1. ' ABDUL RAHIM KAZI, J.--By this petition the petitioner has challenged the orders passed by the Member, Federal Land Commission on 28-81983 rejecting the gift made in favour of present petitioner and also the wires of the amendment made in paragraph 7 of M L R 115 through Sindh Ordinance XIV of '1972 promulgated on 2-9-1972.
2. ' Subject-matter of the present petition is gift of the agricultural land made by one Mst. Gul Khatoon in favour of her stepson the present petitioner. The facts briefly are that the said Mst. Gul Khatoon had filed her declaration under paragraph 12 of Martial Law Regulation 115 (Land Reforms Regulation) whereby she had declared various alienations made by her in favour of different persons including the gift made in favour of present petitioner. The then Land Commissioner Sindh vide order passed on 26-9-1973 declared the gift in favour of present petitioner to be in contravention of the provisions of paragraph 7 of MLR 115 and, therefore, the same was declared to be void ab initio. Some other alienations were also not validated under this order. The said Mst. Gul Khatoon preferred an appeal before the Additional Chief Land Commissioner Sindh Hyderabad who vide his order dated 21-1-1974 upheld the said appeal partialiy declaring three of the transactions as not void which included the gift in favour of the present petitioner. The matter was then taken up in suo motu revision before the Member, Federal Land Commission who passed an order on 21-1-1980 whereby he set aside the orders of Additional Chief Land Commissioner Sindh and declared the gift in favour of present petitioner to be void ab initio. Some other transactions were also declared to be void under this order. The said Mst. Gul Khatoon and all the transferees preferred Constitutional Petition No,D654/1980 which was heard and decided by a Division Bench of this Court vide judgment dated 9-3-1983 whereby the case was remanded to the Federal Land Commission. The learned Member vide the impugned order has rejected the gift in favour of present petitioner on the ground that the same was made to a step-son. The present petitioner has therefore, submitted this petition.
3. ' We have heard Mr. Abdul Fattah Malik, the learned counsel for the petitioner. He has submitted that the said gift was made in favour of the petitioner before the said amendment came into effect and, therefore, the said gift is to be treated as a past and closed transaction which could not be reopened by the Land Commission Authorities. He has further submitted that the proviso added to paragraph 7 of Martial Law Regulation No,115 through Sindh Ordinance XIV of 1972 is ultra vires. It would be pertinent to reproduce the above-said provision of paragraph 7 (1) (b) as it was promulgated originally: "(b) Save in cases where the Commission is satisfied that it was a bona fide transaction, the transfer of any land and the creation of any right of interest in or encumbrance on any land, made in any manner whatsoever by any person holding at any time during the 1st day of March, 1967, to the 19th day of December, 1971 (both days inclusive) an area equivalent to more than twelve thousand produce index units (calculated on the basis of classification of soil as entered in the Revenue Record for Kharif 1966 and Rabi 1966-67), shall be and shall be deemed always to have been void, and the land so transferred or the land on which the right, interest or incumbrance was - so created shall be, and shall be deemed always to have been, owned or possessed, as the case may be, by the person by whom it was owned or possessed immediately before that date."
4. ' Subsequently under the above-said Ordinance promulgated on 2-9-1972 the Governor of Sindh amended Land Reforms Regulation in its application to Province of Sindh by substituting the following proviso to paragraph 7 (1)(b) of the Regulation in place of the existing proviso: "Provided that any transfer of land or creation of any right or interest in or encumbrance on any land by way of gift by a person to whom this clause applies shall, subject to the next succeeding proviso, in no case be held by the Commission to be a bona fide transaction: ' Provided further that nothing in this clause shall apply to:-
(i) any transfer of land or creation of any right or interest in or, encumbrance on any land, by way of gift or otherwise made by a person in favour of his heir; or
(ii) any transfer of land or right of interest, therein by way of gift, made by a person in favour of his widowed or unmarried sister, who has not received her due share of inheritance of ancestral land; or
(iii) (iii) any transaction whereby any land was alienated in exchange for an area of land equivalent to the same or substantially same produce index units as the land alienated; and"
5. The above newly-added proviso to paragraph 7 (1) (b) of the Regulation provided that the land gifted to a person who is not the heir of the donor could not be declared to be bona fide transaction by the Land Commission Authorities. The present petitioner. Admittedly being a stepson cannot be treated as an heir of the donor under Muslim Law and, therefore, on the very face of it the transaction in his favour would be hit by the above-said newly-added proviso.
6. Mr. Abdul Fattah Malik has submitted that the gift in favour of present petitioner is said to have been made on 15-12-1968 and, therefore, it being a past and closed transaction, the Land Commission Authorities had no jurisdiction to reconsider the same. He has placed reliance on the following cases:--
(1) Miss Benazir Bhutto v. Federation of Pakistan (PLD 1988 SC 416).
(2) Habib Bank Ltd. v. Muhammad Hussain and others (PLD 1967 Karachi 612).
(3) Pir Bakhsh v. Chairman, Allotment Committee (PLD 1987 SC 145)
(4) Qazalbash Waqf v. Chief Land Commissioner, Punjab (PLD 1990 SC 99).
