ABDUR RAUF KHAN LUGHMANI J.---Relevant facts for the disposal of this petition are few and simple.
The suit of Sher Afzal Khan, Predecessor-in-interest of the petitioners and respondents Nos. 12 and 13 for possession through pie-emption of certain property situated in the limits of Tootano Bandi, Tehsil Kabal, District Swat, filed under the provisions of the Provincially Administered Tribal Area Civil Procedure (Special Provision) Regulation, 1975 (Regulation II of 1975), against Bakht Rawan (respondent No.4) was dismissed by E.A.C. Saidu (respondent No.3) on 12-11-1980 on the ground that the sale in favour of the vendee was exempt from pre--emption under section 5(c) of the Pre- emption Act, 1950. The pre-emptor filed an appeal before the Additional Commissioner, Malakand (respondent No.2) but with no success, as the same was dismissed, 'vide judgment, dated 14-6- 1993. He made yet another unsuccessful attempt before Additional Secretary Home and Tribal Affairs by filing revision which was turned down on 25-3-1997. Now, the petitioners, three in number, claiming to be the legal heirs of the deceased Sher Afzal have filed this Constitutional petition challenging the dismissal of their claim of pre-emption by the lower forums as being illegal and want remand of the case to the trial Court for trial afresh.
2. Mr. Waris Khan, the learned counsel for the petitioner, voiced grievance that all the three forums, namely respondents Nos. l to 3 failed to take into account the decision of the Supreme Court in case of Government of N.-W.F.P. v. Said-Kamal Shah (PLD 1986 SC 360) wherein the provision of section 5(c) of the N.-W.F.P. Pre-emption Act, 1950 was declared un---Islamic. He maintained that change in Pre-emption Law is applicable to pending matter. In other words, he wanted us to give retrospective effect to the decision of the Supreme Court.
3. Clause (2) of Article 203-D of the Constitution, which is also applicable by virtue of Article 203- F(2), makes it obligatory, to specify the date on which the decision shall take effect. However, no such decision shall be deemed to be effective before the expiry of three months within which an appeal has been preferred to the Supreme Court or, an appeal has been so preferred, before the disposal of such appeal. In others words, the decision of the Supreme Court regarding section 5(c) of the N.-W.F.P. Pre-emption Act could not be given effect before 31-7-1986. Another insurmountable hurdle in the way of the petitioners is change in pre-emption law is taken to be retrospective, that would not benefit the petitioners, rather it will further damage their case, in that, under the provision of the N.-W. F. P. Pre--emption Act, 1987, the petitioners have admittedly not fulfilled conditions of talabs. Resultantly, the writ petition is dismissed, being without merits.