QAZI MUHAMMAD FAROOQ, J.-This common judgment shall dispose of the revision petition in hand as well as Revision Petitions No.24 and 25 of 1991 as all these petitions are interlinked and involve identical questions of law and facts.
2. Briefly stated the facts of the cases are these. One Attaullah Khan sold a house, bearing Survey No.766/C (24/16 to 36/16-A) situate in Bannu City, to the petitioner Rasta Baz Khan and a few others through various consent decrees passed by the learned Senior Civil Judge, Bannu on 14-1-1984. In order to pre-empt those transactions the respondent Nasrullah Jan brought separate suits against the vendees on 11-12-1984 wherein he claimed a superior right of pre-emption and alleged that a sum of Rs.10,000/- had GS&PD-NWFP-1947 RHC. 5,000-F-30-3-88-(36) passed as sale consideration for each transaction but an inflated amount of Rs.25,000/- had been got entered in each consent decree to fend off pre-emption. The vendees resisted the suits as a result of which the learned trial Court framed as many as 9 identical issues in all the suits and also recorded statements of two formal witnesses in each case. However, during the progress of the suits the general and special Attorneys of the vendees stated that the suits may be decreed if the respondent takes oath on the Holy Quran that the suits were not Banami and the pre-emption amount had not been deposited by the beneficiary namely Samiullah Khan. The respondent readily accepted the offer and after completion of the necessary formalities took the requisite oath and accordingly his suits were decreed by the learned Senior Civil Judge, Bannu on 3-7-1988. On becoming wiser after the passing of the even the vendees went in appeal before the learned Additional District Judge, Bannu but in vain as the contention that their Attorneys were not competent to offer oath to the respondent was repelled and the appeals filed by them were dismissed on 8-1-1989. However, their revision petitions were accepted by this Court on 11-2-1990, the judgments and decrees of the learned Appellate Court were set aside and the cases were sent back to the learned Additional District Judge, Bannu for decision afresh in the light of the following observations: - "The learned counsel for both the parties and the plaintiff-respondent in person have agreed that the cases he sent back to the appellate Court for resolving the entire controversy raised in the matter. The appellate Court has to see not only that the attorneys made statements agreeing to procedure under Oaths Act but it shall examine each case to find out whether the attorney was so empowered to do so. Furthermore, the learned Appellate Court shall also determine the impact of the role of the counsel for both the parties during the alleged offer and acceptance of procedure under the Oaths Act."
3. During the second round the learned Additional District Judge, Bannu came to the conclusion that in three out of six cases the offer made by the Attorneys had been endorsed by the learned counsel for the vendees and consequently dismissed three appeals from which these petitions have arisen.
4. It was contended by the learned counsel for the petitioners at the outset that the learned Appellate Court while holding that the offer made by the Attorneys for the vendees having been endorsed by the learned counsel for the vendees had become sacrosanct had failed to notice that the learned counsel for the vendees had neither made the offer in question nor had endorsed the statement made by the Attorneys in respect thereof but had only identified the Attorneys who were not empowered to make the offer.
5. It was next contended that even otherwise the impugned judgments and decrees were not sustainable in view of the observations made in Sardar Ali and others Vs. Muhammad Ali and others (PLD 1988 SC 287), Suo Moto Shariat Review Petition No.(1)-R of 1989 (PLD 1990 SC 865), Mst.
Aziz Begum and others. vs Federation of Pakistan and others (PLD 1990 SC 899) and Sultan and another. Vs. Habib Ahmad and others (PLD 1990 SC 897) as the respondent had neither fulfilled the requirements of Talabs' nor the suits brought by him were decreed at any stage by any Court before 31-7-1986.
6. The learned counsel for the respondent on the other hand urged that the suits were decided on oath pursuant to the offer made jointly by the Attorneys of the petitioners and their learned counsel and as such it was too late in the day for the petitioners to extricate themselves from the pledge made by their Attorneys and counsel. Reliance was placed on Khan Sher Vs. Mst. Kabla (PLD 1988 Peshawar 65). It was further submitted that although no decree had been passed in favour of the respondent before 31-7-1986 yet the petitioners could not draw any premium from the judgments of the Supreme Court on the subject because they had given up the contest on the basis of the point in regard to Talabs after their applications for dismissal of the suits on account of the failure of the respondent to fulfil the requirements of Talabs we dismissed by the learned trial Court during the first round. Reliance was placed on Mst. Kharo and two others Vs. Sher Afzal alias Sheray (1992 SCMR 1844) wherein it has been held that if a party gives up a plea regarding facts of the case it is not the duty of the Court to examine the same.
