MAULANA MUHAMMAD TAQIUSMANI, J: -- All these appeals arise out of the same judgment of the Federal Shariat Court, dated 30-5-1991, whereby certain provisions of the Punjab Pre-emption Act, 1991 were examined in the light of the injunctions of Islam and were declared repugnant to the Injunctions of Islam, while certain other provisions were found to be in conformity with the Islamic Injunctions. Both of these findings have been challenged through different appeals and we propose to dispose of all these appeals by this single judgment.
2. Before embarking on the issues involved in these appeals, it will be useful to note that -before 31st of July, 1986 the law of pre-emption in the Province of Punjab was governed by the Punjab Pre- emption Act, 1913. This Act was rendered ineffective as from 31st of July, 1986 by virtue of the judgment of this Court in the case of N.-W.F.P, v. Said Kamal, reported in PLD 1986 SC 360 read with the suo motu review reported in PLD 1990 SC 865 (hereinafter referred to in this judgment as "Said Kamal's case") whereby a number of its provisions were declared to be repugnant to the Injunctions of Islam. The Government of Punjab, then, promulgated some Ordinances to enact a new law of pre-emption in accordance with the Injunctions of Islam, which were finally replaced by the Punjab Pre-emption Act, 1991 (hereinafter referred to in this judgment as the Act 1991). Similarly, in N: W.F.P., the law of Pre-emption was represented by the N: W.F.P. Pre-emption Act, 1950, but being declared repugnant to the. Islamic Injunctions in Said Kamal's case, it was replaced by N: W.F.P. Pre-emption Act, 1987.
3. Certain provisions of both these Acts i.e. Punjab Pre-emption Act, 1991 and N: W.F.P. Pre-emption Act, 1987 were again challenged before the Federal Shariat Court in a number of petitions filed therein. All the petitions in respect of the Act, 1991 were disposed of by the Federal Shariat Court through a single detailed judgment which is impugned before us in these appeals. .
4. - In order to dispose of the appeals in hand, it will be pertinent to deal separately with each section of the Act, 1991, which is subject-matter of any of these appeals.
Section 2(a):
5. The Act, 1991 has defined the "immovable property" in section 2(a) in the following words:-- "`Immovable property' means an immovable property situated in other areas than urban area or within Cantonment limits as declared by any law relating to local bodies or Cantonment as the case may be, for the time being in force."
In this section any immovable property situated in urban area or within Cantonment limits has been exempted from the application of the law of Pre-emption with the result that no immovable property situated in an urban area can be pre-empted. The learned Federal Shariat Court has found this exemption repugnant to the Injunctions of Islam on the authority of a number of traditions of the Holy Prophet (p.b.u.h.) detailed in pares. 9 'to 11 of the judgment.
6. The question whether some properties can be exempted from the application of the law of - Pre- emption has been thoroughly examined by this Court in Said Kamal's case and it was held that in the absence of the real Zaroorat no property can be exempted from the Shuf ah. The relevant portion in the judgment of Said Kamal's case is reproduced hereunder:--
7. Moreover, in the judgment of Mr. Justice Muhammad Afzal Zullah it was specifically mentioned that "if it is once established that there are only three categories of pre-emptors, then it will be repugnant to the relevant injunction if they are curtailed property wise or increased person wise PLD 1986 SC 381.
8. Mr. Chaudhry Ejaz Ahmad, Assistant Advocate-General Punjab argued before us that it was held in the above quoted extract of Said Kamal's case that a property can be exempted from pre- emption on the basis of necessity. The properties situated in urban areas have been exempted in the Act 1991 on this very basis because if the law of pre-emption is made applicable to the urban areas also, it will lead to a flood of litigation in the big cities and the sale or purchase of the immovable properties being always subject to the law of pre-emption, will remain uncertain for all times to come. This may create a permanent uncertainty and harassment in the transactions of the real estates. The legislature in the impugned Act has deemed it fit to exempt all the urban areas to avoid such harassm ent and such an endless litigation. Therefore, the exemption of urban areas should not have been declared repugnant to the Injunctions of Islam.
9. The argument of the learned counsel might have been justified in relation to the Punjab Pre- emption Act of 1913 which provided a long list of the persons entitled to the right of pre-emption and where no requirement of any Talab was necessary, and the period of limitation 'A was one year. In the Islamic law of pre-emption, there are only three categories of pre-emptors which cannot be- increased. Moreover, no suit for pre-emption can be filed unless the plaintiff has made three kinds of Talabs within a limited period and the suit for pre-emption can only be filed within a few months. Keeping all these restrictions in view, one can easily reach to the conclusion that if the law of pre-emption is applied to the urban areas, these strict conditions will not allow the people to file frivolous suits against the vendees.
