KHALIL-UR-REHMAN KHAN, J. - This order will dispose of C.M.Nos. 4853 of 1990, 4898-C-90, 4905-C- 90 and 4529-C-90, tiled in R.S.A. Nos.205-87, 212-84, 981-76 and C.R.No.l488-D-87 respectively, under section 36 of the Punjab Pre-emption Ordinance (XVIH of 1990), seeking restoration of the second appeals and the civil revision and their decision afresh in accordance with the provisions of the said Ordinance. The learned counsel orally submitted that if necessary the suits be remanded for fresh trial in accordance with law now in force.
2. The suit out of which R.S.A. 205-87 arose was filed on 2nd September, 1981, by the applicant- plaintiff claiming superior right of pre-emption being collateral of the vendor as well as co-sharer in the khata. The suit was dismissed by the learned Civil Judge, Sheikhupura, vide judgment and decree dated 31st May, 1983, holding that the plaintiff had not got preferential preemptive right as against the defendant. The plea that the applicant-plaintiff possessed superior right of pre- emption being collateral was negatived by recording the finding that the defendant belonged to the category of distant kindred in class higher than that of the plaintiff. The appeal was also dismissed by the learned Additional District Judge, Sheikhupura, vide decree dated 16th May, 1987, with the further observation that the claim of being co-sharer in the khata was also not established on record by producing satisfactory evidence and that the suit was rightly dismissed by the learned trial Court. The second appeal was then dismissed by this Court on the 17th October, 1988, alongwith R.S.A. No.57 of 1981 observing that obviously no decree can now be passed in favour of the appellant- pre-emptor.
3. The suit out of which R.S.A. 212-84 arose was filed on 26th September, 1981 claiming superior right being owner in the village and khata Sharik. The suit was dismissed on the 26th September, 1981, mainly on the ground that no right of pre-emption can be claimed in respect of the sale on account of the Notification of the Board of Revenue, Punjab, dated the 21st June, 1976, exempting sale of agricultural land to the affecters of Pakistan Atomic Energy Plant from pre-emption. The appeal failed vide judgment dated lst April, 1984, of the learned Additional District Judge. The second appeal was then dismissed by this Court on 18th October, 1988, with the further observation that the suit could not succeed as it had not been averred in the plaint that the appellant had made the 'talabs' as required by Sharia for successfully exercising the right of pre-emption.
4. The suit out of which R.S.A. 981-76 arose was filed on 2nd February, 1973, and was dismissed on 27th September, 1974, on the ground of limitation. This decree of dismissal was affirmed by the learned District Judge by dismissing the appeal of the applicant-plaintiff vide judgment and decree dated the 15th September, 1976. The second appeal filed by the applicant was dismissed by this Court on 14th September, 1988, observing that though the right of pre-emption on the ground of co-sharer, a ground recognized by Sharia, had been claimed yet the suit could not succeed as it had not even been averred in the plaint that the applicant had made the 'talabs' as required by Sharia for successfully exercising the right of pre-emption.
5. The suit out of which revision petition No.l488-D of 1987 arose was filed on the 31st May, 1983, claiming superior right of pre-emption being collaterals of the vendor, owners in the village and owners of the land adjacent to the land in question and as both the lands were being irrigated by one and the same tubewell. The suit was dismissed by the learned Civil Judge on 2nd February, 1987, observing that the qualifications of the plaintiffs for the superior right of pre-emption, i.e. Collateral ship and ownership in the estate, had ceased in view of the judgment of the Federal Shariat Court. As regards the plea that the land adjoins the suit land it was observed that since no legislation to this effect had been made the plaintiffs at present were not competent to claim the right of preemption on this basis. The first appeal filed by the plaintiffs failed vide judgment and decree dated the 16th May, 1987 of the learned Additional District Judge, Sialkot. The revision petition was also dismissed by this Court on the 8th October, 1988, with the observation that the suit on the ground of being participator in the common source of irrigation could not succeed as admittedly the pre-requisites i.e. 'talabs' for enforcing the right of pre-emption under the Sharia were not fulfilled.
