1. ' NASIM HASAN SHAH, J.---In all the above-noted cases the basis of the pre-emption suits filed by the petitioners is either that of being co-sharers or of being contiguous owners of the suit land. The High Court has not accepted their claims on the ground that section 15 of the Punjab Pre-emption Act having ceased to have legal effect in its entirety from 31-7-1986 as held by 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) (as subsequently interpreted in a number of other cases) and dismissed their appeal or revision. Hence they have come to this Court.
2. ' The plea of the petitioners/appellants is that the interpretation placed on the case of Said Kamal Shah (PLD 1986 SC 360) in the cases which have been relied upon for dismissing their suits stand overruled by the recent judgment of a Full Bench of this Court reported as Ahmad v. Aziz Ahmad etc. (PLD 1989 SC 771) wherein it has been found that the true effect and scope of the judgment in Said Kamal Shah's case is that it is only those parts of section 15 of the Punjab Pre-emption Act have become ineffective which were expressly declared to be repugnant to the Injunctions of Islam namely those parts where ownership in the estate or the patti was not coupled with contiguity and co-sharership. Accordingly, the said parts of section 15 were still operative and remain preserved.
3. ' The above-mentioned case viz. Ahmad v. Aziz Ahmad etc. And other connected matters, it may be pointed out, were heard by this Court on 30-5-1989 but judgment in all these matters was reserved after the conclusion of the hearing. Meanwhile, the Shariat Appellate Bench of this Court took up this very matters in a Suo Motu Shariat Review Petition and on 5-7-1989 passed the following order:- "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 arising out of it. The office is directed to fix the matter before this Bench at an early date at Karachi.
4. ' 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.
5. ' Notice to the Federal Government and the Government of Punjab shall be issued.
6. ' A public notice shall also be issued."
7. ' To fully appreciate the circumstances necessitating this order it should be recalled that Shariat Petitions were instituted in the Federal Shariat Court impugning certain provisions of Martial Law Regulation 115, Act II of 1977, Punjab Pre-emption Act, 1913 and N.-W.F.P. Pre-emption Act, 1950 on the ground of their repugnancy to the Injunctions of Islam but the above petitions were dismissed by the Federal Shariat Court vide judgment given in the case of Hafiz Muhammad Ameen etc. v.
8. Islamic Republic of Pakistan and others (PLD 1981 F SC 23). Against the above judgment, six appeals were filed before the Shariat Appellate Bench of this Court which were disposed of by the judgment given in the case of Said Kamal Shah. The operative order passed herein said:-- "We while agreeing with the reasoning in the judgment of Shafi-urRehman, J. That the Federal Shariat Court had the jurisdiction to entertain, adjudicate and decide the petitions out of which these appeals had arisen; .
9. ' 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.
10. There shall be no order as to costs."
11. ' After announcement of the above judgment differing interpretations were placed as to the effect of this judgment on the then pending cases relating to the pre-emption. The above controversy was firstly examined by the Full Bench (of 5 Judges) of the Supreme Court in the case of Sardar All and others v. Muhammad All and others and the judgment delivered in this case is reported as PLD 1988 SC 297. Herein it was, inter alia, held that the effect of the judgment in Said Kamal Shah's case was 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 were saved, but all proceedings in the other cases had become infructuous and stood abated. A direction was issued that pending cases should be placed before the relevant Benches of the Court for disposal.
12. ' However, while disposing of the pending cases, difference of opinion again arose amongst different Benches of this Court as to the true effect and scope of the judgment in Said Kamal Shah's case in regard to some aspects, not fully dealt with in the case of Sardar Ali and others v.
13. Muhammad Ali and others (PLD 1988 SC 297). This necessitated the constitution of an even a Fuller Bench. Accordingly, a Full Bench of 7 Judges was constituted to resolve this controversy. These matters were eventually heard, as mentioned already, on 30-5-1989 and the judgment was reserved which was ultimately announced on 4-9-1989 and is reported as Ahmad v. Abdul Aziz etc. (PLD 1989 SC 771).
14. ' But in the meanwhile, the Shariat Appellate Bench had Suo Motu, as stated earlier, initiated review proceedings to examine the various vexed questions which had arisen from the judgment in Said Kamal Shah's case and had given birth to the difficulties in interpreting/implementing the said decision.
15. ' The aforesaid review petition was heard from 20th February to 22nd February, 1990 and after hearing all the interested parties it recorded unanimously the following findings vide judgment announced on 26-5-1990:-
(1) The Shariat Appellate Bench of the Supreme Court is empowered to explain, clarify or review its own orders.
