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VOLUME XLVI 1994

THE

ALL PAKISTAN LEGAL DECIS,IOIS

' SUPREME COURT OF PAKISTAN

P L D 1994 Supreme Court 1


• Present· Abdul Qadeer Chaudhry, Sajjad AU Shah,
Saeeduzzaman Siddiqu~ Pir Muhammad Karam Shah
and Maulana Muhammad Taqi Usman, JJ
Haji Rana MUHAMMAD SHABBIR AHMAD KHAN--Appellant
versus
GOVERNMENT OF PUNJAB PROVINCE,
lAHORE--~Respondent

Shariat Appeals Nos.9, 10, 12 of 1991 and 59 of 1992, decided on 2nd


September, ~993.
(8) Islamic Jurisprudence­

~---Pre-emption---Exemption from law of pre-emption--Exemption of all the


properties situated in urban areas does not fulfil the requirement of Zaroorat
on the basis of which a particular property can be exempted from the
application of the law of pre-emption;
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, if the law of pre-emption is applied to the
urban areas, these strict conditions will not allow the people to me frivolous
suits against the vendees. Therefore, the exemption of all the immovable
properties situat,ed 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
frotO the application of the law of pre-emption. [po 8] A
~ ,
-- ­
2 SC
All Pakistan Legal Decisions VoL XLVI 1994

' concept
rigb I of Zarar
M.uhammad Shabbir Ahmad Khan v. Government
of Punjab Province (Maul ana Muhammad Taqi Usmani, J)
," nor. did they mak' . . for the exe'
, e It Ii precondition '
SC 3

f this '
9

N.-W.F.P. v. Said Kamal PLO 1986 SC 360 and Suo Motu Review
, PLD 1990 SC 86S rer.
1. nstead, the eXIStence of Zarar has bee
emption where a plaintiff has fulfilled the b .n assu:~
emption, such as making of the three Tal:~ ~~ :~
'
m
.

for the
rClSe
every ~e of pre­
r~ght
of pre­
0

(b) Punjab Pre-emption Act (IX or 1991)­ that he wants to avoid Zarar by his la' the c . c auto~atlcally show
the procedure prescribed for the the ~~ bs .Iaunufij0f. pre-emption. Therefore,
If
---S. 2 (a)---Constitution of Pakistan (1973), Art.203(F)(2)---Repugnancy to and aD. additional co d.ti ee a IS ~ IClent to establish 'the right '
Injunctions of Islam---provision of S.2(a) of Punjab Pre-emption Act, 1991 is . .. , n I on to prove the Zarar cann t be' sed
repugnant to Injunctions of Islam to the extent that it excludes all the urban plaintiff m the case of Shur-ah. [po 12] H '' 0 Impo on a
properties and the properties situated within t the auitonment limits
permanently from the application of the Act. [pp. 9,10,22) B, C, D, E & V' (d) Intupretation of statutes­

N.-W.F.P. v. Said Kamal PLO 1986 SC 360 and Suo Motu Review ----A?~lication of basic philosophy of the law cannot be
PLO 1990 SC 865 ref. ' , condition for the application of that law. , taken as a pre­

