' In the this revision petition judgment and decree dated 15-11-1989 passed by learned lower appellate Court decreeing the suit of respondent for possession of land through pre-emption has been challenged.
2. Learned counsel for the petitioners argued that the suit was barred by time, no decree could be passed in favour of respondent as co-sharer unless Talabs were made and that the respondent had waived his right of pre-emption.
3. To elaborate his contentions, learned counsel for the petitioners argued that the rule laid down in judgment reported as Ahmad and others v. Abdul Aziz and others P.L.D.1989 S.0 771 was not applicable to a case of a co-sharer of khata if the sale was made after the date fixed in the judgment of Said Kamal Shah's case i.e, 31-7-1986 therefore Section 15 conferring right of a co- sharer would be deemed to be qualified with further condition of making Talabs. I am afraid, the argument has no force. The relevant portion of Ahmad's case is reproduced below:-- "Under Chapter 3-A of Constitution, Court has been given power of applying test of repugnancy of giving a prospective declaration of repugnancy and of striking down prospectively a provision of law under challenge or under examination. Court is not empowered to legislate, to engraft its observations, findings or declaration on law not held to be repugnant and otherwise allowed to hold field--Held, Talabs cannot be imported or engrafted into left over statutory provisions of pre- emption law not challenged, not examined and allowed to remain intact for time being."
' It has also been further held in this case that Section 15 fourthly of the Punjab Pre-emption Act was not examined in Said Kamal Shah's case and it was not declared to be repugnant to Islam. In this view of the matter, it is clear that a co-sharer could maintain the suit in respect of sale made even after 31-7-1986 without fulfilment of requirement of Talabs. The argument is therefore repelled.
4. The main burden of argument presented by the learned counsel for the petitioners on the question of limitation was that Section 30 of the Punjab Pre- emption Act which prescribed period of limitation for filing pre-emption suit where the sale was oral followed by sanction of mutation was adjudged to be repugnant to Islam in Said Kamal Shah's case and it ceased to be the law after 31-7-1986 as such the period of limitation for filing such suit should be construed to be reasonable period as suggested in the said judgment and the amendment/ promulgation of law to that effect was proposed. In my view, the fallacy of this argument consisted in assuming that recommendations of the Federal Shariat Court or Appellate Shariat Bench, for making amendments in the existing law could themselves become operative as law itself and could be enforced as such. This argument is plainly contrary to the provisions of the Constitution which do not provide that the mere recommendations, could be enforced as the law enacted having come into force. The rule of interpretation laid down in Ahmad's case by the Supreme Court is beyond ambiguity on this point that the Federal Shariat Court and for that matter, the Appellate Shariat Bench have not been conferred with authority to legislate. After Section 30 of the Punjab Pre- emption Act, as argued ceased to have effect w.e.f 31-7-1986 as law and was no more operative, it does not help the petitioners inasmuch as'in that case the period of limitation for filing such a suit would be governed and regulated by the general provisions of the Limitation Act and if those provisions are applied, the period of limitation would still be more than what was prescribed under section 30 of the Punjab Pre-emption Act because the sale in this case having been made orally through mutation, the suit was either governed by Article 10 of the Limitation Act, or residuary Article 120 under which the period of limitation would be six years.
5. Faced with this difficulty, learned counsel for the petitioners tried to overcome it by arguing that it has been observed in Said Kamal Shah's case that the Court should not be understood to have held that after striking down provision of section 30 of the Punjab Pre-emption Act, the other provisions of Limitation Act were treated to be in accord with the injunctions of Islam as such the provisions of Limitation Act should also be deemed to have been adjudged as Repugnant to Islam.
I am afraid, in my opinion the argument is plainly unsound. According to rule of interpretation laid down in Ahmad's case by the Supreme Court no law could cease to operate being repugnant to injunctions of Islam unless the same was examined by Federal Shariat Court or Appellate Shariat Bench and it was so expressly declared. The provisions of Limitation Act were not examined by the Federal Shariat Court or Appellate Shariat Bench, as such from the mere observation made in respect thereto, it could not be construed that the same was examined and declared as repugnant to injunctions of Islam.
6. For the foregoing reasons, the objection regarding limitation is found to be without substance which is hereby repelled.
7. Coming to the point of waiver, the learned lower appellate Court has recorded finding of facts on careful and elaborate appraisal of evidence. It has been rightly held that mere alleged presence of the respondent at the time of sale was not sufficient evidence to hold that he waived his right of pre-emption. The evidence of the petitioners that the respondent was asked to purchase the land was not also found to be creditworthy because it was not stated as to at what price the respondent was offered to purchase the land and further that the land was sold by Mst. Ghulam Jannat and the evidence was given that D.W. Muhammad Afzal offered respondent to purchase the land. It was rightly held by learned lower appellate Court that there was no evidence that vendor offered the respondent to purchase the land.
8. No material irregularity and illegality has been committed by the learned lower appellate Court in decreeing the suit as the respondent being co-sharer in khata was rightly half to be entitled to pre-empt the land which finding of fact was not questioned by the learned counsel as it was not argued that respondent was not the co-sharer.
9. For the foregoing reasons, no case having been made out for mis-reading or misconstruction of the record in recording findings of facts by the learned lower appellate Court, the revision petition fails which is hereby dismissed in limine.