' MUHAMMAD AFZAL ZULLAM, J.--Leave to appeal has been sought in these two petitions arising out of two separate judgments of the Peshawar High Court, the point involved wherein is the same.
They are therefore, being disposed of together. Civil Petition No,92-P of 1985 arises in the following circumstances.
2. The petitioners therein pre-empted the sale in respondents' favour on ground of tenancy. The suit was decreed on 23-5-1979. The respondents/vendees failed in appeal before the Collector as also before the Board of Revenue in revision, in so far as the right of the petitioners to pre-empt the sale is concerned. But the case was remanded only for re-determination of the market value. The vendee-respondents filed a writ petition in the High Court which was allowed on the ground that the Shariat Bench of the Peshawar High Court had declared the relevant provision of Martial Law Regulation 115 which conferred right of preemption on a tenant, as against injunctions of Islam and thus were ineffective. Therefore, the pre-emption decree passed in favour of the petitioners was set aside and their pre-emption suit, was dismissed, without going into other questions regarding merits. Leave to appeal has now been sought by the preemptors.
3. After some arguments regarding the effect of the judgment in Haji Naimatullah Khan v.
Government of Pakistan PLD 1979 Peshawar 104, it has been agreed by both the learned counsel that the suit of the petitioners in this case could not have been dismissed on the basis of the decision in the cited case, and further agreed that the case be remanded to the High Court for decision of the writ petition on merits with liberty to both the sides to urge all other available points.
' We, after converting this petition into appeal, order accordingly. Parties to bear their own costs.
4. In the second case (C.P. No,65-P of 1986) the vendee in a pre-emption suit is the petitioner before us. A decree in favour of respondent No,4 therein on the basis of right of pre-emption on the ground of tenancy was passed against the petitioner. It having been affirmed throughout up to the Board of Revenue, he filed a Writ Petition in the High Court which was dismissed on the ground that the Federal Shariat Court had held in its judgment in Muhammad Ameen etc. v. Islamic Republic of Pakistan and others PLD 1981 F SC 23 that the right of pre-emption conferred by the Martial Law Regulation 115 on a tenant was not against the Injunctions of Islam. Therefore, the pre-emption decree passed on 27-6-1981 against the petitioner in respondents' favour on the ground of tenancy, did not suffer from any legal infirmity. The vendee has now sought leave to appeal.
5. Learned counsel for the petitioner herein has contended that earlier to the judgment of the Federal Shariat Court, the Peshawar High Court had in its Shariat Bench ruled that the right of pre- emption conferred on a tenant by Martial Law Regulation No,115, was against the Injunctions of Islam. And because the said judgment had become effective on 2-7-1979 on the date it was announced, therefore, the decree passed in this case in 1981 was without competence.
6. Although, the Shariat Bench of the Peshawar High Court after the declaration that paragraph 25(3)(d) of M.L.R. 115 was repugnant to the injunctions of Islam had not fixed any date in accordance with clause (2) of Article 203-ID read with clause (3)(d) of the Constitution so as to make the decision effective from a specified date, it had "recommended that the aforesaid clause (para. 25(3)(d) of M.L.R. 115) shall be deleted with immediate effect". Learned counsel has tried to argue that this recommendation made the decision effective, on its announcement.
7. We do not agree with him. The recommendation was to the competent authority functioning under sub-clause (a) of clause (3) of Article 203-D to the effect that whenever an amendment concerning deletion of the relevant part of " para. 25 of M.L.R. 115 is made in the relevant statute, it (the amendment regarding deletion) should be with immediate effect in the amending statute.
8. Not only this, some cases have clearly been decided on the assumption that on appeal before the Shariat Appellate Bench of the Supreme Court, the operation of the judgment of the Shariat Bench of the Peshawar High Court was suspended. Hence, even if it would have taken effect immediately, which would have been against the policy and spirit of the newly-introduced provisions of the Constitution, that effect was neutralised by the suspension of the judgment.