(2) The Shariat Appellate Bench in Government of N.-W.F.P. v. Said Kamal Shah (PLD 1986 SC 360) found that all clauses of section 15 of the Punjab Pre-emption Act, 1913, were against the Injunctions of Islam. Accordingly, the effect of the said judgment was that after 31-7-1986 no part of it (section 15) continued to have any legal effect.
(3) Section 30 of the Punjab Pre-emption Act, 1913, having been found in Said Kamal Shah's case to be wholly against the Injunctions of Islam; the effect of this finding was not that the limitation of one year for instituting pre-emption suits prescribed therein stood removed but its true effect was that without fresh legislation on the subject the whole of the Punjab Pre-emption Act, 1913, became unworkable.
(4) Sections 15 and 30 of the Punjab Pre-emption Act, 1913, having ceased to have legal effect from 31-7-1986 in their entirety no suit, therefore, can be continued on the basis of the said provisions after the said date except those pre-emption suits wherein decrees had been passed before 31-7- 1986. However, in so far as before the announcement of the judgment in this Review Petition the Punjab Pre-emption Ordinance, 1990 was promulgated (on 28-3-1990) the provisions of the said Ordinance will have their due legal effect as from the date of its coming into force, namely, 28-3- 1990.
16. ' It is now, therefore, in the light of this clear and authoritative explanation of the Shariat Appellate Bench of its own judgment in Said Kamal Shah's case that these petitions/appeals fall to be decided.
17. ' To overcome this disastrous prospect for the petitioners/appellants, Dr. A. Basic and other learned counsel for the petitioners/appellants submit that the Shariat Appellate Bench of this Court exceeded its jurisdiction in delivering this judgment, in purported exercise of Suo Motu review jurisdiction and it is, therefore, non esse.
18. ' A somewhat similar objection was also taken before the Shariat Appellate Bench (PLD 1990 SC 865 and it has been elaborately dealt with in the judgment of Ajmal Mian, J, as follows:-- "M/s. Maqbool Elahi Malik and Muhammad Nawaz Abbasi, Advocate-General, Punjab and Assistant 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 Shah'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 latter in support of their above submissions, 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 powers 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 of 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:--
(1) National Telephone Company Limited (In Liquidation) and another v. His Majesty's Postmaster- General (1913 AC 546).
(ii) Secretary of State for India v. Chellikani Rama Rao and others (AIR 1916 PC 21).
(iii) Maung Ba Thaw v. Ma Pin (1961 I A 158).
(iv) Hussain Bakhsh v. Settlement Commissioner and others (PLD 1970 SC 1).
19. ' 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 Limited. 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 arc to attach, and also that any general right to appeal from its decision likewise attaches."
20. ' 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.
21. 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 of law involved, I would not make any order as to costs."
22. ' 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 Shah's case and/or to supply any obvious omission in any part thereof in the above suo motu review petition.
23. ' If any authority is needed in support of the above view, reference may be made to the case of Keshav Talpade v. Emperor (AIR (30) 1943 Federal Court 72) and the case of Muhammad Akram Sheikh, Advocate v. 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 v. 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.
24. Additionally, the Shariat Appellate Bench can press into service any recognized principle of the Islamic Jurisdiction, which is not in conflict with the Holy Qur'an 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 Qur'an and Sunnah or to rectify any omission or error. Even the Supreme Court in the case of Mian Ariz A. Sheikh v. 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."
25. ' However, Dr. A. Basit, who presented the leading argument from the side of the petitioners/appellants still maintained that the Shariat Appellate Bench was not right in considering that it was empowered to clarify and/or supply omissions in its own judgments by way of review and had, in fact, transgressed its jurisdiction in doing so. According to the learned counsel, the Shariat Appellate Bench is a Court which is distinct from the Supreme Court possessing only a special and limited jurisdiction which is clearly defined and controlled within which it can act and it cannot enlarge it. The right of review, he pointed out, had not been conferred on it and, therefore, it was not competent to review any order made by it. In this connection he drew attention to clause (9) of Article 203-E of the Constitution which deals with the powers and procedure of the Federal Shariat Court and confers on it the "power to review any decision given or order made by it". It is argued that without such express conferment of powers the Shariat Appellate Bench had no jurisdiction to initiate proceedings for review or to pass any order in purported exercise of review jurisdiction. As a corollary it is submitted that after the Court has delivered the judgment it becomes functus officio and is not competent to issue clarifications of its orders.