10. It is, therefore, held that the exemption of all the immovable properties situated in urban areas does not fulfil the requirement of Zaroorat on the basis of which a particular property can be exempted in the Shari'ah from the application of the law of pre-emption. Thus section 2(a) of the Act, 1991 is repugnant to the Injunctions of Islam to the extent that it excludes all the urban properties and the properties situated within the Cantonment limits permanently from the application of the Act.
11. The appellant in Shariat Appeal No.10 of 1991 has tried to interpret section 2(a) of the Act, 1991 so as to confine the exemption only to the urban properties relating to the local bodies and the cantonments as enumerated in section 134 of the Punjab Local Government Ordinance, 1979. He has prayed that this interpretation be affirmed, and section 2(a) be declared to be in conformity with the Islamic .Injunctions subject to this interpretation. .
12. The definition of "immovable property" is given in section 2(a) in the following words: "immovable property situated in any area other than an urban area or within cantonment Aimits as declared by any law relating to Local Bodies or Cantonments, as the case may be, for the time being in force."
The contention of the appellant is that this section does not exclude all the urban properties from the definition of "immovable property" but those urban properties only which relate to the local bodies or to the cantonments.
13. We have given due. Consideration to the contention of the appellant, but it is too far-fetched to be relied upon. It is obvious that the word "or" occurring between the words "urban area" and "within cantonment limits" is disjunctive which separates the "urban area" from the properties situated in the cantonment limits. Therefore, the "urban area" cannot be restricted to that which is situated in cantonment limits only.
14. The appellant has further argued that the words "as declared by any law relating to Local Bodies or Cantonments" qualify all the preceding words including "urban area" therefore, the section contemplates only those properties which are relating to the Local Bodies and the Cantonments.
15. This argument also is not tenable on any principle of interpretation. In fact the words "as declared by any law" are qualifying the words "within the cantonment limits" and have nothing to do with "urban area" which has been p totally' separated by the word "or" from the subsequent categories. The appellant has referred to section 134 of the Punjab Local Government Ordinance, 1979, but this section also is restricted to specify the properties vesting in the local council and has no indication whatsoever to the specification of "urban area". Therefore, the interpretation of section 2(a) given E by the appellant is not acceptable at all. The Shariat Appeal No.10 of 1991 is therefore, dismissed.
Section 6(2): 16."6. Persons in whom the right of pre-emption vests.---The right of pre---emption shall vest-- (a)firstly, in Shafi Shark (b)secondly, in Shafi Khalil; and ' (c) thirdly,. In Shafi J..
Explanation: (1)"Shaft Sharik' means a person who is a co-owner in the corpus of the undivided immovable property sold.
(II)"Shaft Khalil" means a participator in the special right attached to the immovable property sold, such as right of passage, right of passage of water or right of irrigation.
(III) "Shaft J." means a person who has a right of pre-emption because of owning an immovable property adjacent to the immovable property sold.
(2)Notwithstanding anything in subsection (1), the right of pre-emption shall be exerciseable only in case of "Zaroorat" or to avoid "Zarar".
17. In subsection (2) of this section, the exercise of the right of pre--emption has been subjected to the condition of Zaroorat or Zarar. The Federal Shariat Court has declared this subsection as repugnant to the Injunctions of Islam.
18. The learned Assistant Advocate-General vehemently argued before us that it is an accepted position of all the schools of the Muslim jurisprudence that the right of ShuPah is based on the concept of Zaroorat and Zarar. A third party cannot challenge a valid sale effected between the two parties according to the Islamic law unless he is able to show that some sort of Zarar (harm) has been afflicted to him by virtue of that sale. The learned Federal Shariat Court, according to the learned counsel, has accepted .That the law of pre-emption is based on Zaroorat and its main purpose is to avoid Zarar. But strangely enough, after accepting this principle, the Court has struck down sub section (2) of section (6), which does nothing but to emphasize on the basic philosophy on which the law of pre-emption is based in Shari'ah.
19. We have paid due attention to the contention of the learned counsel, which seems to have force. At the first glance, but a deeper approach to the issue unveils the misconception underlying it.