6. It will be pertinent at this stage to give a brief history of the preemption law, the statutory as well as the precedent law, in order to comprehend fully the questions raised in these petitions. In Punjab, the Punjab Pre-emption Act, 1913 (I of 1913) held the field and regulated the right of pre- emption with regard to urban and rural immovable property. The right of pre-emption in respect of agricultural land on the ground of tenancy was recognized and provided for by Land Reforms Regulation, 1972, and then by Act II of 1977. The questions whether certain provisions of the Punjab Pre-emption Act, 1913, N.W.F.P. Preemption Act, 1950, and Paras 22 to 25 of the Land Reforms Regulation, 1972, or the provisions of Act II of 1977, are contrary to the Injunctions of the Holy Qur'an and Sunnah were examined by the Federal Shariat Court (see Hafiz Muhammad Amin v. Islamic Republic of Pakistan and others) (PLD 1981 F.S.C. 23). The appeals against the aforesaid judgment were decided by the Shariat Appellate Bench of the Supreme Court vide judgment reported as Government of N.W.F.P. v. Malik Said Komal Shah (PLD 1986 S.C. 360) in terms of the formal last part of the judgment of Maulana judgment of Maulana Muhammad Taqi Usmani j. With the direction that "if possible a consolidated law of pre-emption be enacted accordingly till 31st July, 1986".
7. The Supreme Court in the case of Sardar Ali and others v Muhammad Ali and others (PLD 1988 S.C.287) observed that the decision of the Shariat Appellate Bench of the Supreme Court dated 26th February, 1986, reported as Government of N.W.F.P, v. Malik Said Kamal Shah (Supra) was to take effect on the 31st July, 1986, and that mere filing of the suit or even lengthy proceedings thereon without a decree in favour of the plaintiff at any stage before 31st July, 1986, would not save the application of the questioned law to it. It was added that where a decree had been passed in favour of the plaintiff on the basis of the said law before 31st July, 1986, the same would continue to govern the case upto the Supreme Court and the plaintiff would be entitled accordingly to defend the decree. Another learned Bench of the Supreme Court in the case of Slier Muhammad v. Allah Ditta (PLD 1988 S.C. 412) dismissed the petition for special leave to appeal arising out of pre- emption suit in which admittedly no decree had so far been passed and it was not claimed that the requirement of 'talabs' as envisaged by Islam was fulfilled. It was further observed that in C.P.S.L.A. No. 747 of 1983 the learned counsel for the petitioners had not even heard of the expression 'talabs'. That being so no decree could now be passed in their favour in view of the judgment in Sardar Ali v Muhammad Ali (PLD 1988 S.C.287).
8. The question of effect of the judgment in Said Kamal's case (Supra) came up for consideration in the case of Ahmad v. Abdul Aziz (PLD 1989 S.C.771) before a Bench consisting 6f seven learned Judges of the Supreme Court and view recorded as per majority (Justice Dr. Nasim Hasan Shah recorded the contrary view) was that :- "The effect of the decision was that as from 1-8-1986 the tenant, the occupancy tenant, the inferior proprietor in that capacity alone could not enforce any right of pre-emption as they were left with none, the provisions recognizing their right ceasing to have effect. Similarly the prospective heirs of the vendors. The superiority of the claim of co- sharer stood enhanced by deletion of other priority categories and by deletion of expression fourthly. As regards the claim based on the ownership of land in the estate or Patti, this was a very wide category and the judgment in Said Kamal's case had not the effect of effacing it in its entirety or of directing total deletion of this category. Only that part of it was declared to be repugnant to the injunctions of Islam where ownership in the estate or Patti was not coupled with contiguity or co-ownership, a very restricted and a smaller category included within the larger - a part of the whole. The whole having not been struck down, the part remains preserved. The result was that where it was contended or it could be contended that ownership in the Patti or the estate was^ coupled with contiguity, then such ownership in the estate or Patti continued to be a valid and available ground for preempting the sale. For adjudicating this question of fact, opportunity shall be allowed to parties to amend their pleadings, where necessary or required.
