DORAB PATEL, J.-The common question in these two second appeals and three Revisions is whether a pre-emptor's right to pre-empt agricul--tural land passes on his death to his legal heirs under Hanafi law. As these appeals and Revisions have been heard together, I will dispose them of by this judgment, and for convenience I will refer to the applicants also as the appellants.
2. In the events that happened five suits had been filed in the Court of the Civil Judge, Quetta, for pre-emption of agricultural land in Tehsil Quetta and as in all these suits the pre-emptor died before he as in all these suits the pre-emptor died before he could obtain a decree in his favour applications were filed for impleading his legal heirs. No evidence was given in any of these suits about the sect of Islam of the deceased's pre-emptor. However, the claim of all the legal heirs who sought to be deceased's pre-emptors was that the cause of action for pre-emption had devolved on them under the riwaj or custom prevailing in this Province. There is some controversy before me as to whether this submission was properly advanced in the trial Court-Be that as it may, in all the five suits the view of the trial Court was that the parties were presumed to be governed by the Hanafi law, that under the said law the right of pre--emption did not devolve on the legal heirs of the deceased's pre-emptors, therefore, in view of section 2 of the West Pakistan Muslim Personal Law (Shariat) Application Act, 1962 (hereafter called the said Act', the trial Court held that all the suits before it had abated. Appeals were filed against these orders in the District Court, Quetta, which were heard by two different District Judges. In two of these appeals, the learned District Judge agreed with the trial Court's view and dismissed the appeals. In the other three appeals, the view of the learned District Judge was that the appellants in those appeals had failed to prove that local custom was different from the principles of Hanafi law, therefore, on this ground the learned District Judge dismissed the appeals before him. Aggrieved by the dismissal of their appeal by the District Court, the appellants filed second appeals in this Court which have been heard by me.
3. Mr. Akbar Khan submitted that the right of pre-emption was not heritable under Hanafi law. The position in this respect has been consi--dered in the leading case of Allah Dad and another v.
Hukam Dad and others (PLD 1960 Lah. 900), and the submission of Mr. Akbar Khan is fully supported by this authority. Mr. Basharatullah also conceded that the right of preemptionwas not heritable under the Hanafi law. Nor, as I have observed, have the appellants produced any evidence about the sect to which the deceased's pre-emptors belonged, therefore, the rights of the appellants will be governed by the Hanafi law, as rightly held by the trial Court, unless they succeed in showing that such rights were heritable under local customs about pre-emption which have been saved by the said Act. I say this because, whilst the said Act does not apply to tribal areas, it clearly applies to Quetta Division, and the land in dispute in these appeals is in Quetta Tehsil. Therefore, the question really is of the construction of section 2 of the said Act which reads as follows :----- "Notwithstanding any custom or usage, in all questions regarding succession (whether testate or intestate), , , . . . The rule of deci--sion, subject to the provisions of any enactment for the time being in force shall be the Muslim Personal Law, (Shariat) in cases where the parties are Muslims."
Unlike the Punjab and the North-West Frontier Provinces, there is no statute governing pre-emption in this Province, therefore, it follows, in the circumstances discussed, that the rights of the appellants are governed, by the Hanafi law and their reliance on local customs, if any, is misconceived.
4. Mr. Basharatullah, who has argued a difficult case with ability, tried very hard to persuade me that rights of pre-emption were heritable under local customs and as these local customs about pre-emption had been recognised by the Courts, they amounted to enactments within the meaning of section 2 of the said Act. The other learned counsel denied the submission that the right of pre-emption was heritable according to local customs. It is quite unnecessary for me to decide this controversy', because even if I assume that there is a local custom, as submitted by Mr. Basharatullah, and that this custom has been recognised by the Court, this cannot possibly mean that this custom is an enactment within the meaning of section 2. This is because an enactment can only mean a statute or a part of statute and this has been made very clear by sub--section
(23) of section 3 of the West Pakistan General Clauses Act, which is applicable to the said Act.
Therefore, Mr. Basharatullah's submission fails and the view taken in some of the judgments under appeal that the appellants cannot be permitted to rely on custom is correct.
5. Mr. Basharatullah's only other submission was that section 2 of the said Act was discriminatory, but he conceded that the validity of this section could not be challenged on the basis of this alleged discrimi--nation. However, in deference to learned counsel's industry, I would set out his submission. Learned counsel submitted that rights of pre-emption were heritable in the Punjab.
This appears to be correct, but this is because the rights of pre-emption are governed by the Punjab Pre-emption Act, 1913, and as enactments have been saved by section 2 of the said Act, rights of pre-emption in the Punjab as well in the North-West Frontier Province are not governed by the Shariat. Now, according to learned counsel, the reasons for preserving ancient customs regulating pre--emption were the same in all agricultural communities whether they be situated in the Punjab or in Baluchistan. And further according to learned counsel the necessity of respecting local custom was greater in this Province because of its tribal structure. In this background, the submission of the learned counsel was that the West Pakistan Legislature had grossly discriminated against this Province by not prescribing any saving clause for local customs.
Learned counsel further submitted that as the said Act was not applicable to the tribal areas, this also led to anomalous consequences. Here perhaps learned counsel has a grievance which merits consideration. In view of section 1 of the said Act, it is clear that this Act has not been extended to tribal areas with the result that rights of pre-emption may be heritable under local riwaj. I agree with learned counsel that this is anomalous, but as observed long ago by Kayani, C. J. In Allah Dad's case the law of pre-emption is full of anomalies. However, the remedy for that is not with the Courts. The duty of the Courts is only to construe the intention of the Legislature and give effect to it, and as I have shown the provisions of section 2 of the said Act are very clear. Local customs are not saved except in the tribal areas, and as the suits in these five cases relate to land in Quetta Tehsil, it follows that they are governed by the Shariat, therefore, the appeals and the Revision Applica--tions fail. But I leave the parties to bear their own costs.