' Dr. MAHMOOD AHMED GHAZI, J.---This appeal deals with a question agitated repeatedly by the appellant before the Federal Shariat Court and the Shariat Appellate Bench. He challenges section 13(1)(a), of the Punjab Pre-emption Act, 1991 in which the procedure for exercising the right of preemption has been laid down. The Federal Shariat Court has examined this question twice and has rejected the petition on the ground that the principle of 'Talb-i-Muwathabat' is not opposed to the Injunctions of Islam as contended by the petitioner/appellant. The earlier judgment passed by the Federal Shariat Court was given on 13-10-1991 against which he filed a.Review petition admitted for hearing on April 21, 1992. The review petition was dismissed on November 10, 1993, through a short order for reasons to be recorded later by the Court. The detailed. Judgment was announced on November 30, 1993 by a Bench of four learned Judges of the Federal Shariat Court in which it was found that the Review Petition was misconceived and the principle of 'Talab-i-Muwathabat' was not opposed to the Injunctions of Islam. The Federal Shariat Court, accordingly dismissed the petition. Against this last judgment, the present appeal has been filed. According to the Appellant, 'Talb-i-Muwathabat' is a funny idea which cannot even be remotely related to Islamic Jurisprudence.
2. Before we examine the submissions of the appellant and references given by him in support of his contention we may reproduce the impugned section which reads as under:- "(13)Demands 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-Muwathabat',
(b) 'Talab-i-Ishhad; and
(c) 'Talab-i-Khusumat'.
(1) 'Talab-i-Muwathabat' means immediate demand by a pre-emptor, in the sitting or meeting (Majlis) in which he had come to know of the sale, declaring his intention to exercise the right of pre-emption."
3. The appellant has relied on a number of Qur'anic verses and a large number of Ahadith which emphasized ease, moderation in showing reactions, tranquility and balanced attitude in human activities and behaviour. The crux of the arguments of the appellant, himself an Advocate, is that 'Talab-iMuwathabat' is no consistent with the spirit of these Qur'anic verses and the Ahadith of the Prophet (p.b.u.h.).
4. He says that there are some 32 Ahadith dealing with different aspects of Shufah (Pre-emption) and has contended that a right created by such a large number of Ahadith cannot be defeated by a procedure developed by the Jurists only to facilitate the availing of that right. In support of this contention he has relied on judgments of the Superior Courts in cases where there was a conflict in the requirements of the technicalities of the administration of law and the substantive requirements thereof. In this context reliance has been placed on the following observations of a learned Judge in the Supreme Court in Imtiaz Ahmad v. Ghulam Ali (PLD 1963 SC 382):-- "I must confess that having dealt with technicalities for more than forty years, out of which thirty years are at the Bar, I do not feel much impressed with them. I think the proper place of procedure in any system of administration of justice is to help and not to thwart the grant to the people of their rights. All technicalities have to be avoided unless it be essential to comply with them on ground of public policy. The English system of administration of justice on which our own is based may be to a certain extent technical but we are not to take from that system its defects. Any systems which by giving effect to the form and not to the substance defeats substantive rights is defective to that extent. The ideal must always be a system that gives to every person what is his."
' He has also relied on the observations of the Supreme Court in Ghulam Bibi v. Serra Khan (PLD 1985 SC 345):-- "It has been observed that rules of procedure are meant to advance justice and to preserve rights of litigants and they are not meant to entrap then into blind corners so as to frustrate the purpose of law and justice. It has been further observed the proper place of procedure in any system of administration of justice is to help and not to thwart the grant to people of their rights. All technicalities have to be avoided unless it be essential to comply with them on grounds of public policy."
5. On the basis of these observations his arguments is that the rights of pre-emption being a substantive right, cannot be affected by the procedure of 'Talab-i-Muwathabat' which is only a technicality. In his criticism of this procedural requirement he goes to the extent that he considers 'Talb-iMuwathabat' as something heretic and un-Islamic (Abu Lahabi).
