AJMAL MIAN, J.-I intend to deal with two questions which were urged by the learned A.S.C. And A.O.Rs who appeared in response to suo moto notice, namely, firstly, whether this Court i.e. The Shariat Appellate Bench of the Supreme Court (hereinafter referred to as the Shariat Appellate Bench) can take upon itself exercise of clarifying the effect of its judgment given in the case of the Government of N.W.F.P. Vs. Said Kamal Shah (1) 1986 PSC KLR 1986 Rev. C. and/or to supply any obvious omission-therein, hereinafter referred to as Said Kamal's case, in pursuance of a suo moto notice issued to the parties concerned and, secondly, whether the Shariat Appellate Bench can examine the question that the view found favour with the majority of a Full Bench of the Supreme Court while exercising its review jurisdiction (hereinafter referred to as the Supreme Court) in the case of Ahmad Vs. Abdul Aziz. (2) 1989 PSC hereinafter referred to as Ahmad's case, is contrary to the view taken in Said Kamal's case or is contrary to the injunctions of Islam. The question, whether any clarification or supply of any omission is actually needed in Said Kamal Shah's case's judge lent is to be dealt with by my learned brother, Maulana Muhammad Taqi Usmani J, who rendered the above judgment reflecting the majority view.
2. The above Suo Moto Shariat Review Petition has been initiated in the above disposed of six appeals in pursuance of an order dated 5.7.1989 passed by the Shariat Appellate Bench. I may observe that in order to understand the controversy, it will be advantageous to reproduce the same, which reads as follows:- "In deciding the case of Said Kamal Shah a direction was given for enacting/enforcing pre- emption law in accordance with the Injunctions of Islam as from 1.8.1986. However, no such law has been enacted by the Province of Punjab till now. Difficulties have arisen in interpreting/implementing the said decision. We, therefore, consider it just and expedient to.
Examine various questions connected therewith and/or ra ising out of it. The office is directed to fix the matter before this Bench at an early date at Karachi.
In the meanwhile, notice of this hearing shall be issued to all the parties in the said case of Said Kamal Shah and other cases connected therewith.
Notice to the Federal Government and the Government of Punjab shall be issued.
A public notice shall also be issued".
3. The brief facts to be noted are that the above appeals were directed against the judgments and orders dated 30.12.1980 and 25.5.1981 passed in Shariat , 22 of 1980, and 512 of 1981 by the Federal Shariat Court of Pakistan, hereinafter referred to as the F.S.C., in which inter alia certain provisions of Martial Law Regulation 115, Act II of 1977, Punjab Pre-emption Act, and N.W.F.P. Pre-emption Act were impugned on the ground of their being repugnant to the Injunctions of Islam as laid down in Holy Quran and Sunnah but the above petitions were dismissed as per majority view by the F.S.C.
Through the judgment given in the case of Hafiz Muhammad Ameen etc. Vs. Islamic Republic of Pakistan and others til. (PLD 1981 FSC 23). Against the above judgment the above appeals were filed, which were disposed of through the judgment given in Said Kamal's case in terms of the following order:- "We while agreeing with the reasoning in the judgment of Shafiur Rahman J., that the Federal Shariat Court had the jurisdiction to entertain, adjudicate and decide the petitions out of which these appeals had arisen, order accordingly.
On merits, following the majority point of view, 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."
4. As it is evident from the above quoted portion of the Court order that as per majority view all the appeals excluding were allowed in terms of the formal last part of the judgment of my learned brother Maulana Muhammad Taqi Usmani J. It would, therefore, be pertinent to reproduce the same which is contained in paras 103 to 106, which read as follows:- ((Urdu Text))
5. After the pronouncement of the above judgment, the controversy arose as to the effect of the above judgment on the then pending cases relating to pre-emption. The above controversy was examined by a Full Bench of the Supreme Court comprised of the then Hon'ble Chief Justice and the for learned Judges in the case of Sardar Ali and others Vs. Muhammad Ali and others, and the other connected cases, which were disposed of by a common judgment entitled as Sardar Ali and others Vs. Muhammad Ali and others (PLD 1988 SC 297) in which inter alia it was held that the proceedings in which decrees were obtained by the parties from any Court i.e. Either original or appellate or revisional prior to the above target date of 31.7.1986, the same were saved but the other proceedings had become infructuous. It was also ordered that the cases would be placed before the relevant Benches of the Court for disposal of the individual cases. The above view was followed by the Supreme Court inter alia in the subsequent following cases:-
(i) Muhammad Shoib and others Vs. Member (Revenue) and others (PLD 1988 SC 355)
(ii) Sher Muhammad and another Vs. Allah Pitta and 2 Wethersfield 1988 SC 412)
(iii) Ghulam Qadir Vs. Nawab Din PLD 1988 SC 7011
(iv) Aiwaz Khan and another Vs. Allah Bakhsh (PLD 1988 SC 730)
(v) Mst. Safia Begum Vs. Ibrahim and 4 others (PLD 1989 SC 314)
6. It may be observed that in the above cases mentioned at S. Nos. (iii) to (v) the effect of the judgment of Said Kamal's case was analysed in detail while declining petitions for leave to appeal.