(c) Islamic Jurisprudence--­ ~d A parti~ulai law, may have been ,enacted to serve a particul "
____Pre-emption---Philosophy of law of pre_emption---Zaroorat---Zarar--­ that la:~;s1~:~~~~~:pl:Oppo~eY'hbasutbiteis 'not nde~ssary for the ap;~~!O~
e n serve 1Deach case' di . d all F
~I~ the law reqfuir~s to s~op the vehicles when the red str':et ~i;al ~ o~r
Removal of Zarar can be taken ,as basic philosophy underlying the law of pre­
emption~--Right of pre-emption cannot be exercised only in the case of
Zaroorat---Procedure prescribed for the three Talabs is sufficient to establish aslC purpose 0 this law IS to avoid accidents but is not " ' . .
case to show that th ,necessary m each
the right and an additional condition to prove the Zarar cannot be imposed on avoided. On the contr ere was ~ apprehension of accident which has been
the plaintiff in case of Shuf'ah.
Law of pre-emption is not based on Zaroorat. The word Zaroorat is a
the law is fully applica~=~~: ~~:e~c:;f
that the basic philosophy underlying tb I
a:
app~ehe~on' of accident,
.ow to ~olate It on lhe ground
specific term which is analogous to the word of necessity and emergency and clear ~t.
the application of basic philo~p~; ~:: ~~C:~~ohere. It is thus
refers to a state where a person is under apprehension or instant death or the precondition for the application of that law. [po11] G ' , t be taken as a
loss of one of his limbs or organs. If it is held thaUhe right of pre-emption can
be exercised only in the case of Zaroorat, it ,will mean that a person can (e) Punjab Pre-emption Act (IX of 1991)­
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, ---:S'~(2)---ConStitution of
Pakistan (1973), Art,203-F(2)·--Re u
and this will be a condition which seems to be absurd on the face of it, and is InjunctIons of Islam---Provision of S 6(2) P 'ab P . P gnancy to
contravenes the Injunctions of Islam. ' ,unJ re-emptlon Act, 1991,
never warranted by any provision in the Holy Qur'an and Sunnah, nor has any
o~ the Muslim Jurists ever opined, that the right of pre-emption is subject to
,, Although the removal of Zarar be ' ' ;. '
'f: er as ~ b~lc philosophy
,t he doctrine of necessity or emergency.
The reference of Zarar, however, in the context of the right of pre­
underlying the law of pre-emption, but in
down in section 6(2) of the Act 1991 it It :n
ni take?
m which It ~ been laid
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 bas been
exercise of the right of pre-empti
OIl the plaintiff without which he I~: ':d as come a precondition for the
onus ~o prove. the Zarar has been laid
logical result of section 6(2) is thatSif en derued the. fight of pre-emption. The
has made all th he '. . a person who 'IS a co-sharer of a vendor
mentioned by the Jurists as the philosophy underlying the law or pre-emption did t . e t. e~ Tala?s reqUired under section 6(1) of the Act 1991 b t
and not as a precondition to 'the exercise of this right. No Jurist has ever said no mention m hIS plaIDt that his claim '
to ~re-emptlon IS based on the
.. " u
that a plaintiff in a case of pre-emption is bound to prove that in the absence of Zarar apprehended by h'un his I:
o~
, c a.m to pre-emption shall be . ed
his claim to the sold property, he will face some kind of Zarar. [po 11) F '0
: : " : : entitled the clam. of pre-emption under the eXP,:"::adi.!::
~ Prophet (p.b.u.h.), but section 6(2) debars him from the r'ght 'f
No doubt, the basic, philosophy of the law of pre-emption is to avoid
laid d o ' : Therefore' this subsect'IOn contravenes the Injunctions of Islam
pre-emption I 0
as
Zarar, but it is not incumbent upon a plaintiff in the case of pre-emption to
wn m the Sunnah of the Holy Prophet (p.b.u.h.). [Pl>. 12, 22] I & V
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 I
All Pakistan Legal Decisions Vol. XLVI 1994 Muhammad Shabbir Ahmad Khan v. Government SC 5

4 SC 9
of Punjab Province (Maulana Muhammad Taqi U smani, J)

(f)~ab Pre-empUon Act (IX of 1991)­ (k) PuaJab Pre-empUon Ad (IX of 1991)­

--S 12--Coostitution of Pakistan (1973), Art.203-F(2)--Repugnancy to -S. 24---Constitution of Pakistan (1973), Art.203-F(2)---Repugnancy to
Inj~ctions of IsIam---Provisions of S•.l2, Punjab Pre-emption Act, 1991 are not IajuDc:tions of Islam---Condition of depositing a certain part of the sale price in
repugnant to Injunctions of Islam. [po 13] J the Court at the time of institution of the suit as contained in S.24 of the Act is tr
DOt repugnant to the Injunctions of Islam. [pp. 19, 22] P & V
(a) CoosUtuUon 01 PakIstan (1973)­ ' '­
2,
(I) PuaJab Pre-emption ~ (IX 011991)- .d
---Art. 203-F(2)-Supreme Court has the jurisdiction to strike ~o,? .a .law
which is found to be repugnant to the InjUnctions of IsIam--Su~. Jurisdictio~ --So 35(2)--Protection afforded by S.35(2)--Plaintiffs who had filed their

however cannot be exercised where a particular law or a proVISlon of law lS suits at a time when Punjab Pre-emption Act, 1913 was not in the field cannot

rep~t to any of the different views taken by different Muslim Jurists,


claim any concession on the basis of Punjab Pre-emption Act, 1913.