9. The entire matter was then examined by the Shariat Appellate Bench of the Supreme Court in suo motu Review Petition No. 1-R 1989, and it was held that, "sections 15 and 30 of the Punjab Pre- emption Act, 1913, having ceased to have legal effect from 31st July, 1986, in its entirety, no suit, therefore, can be continued on the basis of the said provisions after the said date except those preemption suits wherein decrees had been passed before 31st July, 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 the 28th March, 1990, the provisions of the said Ordinance will have their due legal effect as from the date of its coming into force namely 28th March, 1990, (see PLD 1990 S.C. 865). Reference may also be made to the case of Sultan and others v. Habib Ahmad (PLD 1990 S.C. 897) wherein it was held that pre-emption suit by plaintiff based on the ground of being co-sharer of the suit land could not be decreed for the first lime on 31st December, 1987, as explained in the judgment of the Shariat Appellate Bench reported in PLD 1990 S.C. 865.
10. The Government of the Punjab ultimately promulgated the law on the subject of pre-emption i.e. The Punjab Pre-emption Ordinance, 1990 (V of 1990) on 29th March, 1990, and since then, the Ordinances promulgated one after the other, on the expiry of the period prescribed by Article 128 of the Constitution are:-
(i) The Punjab Pre-emption Ordinance, 1990 (Ord.XII of 1990, Gazette Extra ordinary, 29th May, 1990).
(ii) The Punjab Pre-emption Ordinance, 1990 (Ord.XVIII of 1990, Gazette Extra ordinary, 27th August, 1990)
(iii) The Punjab Pre-emption (Amendment) Ordinance, 1990 (Ord.XXI of 1990, amending sub- section (2) of section 36, the words 'one year substituted for the 'words to hundred forty days'.
(iv) The Punjab Pre-emption Ordinance, 1990 (Ord. XXVII of 1990, Gazette Extra ordinary, 26th November, 1990.
Ordinances at Nos. (i),(ii), and (iv) were to come into force respectively on the date on which the earlier Ordinance stood repealed under Article 128 of the Constitution.
11. Another feature worth noticing is that an additional provision was introduced by adding section 36 to Ordinance No. XVIH. The to Ordinances earlier brought on the statute book contained only 35 sections. The new section 36 reads as under:- "36(1) Notwithstanding anything in any other law for the lime being in force, all the decrees, judgments or orders dismissing the suits of preemption, instituted or pending during the period from lst August, 1986, and 28th March, 1990, in which the right of pre-emption was claimed as is available under this Ordinance, shall be of no legal effect, and such suits, on an application made by the aggrieved person, shall subject to subsection (2), be decided afresh according to the provisions thereof.
(2) Notwithstanding anything in sections 13 and 31 in respect of the suits mentioned in subsection
(1) the period of limitation shall be to hundred and forty days and it shall be sufficient if the pre- emptor establishes that he had made 'Talb-i-Ishhad' in the presence of to truthful witnesses.''
It is pertinent to note that by Ordinance XXI of 1990 the words 'to hundred and forty days' appearing in subsection (2) of section 36 were substituted with the words 'one year' and the amended provision came into force from the date of the enforcement of Ordinance XVIH of 1990.
12. The present applications were made under this very section 36 and the learned counsel for the applicants submitted that the first as well as the second appeals arc to be treated as proceedings in continuation of the suit and as these appeals were pending during the period from 1st August, 1986 arid 28th March, 1990, (the period mentioned in section 36(1) of the Ordinance) decrees and judgments passed therein are of no legal effect and as such these suits are to be decided afresh according to the provisions of the Ordinar. Ee. As regards the provisions contained in subsection (2) of section 36 of the Ordinance the plea advanced was that this Court is not to see whether in the plaint, making of Talb-i- Ishhad was pleaded or not as in suits where such a plea was not then made the amendment can be sought to include such a plea and later on evidence to establish the making of Talb-i-Ishhad can be adduced. It was argued that irrespective of the the or the period when the suit was originally filled, the judgments passed in all these appeals and revisions which were either pending or were decided during the period mentioned in subsection (1) of section 36, had been rendered ineffective in view of the declaration made by the Legislature in section 36 and all such matters require to be decided afresh.