It will be advantageous to reproduce para 18 of the last referred judgment, which reads as follows:- "18. Here also it needs to be emphasised in the outset that the judgment in Said Kamal's case made the relevant laws ineffective after 31.7.1986. All pending cases lost support of the contemporaneous laws in a peculiar constitutional mandator', exercise and command. One ordinary result could have been the abatement of all cases wherever at whatever stage. But for elaborate reasons recorded in Sardar Ali's case exception was made only for those cases in which the pre-emptor had obtained by that date, a decree at any stage."
However, it seems that the above controversy was again agitated in the form of more than 50 review petitions, which were either admitted for hearing or of which notices were issued to the respondents and the same were disposed of through the judgment rendered in Ahmad's case by a Full Bench comprised of the then Hon'ble Chief Justice and six learned Judges, in which the learned Chief Justice and the other for learned Judges concurred with the view of Shafiur Rahman J, whereas Nasim Hasan Shah J gave a dissenting judgment. The operative portion of the majority view as to the effect of Said Kamal's case is contained in paras 19 to 22 of the judgment, whereas the operative portion of the dissenting view is contained in the last part of the judgment. It may be advantageous to reproduce paras 21 and 22 of the above majority judgment and the above last para of the minority judgment, which read as follows:- Shafiur Rahman J (Majority View)
"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 Preemption 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".
Nasim Hasan Shah J (Minority View)
"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 Kamal's 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-shareship 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- shareship or contiguity, even in such circumstances? I do not think so.
I would dismiss all these matters."
4. It seems that while the above more than fifty review petitions which culminated in the judgment in Ahmad's case, were heard and reserved for judgment, the above suo moto notice was issued by the Shariat Appellate Bench. As is evident from the above quoted order dated 5.7.1989 that the notices were issues to all the parties to the above disposed of appeals and also to the Federal Government, the Government of Punjab and the public at large. Qazi Muhammad Anwar, learned Advocate General, N.W.F.P. Submitted that his Government has already enacted a statute in 1987 in terms of the judgment given in Said Kamal's case, whereas Mr. Maqbool Elahi Malik, learned Advocate General Punjab, appearing for the Punjab Government, has stated that the draft of the proposed statute has been prepared and it will be moved in the Provincial Assembly in near future.
However, he submitted that this Court should clarify the judgment of Said Kamal's case and should hold that the majority view in Ahmad's case is contrary to the view taken in Said Kamal's case, and according to him the Courts have been flooded with new litigation after the above judgment in Ahmad's case. Some other learned A.S.C. Had joined him in the above prayer.
5. M/s. Maqbool Elahi Malik and Muhammad Nawaz Abbasi, Advocate General Punjab and Asst: Advocate General Punjab, respectively, and M/s. Khalilur Rehman, Ch. Mushtaq Ahmad, Muhammad Bilal, Zafar Awan and Ghulam Mustafa Awan, learned A.S.C./Advocates have contended that the Shariat Appellate Bench has the power to clarify its judgment given in Said Kamal's case, and/or to supply obvious omission therein whereas M/s Bashir Ahmad Ansari and Muhammad Munir Paracha, learned A.S.C., have urged that the Shariat Appellate Bench has no such power. The letter in support of their above submission, have submitted that under Clause 9 of Article 203 E of the Constitution the F.S.C. Has been expressly given the power to review but this power has been deliberately denied to the Shariat Appellate Bench as in Clause 2 of Article 203 F though the provisions of Clauses 4 to 8 of Article 203 E have been made applicable to the Shariat Appellate Bench but the above Clause 9 of Article 203 E, which confers the power of review on the F.S.C. Has not been mentioned therein. In my view, the above contention is devoid of any force as under Article 203 F appeal has been provided to the Supreme Court though by virtue of its Clause 3 the same is to be disposed of by the Shariat Appellate Bench. It is a well settled principle of law that when an established Court without more is provided as a forum for a particular redress, it will be implied that the ordinary incidents of the procedure of that Court are to attach, and also that any general right of appeal or a review or other remedy from its decision likewise would be attracted to.
