' This is a revision against the judgment of learned Additional District Judge-II, Mardan, by which he reversed the decision of the learned Civil Judge, Mardan, who had dismissed the plaintiffs suit. The learned Additional District Judge-II, when the matter came up before him, set aside the order of dismissal of the suit and remanded the case to the learned trial Judge for further proceedings.
2. The facts of this case are that sale of 2 kanals and 10 Marlas of land out of Khasra No,2235/1635 situate in village Chak Toru, Tehsil and District, Mardan to defendants-vendees by Mutation No,6367 attested on 27-8-1988, was pre-empted by Khushal since dead and represented by Mohammad Zahir and ten others, his successors-in-interest, on all the grounds enumerated in section 6 of the N.-W.F.P. Pre-emption Act, 1987 (Act X of 1987) (to be hereinafter called as the Act)
3. The defendants-vendees contested the suit and, inter alia, pleaded that the right of pre-emption claimed by the pre-emptor had extinguished because he has not made the 'demands' of pre- emption within the contemplation of section 13 of the Act.
4. On the pleadings of the parties thus raised as many as ten issues including the relief were framed. The plaintiff-pre-emptor's evidence was concluded. Only one D.W. Was examined when on 27-9-1990 Shamsur Rehman and another, defendants-vendees, moved an application before the trial Judge for dismissal of the suit on the authority of Malik Ghulam Nabi and others v. Member III, Board of Revenue and others (PLD 1990 SC 1043) on the ground that the right of pre-emption after the death of the pre-emptor did not survive and that his heirs had no right of pre-emption in accordance with the Muslim Law of Pre-emption. This application was strenuously resisted by Mohammad Zahir and others, successors-in-interest of the pre-emptor. The learned trial Judge, relying on the precedent case of Malik Ghulam Nabi cited above, by his order dated 16-10-1990, non-suites] the successors-in-interest of the pre-emptor on the ground that the right of pre- emption under the law did not survive to the successors-in-interest of the pre-emptor. Feeling aggrieved, Mohammad Zahir and others, successors-in-interest of the pre-emptor, preferred an appeal before the learned Addl. District Judge which was accepted vide order dated 20-12-1990. It was held by the learned Appellate Court that the law laid down by the Supreme Court, in the case of Malik Ghulam Nabi which has been followed by the learned trial Judge in non-suiting the successors-in-interest of the pre-emptor, was distinguishable in that the case before their Lordships pertained to the Muslim Law of Pre-emption whereas under section 16 of the Act notwithstanding the death of the pre-emptor the right of pre-emption stands transferred to his legal heirs. In this view of the matter, the learned appellate Court accepted the appeal, set aside the judgment and decree of the learned trial Judge and remanded the case to him for proceeding further with the case. Dissatisfied with the judgment and decree of the learned appellate Court, the petitioners have come up to this Court in revision.
5. Haji Z. Mahfuz Khan, learned counsel for the petitioners, reiterated on the authority of Malik Ghulam Nabi cited above that since the pre-emptor had admittedly died during the pendency of the suit, therefore, according to Hanafi Law to which predominantly the Muslims of N.-W.F.P adhered the suit of the pre-emptor was rightly dismissed by the learned trial Judge while the learned appellate Court had committed a serious illegality in setting aside that order and remanding the case to the learned trial Judge. In support of his contention the learned counsel extensively derived from `Heday a' and some of the Treatises on Muslim Law like "Mahommedan Law" by Syed Ameer Ali; 'Outlines of Muhammadan Law' by Asif A.A.Fyzee; 'Muhammadan Law' by Tyabji, S332; `Muhammadan Law' by Mulla and others whereunder the right of pre-emption is held to be extinguished on the pre-emptor's death before enforcing it by suit or during the pendency of the suit.'When he was confronted with section 16 of the Act which provides that where a pre- emptor has died after making any of the `demands' under section 13, his right of pre-emption shall stand transferred to his legal heirs, he turned round and attacked it as being repugnant to the injunctions of Islani as enshrined in the Holy Quran and Sunnah.
6. On the contrary, Mr.Taj Mohammad Khan, learned counsel for the respondents, while referring to the recent precedent case of Mir Afzal Khan v. Ejaz Akbar (PLD 1991 SC 215), argued that the High Court in exercise of its revisional jurisdiction could not declare section 16 of the Act as repugnant to the injunctions of Islam as contained in the Quran and Sunnah in that it had got no such jurisdiction. According to the learned counsel it was the function of Federal Shariat Court to grant or not to grant such relief.
7. After hearing the learned counsel for the parties, I am of the opinion that the ratio in Mir Afzal Khan's case cited above applies with full force to the facts of the case. The august Supreme Court has clearly laid down the law that the view that the High Court has got no jurisdiction to declare the exemption under the newly-enacted N.-W.F.P. Pre-emption Act, 1987 as being against the injunctions of Islam as contained in the Quran and Sunnah, is correct. Respectfully following this dictum, I hold that this Court exercising its powers of revision has no jurisdiction to declare the provisions of section 16 of the Act to be repugnant to the injunctions of Quran and Sunnah. If the petitioners are aggrieved, they have a remedy which they may pursue.
8. As the last leg of his argument, the learned counsel for the petitioners submitted that this Court is competent to strike down the provisions of section 16 of the Act under the newly-enacted Shariah Bill. This contention, I am afraid, is devoid of any force. The Bill apparently has not so far been assented to by the President as required under clause (3) of Article 75 of the Constitution of Islamic Republic of Pakistan, 1973. Besides, it is not clear as to whether this Court would still be competent to examine certain law on the touchstone of its repugnancy to the injunctions of Quran and Sunnah.
9. In the light of what has been discussed above, I affirm the finding of the learned Appellate Court that where a pre-emptor has died after making any of demands under section 13 of the Act, his right of pre-emption stands transferred under section 16 of the Act to his legal heirs. This revision has, therefore, no force which is accordingly dismissed with costs.