26. ' These submissions, we note, stand already answered by the Shariat Appellate Bench, as is evident from the passages extracted from its judgment reproduced above. Additionally, we may point out that the question of the status of the Shariat Appellate Bench vis-a-vis the Supreme Court has been the subject-matter of consideration in two earlier judgments of the Court namely B.Z. Kaikaus v. Federal Government of Pakistan PLD 1982 SC 409 and Abdul Hameed v. The State PLD 1983 SC
130. In the last mentioned judgment this matter was considered quite elaborately and the following passage therefrom may be re-produced below:- "The precise argument of the learned counsel is that when hearing a petition for leave to appeal under sub-Article (2-B) of Article 203-F, the Shariat Appellate Bench i.e, this Bench, assumes an independent status as an appellate forum, different from the Supreme Court. Therefore, the rules framed by the Supreme Court, under Article 191 of the Constitution which, inter alia, provided for limitation for filing a petition for leave to appeal in criminal matter, would not be attracted.
27. ' We do not agree with him. Article 203-F deals with three types of appeals. All these appeals as are apparent from clear language used in the relevant Sub-Article lie to "the Supreme Court". The first type of appeal lies "to the Supreme Court" when the decision by the Federal Shariat Court is in respect of a matter provided in Article 203-D of the Constitution. The appeal of the second category as provided in Sub-Article (2-A) of Article 203-F "lies to the Supreme Court" from any judgment, final order, or sentence of the Federal Shariat Court as specified in Sub-clauses (a) and (1)) of Sub-Article (2-A) of Article 203-F. The third category of appeal which is visualized in sub- Article (2-B) of Article 203-F, would cover the present case. In this category "an appeal to the Supreme Court" would lie "only if the Supreme Court grants leave to appeal".
28. ' The foregoing analysis makes it clear that the appeal, in any case, whether direct by way of right or, through, special leave to appeal, lies to "the Supreme Court". This is not all. The appeal, in the third category of cases lies to the Supreme Court only when "the Supreme Court grants leave to appeal". Therefore, there is no doubt, in our mind that notwithstanding the provisions contained in Article 203-F(3)(4)(5)(6) for constituting a Special (Shariat) Bench of the Supreme Court, this appellate forum i.e, the Shariat Appellate Bench, is and remains a Bench of the Supreme Court."
29. ' In view of this clear enunciation of the position it is not possible to accept the plea that the Shariat Appellate Bench is an entity distinct from the Supreme Court and not merely one of its Benches.
30. ' In this view of the matter, the argument that in the absence of any express conferment of power of review on the Shariat Appellate Bench in terms similar to the power conferred on the Federal Shariat Court (by clause (9) of Article 203-E of Constitution), the Shariat Appellate Bench cannot exercise any review jurisdiction, loses all force. The Shariat Appellate Bench is an integral part of the Supreme Court and is one of its Benches and, therefore, empowered under Article 188 of the Constitution to review its judgments and orders. The Federal Shariat Court, on the other hand, owes its existence entirely to the provisions of Chapter 3-A introduced into Part VII of the Constitution and can exercise only such jurisdiction and powers which are expressly conferred on it by I' the provisions of that Chapter. Accordingly, when it was felt that it should also have power to review, clause (9) was added to Article 203-E of the Constitution by President Order 5 of 1981. The submission that without a similar provision in Chapter 3-A aforementioned, to empower the Shariat Appellate Bench to exercise review jurisdiction and without such express conferment it cannot review its own judgments and orders is, therefore, wholly misconceived.
31. ' The further argument of Dr. A. Basit was that the order passed by the I Shariat Appellate Bench in any case could have effect as from 26-5-1990 when C it was pronounced. It other words, it should he given effect only prospectively. It is submitted that the order of the Shariat Appellate Bench purports to clarify its earlier judgment in Said Kamal Shah's case and supply omissions therein. In fact it is in the nature of a substitutive order and hence will have effect as from the date it was pronounced, namely, 26-5-1990.
32. ' Unfortunately, this submission too is not well based. The order of the Shariat Appellate Bench dated 26-5-1990 is not an order which has substituted its order passed in the case of Said Kamal Shah but its effect is only to explain it. It is, therefore, in the nature of an explanatory order rather than an order of substitution. It merely clarifies the purport of the order already passed and is, therefore, effective as from 31-7-1986 as decided therein earlier. In fact, this matter has been placed beyond the pale of controversy by the order of the Shariat Appellate Bench itself as in the said order it has been specifically stated that "Sections 15 and 30 of the Punjab Pre-emption Act, 1913 having ceased to have legal effect from 31-7-1986 in their entirety no suit, therefore, can be continued on the basis of the said provisions after the said date except those pre-emption suits wherein decrees have been passed before 31-7-1986."
