows that only that part of it was declared to be repugnant to the injuctions of Islam where ownership in the estate of Patti was not coupled with contiguity or co-sharership, a very restricted and a smaller category included within the larger--a part of the whole. The whole having not been struck down, the part remains preserved. The result was that where it was contended or it could be contended that ownership in the Patti or the estate was coupled with contiguity, then such ownership in the estate or Patti continued to be a valid and available ground for pre-empting the sale. For adjudicating this question of fact, opportunity shall be allowed to parties to amend their pleadings, where necessary or required.
21. One thing that stands out in the Scheme of Chapter 3-A of Part VII of the Constitution is that the Court has been given the power of applying the test of repugnancy, of giving a prospective declaration of repugnancy and of striking down prospectively a provision of the law under challenge or under examination. The Court has not been given any power whatsoever to legislate, to engraft Its observations, findings, or declarations on the law not held to be repugnant, and otherwise allowed to hold the field. The Talabs, even if sine qua non for advancing successfully every claim based on Islamic Law of Pre-emption, cannot be imported or engrafted into the left over statutory provisions of Pre-emption Law not challenged, not examined and allowed for the time being to remain intact.
22. Pre-emption suits have a feature which distinguishes them from all other suits. It is that a Pre- emptor in order to succeed must have a subsisting right at three material stages, the first when sale takes place, the second when the suit is instituted and the third when the suit is decreed. It is in this background that the effect of loss of this right by repeal, abrogation or revocation of the right or otherwise wherever it lawfully takes place, is different from those in other suits. This was highlighted and fully given effect to in our judgment in Sardar Ali's case PLD 1988 SC 287.
23. On the findings that we have recorded, the Review Petition (No,80-R/88) is allowed, the judgment dated 30-10-1988 is set aside and the appeal filed by the vendee in this Court (C.A.No,290 of 1988) is dismissed leaving intact the decision of High Court.
24. The two Civil Petitions for leave to appeal (No,34 and 35 of 1989) are converted into appeals and are allowed setting aside the consolidated judgment of the High Court dated 23-10-1988. The result will be that the two Regular Second Appeals disposed of by that judgment shall be deemed pending in the High Court requiring dispose afresh in accordance with law.
25. The two Civil Petitions for leave to appeal (No,464 and 465 0 1989) are likewise converted into appeals and allowed. The revisions judgments of the High Court, the appellate judgments of the District Judge, and the decisions of the trial Court in the two suits are a' set aside. The trial Court shall proceed afresh after allowing the parties an opportunity of amending their pleadings, if at all necessary in view of tale decision in Said Kamal's case PLD 1986 SC 360 an our observations in this judgment.
26. In all other cases notice shall issue to respondents as to why the petitions be not converted into appeals and disposed of in tern of this judgment.
' NASIM HASAN SHAH, J.--I have had the privilege of peruse the proposed judgment of my learned brother S.Rehman, J. In tl titled review petitions and connected matters but in view of t' importance of the questions falling for determination therein and somewhat different conclusion I have arrived at on some of them I am venturing to set out my views hereinbelow in my own words.
' The principal question falling for determination is, of course, to ascertain the true effect and amplitude of the decision of the Shariat Appellate Bench of this Court in the case of Government of N.-W.F.P. v. Said Kamal Shah PLD 1986 SC 360 and to determine whether any of the provisions of the Punjab Pre-emption Act 1913, the N.-W.F.P. Pre-emption Act, 1950 and the Land Reforms Regulation 1972 still survive which are capable of enforcement?.
' In the, opinion of my learned brother both the Federal Shariat Court as well as the Shariat Appellate Bench of this Court after examining the provisions of these laws with a view to determining their repugnancy to the Injunctions of Islam have clearly specified and particularised the provisions of these laws which were repugnant to the Injunctions of Islam and having so declared have proceeded to prescribe the date on which the decision of the Shariat Appellate Bench of this Court shall take effect (namely 31st July 1986) and that as from the said date the aforesaid provisions shall cease to have effect. Consequently, only these provisions and no others shall cease to have effect with the result that the whole of the pre-emption law did not cease to have effect nor could, in view of the clear terms of the provisions of Chapter 3-A (entitled Federal Shariat Court) of Part VII of the Constitution, anything said in the aforementioned judgment get engrafted into the left over law, as a part of that law. In .Other words "only the portions declared repugnant will be treated as otiose, of no effect, non-existent after the prescribed date. If the law, so pruned and truncated, is found to be incapable of being administered then the court applying or administering the left over law will point out the effect of it and proceed accordingly, (underlining is mine).
