' MUNIR A. SHEIKH, L---Through this common judgment, we propose to decide Civil Petitions Nos.1261 and 1820 to 1823 of 2001 involving identical questions of law and facts.
2. The facts of the case as given by learned counsel for the petitioners relevant for disposal of these petitions shortly stated are that a decree was passed against the petitioners and in favour of the respondents in a suit filed by the latter for the recovery of price of maize supplied to the petitioners.
It was contested by the petitioners. The trial Court, however, after considering the evidence produced by the parties decreed the suit alongwith interest at the specified rate under section 34, C.P.C. And the proceedings for satisfaction of the said decree are still pending before the trial Court
3. On 14-11-1994, Regulation II of 1994 known as Provincially Administered Tribal Areas (Nifaz-e- Nizam-e-Shariah) Regulation, 1994 was enforced. Section 8 of the said Regulation reads as under:- - "8. Conduct of Judicial Officers.---(1) The conduct of Judicial Officers specified in the Schedule II shall be in accordance with the Islamic Principles.
(2) Government may, from time to time, take such measures for the purposes of subsection (1) as it may deem necessary."
4. The petitioners moved an objection petition before the Executing Court objecting to the recovery of any amount granted in the decree as interest by arguing that section 8(1) ibid provides that the conduct of Judicial Officers specified in the Schedule II shall be in accordance with the Islamic principles, therefore, the Presiding Officer/Executing Court was bound to disallow the interest allowed in the decree. Learned counsel for the petitioners submitted that in view of section 11 of the said Regulation which provided that notwithstanding the repeal of laws under the said Regulation, the same would not affect the previous operation of law, instrument, etc. And any right, privilege, obligation or liability accrued, therefore, the said objection petition was withdrawn.
5. Subsequently, however, Regulation No,1 of 1999 known as Shari-Nizam-e-Adl Regulation, 1999 was promulgated with effect from 16-1-1999, section 8 of which reads as under:--- "8. Conduct of Judicial Officers.---The conduct and character of Judicial Officers and Executive Magistrates shall be in accordance with the Islamic principles.
(2) Notwithstanding anything contained in any law for the time being in force, all cases, suits, inquiries, matters and proceedings in Courts, pertaining to the said area shall be decided by the Courts concerned in accordance with Shariah: ' Provided that cases of non-Muslims in matters of adoption, divorce, dower, inheritance, marriage, religion, religious rites, usages and wills shall be conducted and decided in accordance with their respective personal laws.
(3) Government may, from time to time, take such measures for the purpose of sub-paragraph (1) as it may deem necessary."
6. In view of sub-paragraph (2) of section 8 of this Regulation, fresh objection petitions were filed against the recovery of any amount as interest being repugnant to Injunctions of Islam and Sunnah of Holy Prophet (p.b.u.h.) which have been dismissed through order, dated 6-2-2001 by Civil Judge/Qazi. Appeals filed by the petitioners against the said order were dismissed by the learned District Judge/Zila Qazi through judgment, dated 14-3-2001. Revision petitions filed by them were also dismissed by the Peshawar High Court through the impugned judgment, dated 18-5- 2001 against which these petitions have been directed.
7. Learned counsel for the petitioners raised the following contentions in support of these petitions:- --
(a) That in view of section 8(2) of Regulation No,I of 1999, all the proceedings pending before any Court are required to be decided according to the Shariah, therefore, any amount under decree as interest could not be recovered and the execution application to that extent was liable to be dismissed.
(b) That according to the law declared by the superior Courts in particular observation made in the judgment reported as Dr. M. Aslam Khaki v. Syed Muhammad Hashim and 2 others (PLD 2000 SC 225), every Court under Article 2A of the Constitution could decide the cases in accordance with Shariah without having recourse to the Federal Shariat Court under Chapter 3-A of the Constitution for getting a declaration that a particular law was repugnant to the Injunctions of Islam and Sunnah of Holy Prophet (P.B.U.H.), therefore, by virtue of the said declaration, even independently from sub-paragraph (2) of section 8 of Regulation No,I of 1999, the trial Court was bound to decide the execution petition according to Shariah Law.
8. The examination of Regulation No,I of 1999 as a whole shows that it was promulgated and enforced with effect from 16-1-1999 and was operative prospectively. In the judgment of Dr. M.
Aslam Khaki (supra), section 34, C.P.C. Was declared to be repugnant to Injunctions of Islam and Sunnah of Holy Prophet (p.b.u.h.) to the extent that instead of grant of interest, the Court should be empowered to grant compensation for non-payment of the amount due or for its delayed payment with effect from 30-6-2001. The provisions of section 34, C.P.C. To that extent ceased to be the law with effect from 30-6-2001 by operation of Chapter 3A of the Constitution. In view of this judgment and the-date having been fixed under the provisions of the Constitution as to from which date the said-provisions of Civil Procedure Code would cease to be the law, we are not called upon to examine the contention of learned counsel for the petitioners as to the effect of sub-paragraph
(2) of section 8 of Regulation No,I of 1999 and the effect of Article 2A of the Constitution. The declaration by the Shariat Appellate Bench of this Court in the said judgment (supra) also provides that the decree-holder could be ordered to be paid additional payment on account of compensation. It is also necessary to take notice of section 12 of Regulation No,1 of 1999 which reads as under:-- "12. Repeal.(1)---The Provincially Administered Tribal Areas (Nifaz-Nizam-e-Shariah) Regulation, 1994 (N. W. F. P. Regulation II of 1994), is hereby repealed.
(2) Notwithstanding the repeal of the Regulation under subparagraph (1) or cessation of any law, instrument, custom or usage under paragraph 4, the repeal or cessation, as the case may be, shall not---
(a) revive anything not in force or existing at the time at which the repeal or cessation takes effect;
(b) after the previous operation of the law, instrument, custom or usage or anything duly done or suffered thereunder;
(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under the law instrument, custom or usage,
(d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against the law, instrument, custom or usage, or
(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment; and any such investigation, legal proceeding or remedy may be instituted, continued, or enforced, and any such penalty, forfeiture or punishment may be ceased to have effect, as the case may be."
9. The liability to pay additional amount under section 34, C.P.C. Was determined as far back as in 1979 which decree had become final and past and closed transaction and the above mentioned provisions of Regulation No,I of 1999 if read alongwith judgment of Shariat Appellate Bench of this Court in the case (supra) has left no ambiguity that the same has to be executed and given effect to. Through the objection petition, the petitioners wanted to re-open the case and get that part of the decree annulled, therefore, it has been rightly held by the Courts below that Executing Court could not go behind the decree. The provisions of Regulation No,I of 1999 could be pressed into service at the stage when the rights and liabilities of the parties in a suit are determined and the law applicable at that time is to be followed.
10. For the foregoing reasons, the judgments impugned in these petitions do not suffer from any legal infirmity or jurisdictional efect, D therefore, these petitions have no merits which are accordingly dismissed and leave refused.
11. No order as to costs.