unless it is shown that the said law is repugncmt to a verse of the Holy Qur'an

or a Hadith of the HcAy Prophet (p.b.u.h.). [po 15) K


Section 35(2) Punjab, Pre-emption Act, 1991 has protected two

cat~ories of suits. It has protected, fIrstly, the suits instituted after 31st of

(h) ~ab Pre-empUon Act (IX of 1991)­ July, 1986, and, secondly, the suits which were pending at that date. The

judgment in Said Kamal's case had taken effect on 31st of July 1986 whereby

----S. 13(3)---Constitution of Pakistan (1973), Art.203-F(2)-~Repugnancy t.o tilt Punjab Pre-emption Act, 1913 had ceased 10 have effett. Therefore, the

Injunctions of Islam---Provision of S.13(3), Punjab Pre-emption Act, 1991 lS plaintiffs of those cases med their suits at a time when Punjab Pr~emption

not repugnant to Injunctions of Islam. '[pp. 15, 22] L & V Act, 1913 was not in the field, and they cannot claim any concession on the

Suo Motu Review P L D 1990 SC 865 ref. basis of Punjab Pre-emption Act, 1913. [pp. 20, 22] Q & V

(m) IslamJc Jurisprudence­


(I) islamic Jurisprudence­
' aft th -Pre-emption---Requirement of all the three Talabs forms a substantive part
--Pre-emption---AnY improvement in the status of the vendee er e oClslamic Law of Pre-emption. '
institution of the suit does not defeat the right of pre-emptor, no matter
whether the improvemCilt was made by an intentional act of the vendee or h,as The requirement of all the three Talabs forms a substantive part of

taken place according to some natural event, like succession. . Islamic law of pre-emption and failure to make Talabs at their proper time

icsults in extinguishing the very right of pre-emption. From this point of view,

The right of pre-emption arises on the basis of .those states of ~airs there is no difference the persons claiming pre-emption on the basis of heirship

which existed at the time of sale. If the vendee had no right of pre-emptlOn at end the ones who claim pre-emption on the basis of contiguity or co-

that time while the plaintiff had it, the right of the plaintiff is establishe~ which Jharership without meeting the necessary requirement of Talabs, because

cannot be defeated , by any subsequent event which takes place after the both are claiming a right whioh is not recognised by the Shari'ah and

institution of the suit. The same prin~ple has been enumerated,by the scholars acre is no reason to differentiate between the two by giving one of them

of Islamic Jurisprudence also. [p.17] M protection and denying it to the other. All the three Talabs are the

substantive part of the Islamic Law of Pre-emption, but once this. principle is

Any improvement in the status of the vendee after the institution cl established, no concession in this respect is justified from the Shariah

the sw does not defeat the r:Al.t


't 'IS"
of pre-emptor, no matter whether
tak I the . .
wewpomt. [20]
p. R
iinproveOlent was made by an intentional act of the vendee or has en p ace
according to some natural event, like succession. (p. 17] N (I) PuoJab Pre-emption Act (IX of 1991)­

0) PuaJab Pre-eDJptioa Act (IX of 1991)- , -S. 35(2)---Constitution of Pakistan (1973), Art.203-F(2)---Repugnancy to'

Injunctions of Islani---Provision of S.35(2), Punjab Pre-emption Act, ,1991 is

. . f P 1.:_. (1973) Art. 203-F(2)--Provision of "1~paDl to Iniunctions of Islam in so far as it exempts the cases pending or ,
--So 22-Constitutaon 0 aAJMan ,
~
S.22, Punjab Pre-emption Act, 1991 is not repugnant to Injunct}ons of
during the period from 1st of August 1986 to 28th of March, 1990

Islam. [pp. 17,22] 0 & V tbe requirements of Talab-i-Muwathabat and extends the right of

IimilationJor them up to one year.