33. ' The above order having been found to have been competently passed no Court or Tribunal including Supreme Court can entertain any proceedings or exercise any power or jurisdiction in respect of any matter within the power or D jurisdiction of the Court. Hence we cannot go into the correctness or otherwise of the decision of the Shariat Appellate Bench or vary in any way its order that it shall have effect as from 31-7-1986.
34. It was then submitted that even under the order of the Shariat Appellate Bench due legal effect has to be given to the provisions of the newly-promulgated Punjab Pre-emption Ordinance, 1990 and this Ordinance by Section 34 thereof repeals the Punjab Pre-emption Act, 1913, the normal incidents of the repeal contained in Section 6 of the General Clauses Act would apply with the result that pending cases should be decided in accordance with the repealed law.
35. ' This plea too is of no avail to the petitioners/appellants as under the judgment of the Shariat Appellate Bench their suits abated on 31-7-1986 and clause (a) of Section 6 of the General Clauses Act itself provided that the repeal of the Act does not revive anything not in force or existing at the time at which the repeal took effect. As no part of the Punjab Pre-emption Act, 1913 was in force on 28-3-1990 the fact that the said Act has been repealed does not improve matters.
36. ' In the end, Dr. A. Basit drew attention to the aspect of grave hardship resultingirom giving effect to the judgment of the Shariat Appellate Bench, dated 26-5-1990. According to learned counsel, thousands of innocent parties, who have invested all their life savings in prosecuting their suits for pre-emption, which were instituted on the strength of statutory provisions validly in force for decades, will be ruined and their lifelong efforts reduced to nought for no fault of theirs.
37. ' Believing as I do that law is for the citizen and not the citizen for the law and being a protagonist of the principle that the "law may be blind but the Judge is not", I have personally been deeply moved by this submission.
38. ' But I also cannot overlook the glorious struggle waged by millions of Muslims to establish this Islamic State of Pakistan and the heart rending sacrifices made by them for bringing into being this great polity wherein they could fulfil their cherished wish of conducting their affairs in accordance with the Injunctions of Islam, as enshrined in the Holy Quran and the Sunnah. The price they are now called upon to pay on account of the overthrow of the un-Islamic provisions of the Punjab Pre- emption Act, 1913 to pave the way for the Islamic Law of pre-emption is, I believe, one further sacrifice that they must make in the cause of establishing this Islamic polity and for ensuring that the generations to follow will be governed by the laws of Islam and Islam alone.
39. ' We may now take up separately the petitions/appeals coming before
(1) Constitution Petition No,1-R of 1988 (Mst. Aziz Begum etc. v. Federation of Pakistan etc.)
40. ' This is a petition under Article 184(3) for Enforcement of the Fundamental Right of Equal Protection of Law guaranteed to every citizen by Article 25 of the Constitution. The petitioners in this petition have mainly sought the following declaration in their petition, namely-- "The petitioners have a fundamental right to have their pending cases decided in accordance with clause fourthly of Section 15(b) of the Punjab Pre-emption Act, 1913. Which is still the existing law in terms of law declared by the Supreme Court and reported as PLD 1986 SC 360."
41. ' Apart from the fact that it is doubtful whether a petition under Article 184(3) of the Constitution for the relief sought in this petition is at all maintainable, the provision of law whose enforcement is sought by this petition having ceased to have legal effect as from 31-7-1986 the declaration sought for, even if it could be granted, cannot now be granted in view of the judgment of the Shariat Appellate Bench delivered on 26-5-1990.
42. ' This petition stands dismissed accordingly.
(2) Civil Appeal No,64 of 1989 Khushi Muhammad v. Amanat Ali and others.
43. ' In this case, the pre-emption suit was filed on the ground of cosharership but on appeal the learned Additional District Judge reversed the decree of the trial Court and decreed the suit of the pre-emptor vide judgment dated 10-3-1987. The High Court on revision set aside the judgment of the learned Additional District Judge on the ground that no decree having been passed till the target date of 31-7-1986 the suit could not be decreed after this date. The correctness of this view can no longer be doubted. Hence this appeal must fail and is dismissed hereby with no order as to costs.
(3) Civil Appeal No,161 of 1989 (Ali Muhammad etc. v. Bashir Ahmad).
44. ' In this case, the suit was filed, inter alia, on the ground of co-sharership. But the decree in favour of the pre-emptor was passed for the first time on appeal on 18-7-1987. On second appeal, however, the High Court set aside the decree of the Additional District Judge on the ground that the pre- emption suit could not have been decreed after 31-7-1986. The correctness of this view can no longer be doubted. Hence no interference is called for. This appeal is dismissed. No costs.
