1. ' FAZAL ILAHI KHAN, J.---Leave to appeal is prayed for against the judgment dated 26-9-1993 of the Lahore High Court, Rawalpindi Bench, Rawalpindi in Writ Petition No,504 of 1992.
2. ' Briefly stated the respondents No,1 to 4 purchased land measuring 4 Kanals comprising of Khasras Nos. 318, 322, 326 and 327 situated in Gujar Khan through a registered deed dated 25-4-1993. The petitioner pre-empted the sale in the suit instituted in the Court of Senior Civil Judge, Gujar Khan on 20-4-1973 alleging that the suit land comprised in his tenancy. The suit was transferred in the Court of District Collector on promulgation of Land Reforms (Amendment) Act, 1976 (Act XLVIII).
3. ' The defendants/vendees contested the suit by filing their written statement whereupon issues were framed and the parties' evidence was recorded. The plaintiffs suit was dismissed by the Collector vide order dated 28-10-1977 after the finding that the plaintiff failed to prove his superior right of pre-emption. Petitioner challenged this judgment and order of the Collector in appeal filed in the Court of Additional Commissioner which was dismissed as barred by time. In revision filed by the petitioner in the Board of Revenue the finding given on limitation was reversed and in consequence vide order dated 24-11-1983 the case was sent back to the Additional Commissioner for hearing and decision on merits. Respondents Nos.1 to 4 challenged the order of remand passed by the Board of Revenue in Writ Petition No,535 of 1983 which was dismissed in view of Said Kamal's case and the parties were directed to appeal before Additional Commissioner on 3-4-1989. After hearing the appeal on merits the same was dismissed vide order dated 28-10-1989. The petitioner again challenged the judgment passed in appeal before the Board of Revenue in Revision. The Board of Revenue by its order dated 6-6-1992 accepted the revision petition, set aside both the judgments and orders of the Collector and those of the Additional Commissioner and remanded the case to the Collector with the direction to prepare the decree in plaintiffs favour.
4. ' Respondents Nos.1 to 4 aggrieved by the judgment and decree of the Board of Revenue challenged the same in Writ Petition No, 504 of 1992. The learned High Court on acceptance of the writ petition set aside the judgment and order of the learned Member, Board of Revenue and restored those of the Courts below. In this petition leave to appeal is prayed for against the judgment of the High Court.
5. ' It was urged before us by the learned counsel for the petitioner that although the law of pre- emption and the relevant provisions of the Land Reforms Regulations in relation thereto have been declared against the injunction of Islam in case Govt. Of N.-W.F.P. v. Said Kamal Shah (PLD 1986 Supreme Court 360) and it ceased to exist as a valid law after 31-7-1986, the learned Board of Revenue was legally justified in decreeing the plaintiff's suit in view of the judgment in Muhammad Sharif v. Muhammad Sharif reported in 1992 SCM R 1129, and Section 34 of the Punjab Pre-emption Act, 1991. It was further contended that the right of pre-emption vested in the plaintiff and arising from sale which took place in the year 1983 under the law then prevailing could not be defeated by subsequent declaration that the law was against the injunction of Islam and that it ceased to operate with effect from 1-8-1986. Reliance is placed on Ch. Sir Muhammad Zafarullah v. Custodian Evacuee Property (PLD 1964 SC 865) and Nabi Ahmad v. Home Secretary (PLD 1969 SC 599).
6. ' After hearing the learned counsel for the petitioner and going through the law cited before us we find no merit in these arguments in the context of the present dispute. Undoubtedly in Muhammad Sharif v. Muhammad Shard (1992 SCM R 1129) decided on 2nd December, 1991 when Section 34 of the Punjab Pre-emption Act (Act IX of 1991) came for consideration it was held that the word "judgments and decrees" in subsection (2) of section 34 are not qualified to imply judgments and decrees passed only in favour of the plaintiff/pre-emptor. The new provision of law overrides the rule laid down by a number of judgments of this Court. The words "judgments and decrees thus cover both the cases i,e. Those in which plaintiffs/pre-emptors suit was decreed and those in which the plaintiffs' suit was dismissed. However, in a number of appeals interpretation of the words "judgment and decree passed" by the Courts having become final came for hearing before Full Bench of 5 Hon. Judges of this Court in which the main judgment was delivered in Rozi Khan and others appellants v. Syed Karim Shah and other respondents (1992 SCM R 445). These appeals were from the jurisdiction of Peshawar High Court requiring interpretation of Section 35 of the N.-W.F.P Pre-emption Act (X of 1987) which is identical in substance to Section 34 of the Punjab Pre-emption Act, As far as the relevant provisions are concerned Section 35 of the N.-W.F.P. Act is in the following terms:- "35. Repeal.--(1) The North-West Frontier Province Pre-emption Act, 1950 (N.-W.F.P. Act XIV of 1950) is hereby repealed.
(2) In the cases and appeals filed under the law referred to in subsection (1) in which judgments and decrees passed by the Courts have become final, further proceedings if any relating to such cases, and appeals, shall, notwithstanding the repeal of such law be governed and continued In accordance with the provisions thereof.
(3) All other cases and appeals not covered under subsection (2) instituted under the law, referred to in subsection (1) and which immediately before the commencement of this Act were pending before a Court shall stand dismissed, except those in which right of pre-emption is claimed under the provisions of this Act."
7. ' Interpreting the words "judgment and decree passed by the Court have become final" their Lordships held as follows:- "In view of the foregoing we are inclined to hold that the words "judgments and decrees passed by the Courts have become final" in subsection (2) of section 35 mean "those judgments and decrees wherein the suit of the pre-emptor has been decreed by the Courts rendering it". In so thinking we are fortified by the circumstances that this Court has always understood and consistently expounded the concept of finality in Pre-emption Statutes on this premises (see, inter alia, Bibi Jan v. RA. Moony PLD 1961 SC 69 at page 75/76; Sardar All v. Muhammad Ali PLD 1988 SC 287 at page 354).
8. ' In the light of the foregoing, the effect of the provisions of section 35 of the new Islamic Law of Pre- emption, in our opinion, is that if at the time of the enforcement of the Islamic Law of Pre-emption (i,e. 1-8-1986 when the principles of the Islamic Common Law became applicable in the absence of final decree in the sense explained above (namely a decree in favour of the plaintiff/pre-emptor decreeing the suit for pre-emption) had already been passed and an appeal against it was pending (which is a further proceeding relating to the case in which the decree was passed), the said further proceedings shall be governed and decided under the provisions of the old Act (N.- W.F.P. Pre-emption Act, 1950) and the provisions of Act X of 1987 would not be attracted. Similarly, if a final judgment (decreeing the suit of the plaintiff/pre-emptor had been passed before the aforesaid dates and the said judgment was being challenged before the revisional Court or the High Court in its Writ jurisdiction such proceedings too shall be governed by and decided under the provisions of the old Pre-emption Law enacted in the 1950 Act".
9. In view of the judgment Rozi Khan v. Syed. Karim Shah (1992 SCM R 445), relevant part thereof reproduced above, the judgment in the case of Muhammad Sharif v. Muhammad Sharif (1992 SCM R 1129) is not attracted to the case. We, therefore, find no infirmity in the judgment of the learned High Court and dismiss the petition.