20. There are two words used in section 6(2) i.e. Zaroorat and Zarar. As for the word Zaroorat, we have never come across any juristic opinion that the law of pre-emption is based on Zaroorat. The word Zaroorat is a specific term which is analogous to the word of necessity and emergency and as defined in the case of Qazalbash Waqf v. Land Commissioner Punjab (reported in PLD 1990 SC 258), refers to a state where a person is. Under apprehension of instant death or the loss of one of his limbs or organs. If it is held that the right of pre-emption can be exercised only in the case of Zaroorat, it will mean that a person can exercise this right only in a case where he is able to prove that without claiming the right of pre-emption he will face an instant danger to his life or his organ, and this will be a condition which seems to be absurd on the face of it, and is never warranted by any provision in the Holy Qur'an and Sunnah, nor has any of the Muslim Jurists ever opined, to the best of our knowledge, that the right of pre-emption is subject to the doctrine of necessity or emergency.
21. The reference of Zarar, however, in the context of the right of pre--emption is relevant and there is a large number of Jurists who have held that the law of pre-emption has been enacted in Shari'ah to avoid Zarar. But at the same time it should be kept in mind that the removal of Zarar has been mentioned by the Jurists as the philosophy underlying the law of pre-emption and not as a precondition to the exercise of this right. No Jurist has ever said that a plaintiff in a case of pre- emption is bound to prove that in the absence of his claim to the sold property, he will face some kind of Zarar.
22. It may be pointed out here with advantage that a particular law may have been enacted to serve a particular purpose based on a particular philosophy, but it is not necessary for the application of that law to show that the purpose has been served in each case individually. For example the law requires to stop the vehicles when the red street signal is on. The basic purpose of this law is to avoid accidents, but it is not necessary in each case to show that G there was an apprehension of accident which has been avoided. On the contrary, even in the absence of any apprehension of accident, the law is fully applicable and one cannot be allowed to violate it on the ground that the basic philosophy underlying the law is not available here. It is thus clear that the application of basic philosophy of the law cannot be taken as a precondition for the application of that law.
23. No doubt, the basic philosophy of the law of pre-emption is to avoid Zarar, but is not incumbent upon a plaintiff in the case of pre-emption to prove the Zarar in each case individually. The traditions of the Holy Prophet (p.b.u.h.) on which the right of pre-emption is based, have never referred to a concept of Zarar, nor did they make it a precondition for the exercise of this right.
Instead, the existence of Zarar has been assumed in every case of pre--emption where a plaintiff has fulfilled the basic conditions for the right of pre--emption, such as making the three Talabs, which will automatically show that he wants to avoid Zarar by his laying the claim of pre-emption.
Therefore, the procedure prescribed for the three Talabs is sufficient to establish the right and an additional condition to prove the Zarar, cannot be imposed on a plaintiff in the case of Shurah.
24. Although the removal of Zarar can be taken as a basic philosophy underlying the law of pre- emption, but in the manner in which it has been laid down in section 6(2) of the Act 1991 it has become a precondition for the exercise of the right of pre-emption and onus to prove the Zarar has been laid on the plaintiff without which he has been denied the right of pre-emption. The logical result of section 6(2) is that if a person who is a co-sharer of a vendor has made all the three Talabs required under section 6(1) of the Act 1991, but did not mention in his plaint that his claim to pre-emption is based on the Zarar apprehended by him, his claim to pre-emption shall be rejected. Such a person is entitled to the claim of pre-emption under the express traditions of the Holy Prophet (p.b.u.h.), but section 6(2) debars him from the right of pre--emption. Therefore, this subsection contravenes the Injunctions of Islam as laid down in the Sunnah of the Holy Prophet (p.b.u.h.), and the judgment of the Federal Shariat Court being well-founded, the appeal of the Punjab Government in this respect is dismissed.
Section 12: 25.Section 12 of the Act 1991 reads as follows "12.Right to revoke sale.---Where the vendor has stipulated in the contract of sale that it is subject to revocation by him within a period, not exceeding sixty days, specified in such contract, the right of pre--emption shall not be exercised until such period has expired: Provided that option of defect in, or inspection of, the property or the stipulation as to the vendee's right to revoke the contrast of sale shall not be a bar to the exercise of the right of pre-emption."
The learned Federal Shariat Court has declared this section repugnant to the Injunctions of Islam on the ground that it has prescribed the period of sixty days for the exercise of right of revocation while, in the view of the Federal Shariat Court, the right of revocation cannot extend beyond three days.
26.The learned Assistant Advocate-General raised the objection that the learned Federal Shariat Court has not referred to any particular Verse of the Holy Qur'an or to a Hadith of the Holy Prophet (p.b.u.h.) to the effect that the right of revocation of a sale cannot extend beyond three days. The learned Federal Shariat Court itself has mentioned different views of the Muslim Jurists on this point and has preferred the view of Imam Abdu Hanifah that the right of revocation should be limited to three days only while according to other Jurists it can extend to one month; rather, some other Jurists have extended the period even beyond that. In such circumstances, it cannot be said that the provision of sixty days contemplated in section 12 is repugnant to the Injunctions of Islam or to a specific provision of the Holy Qur'an and Sunnah.