6. We have given serious Considerations to these submissions of the appellant and found that the verses and ahadith are neither relevant to the subject nor even indirectly support his contentions about the principle of 'Talab-iMuwathabat' . For example he has quoted the Qur'anic verse 2:185 which says that Allah wishes ease for you and does not wish difficultly for you. The principle of "Talab-i-Muwathibat" is indeed in accordance with this Quranic verse which guarantees ease to the buyer whose right to the property he has purchased is stronger than the right of the pre- emptor.
7. The appellant has pointed out that there is no direct Hadith providing for "Talab-i-Muwathibat". In support he has produced photo copies of some major collection of Ahadith (such as Al-Musannaf by Imam Abdul Razzaq) where it has been clearly said that the dictum (Shufu'ah is for him who jumps at it) is not a saying of the Prophet p.b.u.h. But is merely an opinion of a later Jurist Qazi Suraih, the celebrated Jurist of the first century of Islam who was appointed by Hazrat Umar as a Judge in Kufah. However, despite this clarification on the part of the appellant, the spirit and purpose of "Talab-i-Muwathibat" is supported by the Ahadith reported by other authorities such as Imam Ibn-i-Majah and Imam Baihaqi. It has been reported by these two celebrated compilors of the Ahadith on the authority of Hazrat Umar that the Prophet (p.b.u.h.) has said or pre-emption is only like the untying of a tie, meaning thereby that the right of pre-emption should be exercised within such a short period as is required to untie a knot.
8. The principle of supporting the right of the purchaser by limiting the right of the pre-emptor through "Talab-i-Muwathibat" has been an agreed principle among the jurists. Imam Abu Hanifa, Imam Shafi' i, Imam Ahmed and Imam Awza'i are of the view that the right of pre-emption should be demanded immediately at the time of the deal between buyer and the original purchaser. The word of Muwathibat has been used by no less an authority than Imam Ahmad Ibn Hanbal to emphasize its principle, Some of the jurists have based the principle of "Talab-i-Muwathibat" on the principle of option of the sitting (Khiyar-al-Majlis). Therefore, if the pre-emptor does not express his intention to exercise his right within that very sitting in which he comes to know about the deal, he loses his right for good. The maximum period allowed by the Hanbali jurists even in cases of real and genuine excuses, does not exceed a few moments. For example. Ibn-i-Qudamah, a renowned Hanbali jurist says that a person engaged in having meal or attending the call of nature or busy in prayer or attending a (Jama'ah) may be allowed time to free himself from these engagements before he expresses his intention to exercise right of pre-emption. Ibn-i-Qadamah further says that if a person is informed about the sale of the property and he simply confirms the news but does not expressly demand his right to pre-emption, his right immediately abates. Such illustrations have been quoted by Ibn-i-Qudamah in his book "Al-Mughni", Vol.VII, pp. 453 to 462. Similar views have been held by the authoritative exponents of all the major schools. (Wahbah Zuhaili, Al-Fiqh Al-Islami was Adillatuhu. Vol.V. Pp. 826831).
9. There is no force, therefore, in the contention of the appellant that the impugned section is violative of Article 2A, of the Constitution. He also contends that the impugned section is opposed to Article 25 of the Constitution which lays down the principle of equality of citizens. The principle of regulating the rights of different parties through a procedure to ensure balance among various conflicting rights and privileges is neither opposed to the principle of equality nor violates the fundamental rights of any individual.
10. Moreover, the principle of "Talab-i-Muwathibat" is also supported by some more sound Ahadith as well. It has been reported by Imam Muslim that the Prophet (p.b.u.h.) has said that the pre- emptor should be informed about the sale so that if he desires he may take and if he desires he may abandon". This Hadith of the Prophet (p.b.u.h.) requires that the decision to take or to abandon the Shufa'ah should be within the shortest possible period to avoid any damage or harm to the purchaser. If the right of the pre-emptor is left open ended, it will be violative of the rights of the purchaser.
11. In view of these finding we do not see any justification to interfere in the judgment of the Federal Shariat Court and to re-open the issue. The appeal is accordingly dismissed.