TANZIL-UR-RAHMAN, C.J.---The Federal Shariat Court examined the Transfer of Evacuee Land (Katchi Abadi) Act, 1972 (Act No. XIII of 1972) on its own motion under Shariat Suo Motu No. 236 of 1983 and by its judgment, dated 1st September, 1983, held as under:-- "Section 4 of this Act (XIII of 1972) provides in subsection (1) that all allotments and transfers of evacuee land in any Katchi Abadi shall stand cancelled as from the appointed day, and the allottees or transferees of such land shall be paid such compensation therefor, as may be determined by the Government. This provision is objectionable to the extent that it leaves to the Government to fix the price or compensation according to its sweet-will. As held in the case of Hafiz Muhammad Amin v. The Government of Pakistan PLD 1981 FSC 23 relating to Martial Law Regulation No.115, the compensation should be according to the market value of the land as prevailing on the date of acquisition."
2.The Court thus ordered amendment in section 4 by the 31st January, 1984 as under:-- "The section shall be amended so as to repeal the wide powers given to the Government and to make it obligatory upon it to pay market value as prevailing on 17th of September, 1972, the date of enforcement of the law."
3. On appeal filed against the above judgment of the Federal Shariat Court, the Shariat Appellate Bench of the Supreme Court by its judgment, dated 22nd May, 1985, in Shariat Appeal No.5 of 1984 remanded the case on account of the omission by the Federal Shariat Court to give reasons by making references to the Holy Qur'an and Sunnah and their principles. The operative part of the judgment of the Shariat Appellate Bench of the Supreme Court reads as under:-- "In the light of the foregoing, on account of the omission by the Federal Shariat Court to give reasons by making references to the Holy Qur'an and Sunnah and their principles as discussed earlier, together with the directions for the enactment of certain laws, as also with the observations in the above paragraphs, these appeals are allowed; and, the cases are remanded to the Federal Shariat Court: for fresh decisions in accordance with the law."
4. A copy of the judgment was received by this Court from the Supreme Court under office Letter No. SA. 4, 5/83 3 to 5/84 SCJ dated 2-3-1986. It, however, appears that a Shariat Review Application bearing No. 1-R of. 1986 was filed in the Supreme Court by the Federation of Pakistan through Secretary, Ministry of Justice and Parliamentary Affairs, seeking the review of the judgment passed in SA. Nos. 3 to 5 of 1984 which was disposed of by its order dated 10-1-1988. A copy whereof was received by this Court along with their office Letter No. SRP. 1-R/1986-SCJ, dated 27-1-1988. The matter then came up for rehearing before this Court on 24-4-1988, 25-4-1988, 26-4-1988 and 27- 4-1988 and thereafter on 8-5-1988 by the Full Court and again on 13th and 14th November, 1988 and reserved for judgment. As no judgment could be written, the matter was fixed in April 1989 before the Full Court, but was adjourned to a date in office and remained pending throughout.
Meanwhile, the term of the then Hon'ble Chief Justice and the other Hon'ble Judges except Mr. Justice Dr. Fida Muhammad Khan, expired.
5. It may be mentioned that few other judgments were also remanded to this Court involving the question of compensation according to the market value of the land as prevailing on the date of acquisition, which were also heard afresh by this Court. In this respect we may refer to our judgment, dated 23rd February, 1992 in Shariat Suo Motu No. 142 of 1983 relating to the Capital Development Authority Ordinance, 1960 wherein the question of the payment of compensation for acquisition of land was discussed at length in the light of the Injunctions of Islam as laid down in the Holy Qur'an and Sunnah of the Holy Prophet (p.b.u.h.) and held that the compensation should be according to the market value of the land as prevailing on the date of acquisition. Placing our reliance on the source material of the Shariah and the reasoning given by us in the aforesaid matter with a view to avoid repetition of the reasoning, it is observed that section 4 of the Transfer of Evacuee Land (Katchi Abadi) Act 1972 (Act XIII of 1972) provides in subsection (1) that all allotments and transfers of evacuee land in any Katchi Abadi shall stand cancelled as from the appointed day, and the allottees or transferees of such land shall be paid such compensation therefor, as may be determined by the Government, is arbitrary as it leaves to the Government to fix the price or compensation according to its sweet-will.
6. We would, therefore, declare the said provision of section 4 as repugnant to the Injunctions of Islam as laid down in the Holy Qur'an and Sunnah of the Holy Prophet (p.b.u.h.), discussed elaborately in our judgment dated 30-4-1992 in Shariat Suo Motu No. 14/P of 1983, relating to the Land Acquisition Act, 1894 and order that the compensation should be in accordance with the market value of the land as prevailing on the date of actual acquisition.
7. This section is to be amended so as to bring it in conformity with the Injunctions of Islam and make it obligatory upon the Government to pay market value as prevailing on the date of actual acquisition of the land. The said provision of law, unless amended as directed above, shall cease to have effect on and from 1st day of November, 1992.