27. After a careful study of the judgment of the Federal Shariat Court in this respect, we feel, that the argument of the learned Assistant Advocate --General has force. There is no specific Hadith of the Holy Prophet (p.b.u.h.) which confines the right of revocation to three days only. The tradition relied upon by the Federal Shariat Court is that of Habban Ibn Munqizwho was inexeperienced in the business matters and the Holy Prophet (p.b.u.h.) had advised him that whenever he enters into a contract of sale, he should say to the other party: "I will have the right of revocation for three days.
28. On the basis of this Hadith the learned Federal Shariat Court has reached the conclusion that the right of revocation is confined to three days only, but we feel that this is not the correct interpretation of the Hadilh quoted above. The Holy Prophet. (p.b.u.h.) had advised him to reserve the right of revocation for three' days only in the cast of Habban, but it is nowhere mentioned in the Hadith that the right of revocation for more than three days is not allowed in Shari'ah. That is why a large number of Muslim Jurists have allowed the right of revocation for more than three days as is mentioned in the judgment of the Federal Shariat Court itself.
29. Since there is no specific prohibition in the Holy Qur'an and Sunnah against the right of revocation for more than three days and a number of Muslim Jurists also have opined that the right of revocation can be extended to one month and the legislature has taken a view which is not in direct conflict with any provision of the Holy Qur'an and Sunnah, we cannot strike it down on the basis of its repugnancy. Therefore, we allow the appeal of Punjab Government regarding section 12 and set aside the judgment of the Federal Shariat Court in this respect.
Section 13(31
30. Section 13(3) of the Act 1991 reads as under Demand of Pre-emption:
(1) The right of pre-emption of a person shall be extinguished unless such person makes demands of pre-emption in the following order, namely:-- (a)Talab-i-Mawathabat, (b)Talab-i-Ishhad, and (c)Talab-i-Khusumat.
Explanation: "Talab-i-Muwathabat"means immediate demand by a pre-emptor in the sitting or meeting (Majlis) in which he has come to know of the same, declaring his intention to exercise the right of pre-emption.
Note.--- Any words indicative of intention to exercise the right of pre--emption are sufficient.
( ii) --- Talab-i-Ishhad" means demand by establishing evidence.
(iii) "Talab-i=Khusumat" means demand by filing a suit.
(2) When the fact of sale comes into the knowledge of pre-emptor through any source, he shall make Talab-i-Muwathabat.
(3)Where a pre-emptor has made Talab-i-Muwathabat under subsection (2) he shall, as soon thereafter but not later than two weeks from the date of knowledge, make Talab-i-Ishhad by sending a notice in writing attested by two truthful witnesses under a registered cover acknowledgment due, to the vendee confirming his intention to exercise the right of pre-emption: Provided that in areas where owing to lack of Post Office facilities it is not possible for the pre- emptor to give registered notice, he may make Talab-i-Ishhad in the presence of two truthful witnesses.
(4)Where a pre-emptor has satisfied the requirements of Talab-i--Muwathabat under subsection
(2) and Talab-i-Ishhad under subsection (3), he shall make Talab-i-Khusumat in the Court of competent jurisdiction to enforce his right of pre-emption.
31. Haji Rana Muhammad Shabbir Ahmed Khan, the appellant in Shariat Appeal No.9 of 1991, while appearing in person, had challenged this section of the Act 1991 on the ground that it has made the three Talabs a mandatory requirement for the exercise of the right of pre-emption. We heard him at length and also perused the written arguments submitted by him. In fact, the question of the requirements of three Talabs has been thoroughly discussed in Said Kamal's case where it was held on the authority of a number of traditions that the right of pre-emption is subject to these three Talabs. This finding has been affirmed by Suo Motu Review (reported in PLD 1990 SC 865). The appellant wants to reopen this issue but his standpoint seems to be contradictory. On the one hand he has emphasized on the concept of Taqlid stating that it is incumbent upon us to follow the view of Imam Abu Hanifah only, and on this ground he is of the view that the delay in making Talab-i--Khusumat cannot be taken as fatal to the claim of pre-emption. But on the other hand, he denies that the Talab-i-Muwathabat is a prerequisite for the claim of pre-emption, which is an established view of Imam Abu Hanifah, on the ground that this view of Imam Abu Hanifah is not based on the authentic Hadith. In Said Kamal's case, we have referred to the Ahadith on which the concept of Talab-i-Muwalhabat is based and it is also mentioned therein that the jurists have taken these Ahadith as authentic. Therefore, the objection raised by the appellant against the requirement of Talab-i-Muwathabat is not tenable. .