(4) Civil Review Petitions Nos. 16 and 17-R of 1990 (Sultan Khan etc. v. Dost Muhammad etc. And (5)
45. Muhammad Gulistan v. Dost Muhammad).
46. ' These review petitions have been filed by persons who were tenants at will and claimed superior right of pre-emption on the ground of being tenants in the estate. The petition was dismissed by a Bench of this Court on the ground that in so far as tenants at will have no right of pre-emption and no decree was ever passed in their favour, no interference with the decision of the High Court was warranted.
47. ' In support of these review petitions it is submitted that the petitioners-tenants were also owners of the land contiguous to the land sold and could, therefore, file pre-emption suits on the ground of co-sharership.
48. 'It is not necessary to examine the correctness of this submission because admittedly no decree in their favour was passed before 31-7-1986 and their suits are liable to fail and be dismissed, on this short ground alone.
49. ' These review petitions are misconceived and are, accordingly, dismissed.
(6) Civil Review Petition No, 33-R of 1990 (Muhammad Hussain v. Pannu Khan)
50. ' In this case too no decree was admittedly passed in favour of the petitioner before 31-7-1986.
51. Accordingly, even if the claim of the petitioner of cosharership is accepted, his suit could not be decreed after the said date. This petition must, therefore, be dismissed.
52. ' The upshot is that all these five matters stand dismissed but with no order as to costs.
53. (Sd.)
54. Nasim Hasan Shah, J Naimuddin, Abdul Qadeer Chaudhry, J Ajmal Mian, J ' SHAFTUR-RAHMAN, J.---I agree but for different reasons which are given in my separate note:- ' SHAFIUR RAHMAN, J.---I have had the privilege and the benefit of going through the draft judgment prepared and circulated by my learned brother Dr. Nasim Hasan Shah, J. I agree with the conclusions and the orders in terms of which the petitions and appeals are thereunder sought to be disposed of. However, I have thought it fit to record a separate opinion also.
55. ' Dr. Abdul Basit, Advocate, the learned counsel in Constitution Petition No, 1-R of 1988 has advanced a variety of reasons in an attempt to show that the suo motu review decision of the Shariat Appellate Bench, now under consideration, cannot have the effect of achieving what it purports to accomplish. He has by reference to Chapter 3-A contained in Part VII of the Constitution of the Islamic Republic of Pakistan, 1973, attempted to establish that Shariat Appellate Bench of the Supreme Court is a Court different from the Supreme Court, having limited, though exclusive, jurisdiction on matters entrusted to it under the Constitution. Its jurisdiction is not, however, such as to control or limit the jurisdiction of the Supreme Court which stands at the apex and enjoys plenary jurisdiction as against limited jurisdiction of the Shariat Appellate Bench. In support of this, he has referred to clause (5) of Article 203-F of the Constitution which states that "reference in clauses (1) and (2) to 'Supreme Court' shall be construed as a reference to the Shariat Appellate Bench". An altogether different meaning has been given thereby to the "Supreme Court" in clauses
(1) and (2) of Article 203-F by so controlling it by clause (5). Clause (2) of Article 203-F makes available provisions of clauses (2) and (3) of Article 203-D and clauses (4) to (8) of Article 203-E of the Constitution to the Shariat Appellate Bench, though the expression used there is that of Supreme Court. Clause (2) of Article 203-D referred to relates to the power of the Federal Shariat Court to declare a law repugnant to the Injunctions of Islam, and of prescribing of a date when the decision shall take effect. Clause (3) of Article 203-D relates to the follow up action to be taken by the President or the Governor, as the case may be, and the effect of the decision delivered by the Shariat Appellate Bench. Clauses (4) to (8) of Article 203-E which have also been made applicable provide for the representation of a party by a legal practitioner who is a Muslim [clause (4)], maintenance of panel of jurisconsults [clause (5)], the duties of legal practitioners or jurisconsults representing a party before the Court [clause (6)], the power of the Court to invite from within Pakistan or abroad any person well-versed in Islamic Law to appear before it and render such assistance as may be required of him [clause (7)] and that no court-fee shall be payable in respect of petitions made to the Court under Article 203-D [clause (8)]. The contention of the learned counsel is that a distinct Court has been created out of the Supreme Court with a distinct constitution, powers and procedures which are defined and limited and are not plenary in character. For that reason it is contended that the Supreme Court can always determine the jurisdictional parameters within which Shariat Appellate Bench has to function and the competence of a suo motu review. The Supreme Court can also determine the amplitude and the effect of judgment given in review.