9. It was also contended that Shariat Appeal No,2 of 1979 against the Peshawar decision was dismissed on 6-12-1980, therefore, the order of suspension, became inoperative even on 2-7-1979 the date of the decision. The proposition is not that simple. However, as other appeals dealing with the same law were filed in the Supreme Court, the dismissal of Shariat Appeal No,2 of 1979 did not make any difference.
10. Even if it is ignored for the sake of argument that the Supreme Court had suspended the effect of the judgment of the Peshawar High Court, the proviso added to clause (2) of Article 203-D made it clear that no such decision shall be deemed to take effect, before the expiration of the period of limitation for an appeal before the Supreme Court and where an appeal, has been so preferred, before the disposal of such appeal. And as an appeal had been filed in I) the Supreme Court regarding the validity of paragraph 25(3)(d) of M.L.R.115 on the touchstone of the Islamic Injunctions, by operation of the proviso aforesaid the Constitution had suspended the judgment of the Peshawar High Court. It remained ineffective and or suspended from the date of its announcement till the disposal of the appeal by the Supreme Court in 1986 (PLD 1986 SC (Sh. A: Bench) 360).
11. The argument of the learned counsel that the proviso which was added in 1984 would not affect the present case, is also without any force because it was given retrospective effect, in that, it shall be deemed always to have been added to clause (2) of Article 203-D.
12. Learned counsel also contended that the judgment of the Peshawar High Court would continue to have independent effect from 2-7-1979 because it did not merge in the Supreme Court judgment in appeal which was decided in 1980.
13. This argument has also no force because the Constitution itself made provision for continuance and decision of the case proceedings, during the pendency of litigation before the Shariat Forums including the Supreme Court in accordance with the law "for the time being in force" (See Article 203-H of the Constitution). Not only this, clause (2) of Article 203-F made applicable the provisions of clauses (2) and (3) of Article 203-D, to the proceedings in appeal before the Supreme Court.
That being so, the matter, which had gone to the Supreme Court (in this case the validity of paragraph 25(3)(d) of M.L.R.115), shall be governed by the final decision of the Supreme Court. It shall take effect only from the date specified by the Supreme Court in that behalf--the Supreme Court had made its decision effective from 31-7-1986. Same would be the answer to the argument of the learned counsel that the Federal Shariat Court in its judgment in the case of Muhammad Ameen PLD 1981 FSC 23 had affirmed the decision of the Peshawar High Court on the question involved in this case. Notwithstanding the same, the judgment of the Federal Shariat Court regarding para. 25(3)(d) of M.L.R.115 came under appeal before the Supreme Court which was decided in 1986 and that decision became effective on 31-7-1986.
14. In this case, the decree for pre-emption having been passed in favour of the respondent/pre- emptor (tenant) in 1981, it was even finally affirmed in F September 1985, much before the judgment of the Supreme Court became effective on 31-7-1986. We, therefore, on the ratio in Muhammad Masood Khan Bhatti v. Mst. Ghulam Fatima 1987 SCM R 1206, are unable to accept the argument of the learned counsel that Peshawar decision dated 2-7-1979 will govern this case and that the Supreme Court decision will not control it.
15. Another point raised at the Bar, though technical, also needs to be mentioned. It is stated that the decision by the Supreme Court regarding the validity of relevant provision of paragraph 25(3)
(d) of M.L.R. 115 was rendered on Shariat Appeals arising from the decision of the Federal Shariat Court and not on the one Shariat Appeal filed against the judgment of the Peshawar High Court.
16. Be that as it may, the fact remains that the relevant provision of the Martial Law Regulation 115 conferring right of pre-emption on a tenant, was a law in force in all the provinces of Pakistan. The same having been rendered ineffective by the decision of the Supreme Court, it cannot remain in force any more any where in Pakistan.
' In the light of the foregoing discussion this petition, is dismissed.