32. His objection against Talab-i-Khusumat is that according to the Hanafi Books, the delay in filing a suit of pre-emption does not extinguish the right of pre-emption under lhewiew of Imam Abu Hanifah while according to Imam Muhammad such a delay is fatal to the claim of pre-emption.
The objection of the appellant is that the legislature has preferred the view of Imam Muhammad over the view of Imam Abu Hanifah while the view of Imam Abu Hanifah should have been preferred.
33. It should be clarified here that according to the Constitution of Pakistan (Article 203-F) this Court has the jurisdiction to strike down a law which is found to be repugnant to the Injunctions of Islam as laid down in the Holy Qur'an and Sunnah. This jurisdiction cannot be exercised where a particular law or a provision of a law is repugnant to any of the different views taken by different Muslim jurists, unless it is shown that the said law is repugnant to a verse of the Holy Qur'an or a Hadith of the Holy Prophet (p.b.u.h.). The appellant was not able to show any such provision of the Holy Qur'an and Sunnah against subjecting the right of pre-emption to making three , Talabs without an inordinate delay.
34. Moreover, the appellant himself had admitted that Imam Muhammad is of the view that the delay in Talab-i-Khusumat nullifies the right of pre--emption. Even a large number of Hanif Jurists have preferred this view. In Raddul Muhtar, a well-known book of Islamic Fiqh, it is mentioned by Ibn-e--Abideen: "The Fatwa should be given today on the basis of the view of Imam Muhammad because a . Big change has taken place in the circumstances." (see Vo1.6, p.226).
35 Another objection raised by the appellant is that the requirement of Talab-i-Ishhad means nothing more than that the pre-emptor expresses his intention to claim pre-emption before two witnesses, but section 13(3) of the Act 1991, as reproduced earlier, has made it mandatory on the pre-emptor to issue a notice to the vendee that he intends to rile a suit of pre-emption against him. The appellant's contention is that such a notice has not been made mandatory by any of the Muslim Jurists, therefore, the provision of such a notice is against the Injunctions of Islam.
36. We have found that the point raised by the appellant has been duly taken care of by the Federal Shariat Court in its judgment. It is true that the notice is not a necessary ingredient of Talab-i-Ishhad, but it is evident that this is only a procedural matter to facilitate the proper process of filing a suit of pre-emption which does not, in any way, affect the basic right of pre-emption.
Procedural provisions may vary from time to time according to the expediency and in so far as they do not violate any Injunction of Islam they cannot be held repugnant to the Holy Qur'an and Sunnah.
37. For the reasons stated above, the Appeal No.9 of 1991 with regard to section 13(3) of the Act, 1991 is hereby dismissed.
Section 38.Section 22 of the Act 1991 reads as follows:- "22.Improvement made in the status of the vendor-defendant after institution of the suit.--Any improvement made in the status of a vendee-defendant after the institution of suit for pre- emption, shall not affect the right of pre-emptor plaintiff."
39. The learned Federal Shariat Court, while discussing the vires of ibis section, has reached the conclusion that if an improvement has been made by the conscious act of the vendee, it may be objectionable for being tainted with mala fides, or having acquired the same by the deceitful means. Therefore, such an improvement should not affect the right of pre-emption of the plaintiff, but if an improvement has taken place on account of some natural phenomena like inheritance, it should not be disregarded, and any such improvement in the status of the vendee should affect the right of pre-emptor-plaintiff. On the basis of this fording, the learned Federal Shariat Court has directed the Punjab Government that the phrase "other than through any inheritance" should be inserted in section 22 of the Act.
40. . The learned Assistant Advocate-General contended that the learned Federal Shariat Court has not cited any verse of the Holy Qur'an nor any tradition of the Holy Prophet (p.b.u.h.) to show that section 22 of the Act 1991 is repugnant to the Injunctions of Islam or that the insertion of the proposed phrase therein is necessary.
41We are inclined to accept this contention of the learned Assistant Advocate-General. The learned Federal Shariat Court, while deciding this issue, has not referred to any provision of the Qur'an or Sunnah or to any book of Islamic Jurisprudence; instead, reliance is placed on section 21-A of the previous Punjab Pre-emption Act, 1913, since repealed, which reads as under:-- "21-A: -Any improvement, otherwise than through any inheritance or succession, made in the status of a vendee-defendant, after the institution of a suit for pre-emption shall not affect the right of pre--emptor-plaintiff in such suit."