56. ' Another ground taken up by the learned counsel is that the Federal Shariat Court has been expressly conferred by clause (9) of Article 203-E of the Constitution, the power to review any decision given by it. No .Such power is conferred, enjoyed or possessed by the Shariat Appellate Bench of the Supreme Court and none has been made available to it, by reference to this clause either; though the other powers have been made available by reference and by incorporation as already indicated. Hence, manifestly, the Constitution did not intend, attempt or confer the power of review on Shariat Appellate Bench.
57. ' Yet another ground taken up by the learned counsel is that suo motu revisional jurisdiction falls either in the category of rendering clarificatory judgment or a substantive substitutive judgment on review of the earlier judgment. It cannot be clarificatory because a Court becomes functus officio after giving the judgment and clarification of its own judgment is not within its domain or power but in the domain of authorities and Courts interpreting or implementing such decision subject to final correction by the Supreme Court; in proper proceedings before it. If it be taken to be a review of substantive findings recorded in the main judgment, then it cannot but have prospective effect and not a retrospective substantive effect from the date the earlier judgment was delivered. Even clarifications of the judgment which have a substantive effect and content cannot be given retrospective effect by any Court whatsoever. Therefore, the judgment on review cannot be taken back as far back as the date of decision of appeal in Said Kamal's case PLD 1986 SC 360.
58. ' The learned counsel also contends that the jurisdiction conferred on the Shariat Appellate Bench is of identifying the repugnancy, giving reasons for it and fixing a date after which the law so declared repugnant will cease to have effect. By its very nature and under the scheme of the Constitution, it is a prospective jurisdiction. No power of clarification by review or substitution of the judgment or of giving a retrospective effect to the findings has been conferred on the Shariat Appellate Bench and none could for that reason be exercised by it. If at all such a power were available, it could be exercised only prospectively and not retrospectively.
59. ' According to the learned counsel the decision given by the Supreme Court in Ahmad's case PLD 1989 SC 771 is binding on all Courts under Article 189 of the Constitution including the Shariat Appellate Bench and consequently no decision could be given either independently or on review interfering with the effect of that decision as such. It would otherwise amount to a review of the Supreme Court judgment by Shariat Appellate Bench. Yet another contention of the learned counsel is that in Chapter 3-A of Part VII of the Constitution, a specific provision having its roots in public policy has been made for examining a law for its repugnancy with the Injunctions of Islam.
60. The specific provision of law under examination for repugnancy must be brought to the notice of the Provincial Governments or the Central Government, as the case may be, and it is only after examining the law after such notice and giving of the reasons that a declaration could be granted.
61. According to the learned counsel, in the present case, no such specification was made nor notice of it given to the Provincial Governments as was necessary under the Constitution for declaring the whole law of Pre-emption or the whole of section 15, the whole of section 30 of the Pre-emption Act to be repugnant to the Injunctions of Islam.
62. ' Finally, the learned counsel contended that section 34 of the Punjab Ordinance No, V of 1990 repeals the Punjab Pre-emption Act earlier enforced. The repeal of a law under the General Clauses Act has certain legal consequences, one of which would be that proceedings instituted and pending under that law will continue to be governed by that law notwithstanding the repeal, unless expressly provided otherwise. The Shariat Appellate Bench having already ordered that the Punjab Ordinance V of 1990 will take over as from 28th March, 1990 recognises the legal consequences flowing from section 34 of the Punjab Ordinance No, V of 1990.
63. ' As regards the merits of the Constitution Petition, the learned counsel has contended that the exercise of right of pre-emption was under the Constitution and the law, one of the recognised means of acquiring property which was equally enjoyed by all persons falling in the category prescribed under section 15 of the Repealed Punjab Pre-emption Act. That right to acquire property entrenched by Fundamental Rights contained in Articles 23, 24 and 25 of the Constitution could not be impaired, put to an end or prejudicially dealt with after the suits seeking enforcement of those rights had been instituted.
64. ' Mr. Munir Peracha, Advocate, the learned counsel in Civil Review Petitions Nos. 16 and 17 of 1990 contends that any judgment given by the Shariat Appellate Bench which happens to be in excess of its jurisdiction would not and cannot hold the field as against the judgment of the Supreme Court. In this context he asserted that for ascertaining whether there has been an excess of jurisdiction or not, it has first to be ascertained as to what was the decision in Said Kamal's case, whether it needed at all any clarification, substitution or review and whether the procedural requirements for undertaking a review followed by clarification, or substitution of the judgment, have been fully complied with. According to the learned counsel, it is evident that while rejecting the whole of section 15, the procedural requirements of giving notice, of stating the repugnance, and the reasons, were not satisfied and there was an excess of jurisdiction to that extent.