In this behalf, reference may be made to the following cases:-
(i) National Telephone Company Limited fin Liquidation') and another Vs. His Majesty's Postmaster- General (1913 AC 5461
(ii) Secretary of State for India Vs. Chellikani Rama Rao and others AIR 1916 PS 21
(iii) Mating Ba Thaw Vs. Ma Pin f 1916 2A 1581
(iv) Hussain Bakhsh Vs. Settlement Commissioner, and others (PLD 1970 SC 1)
In the above first case, the House of Lords held that as the Commission acting under the Telegraph (Arbitration) Act, 1909, was referred to as a Court of record under the above statute, an appeal against its decision would be competent to the Court of Appeal. In the second case, the Privy Council while construing the provisions of Madras Forest Act (No. V of 1882) held that since under section 10(2) of the aforesaid Act, the appeal was provided to the District Court as one of the ordinary Courts of the country, the ordinary rules of Civil Procedure Code would be applicable. In the third case, the Privy Council while construing sections 4 and 75 of the Provincial Insolvency Act, 1920, held that as the above Act gave a right of appeal to the High Court, an appeal from the decision of the High Court would lie to the Privy Council under and subject to the Code of Civil Procedure. It was also held that where a Court is appealed to, as one of the ordinary Courts of the country, the ordinary rules of the Code of Civil Procedure apply. In the last case, the Supreme Court of Pakistan quoted with approval the observation referred to hereinbelow from the above judgment of the House of Lords. It may be advantageous to reproduce the relevant portion of the above Supreme Court judgment, which reads as follows:- "......... The view taken by me as regards power to review also finds support from the dictum laid down by the House of Lords in the case of National Telephone Company Ltd. Vs. Postmaster- General. The dictum laid down in that case, in the words of Viscount Haldane, is as follows:- "When a question is stated to be referred to an established Court without more, it in my opinion, imports that the ordinary incidents of the procedure of that Court are to attach, and also that any general right to appeal from its decisions likewise attatches".
As the High Court has been found to have power under clause (b) of section 114 of the Code of Civil Procedure to review an order made in its writ jurisdiction in a civil matter, the appeal succeeds. I would, therefore, allow this appeal, set aside the judgment and order of the High Court and declare that, apart from the High Court's power to correct errors apparent on the face of the record in the exercise of its inherent jurisdiction, it has power under the Code of Civil Procedure to review its own order made in writ jurisdiction in a civil matter. The High Court will now hear the application for review according to law. Having regard to the intricacy of the point law involved, I would not make any order as to costs".
6. I am, therefore, inclined to hold that since under Article 203 F of the Constitution an appeal is provided to the Supreme Court, and as the Shariat Appellate Bench is a part of the Supreme Court, it can press into service Article 188 of the Constitution, which provides that the Supreme Court shall have power subject to the provisions of any Act and of any Rules made by the Supreme Court to review any judgment pronounced or any order made by it. The above Article 188 of the Constitution is to be read with Order XXVI Rule 1 under Part IV of the Pakistan Supreme Court Rules, 1980, which lays down that subject to the law and practice of the Court, the Court may review its judgment or order in any civil proceedings on grounds similar to those mentioned in Order XLVII, Rule 1 of the Code of Civil Procedure and in a criminal proceeding on the ground of an error apparent on the face of the record. The above view, which I am inclined to take is fortified by clause 6 of Article 203 F, which provides that "While attending sittings of the Shariat Appellate Bench, a person appointed under paragraph (b) of clause (3) shall have the same power and jurisdiction, and be entitled to the same privileges, as a Judge of the Supreme Court and be paid such allowances as the President may determine". I am, therefore, of the view that the Shariat Appellate Bench can take upon itself exercise of clarifying the effects of its judgment given in Said Kamal's case and/or to supply any obvious omission in any part thereof in the above suo moto review petition.
If any authority is needed in support of the above view, reference may be made to the case of Keshav Talpade Vs. Emperor (AIR (30) 1943 FC 72) and the case of Muhammad Akram Sheikh.