42. It appears that while framing section 22 of the Act, 1991 the legislature kept in view the provision of the said .Section 21(a), and has intentionally omitted the phrase "otherwise than through inheritance". The learned Federal Shariat Court has found the omission of this phrase as against the Injunctions of Islam on the ground that the improvement taking place on account of a natural factor, such as inheritance, should have not been disregarded. But we feel that if the legislature had deemed it fit to omit this phrase and to protect the pre-emptor against all kinds of improvements, it does not violate any Injunction of Islam as laid down in the Holy Qur'an and Sunnah, rather it seems more pertinent to treat all kinds of subsequent improvements equally. The question is not whether the vendee has improved his status by his conscious act or otherwise. The question is one of principle. The right of pre-emption arises on the basis of those states of affairs which existed at the time of sale. If the vendee had no right of pre-emption at that time while the plaintiff had it, the right of the plaintiff is established, which cannot be defeated by any subsequent event which takes place after the institution of the suit. The same principle has been enumerated by the scholars of Islamic Jurisprudence also.
It is mentioned in AI-Fatawa AI-Almgiriyyah, a well-known compilation of Fiqh: "The principled that pre-emption could only be claimed on the basis of ownership existing at the time of sale and not on the basis of a subsequent ownership."
43. A careful study of the relevant details in the books of Islamic Jurisprudence makes it clear that the Muslim jurists are of the opinion that any improvement in the status of the vendee after the institution of the suit does not defeat the right of pre-emptor, no matter whether the improvement was made by an intentional act of the vendee or has taken place according to some natural event, like succession.
44. Therefore, it is held that section 22 of the Act 1991 is not repugnant to the Injunction of Islam as laid down in the Holy Qur'an and Sunnah. The judgment of the Federal Shariat Court in this respect is set aside and the 0 appeal of the Punjab Government is accepted.
Section 24:
45. Section 24 of the Act 1991 reads as follows: "24.Plaintiff to deposit sale price of the property.--(1) In every suit for pre--emption, the Court shall require the plaintiff to deposit in such Court one-third of the sale price of the property in cash within such period as the Court may fix: Provided that such period shall not extend beyond thirty days of the filing of the suit: Provided further that if no sale price is mentioned in the sale-deed or in the mutation, or. The price so mentioned appears to be inflated, the Court shall require deposit of one-third of the probable value of the property.
(2)Where a plaintiff fails to make a deposit under subsection (1) within the period fined by the Court, or withdraws the sum so deposited by him, his suit shall be dismissed.
(3)Every sum deposited under subsection (1) shall not affect the final determination of the price payable by the pre-emptor.
46. The appellant in Appeal No.9 of 1991 has challenged this provision on the basis that it is not necessary in Shari'ah to deposit one-third of the sale price within the stipulated period. He has referred to a number of juristic opinions mentioned in the books of Islamic jurisprudence where it is held that the pre-emptor is not liable to bring the sale price at the time of filing his suit of pre- emption. But the appellant has again failed to produce any provision of the Holy Qur'an and Sunnah in his support. He has himself admitted that there is a difference of opinion among the Muslim jurists in this respect. Although according to the view of Imam Abu Hanifah and Imam Abu Yousuf, it is not mandatory on the pre-emptor to deposit the Imam Muhammad is of the view that a condition being. It is obvious that the legislature has adopted the view of Mmac, which seems to be more consistent with the weeds of our view while framing this section, has perhaps taken into long period of litigation which . The foul decision a suit of pre-emption. If Imam Muhammad could have subjected the ~I of pre--emption to the condition of depositing the We-price, the legal in those days used to conclude days me, today put such a condition for the more obvious reasonsale price may encourage suits of pre-emption.
47. It is, therefore, held that the condition of depositing a certain part of the sale price in the Court at the time of institution of the suit as contemplated under section 24 of the Act 1991 is not repugnant to the Injunctions of Islam as laid down in the Holy Qur'an and Sunnah. The Appeal No.9 of 1991 in this respect is dismissed.
48.Section 35 of the Act 1991 reads as follows:-- "35. Saving.--(1) Notwithstanding anything in any other law for the time being in force, all the decrees, judgments or orders dismissing the suits of pre-emption, instituted or pending between the 1st day of August, 1986 and the 28th March, 1990 (both days inclusive) in which the right of pre- emption was claimed as is available under this Act shall be of no legal effect, and such suits on an application made by the aggrieved persons within sixty days of coming into force of this Act shall subject to subsection (2), be decided afresh according to the provisions thereof.