65. ' Ch. Mushtaq Ahmed, Advocate, the learned counsel appearing in Civil Review Petition No, 33-R of 1990 took up the plea that undeniably the jurisdiction of clarification of a judgment is possessed by the Supreme Court in its general jurisdiction and every Bench of it including the Shariat Appellate Bench possess it. This, according to the learned counsel finds support from Muhammad Akram Sheikh, Advocate v. Federation of Pakistan and others PLD 1989 SC 229. According to him the review was competent, the striking of whole of section 15 was within jurisdiction and proper.
66. However, it was contended by him that the observation of the Shariat Appellate Bench in review that the whole of the Pre-emption Act becomes unworkable should be considered not binding because it is only an observation obiter and not a decision as envisaged by the various provisions of Chapter 3-A of Part VII of the Constitution. It neither conforms to the form nor to the procedure, nor to the language prescribed in Chapter 3-A of Part VII of the Constitution, for rendering effective decisions of repugnancy against Injunctions of Islam. The learned counsel in particular referred to sections 6, 7 and 17 of the Pre-emption Act which were not at all brought under review at any stage nor under challenge before the Shariat Appellate Bench or the Federal Shariat Court and the same were not specifically declared repugnant to the Injunctions of Islam. According to the learned counsel those provisions could remain and were workable notwithstanding the declaration and the decision given in respect of section 15 and section 30 of the Pre-emption Act. An exception has, therefore, to be made in respect of these provisions. He has also contended that even if one provision remains on the statute book, the whole law does not get destroyed or frustrated. For this proposition he relies on Azizur Rehman and others v. Muhammad Nawaz PLD 1988 SC 384. The learned counsel has also referred to the absence of section 30 after it ceased to have effect and contended that immediately thereafter on the strength of decisions in Mst. Safia Begum v. Ibrahim and 4 others PLD 1989 SC 314 and Mian Aziz A. Sheikh v. The Commissioner of Income Tax, Investigation, Lahore PLD 1989 SC 613, the general principles of Islamic Law will fill in the gap created by the absence of the statutory provision. Similarly, the learned counsel contended that the Shariat Appellate Bench's declaration that the whole of section 15 is against Injunctions of Islam like section 30, may remain intact but the ineffectiveness of the statute after the specified date when these provisions ceased to have effect, may not be co-extensive with the repugnancy.
67. ' Dr. Abdul Basil, Advocate, is justified in contending that the Shariat Appellate Bench has limited and exclusive jurisdiction over matters specified in Chapter 3-A of Part VII of the Constitution. This contention, however, does not, and cannot justifiably extend to saying that it is a Court distinct and separate from the Supreme Court. The expression 'Supreme Court' has been used in clause (1), clause (2), clause (2-A), clause (2-B), and clause (3) of Article 203-F of the Constitution but significantly only for the clauses (1) and (2) of Article 203-F this expression has been given the limited meaning of "Shariat Appellate Bench". Similarly, in clause (6) of Article 203-F, in Article 203- G, in clause (3) of Article 203-H of the Constitution the expression "Supreme Court" has been used but the limiting clause has not been applied to it. Such a duality, such an amalgam, has necessarily the effect of keeping the Supreme Court intact, of not carving out a Court out of a Court, but of creating a Bench with a distinction in procedure and subject-matter suited to the subject-matter of adjudication and consistent with the requirement of Injunctions of Islam in the matter of adjudication of questions pertaining to Quranic injunctions. The procedures and powers of the Supreme Court, excluding those constitutionally prescribed, have been left untrammelled to hold swa y and to govern the proceedings of the Shariat Appellate Bench like that of any other Bench of the Supreme Court. This conclusion has a basis in law declared in Abdul Hameed v. The State PLD 1983 SC 130 where it was held that "there is no doubt in our mind that notwithstanding the provisions contained in Articles 203-F(3)(4), (5) and (6) for constituting a special (Shariat)
68. Bench of the Supreme Court, this appellate forum i.e, the Shariat Appellate Bench is and remains a Bench of the Supreme Court." For these reasons power of review is available to Shariat Appellate Bench and was not required to be expressly conferred on a newly-created Court as was done in the case of the Federal Shariat Court by introducing clause (9) in Article 203-E of the Constitution.