7. Decision of cases on oath is one of the established modes of disposal of cases but comparatively it is more sensitive as it has overtones of a religious act. The Courts are thus charged with a duty to handle such cases with circumspection and application of mind and ensure the solemnity and afficacy of the procedure by avoiding haste, rationalizing emotional outbursts, scrutinizing the relevant record and recording necessary statements. In this backdrop the manner in which the learned lower Courts dealt with the present eases leaves much to be desired. The learned trial court decided the cases on oath with indecent haste without ascertaining as to whether or not the Attorneys of the petitioners were authorized to settle the cases on oath. If the learned trial Court had bothered to examine the powers Of Attorney it would have transpired that the Attorneys we not competent to decide the cases on oath. Needless to point out that a power of attorney must be scrutinized closely in order to determine the scope of authority conferred on the Attorney for the reason that the principal is not bound by an act done by his attorney which he has riot been authorized to do. The learned Appellate Court upheld the decision of the learned trial Court on the ground that the statements of the Attorneys with regard to the offer of oath had been signed by the learned counsel for the petitioners who was duly authorized to settle the cases on oath but overlooked the fact that the learned counsel for the petitioners had only identified the Attorneys and not made the offer. If the offer had originated from the learned counsel for the petitioners or he had consented to the offer made by the Attorneys his separate statement on oath would have definitely been recorded by the learned trial Court in each case or at least his name would have been bracketed with the names of the Attorneys while recording their statements on oath in respect of the offer. No positive or meaningful role was played by the learned counsel for the petitioners in the matter and the identification of the Attorneys by him was a mere formality. The conclusion arrived at by the learned Appellate Court is thus not sustainable.
8. The matter, however, does not end here because the suits giving rise to these petitions are liable to be dismissed in view of the second contention raised by the learned counsel for the petitioners, and the judgments of the Supreme Court highlighted in para '5' ante. It is now well-settled that if no decree has been passed in a pre-emption suit by the trial Court or any higher forum before 31-7- 1986 no such decree can be passed thereafter by any Court or forum. Admittedly, the present suits were instituted on 11-12-1984 and were decreed for the first time on 3-7-1988 and as such there can be no dispute with the proposition that the impugned decrees are not only without jurisdiction but are also void and nullity in the eye of law. there is no force in the submission made by the learned counsel for the respondent that the aforementioned judgments of the Supreme Court were not helpful to the petitioners as they had given up contest on the basis of the point in regard to Talabs- after the dismissal of their applications in respect thereof by the learned trial-Court because during the first round the petitioners had raised this point in their revision petitions. The authority (1992 SCMR 1844) cited by the learned counsel for the respondent is distinguishable because it relates to a question of fact involved in a pre-emption suit that was filed after the promulgation of the NWFP Pre-emption Act, 1987 and the learned counsel for the vendees had not questioned the findings of the lower Courts in respect of the demands of pre-emption in the High Court whereas a question of law is involved in the present suits as these were filed under the repealed NWFP Pre- emption Act, 1950 with no reference to the demands of pre-emption and having not been decreed by any Court before 31.7.1986 are squarely hit by the law laid down by the Supreme Court in the judgments cited by the learned counsel for the petitioners. It is indeed shocking that the learned lower Courts by passed these monumental judgments of the Supreme Court. In doing so they undoubtedly failed to administer justice in accordance with the law. It is immaterial whether at the appellate forum the petitioners had sought dismissal of the suits on the strength of the said judgments of the Supreme Court or not because it was obligatory on the learned appellate Court to apply correct law to the cases particularly when it is inconceivable that these well known judgments of the Supreme court which had paved the way for the Islamic Law of Pre-emption were not in its knowledge. In ;his context the following observations made by the Supreme Court in Haji Abdullah Khan and others, vs. Nisar Muhammad Khan and others (PLD 1965 SC 690) may be quoted advantageously: - It is the duty of the Court itself to apply the liny. A party is not bound to engage a counsel. Whatever law becomes applicable on the admitted and proved facts law has to be given effect to whether or not it has been relied upon by a party".
Needless to mention that under Article 189 of the Constitution of the Islamic Republic of Pakistan the decisions of the Supreme Court on a question of law or enunciating a principle of law are absolutely and unconditionally binding on all others Courts and apart'. From the constitutional obligation imposed upon the Courts even the propriety demands that the Courts must follow such a law without any hesitation as observed in Maj. Gen.(Retd. Mian Ghulam Jilani. Vs. The Federal Government (PLD 1975 Lahore 65).
9. For the foregoing reasons all these petitions are accepted, the impugned judgments and decrees are set aside and the suits of the respondent from which these petitions have arisen are dismissed. Parties to bear their own costs.