(2)Notwithstanding anything in sections 13 and 30, in respect of the suits mentioned in subjection (1), the period of limitation shall be one year and it shall be sufficient if the pre-emptor establishes that he had made Talab-i-Ishhad in presence of the two truthful witnesses.
49. It should be noted for a proper understanding of this saving clause that the decision of this Court in Said Kamal's case took effect on 31st of July, 1986 whereby the Punjab Pre-emption Act, 1913 ceased effect have effect. The Government of Punjab was supposed to enact a fresh Law of Pre-emption on the basis if Islamic Injunctions before 31st of July, 1986. But unfortunately the new law was not promulgated before 29th of March, 1990. In the intervening period no statute law was available with regard to pre-emption. The purpose of section 35 is to protect all those suits which were instituted or were pending during this interregnum period subject to the condition that the right of pre-emption is available for the plaintiffs under the law of pre-emption which was promulgated on 29th of March, 1990. However, by virtue of subsection (2) such suits were exempted from the application of section 13 of the Act and were consequently given a concession regarding the requirement of Talabs. The period of limitation was extended for such suits to one year and the requirement of Talab-i-Muwathabat and requirement of sending a notice to the vendee was dispensed with.
50. The learned Federal Shariat Court held that the requirement of all the three Talabs being a substantive part of Islamic law of pre-emption, as declared in Said Kamal's case, the concession given in section 35(2) for the pending suits is repugnant to the Injunctions of Islam.
51 The learned Assistant Advocate-General contended before us that this saving clause is meant to protect the rights of those pre-emptors who had filed the suits of pre-emption before the operation of the judgment of this Court in Said Kamal's case. Since, in those days, the Punjab Pre- emption Act, 1913 was in force where the requirements of Talabs were not mandatory, the plaintiffs who had filed suits of pre-emption without making such Talabs had committed no wrong, and it was in all fairness to them that they should be protected while enforcing a new law. It was in this context that section 35 was framed and it should not have been declared repugnant to the Injunctions of Islam.
52. We have paid due attention to the contention of the learned counsel. In fact, section 35(2) has protected two categories of suits. It has protected, firstly, the suits instituted after 31st of July, 1986, and, secondly, the suits which were pending at that date. The argument of the learned counsel with regard to the first category (i.e. The suits instituted after 31st July, 1986) is misconceived on the face to it, because the judgment in Said Kamal's case had taken effect on 31st of July 1986 whereby the Punjab Pre-emption Act, 1913 had ceased to have effect. Therefore, the plaintiffs of those cases filed their suits at a time when Punjab Pre-emption Act, 1913 was not in the field, and they cannot claim any concession on the basis of Punjab Pre-emption Act, 1913.
53. However, the argument of the learned counsel may apply to the suits pending on 31st of July, 1986. But if this argument is accepted in its full force, it should have been applied to those plaintiffs also who were entitled to the right of pre-emption in the Act of 1913 but were denied this right under the Act, 1991. For example heirship was a valid ground for pre-emption under the previous Ad of 1913, but it is not a valid ground under the existing Act, 1991. Now, if a plaintiff filed a suit of pre- emption on the ground of heirship before 31st of July, 1986, he could argue that he had instituted the suit at a time when heirship was a valid ground for pre-emption, therefore, his right should be protected under the new law. But the legislature did not protect his suit under section 35 for the simple reason that his claim to pre-emption, is not warranted by the Injunctions of Islam. The same reasoning should have been adopted in the cases where the plaintiffs had filed their suits without fulfilling the necessary requirements of Talabs in their proper times. But the legislature has fully protected the cases of the latter under section 35(2) while the former have not been given any protection.
54. It shows that the legislature has not taken the. Provisions of Talabs as a substantive part of the Islamic law of pre-emption, and, treating it a procedural matter, has given concession to the pending cases in this respect.
55. It is fully established in Said Kamal's case and also in a large number of subsequent cases decided by this Court that the requirements of all the three Talabs form a substantive part of Islamic law of pre-emption and failure to make Talabs at their proper time results in extinguishing the very right of pre--emption. From this point of view, there is no difference between the persons claiming pre-emption on the basis of heirship and between the ones who claim pre-emption on the basis of contiguity or co-shareship without meeting the necessary requirement of Talabs, because both are claiming a right which is not recognised by the Shariah and there is no reason to differentiate between the two by giving one of them protection and denying it for the other.