13. I have given serious consideration to the submissions made and the pleas advanced by the learned counsel for the applicants. The question that requires determination is whether the decree of dismissal of the suit passed in each case is of no legal effect in view of the provisions contained in section 36 of the Ordinance. In other words which are the decrees, judgments or orders that arc to be treated as of no legal effect? A close examination of the section would show that these are the decrees, judgnents or orders, dismissing the suits of preemption which were either instituted or were pending during the period from Ist of August, 1986 and 28th March, 1990, provided that the right of pre-emption j claimed in the suit is one that is available under Ordinance XVIH of 1990. All the decrees, judgments and orders of dismissal of such suits with one legislative stroke 4 have been rendered ineffective in law and such suits subject to the provisions of subsection (2) are to be tried afresh in accordance with the law now in force. The intention of the legislature, to my mind, is to regulate the decision of suits of preemption instituted pending during the period when no statutory provision on the subject of right of pre-emption existed and due to non promulgation of the law of pre-emption by 31st July, 1986, despite direction of the Shariat Appellate Bench of the Supreme Court, the suits filed by the suitors failed and were dismissed. This scope and the meaning of subsection (1) of section 36 is in accord with the legislative history and the case law on the subject. It is apparent that the suits for pre-emption in which decree was passed in the original, appellate or revisional forum before 31st July, 1986, the proceedings pertaining thereto at whatever forum pending are to be regulated and decided in accordance with the preemption law then in force, but the suit in which decree had not been granted in favour of the pre-emptor before the target date, the same cannot be decreed thereafter and the suit cannot be even continued as the Punjab Pre-emption Act, 1913, in entirety ceased to have legal effect. It was also held that no suit of preemption can be decreed even on the basis of being co-sharer, a right recognised by Sharia after the target date i.e. 31st July, 1986 (see in re: Suo Motu Shariat Review Petition No.1-R of 1989 (PLD 1990 S.C. 865), Mstziz Begum v. Federation of Pakistan (PLD 1990 S.C. 899), and Sultan v. Habib Ahmad (PLD 1990 SC. 897).
14. In Aziz Begum's case (Supra) the Supreme Court observed that the judgment of the Shariat Appellate Bench on review has the following operative order for the period from 31st July, 1986 to 28th March, 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: 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 dale oi its coming into force, namely, 28-3-1990."
The legislature, it may be noted, has intervened, though quite late, to provide the law for the decision of the suits filed in the period when no statutory law existed to provide that the right of pre-emption claimed in the suit is one which is available under the Ordinance.
15. The plea that as an appeal, first or second, is a proceeding in' continuation of the suit, all those appeals pending during the specified period are required by section 36 to be decided afresh in accordance with law now in force by treating the decree of dismissal of suit as of no legal effect has no merit. Firstly, the distinction between a suit and an appeal cannot be ignored though appeal for the purposes of exercise of powers and grant of relief is considered as proceedings in continuation of the suit. Secondly, the legislative history and the case law pointed out above does not support this plea. The intention of the legislature is not to reopen all the matters of pre-emption pending adjudication at any or all forums. For instance, in a case where a suit of pre-emption was decreed by the trial Court before the target dated but on first appeals the suit was dismissed, can it be argued that second appeal is to be decided in accordance with the provisions of the Ordinance now in force. The plea raised cannot therefore, be accepted. Thirdly, there is yet an inbuilt limit provided in subsection (1) of section 36 itself, as it further provides that the suits contemplated therein are to be tried subject to the provisions contained in subsection (2) thereof.
Subsection (2) of section 36 reads as under:- "36(2) Notwithstanding anything in sections 13 and 31, in respect of the suits mentioned in sub- section (1), the period of limitation shall be one year and it shall be sufficient if the pre-emptor establishes that he had made 'Talb-i-Ishhad' in the presence of to truthful witnesses."