(5) Ghulam Hyder Shah and 9 others v. Chief Land Commissioner and 2 others (1983 CLC 1585).
7. ' Of the above-said cases first three cases do not pertain to the Land Reforms matters and have no bearing on the present case. The fourth case cited by the learned counsel, Qazalbash Waqf v. Chief Land Commissioner dilates upon provisions of Land Reforms Regulations but in the said case the Shariat Appellate Bench of the Honourable Supreme Court had taken into consideration various provisions of the Land Reforms Regulations, 1972 (M L R 115) in exercise of jurisdiction under Article 203 of the Constitution of Islamic Republic of Pakistan, 1973. In this case their Lordships have observed at pages 284, 285 that the decision shall take effect on 23rd March, 1990 whereupon the provisions declared repugnant to the Injunctions of Islam will cease to have effect. In the present matter the validity of the impugned order passed on 28-8-1983 is challenged and the same is to be adjudicated in accordance with the law as it was prevalent at the time the impugned order was passed or the declaration form was filed by the declarant under paragraph 12 of the Land Reforms Regulation (MLR 115). We are, therefore, of the view that this decision would also be of no help to the petitioner, In the last case of Ghulam Hyder Shah v. Chief Land Commissioner, Sindh it has been held by a Division Bench of this Court the Legislature is competent to enact the laws retrospectively and to provide that they will also affect vested rights and transactions which are past and closed but it has been further held that Statute must be expressed in language capable of only one meaning and in case it is capable of being interpreted in two ways then the case preserving vested rights and obligations will be adopted and given effect to In this case their Lordships have also observed that a Statute is not to be construed to have greater retrospective operation than its language made it necessary. However, in this case the orders were passed by the Land Commissioner Sindh on 17th and 18th June, 1972 declaring the alienations, subject-matter of the said case, to be not void. These orders were passed prior to the promulgation of the newly- amended proviso.
8. ' Mr. Syed Zawar Hussain Jafferi, learned A.A.-G. Opposing the present petition has submitted that the Division Bench of this Court in the above cited case of Ghulam Hyder Shah has held that the Authority had the power to make enactment giving it a retrospective effect and all that is required is that the language of such enactment should be clear in terms susceptible of only one meaning and that the above-said newly-added proviso very specifically mentions that the same shall have the retrospective effect as it is said that it shall be deemed to have been always so substituted. He has further submitted that the very Land Reforms Regulation (M L R 115) itself is law in retrospectivity as the said Regulation was promulgated in March, 1972 and paragraph 7 (1) (b) of the said Regulation showed that it affected the transactions made during the period 1-3-1967 to 19-12-1967 while clause (a) of the same paragraph affected the transactions from 20-12-1971 onwards. He has placed reliance on the case of Mehreen Zaibun Nisa v. Land Commissioner Multan and others (PLD 1975 SC 397). In this case their Lordships had dealt with the newly-added proviso to paragraph 7 (1)
(b) as promulgated in Punjab which is identical to the above-said Sindh Ordinance XIV of 1972. It was further held by the Honourable Supreme Court as under:- "When a statute contemplates that a state of affairs should be deemed to have existed, it clearly proceeds on the assumption that in fact it did not exist at the relevant time but by a legal fiction we are to assume as if it did exist.
9. ' Where the statute says that you must imagine the state of affairs, it does not say that having done so you must cause or permit your imagination to boggle when it comes to the inevitable corrolaries of that state of affairs.
10. ' At the same time, it cannot be denied that the Court has to determine the limits within which and the purposes for which the legislature has created the fiction.
11. ' When a statute enacts that something shall be deemed to have been done which in fact and in truth was not done, the Court is entitled and bound to ascertain for what purposes and between what persons the statutory fiction is to be resorted to."
12. ' The learned A.A.-G. Has further placed reliance on the case of Khuda Bux v. Islamic Republic of Pakistan (1983 SCMR 915) wherein also the Honourable Supreme Court has held that the amendments made in the Land Reforms Regulation, 1972 (M L R 115) paragraph 7 by Ordinance XIV of 1972 are not violative of Fundamental Rights embodied in Articles 23 and 24 of the Constitution of Islamic Republic of Pakistan, 1973. He has further submitted that in the present case the very first order passed by the Land Commissioner Sindh, Hyderabad was on 26-9-1973 which is subsequent to the promulgation of Ordinance XIV of 1972 and in this very order the said gift in favour of the present petitioner was declared to be void ab initio.
13. In view of the above discussion we are inclined to follow the dictum laid down by the Honourable Supreme Court in the above-cited cases and hold that the newly added proviso to Land Reforms Regulation (M L R 115) is not violative of any Fundamental Rights and is competently promulgated.
14. The Land C Reforms Regulation is now part of the Constitution of the Islamic Republic of Pakistan as it appears in the Schedule to the Constitution and the same is also saved and validated under the provisions of Articles 268 and 269 of the Constitution of Islamic Republic of Pakistan, 1973.
15. ' In view of the above discussion we find no merit in the present Constitutional petition which is accordingly dismissed. However, there will be no order as to costs.