56. We need not repeat the provisions of Sunnah of the Holy Prophet (p.b.u.h.) on the basis of which it was held in -Said Kamal's case that all the three Talabs are the substantive part of the Islamic Law of pre-emption, but once this principle is established, no concession in this respect is justified from the Shariah viewpoint. The reasons given by the learned Federal Shariat Court in this respect are well-founded and the judgment given on their basis needs no interference by this Court.
57. It is, therefore, held that section 35(2) .Of the Act 1991 is repugnant to the Injunctions of Islam in so far as it exempts the cases pending or instituted during the period from 1st of August, 1986 to 28th of March, 1990 from the requirements of Talab-i-Muwathabat, and extends the right of limitation for them up to one year. However, the provision of sending a notice to the vendee, as contemplated in section 13 of the Act 1991, can be dispensed with in relation to these suits; because as mentioned earlier, sending of notice is not a substantive requirement in the Shari'ah to effect the Talab-i-Ishhad. On the contrary, it is procedural provision enacted by the legislature on the basis of expediency. Therefore, it. Is open for the legislature to dispense with this requirement altogether or with respect to certain cases.
58. With these observations the appeal of the Government of Punjab in relation to section 35(2) is hereby dismissed.
59. Shariat Civil Appeal No.59 of 1992 has been filed by Mr. Mir Afzal son of Ghulam Rasool who had instituted the suit of pre-emption in a property situated in Abbottabad but in accordance with section 29 of the N: W.F.P. Pre-- emption Act, 1987 that property was exempted from the application of the law of pre-emption. This section 29 of the N: W.F.P. Pre-emption Act, 1987 has been declared by the Federal Shariat Court as repugnant to the Injunctions of Islam with effect from 31-12-1991. As the suit of the appellant was filed before that date, he cold- not perhaps benefit from the judgment of the Federal Shariat Court. Therefore, he has prayed this Court to declare that the judgment of the Federal Shariat Court, dated 17-3-1991 whereby certain provisions of the N: W.F.P. Pre-emption Act, 1987 including section 29 thereof, have been declared un-Islamic should be made applicable to his case also.
60. In fact, we, while sitting as the Shariat Appellate Bench of the Supreme Court of Pakistan, cannot give such a relief m individual disputes. Our jurisdiction in this capacity is confined to examine any existing law in the light of the Holy Qur'an and Sunnah and to declare whether or not a law is repugnant to the Injunctions of Islam. Section 29 of the N: W.F.P. Pre-emption Act, 1987 has been declared by the Federal Shariat Court as repugnant to the Injunctions of Islam and the Appeal filed by the N: W.F.P. Government in this Court against the said judgment has also been withdrawn by the Provincial Government. Therefore, the impugned provision of section 29 is no more existing on the statute book. We cannot declare whether or not a particular provisions of law or a judgment of a Court is applicable to an individual suit. The appeal is, therefore, misconceived and, is consequently dismissed.
Conclusion:
1. The upshot of the above discussion is that the following provisions of the Punjab Pre-emption Act, 1991 are declared to be repugnant to the Injunctions of Islam as laid down in the Holy Qur'an and Sunnah of the Holy Prophet (p.b.u.h.):-- (i)Section 2(a) in so far as it excludes from the definition of `immovable property" all properties situated in urban areas or within Cantonment limits.
(ii)Section 6(2) as it makes the plaintiff in the case of pre-emption liable to prove that he is exercising the right of Shufah on the basis of Zaroorat or to avoid Zarar.
(iii)Section 35(2) in so far as it exempts the suits of pre-emption instituted or pending between 1st day of August, 1986, and 28th March, 1990 from the requirements of Talab-i-Muwathabat and because they have extended the period of limitation for such suits to one year. The Appeal No.12 of 1991 filed by the Government of Punjab with regard to these three sections is dismissed.
(2) The following provisions of the Punjab Pre-emption Ad, 1991 are not found repugnant to the Injunctions of Islam: (i)Section 13(3).
(ii)Section 22.
(iii)Section 24.
The appeal of the Punjab Government with regard to these three sections is allowed.
3. Shariat Appeal No.9 of 1991 (Haji Rana Muhammad Shabbir Ahmad v. Government of Punjab), No.10 of 1991 (Jan Muhammad v. Government of Punjab), and No.59 of 1992 (Mir Afzal v. Ejaz Akbar) are dismissed.
4. This decision shall take effect on 31st of December, 1993 whereby the provisions of Punjab Pre- emption Act, 1991 declared to be repugnant to the Injunctions of Islam shall cease to have effect to the extent of their repugnancy.
M.BA./M-1827/S
…and 74 more citing cases