1. ' SARDAR SAID MUHAMMAD KHAN, CJ.--This appeal has been directed against the judgment and decree of the High Court dated 17-8-1992, whereby the appeal filed by the appellant, herein, was dismissed.
2. ' The brief facts of the case are that the land measuring 27 Kanals 17 Marlas along with a house, situated in village Bothu Sayyal, Tehasil Bhimber, was transferred by Muhammad Sadiq, respondent No,1, in favour of Noor Dad, respondent No,8, through a registered sale-deed on 14-9- 1986. The sale was pre-empted through two separate suits, one filed by the appellant, herein, and the other by Basharat Ali, respondent No,10, in the Court of Sub-Judge, Bhimber. During the pendency of the pre-emption suit, the land was further transferred by the vendee through gift- deed in favour of respondent No,9, Mst. Qasim Bibi, on 10-2-1987. Consequently, the plaint was amended and the donee was also arrayed in the line of defendants. The trial Court passed a preemption decree in favour of Basharat All in the first instance. An appeal was preferred to the Additional District Judge against the judgment and decree of the Sub-Judge wherein an objection was also raised that as Basharat Ali, respondent, was not entitled to a pre-emption decree under Shariat, the preemption decree in his favour was not sustainable. The learned Additional District Judge dealt with the said objection while deciding issue No,3 in terms that as Basharat Ali, respondent, was entitled to pre-emption decree in the first instance being son of the vendor under the Right of Prior Purchase Act, the law for the time being in force, decree in his favour does not suffer from any legal infirmity. Consequently, the appeal filed by the appellant, herein, before the Additional District Judge was dismissed. A second appeal was preferred to the High Court but no objection was raised in the memorandum of appeal that the decree of pre-emption in favour of Basharat Ali, respondent, was bad being violative of Shariah. However, subsequently an application was submitted in the High Court on 18-6-1992 praying that as according to Shariat, the decree in favour of Basharat All could not be passed, the matter should be referred to the Shariat Court for guidance. The aforesaid application was rejected by the High Court. It is against the aforesaid dismissal of appeal as well as the rejection of the application that the present appeal has been preferred to this Court.
3. ' The only point agitated before this Court is as to whether the Additional District Judge and the High Court have committed an error by failing to refer the matter to the Shariat Court under the provisions of the Azad Jammu and Kashmir Enforcement of Shariat Act, 1989 (hereinafter shall be called the Act).
4. ' The learned counsel for the appellant Ch. Muhammad Riaz Alam, has contended that the Additional District Judge and the High Court were bound to refer the matter to the Shariat Court under section 4 of the Act, but they failed to do so. The learned counsel has maintained that the matter should have been referred to the Shariat Court and decision in the appeals before the Additional District Judge and the High Court should have been kept in abeyance till the verdict of the Shariat Court on the point became available and should have decided the appeals according to the opinion of the Shariat Court.
5. ' In reply, Kh. Noor-ul-Amin, Advocate, the learned counsel for Basharat Ali, respondent, controverted the arguments advanced by the learned counsel for the appellant and referred to section 4(10) of the Act and has maintained that it is clearly laid down under the aforesaid provision that the decrees passed, rights accrued, orders made etc. Would not be affected by any provision in the Act. He has contended that the decree of pre-emption in the instant case had already been passed by the trial Court in favour of Basharat Ali, respondent, and, thus, the question of referring the matter to the Shariat Court and then decide the case according to the verdict given by the Shariat Court does not arise. He has further maintained that the object of any such reference under section 4 of the Act to the High Court or the Shariat Court, as the case may be, is to bring the laws on the statute book of the State in conformity with the dictates of Holy Qur'an and Sunnah and not to decide the pending cases according to the opinion of the Sharait Court or the High Court. He has argued that until the relevant statute is amended by the Legislature and brought in conformity with Shariah, the laws on the statute book would remain valid laws. The learned counsel has drawn our attention to the provisions contained in Azad Jammu and Kashmir Shariat Court Ordinance (hereinafter shall be called the Ordinance) which stipulate that the Shariat Court has to fix a date on which the existing law, found to be repugnant of Shariat, shall cease to have effect, he has also maintained that such a date could also be extended by the Shariat Court for sufficient reasons. He has contended that indentical provisions exist regarding the cases falling within the ambit of the High Court under proviso to subsection (5) of section 4 of the Act.