' In arriving at this conclusion reference has, inter alia, been made to the following portion of the Court's order in Said Kamal's case namely:-- "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 as to costs."
' "The formal last part of the judgment of Mr. Justice Maulana Muhammad Taqi Usmani incorporated by reference as Court's Order is as follows:-- ' Summarising the effect of the above declaration it has been held that the following provisions of law enforcible in the Punjab have been held to be repugnant to Injunctions of Islam:-
(i) The whole of clause 3(d) of Para.25 of Land-Reforms Regulation 1972 conferring on the tenant of the land the first right of pre-emption;
(ii) Section 15, clauses (a) and (b) with all the first three preferences, of the Punjab Pre-emption Act, conferring on the persons in order of succession, who but for such sale would be entitled on the death of the vendor to inherit the land or property sold, the right of pre-emption;
(iii) Section 15, clauses (a) and (b) reference expression "fourthly" because a co-sharer cannot be made to rank fourth in the matter of preference or priority;
(iv) The whole of clause (c) of section 15 of Punjab Pre-emption Act in so far as it allows, irrespective of contiguity and co-sharership, ownership in the Patti, estate and to a tenant or to an inferior proprietor a residual right of pre-emption; and
(v) Section 30 of the Limitation Act in so far as it allows a period of one year for filing of Pre-emption suit."
Undoubtedly, the Shariat Appellate Bench also observed that the declarations made above related only to those sections of the Pre-emption Law which had been examined and which were specifically challenged and that this did not imply that the other provisions of the Pre-emption Law were in accord with the Injunctions of Islam. This observation, according to my learned brother, shows that the test of repugnancy was not applied at all to the other provisions; and that in so far as according to the Scheme of Chapter 3-A of Part VII of the Constitution the Court can declare a provision of law to have become ineffective only after applying the test of repugnancy and in 'case the test is satisfied, then of striking down prospectively the provision of law under challenge or under examination; the Court, cannot therefore, either legislate or engraft its observations, findings or declaration on the existing law which has not expressly been held to be repugnant. Hence neither the remaining provisions of the law have ceased to have effect non anything can be held to have been incorporated in the laws allowed to hold the field. Accordingly, the Talabs, even if sine qua non for advancing successfully every claim based on Islamic Law of Pre-emption cannot be imported or engrafted into the 'left over statutory provisions of Pre-emption Law which were not specifically challenged nor tested on the ground of repugnancy and, resultantly allowed for the time being to remain intact. Consequently, the right of co-sharers or contiguous owners of the estate who were, inter alia, found to have right to file pre-emption suits (as the clauses relating to them were not specifially struck down) and the pre-emption suits filed by them were competent and could be continued after 31-7-1986 according to the existing law.
' The contention on the other side is that it is wrong to assume that the entire existing statutory laws relating to the Pre-emption were still intact and valid and that only some particular parts of the said laws alone were declared invalid. In this connection, reliance is placed on the terms of Paragraph 105 of the Order of Maulana Muhammad Taqi Usmani, J. Which reads: ' The reasons for so holding are spread out in the detailed judgments of the majority in Said Kamal's case; some of these reasons have been summarised by Mr. Justice Muhammad Afzal Zullah, Chairman of the Shariat Appellate Bench and a Member of the majority in Said Kamal's case, in The case of Mst. Safia Begum v. Ibrahim PLD 1989 314 in which case too the import of the judgment in Said Kamal's case was being examined as under:-
(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, Talabs in 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;
(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."
' As right of pre-emption granted to various dategbries priority-wise in the annulled laws.
' As noticed already, the provisions of the Punjab Pre-emption Act, 1913, which were particularized and specified in Para.103 by Maulana Muhammad Taqi Usmani, J. As being repugnant to the Islamic Injunctions, were particularly mentioned because these had been specifically challenged. In the words of Maulana Muhammad Taqi Usmani, J.-- {{URDU TEXT}} ' Thus, it is manifest that although in Para.103 (underlining is mine) only some of the provisions were particularised, but the terms of paras.104 and 105 show that the Court was of the opinion that the whole of the existing statutory laws on pre-emption were against the Injunctions of Islam and, therefore, a fresh law, based on Islamic Injunctions should be framed. But according to my learned brother such a declaration could have been made only in accord with the provisions of Chapter 3- A of Part VII of the Constitution and according thereto a law or a provision of law can be declared to be against the Injunctions of Islam only after it is subjected to the test of repugnancy and the extent to which the law or any of its provisions is found to be so repugnant is particularised and specified.