This subsection provides in effect that the limitation prescribed for suits of preemption in section 31, and the manner of making the three talabs provided in section 13 would not apply to the suits mentioned in subsection (1) and that fow such suits the period of limitation shall be one year and that instead op establishing the making of three talabs in the prescribed manner, it shall be sufficient if the pre-emptor establishes that he had made 'Talb-i-Ishhad' in the presence of to truthful witnesses, the to aspects which flow from subsection (2) are that, the suits which were instituted during the specified period or the suits which were pending during the said period but were dismissed, by whatever forum after the target date and prior to the promulgation of the Ordinance dated 28th March, 1990, the period of limitation is one year and that the making of 'Talb- i- Ishhad' in any case is sine qua non for successfully exercising the right of preemption. It is also obvious that the decrees or orders of dismissal passed in the suits in which the right of pre- emption claimed is one which is not available under the Ordinance e.g. Relationship with the vendor, being the heir or a collateral, ownership in the estate, thought the suit was instituted or was pending in the specified period, have not been rendered ineffective by virtue of the provisions contained in section 36 of the Ordinance. The section would also not apply to those suits though instituted or pending during the specified period in which right claimed is one as is available under the Ordinance but the same had been filed beyond the period of one year of the accrual of cause of action. This is apparent from subsection (2) and the intention appears to provide for the same period of limitation as was available under the law of pre-emption previously in force. Secondly, the provision that "it shall be sufficient if the pre-emptor establishes that he had made 'Talb-i- Ishhad' in the presence of to truthful witnesses" reaffirms the necessity of making the 'Talb-i- Ishhad' at the proper the before the institution of the suit. It does not contemplate providing of an opportunity to establish through production of evidence, the making of 'Talb-i-Ishhad' at relevant the, if no had in fact been made or could have been made. The legislature cannot be attributed the intention of providing an opportunity to the litigants to first make a false plea by seeking amendment of the plaint and then to produce perjured or false evidence. It is common knowledge that the concept of 'talabs' was not known even to the lawyers what to say of the litigant public as the statutes on the subject of pre-emption in force in Punjab as well as in N.W.F.P, did not contain any such concept and the provision of Muslim Law of Shuffa was neither known nor in practice.
These concepts came to be known when the pre-emption laws were challenged on the plea of being contrary to the Injunctions of Holy Qur'an and Sunnah.
16. The legal principle that talabs are pre-requisite of the right of preemption was pointed out and affirmed in Said Kamal's (Supra) by the Shariat Appellate Bench. Again in the case of Mushtaq Hussain v. Ali Muhammad (PLD 1988 Lah. 722) I had the occasion to dilate upon the subject of talabs and on the effect of not making the talabs on the right of pre-emption. First part of para 4 of the judgment being relevant is reproduced :- ((Urdu Taxts ))"4. It is true, the three talabs: are not the constituents of the right of pre-emption or the grounds recognized by Muslim Law but these Talabs are necessary prerequisites for enforcing the right of pre-emption. This requirement is based on the Tradition of the Holy Prophet (p.b.u.h.): 'The right of Shuffa is established in him who prefers his claim without delay'; and the jurists are in agreement that the to Talabs are necessary insomuch that if he makes any delay, his right is thereby invalidated. (Sec Hedaya by Hamilton, Vol. III Chapter II page 550)."
It was observed that in case a person in whom a right of pre-emption otherwise vests fails to make the necessary talabs, his right is extinguished and he cannot seek enforcement of such a right, so abandoned and invalidated, by lodging proceedings in a Court. The Supreme Court in the case of Sufia Begum v. Ibrahim (PLD 1989 S.C. 314) observed that without all the demands being made on the there would be no Shuffa as it (the right to Shuffa) would come into existence only through proper talabs.
17. Sub-section (2) of section 36 thus recognizes the making of 'Talb-i- Ishhad' as prerequisite for the exercise of right of pre-emption. This talab of necessity must have been made prior to the institution of the suit within one year of the sale transaction. Would it lie in the mouth of a suitor to come up with the plea at this stage that Talb-i-Ishhad was made by him at the proper the before filing the suit when even the concept of Talabs was not known to him. This was so pointed out in the case of Slier Muhammad v. Allah Ditta (PLD 1988 S.C. 412). It will also be pertinent to refer to the observations recorded in the case of Ghulam Qadir V. Nawab Din (PLD 1988 S.C. 701) as under:- ((Urdu Words ))In some cases which have come to our notice, the learned counsel tried to make out case for 'Talabs' by relying on such phrases in the plaints, which were used to be filed, under the old law, like; so as to canvass that the plaintiff should be permitted to elaborate such assertions in the context of requirements of the Islamic Law. For obvious reasons such a position would be untenable. The learned Judge in the High Court in this case has correctly remarked that no question of Islamic 'Talabs' could arise in such like cases. It has also indirect support of a very recent judgment of this Court on the Islamic Law of Pre-emption in another context. See Azizur Rehman V. Muhammad Nawaz (PLD 1988 S.C. 384).