69. ' There are two provisions in Chapter 3-A of Part VII of the Constitution which deserve attention for understanding and determining the limits of jurisdiction with a view to avoid and eliminate any possible conflict of jurisdiction. The first is Article 203-A providing that "the provisions of this Chapter shall have effect notwithstanding anything contained in the Constitution". The other is Article 203-G mandating 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". 'Court' here has the meaning of Federal Shariat Court. But then the question of the declaration of repugnancy of any law to the Injunctions of Islam is in the exclusive jurisdiction of such a Court and thereafter of the Supreme Court in the Shariat Appellate Bench under Article 203-F of the Constitution. The Supreme Court takes over in this matter, and to this extent, a limitation and a power both arc recognised in Article 203-G above.
70. ' The Supreme Court enjoys the constitutionally conferred power of review under Article 188. The Shariat Appellate Bench being a Bench of the Supreme Court with a special, exclusive jurisdiction, enjoys all the powers of the Supreme Court with some constitutionally prescribed modifications with regard to subject-matter and the procedure, not relevant for the purposes of review power.
71. The judgment of the Shariat Appellate Bench on review has the following operative order for the period 31-7-1986 to 27-3-1990:- "Sections 15 and 30 of the Punjab Pre-emption Act, 1913, having ceased to have legal effect from 31- 7-1986 in their entirety no suit, therefore, can be continued on the basis of the said provisions after the said date except those pre-emption suits wherein decrees had been passed before 31-7-1986.
72. However, in so far as before the announcement of the judgment in this Review Petition the Punjab Pre-emption Ordinance, 1990 was promulgated on 28-3-1990 the provisions of the said Ordinance will have their due legal effect as from the date of its coming into force, namely, 28-3-1990."
73. ' In view of the express provision made in Article 203-G of the Constitution and the peculiar entrenchment of the Shariat Appellate Bench as a Bench of The Supreme Court in Chapter 3-A of Part VII of the Constitution, the decision of the Shariat Appellate Bench on review is immune from scrutiny and interference from any other Bench of the Supreme Court itself unless it be given under Article 203-F independently or in exercise of review jurisdiction.
74. ' The decision given by the Shariat Appellate Bench rendering the whole of section 15 and whole of section 30 of the Pre-emption Act, repugnant to Injunctions of Islam and these provisions ceasing to have effect as from 31-7-1986, leaves no right available for enforcing the right of pre-emption during that period. The Punjab Ordinance No, V of 1990 makes no provision for this interregnum and the mere use of the word 'repeal' for a law which has ceased to have effect could not be sufficient to revive or to give the impression of existence and effectiveness of any such law rendered ineffective by the decision of the Shariat Appellate Bench. It is difficult for that reason to protect and continue during this interregnum even sections 6, 7 and 17 of the Pre-emption Act. In any case, the application and existence of these provisions does no directly arise in any of the appeals or petitions now before us.
75. ' Articles 23 to 25 of the Constitution are of no avail for protecting the pre-emption proceedings during this interregnum. Article 23 provides that "every citizen shall have the right to acquire, hold and dispose of property in any part of Pakistan, subject to the Constitution and any reasonable restrictions imposed by law in the public interest". The acquisition of property, through pre-emption claims, was recognised for a period by law. In exercise of the constitutionally conferred powers, the Shariat Appellate Bench made it not available for enforcing such claims on account of its ceasing to be the law of the land. Article 23 is not violated in any manner and to any extent by alterations in the pre-emption law or by its ceasing to have effect for a period.
76. ' Article 24 relates to the deprivation of rights in property and it is conceded by the learned counsel (Dr. Abdul Basit) that the right to acquire property is itself not properly mentioned in Article 24. The right to acquire property can be placed under reasonable restrictions or can be controlled by law.
77. ' Article 25 also is not attracted to the claim made by the petitioners in the Constitution Petition. It relates to equality of citizens before law and the equality enjoined by the Constitution permits reasonable classification and the adjudication by the Shariat Appellate Bench, recognises and gives effect to the categories where the rights are to be protected as a class and not so protected as a class. There is no element of discrimination or arbitrariness in the same. The decision follows an elaborate line of reasoning for giving effect to or for declaring a portion of the law or the whole of it repugnant to the Injunctions of Islam.
78. ' None of the grounds taken in the Constitution Petition (No, 1-R of 1988)/Civil Appeals (Nos. 64 of 1989 and 161 of 1989) and Civil Review Petitions (No, 16-R of 1990, 17-R of 1990 and 33-R of 1990) or urged by the learned counsel, can be sustained on merits, hence all the six matters are dismissed with no order as to costs. Similarly and for the same reasons the two Civil Appeals (Nos. 528 of 1988 and 63 of 1989) are allowed with no orders as to costs.
…and 12 more citing cases