Any declaration that a law as a whole is against the Injunctions of Islam in an omnibus manner is not visualised. Hence, only the provisions of the impugned laws which have been specified and particularised, after applying the test of repugnancy (in para.103) alone can be considered to have become ineffective leaving the rest of the laws intact.
' But a finding of this nature cannot be given even by this Court as this is clearly barred by the express provisions of Article 203-G of the Constitution. This provides:-- "203-G. Save as provided in Article 203-F, no Court or tribunal, including the Supreme Court and a High Court, shall entertain, any proceedings or exercise any power or jurisdiction in respect of any matter within the power or jurisdiction of the Court."
' Thus, not even the Supreme Court can entertain any proceedings or exercise any power or" jurisdiction in respect of any matter within the power or jurisdiction of the Federal Shariat Court and the Shariat Appellate Bench of the Supreme Court. Since the Shariat Appellate Bench had undoubtedly the power of declaring the entire law as invalid and has, in sect, said so, the mere fact that in doing so it has not strictly followed the prescribed procedure will not detract from the validity of the finding. Any error in this regard can only be corrected by it, in its review jurisdiction, and not by any other Court including the Supreme Court.
' Be that as it may, even if it is assumed that. The existing statutory provisions can be declared to be against the Injunctions of Islam only after applying the test of repugnancy and setting out the reasons for holding the law or any part of it to be repugnant even then the petitioners cannot succeed. It is not disputed that section 30 of the Punjab Pre-emption Act which prescribed a period of one year within which suits to enforce the right of pre-emption could be filed has been specifically found to be against the Injunctions of Islam and that the said provision of the law ceased to have effect as from 31-7-1986. Now, even if suits based on' the right of contiguity or co- sharership are competent and those instituted; wherein a decree before 31-7-1986 was not passed, continued the question will still arise as to how such a right can be enforced today?
' My learned" brother has himself observed that a pre-emptor to succeed must have a subsisting right at three material stages; first when the sale takes place; second when the suit is instituted and the third when the suit is decreed. Since it has been held in Said Karnes case that the question of limitation in Islam is not a procedural but a substantive right, the question will arise as to what will be the requisite period of limitation to enforce the right of co-sharership or the right of contiguity after section 30 has ceased to have effect? Will resort be had to the Islamic Law on the subject for determining this matter because a decree in favour of the pre-emptor can be granted only if his suit is within time. But since nothing can be engrafted into an existing law as held by my learned brother, then the law which survives in its present truncated form, is not workable. Should the case be sent back for administering such a truncated law for enforcement of a claim based on co- sharership or contiguity, even in such circumstances? I do not think so.
' I would dismiss all these matters. ORDER OF THE COURT ' In accordance with the majority opinion of the Judges--
(i) Civil Review Petition No,80-R/88 is allowed, the judgment dated 30-10-1988 is set aside and the appeal filed by the vendee in this Court (C.A. No,290 of 1988) is dismissed leaving intact the decision of High Court;
(ii) The two Civil Petitions for leave to appeals (Nos.34 and 35 of 1989) are converted into appeals and are allowed setting aside the consolidated judgment of the High Court dated 23-10-1988. The result will be that the two Regular Second Appeals disposed of by that judgment shall be deemed pending in the High Court requiring disposal afresh in accordance with law;
(iii) The two Civil Petitions for leave to appeals (Nos.464 and 465 of 1989) are likewise converted into appeals and allowed. The revisional judgments of the High Court, the appellate judgments of the District Judge, and the decisions of the trial Court in the two suits are all set aside. The trial Court shall proceed afresh after allowing the parties an opportunity of amending their pleadings, if at all necessary, in view of the decision in Said Kamal's case PLD 1986 SC 360 and our observations in this judgment.
' No order is made as to costs.
' In all other cases notices shall issue to the respondents as to why the petitions be not converted into appeals and disposed of in terms of this judgment.