It may also be mentioned that in some cases, the learned counsel have tried to seek support from another short order passed by this Court in similar cases, where observation was made to the effect that no Talabs in accordance with Islamic Law having been made, the plaintiff could not succeed. The point sought to be made was that perhaps, by intendment the Supreme Court opened the door, for assertion being made that the relevant plaints were filed after making the Talabs; and, further that amendments could now be permitted. Such plea is also for obvious reasons untenable. When the Court observed that no Talabs were made, it was also meant to convey that in the context of the then existing pre-emption laws, the Talabs were not only unnecessary and thus were not made, but also, that they could not have been made due to the peculiarities and strictness of the relevant law in this behalf."
It will, therefore, be seen that in view of the weighty observations recorded in these precedents, an applicant cannot be believed, now if he alleges that he had made the talabs and he should be allowed to amend the plaint so as to add an averment to that effect. The court cannot allow making of such false pleas.
18. The plea that the matter of establishing the making of 'Talb-i-Ishhad' be left to the trial Court in the circumstances is not available, rather such a plea in the new dispensation should not have been raised by the suitors nor advanced by the learned members of the Bar. With the enforcement of Sharia in any facet of our lives, the approach of all concerned must undergo a basic change.
Every Muslim coming up with a claim to a Court of law has first to consider whether Sharia i.e. Injunctions of Holy Qur'an and Sunnah grant him such a right or not as the Muslims are ordained to order their lives and affairs in accordance with Sharia. For members of the Bar, now it is not a case to be pleaded or defended on the part of the party to be represented but to be a part of the System designed to employ the machinery i.e. Administration of justice for finding out the party in whom the right in dispute vests and to ensure the enjoyment of right by the said rightful party. The suitors, the lawyers as well as the Courts have now to keep in mind the mandate contained in section 3 of the Ordinance which reads :- "In interpretation and the application of the provisions of this Ordinance, the Court shall seek guidance from the Holy Qur'an Sunnah and Fiqh."
The injections contained in Holy Quran are:- (( Urdu Taxts))
Sura Al-Baqra : II: 188 ((urdu Taxts))"And .Do, not eat up your property among yourselves Illegally ( - null or void), nor take it or use it for corrupting Judges of those in Authority so that you may devour wrongfully or illegally and knowingly a little of other people's property."
((Urdu Taxts))Under Islamic standard devouring other's property wrongfully is also greed, usurpation and this is prohibited whether one uses the machinery of law to grab something to which he is not lawfully entitled or does it through any other false means. Again Sura Al-Nisa IV : 29 reads:- ((Urdu Taxts))
((Urdu Taxts))"O ve who believe, eat not up your property among yourselves illegally voidly; But let there be amongst you trade and traffic; By mutual goodwill; nor kill or destroy yourselves; For verily God has been to you most merciful."
The injunction contained in Sura Nahl. XVI: 90 reads:- ((udu Taxts ))
((Urdu Taxts))"God commands ( ) justice, the doing of good () and looking after (liberty to) kith and kin; and He forbids all shame full deeds, injustice (the prohibitions) and rebellion: He instructs you that you may receive admonition."
(Here rebellion means acting against laws and injunctions ordained by God Almighty)
Reference may be made to the concept of accountability of man to his Creator on which Holy Qur'an lays special emphasis.
Sura Takathur CII: 1-8 reads:- ((Urdu Words))
"The mutual rivalry, for piling up (the good things of this world) diverts you (from the more serious things), Until ye visit the graves. But nay, ye soon shall know (the reality). Again, ye soon shall know: Nay, were ye to know with certainty of mind, (Ye would beware) Ye shall certainly see Hell-fire: Again, ye shall see it with certainty of sight. Then, shall ye be questioned that Day about the joy (ye indulged in).
Translation from Al-Qur'an by A. Yousuf Ali Note 6261 reads:- "We shall be questioned, i.e. We shall be held responsible for every kind of joy we indulge in - whether it was false pride or delight in things of no value, or things evil, or the enjoyment of things legitimate, the last, to see whether we kept this within reasonable bounds.
Attention may also be invited to the Ordain of God Almighty contained in Sura Hashr LIX: 7:- ((Urdu words))
"So take what the Holy Prophet (p.b.u.h.) assigns to you and deny yourselves that which he withholds from you. And fear God. For God is strict in Punishment."