6. ' We have given our due consideration to the arguments raised at the Bar. It may be stated that under subsection (1) of section 4 of the Act, if a question arises before a Court whether a law or provision of law is repugnant to Shariat, the Court shall, if it is satisfied that the question needs consideration, make a reference to the Shariat Court in respect of matters which fall within the jurisdiction of the Shariat Court under the Shariat Court Ordinance and if the matter relates to Muslim Personal Law, any fiscal law or any law relating to the levy and collection of taxes and fees or banking or insurance, practice and procedure, to the High Court which shall decide the question within sixty days. Under subsection (8) of section 4 of the Act it is laid down that where a question referred to in subsection (1) or subsection (3) arises before a single or Division Bench of the High Court, it shall be referred to the Full Bench. The reference stipulated under subsection (8) of section 4 of the Act would be made to the High Court only in cases which fall within the jurisdiction of the High Court as envisaged under the first proviso of subsection (1) of section 4, i,e,, the matters relating to levy and collection of taxes etc. The matters which do not fall within the jurisdiction of the High Court and fall within the jurisdiction of the Shariat Court are to be referred, if of course, any question for determination of the repugnancy of such law to Shariah arises, to the Shariat Court under subsection (1) of section 4 of the Act by a Court subordinate to the High Court and not by the High Court. In the instant case, the question as to whether section 14 of the Right of Prior Purchase Act is violative of the Shariah, falls within the jurisdiction of the Shariat Court and not that of the High Court in view of the provisions contained in section 4 of the Act. Thus, the matter could only be referred to the Shariat Court by the trial Court or the Additional District Judge. Consequently, according to the Act, reference to the Shariat Court could not be made by the High Court in this case. The contention of the learned counsel for the appellant that the High Court should have referred the question to the Shraiat Court is without any substance. To elucidate the matter, the definition of the word 'Court' as given under section 2(b) of the Act is reproduced below:-- "'Court' means a Court subordinate to High Court and includes a tribunal or an authority established by or under any law for the time being in force."
7. ' Now, the next question falls for determination is as to whether when the objection regarding the repugnancy of section 14 of the Right of Prior Purchase Act was raised, what was the course open to the Additional District Judge. He should have considered as to whether the question needs consideration by the Shariat Court and if he would have come to the conclusion that it does, the question should have been referred to the Shariat Court. However, the reference of the matter to the Shariat Court would not have implied that he should keep the appeal pending till the verdict of the Shariat Court. There is not such requirement either in the Act or the Ordinance, rather it has been clearly laid down under section 11 of the Ordinance that a reference to the Sharait Court would not affect the proceedings pending before a Court and the same shall be disposed of by the Court according to law for the time being in force. For the sake of convenience, section 11 of the Ordinance is reproduced as under:-- "11. Pending proceedings to continue. etc.--(1) Subject to subsection (2) nothing in this Ordinance shall be deemed to require any proceedings pending in any Court or tribunal immediately before the commencement of this Ordinance or initiated after. Such commencment, to be adjourned or stayed by reason only of a petition having been made to the Court for a decision as to whether or not a law or provision of law relevant to the decision of the point in issue in such proceedings is repugnant to the Injunctions of Islam, and all such proceedings shall continue, and the point in issue therein shall be decided, in accordance with the law for the time being in force.
(2) ..
8. (3)
9. ' Somewhat identical provision is contained in subsection (10) of section 4 of the Act as stated earlier. It may be stated that the learned Additional District Judge did not apply his mind as to whether the question raised should or should not be referred to the Shariat Court. It was contended by Ch. Muhammad Riaz Alam that the learned Additional District Judge was moved for referring the question to the Shariat Court. A perusal of the record shows that this prayer does not find any mention in the judgment of the first appellate Court. This point was not included in the memorandum of appeal filed in the High Court nor is it mentioned in the judgment of the High Court. In fact even in the memorandum of appeal filed in this Court, it has not been averred by the appellant, herein, that any grievance was raised before the High Court that the question should have been referred to the Shariat Court by the first appellate Court. That being the situation, the appellant cannot raise this point for the first time during the arguments in this Court.
10. ' The upshot of the foregoing analysis is that "there is no force in the appeal and it stands dismissed with costs.