Advocate Vs. Federation of Pakistan and others (PLD 1989 SC 229). In the above first case, the Federal Court of India entertained a reference made by the Bombay High Court for seeking clarification of the Federal Court's an appellate order, and it clarified the same, whereas in the above second case, the Supreme Court has clarified its judgment given in the case of Federation of Pakistan and others Vs. Haji Muhammad Saifullah Khan and others (PLD 1989 SC 166) and held that the Press Note issued by the Federal Government did not correctly reflect the view taken in the aforesaid judgment in the case of Haji Muhammad Saifullah Khan as to the effect on the appointments in the absence of the Prime Minister between the period from 29th May, 1988, to 2nd December, 1988, and ordered the deletion of the offending portion of the above Press Note.
Additionally the Shariat Appellate Bench can press into service any recognized principle of the Islamic Jurisprudence, which is not in conflict with the Holy Quran and Sunnah. It is a well recognized principle of Islamic Jurisprudence that an Islamic Court can review its own judgment in order to bring it more effectively in consonance with the Holy Quran and Sunnah or to rectify any omission or error. Even the Supreme Court in the case of Mian Aziz A. Sheikh Vs. The Commissioner of Income Tax. Investigation. Lahore (PLD 1989 SC 613), while construing the provisions of the Income Tax Act and the rules framed thereunder with reference to an assessment order on the question of proof of the factum of increase in the dower amount by a husband, has pressed into service the principle of Islamic Jurisprudence by virtue of Article 2 A and Article 227(2) of the Constitution.
7. Adverting to the second question, whether the Shariat Appellate Bench can examine the question that the view found favour with the majority of a Full Bench of the Supreme Court while exercising review jurisdiction in Ahmad's case is contrary to the view taken in Said Kamal's case or is contrary to the Injunctions of Islam, I may observe that though the arguments on the above question were advanced by the learned counsel with vehemence, in my view, it is not necessary to comment upon the merits of the said arguments. However, it will suffice to observe that the Shariat Appellate Bench has two kinds of appellate jurisdiction, namely, firstly, to examine the judgments/orders of the F.S.C. Wherein the latter decides the question, whether any law or a provision thereof is repugnant to injunctions of Islam as laid down in the Holy Quran and the Sunnah of the Holy Prophet by virtue of Clause 2 of Article 203 D read with Article 203 F and, secondly, it is to act as an appellate Court against th&judgments/orders passed by the F.S.C. In exercise of criminal jurisdiction under Article 203 DD. I may also observe that by virtue of Article 203 G, the above jurisdiction is exclusive, as it provides that "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."
Whereas Article 203 GG of the Constitution makes the decision of F.S.C. (which will include Shariat Appellate Bench) binding on High Courts and courts subordinate to them.
8. I may observe that under the above first category of jurisdiction, the Shariat Appellate Bench can declare either a provision of a law or the law as a whole as repugnant to the injunctions of Islam. It can also declare that if certain basic ingredients of a particular Islamic law are missing in a Statute, it would be against the injunctions of Islam to enforce such a Statute without having such basic ingredients therein.
12. I may state that a few weeks after I circulated my draft of the proposed opinion among my learned brothers, I received my learned brother Maulana Muhammad Taqi Usmani's opinion containing clarifications in respect of Said Kamal Shah's judgment which seem to be in consonance with the tenor of the original judgment. The Province of Punjab has also promulgated Ordinance No. V of 1990 on 29.3.1990 in pursuance of the direction contained in Said Kamal Shah's case but the above clarifications are still needed to resolve the controversy which has been generated because of certain omissions in the original judgment in Said Kamal Shah's case.
((Urdu Text))
"In deciding the case of Said Kamal Shah a direction- was given for enacting/enforcing pre- emption law in accordance with the Injunctions of Islam as from 1.8.1986. However, no such law has been enacted by the Province of Punjab till now. Difficulties have arisen in interpreting/implementing the said decision.' Vide, therefore, consider it just and expedient to examine various questions connected therewith and/or arising out of it. The office is directed to fix the matter before this Bench at an early date at Karachi.
In the meanwhile, notice of this hearing shall be issued to all the parties in the said case of Said Kama! Shah and other cases connected therewith.
Notice to the Federal Government and the Government" of Punjab shall be issued.
A public notice shall also be issued".
((Urdu Text))
"Appeals Nos 4 and 5 of 1979 are dismissed, and all other appeals are allowed in terms of the formal last part of the judgement of Maulana Muhammad Taqi Usmani J. If possible, a consolidated law of pre-emptive enacted accordingly till 31.7.1986."
((Urdu Text))
(3) 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 a 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.
((Urdu Text))
(b) such law or provision shall, to the extent to which it is held to be so repugnant, case to have effect on the day on which the decision of the Court takes effect.
((Urdu Text))