19. So the duty of a Muslim (i.e. One who is bound in Covenant with God to abide by His Commands), is to order his life and affairs according to the Dictates and Injunctions of God (Allah), his Master and Creator contained in Holy Quran and Sunnah of His Apostle. It, therefore, follows that before making a claim, every suitor has to see whether his claim or right is recognized by Shariah or it otherwise rightfully belongs to him or it would amount to i.e. Grabbing something which does not rightfully belongs to him. The endeavour of the lawyers as well as of the Courts would also be to find out 'The right and its and then ensure enjoyment of the right by its rightful owner. At this stage three traditions of the Holy Prophet (p.b.u.h.) may be quoted:- ((Urdu Words))
"839. Narrated Ibn Masud (God be pleased with him): The Holy Prophet (p.b.u.h.) said, 'Whoever takes a false oath in order to grab other's property, then Allah will be angry with him when he will meet Him."
((urdu Words))
"842. Narrated Abu Wail from Abdullah (God be pleased with him): The Holy Prophet (p.b.u.b.) said, 'Whoever takes a false oath in order to grab another man's (or his brother's) property, then, Allah will be angry with him when he will meet Him.' Then Allah confirmed this by revealing the Divine Verse:- "Verily; Those who purchase a little gain at the cost of Allah's Covenant and their oaths...Will get painful punishment.
3:77 "Al-Ashath met me and asked, What did Abdullah tell you today? I said, 'so and so'. He said, 'The Verse was revealed regarding my case.
((Urdu Words))
"845. Narrated Um Salama (God be pleased with him): Once Allah's Apostle (p.b.u.h.) said, You people present your cases to me and some of you may be more eloquent and persuasive in presenting their argument. So, if I give some one's right to another (wrongly) because of the latter's (tricky) presentation of the case, I am really giving him a piece of fire; so he should not take it."
(see pages 519 to 523 of Sahih Al-Bukhari English Translation by Dr. Muhammad Muhsin Khan)
The principle deduced from the last quoted tradition is that if a person with the help of his glib tongue, false evidence or clever reasoning succeeds in getting the decision of the Court in his favour that does not make him legitimate owner of the right. He as well as his All Knowing Creator.
Allah knows that he is usurper and as such whatever he gets though illegitimate means is a hell for him. (See Sahih Muslim English version by Abdul Hamid Siddiqi - Vol III pages 927-28). So for reaping small gains in this world, a Muslim is not expected to grab other's property or right. By infusing such consciousness Sharia paves way for the establishment of orderly society. These are the specific and strict prohibitions in Sharia against usurpation of other's property or right. The machinery of law is thus to be utilized for arriving at the truth and enforcing the right in favour of the right holder. A Muslim suitor should be conscious that he is to account for his worldy gains and if anything that he obtains unduly, unjustly or unlawfully, how he is going to explain it to his Creator from whom nothing can be concealed. The purpose of Sharia will be fulfilled only if every one concerned with the enforcement of Sharia acts with this consciousness and ideal.
20. It will, therefore, be seen that the meaning being assigned to section 36 of the Ordinance by the learned counsel for the applicants cannot be accepted as that would amount to feeding as well as admitting falsehood.
21. The examination of the plaints of each suit would reveal that the present applicants cannot urge that 'Talb-i-Ishhad' was in fact made at the relevant the. These suits were respectively filed on 2nd September, 1981, 26th September, 1981, 2nd February, 1973 and 31st May, 1983. Firstly, it cannot be urged that the plaintiffs-applicants in each suit knew even the concept of talabs then. Secondly, at the the that this Court heard these second appeals and the revision petition it was not the case of the applicants that they had in fact made the 'Talb-i-Ishhad'. In each of the judgments passed in second appeals by this Court it was observed that the suit cannot succeed as it had not been even averred ' in the plaint, that the plaintiff-pre-emptor had made 'talab'as required by Sharia for successfully exercising the right of pre-emption. In the ing the revision petition, the observation made, with regard to the plea that the preemptors can succeed in their suit as right is based on the ground of being participators in the common source of irrigation, reads:- Even on other ground the petitioner (pre-emptor) cannot succeed as X admittedly the pre- requisites i.e. Talabs for enforcing the right of preemption under the Sharia were not fulfilled."
22. For the reasons given above these applications are bound to fail. The same are, therefore, dismissed.