6 SC AU Pakistan Legal Decisions Vol.XLVl 1994 Muhammad Shabbir Ahmad Khan v. Government SC 7
of Punjab Province (Maul ana Muhammad Taqi Usmani, J) 9
. Section 35(2) of the Punjab Pre-emption Act, 1991 is ~ep~t ~o the
Injunctions of Isiam in so far as it exempts the cases pending or mstltuted to the Injunctions of Islam, while certain other provisions were found to be in
during the per iod from 1st of August, 1986 to 28th of ~arch, 1~ fr?m the eoblormity with the Islamic Injunctions. Both of these fIDdings have been
requirement of Talab-i-Muwathabat, and extends the ngllt of linutatlon for challenged through different appeals and we propose to dispose of all these
a,tpeals by this single judgment.
them up to one year. However, the provision of sendin~ a notice t~ t~e vend~
as contemplated in section 13 of the Act 1991,. can be ~pensed Wl~h ~ relatlOD 2. Before embarking on the issues involved in these appeals, it will be lC
to these suits because as mentioned i:arlier, sendmg of nollce IS not a use~ to note ~atbefore 31st of July, 1986 the law of pre-emption in the 2,
substantive re~uirement in the Shari'ah to effect the ~alab-i-Ishhad. On. Provmce of Punjab was governed by the Punjab Pre-emption Act, 1913. This ~
. contrary, it is a procedural provision enacted by the legIslat~e On the ~aslS . ~ct was rende.red ineff~tjve as from 31st of July, 1986 by virtue of the in
expediency. Therefore, it IS open for the legislature to dISpense With thi$ Judgment of this Court ~ the case of N.-W.F.P. v. Said Kamal, reported in
requirement altogether or wilh respect to certain ca~s. [pp. 21, 22] S & V PLO ~986 SC 360 read Wlth the suo motu review reported in PLD 1990 SC 865
(0) Constitution of Pakistan (1973)-­ (h~eIDafte~ referr~~ to in this judgment as 'Said Kamal's case") whereby a
Dumber of Its proVISIOns were declared to be repugnant to the Injunctions of
----Art. 203-F---Jurisdiction of Supreme Court of Pakistan as Shariat Appellate Islam. The Government of Punjab, then, promulgated some Ordinances to
Bench.--[JurisdictionJ. e~ct a new law of pre-emption in accordance with the Injunctions of Islam,
which were .final~y ~eplaced by the Punjab Pre-emption Act, 1991 (hereinafter
Supreme Court of Pakistan sitting as the Shariat ~i>p~Uate B~nc:J'
referred to ~ this Judgment as the Act 1991). Similarly, in N.-W.F.P., the law
cannot give' relief in individual disputes. Jurisdiction of Court 10 this capaCity I
of.Pre-emptlon was represented by the N.-W.F.P. Pre-emption Act, 1950, but
confined to examine any existing law in the light of the Holy ~ur'~ and
being declared repugnant to the. Islamic Injunctions in Said Kamal's case, it
Sunnah and to declare whether or not a law is repugnant to the InJUDctIons Ii was replaced by N.-W.F.P. Pre-emption Act, 1987. .
Islam. (p. 21) T
3. Certain provisions of both these Acts i.e. Punjab Pre-emption
Act, 1991 and N.-~.F.P. Pre.-emption Act, 1987 were again challenged before
Shariat Appellate Bench of Supreme Court cannot declare whether 01
not a particular provision of law or a judgment of a Court is applicable to III the Federal Sharlat Court ID a number · of petitions fLIed therein. All the
individual suit. [po 22] U '
petitions in respect of the Act, 1991 were disposed of by the Federal Shariat
Appellant in person (in Shariat Appeals Nos.9 and 10 .of 1991~. Court through a single detailed judgment which is impugned before us in these
ap~. .
Ch. Ejaz Ahmed, Assistant Advocate-General Punjab, Raja
Ghafoor, Advocate Supreme Court and Rao Muhammad Yousaf 4. . In order to dispose of the appeals in hand, it will be pertinent to deal
Advocate-on-Record for Respondent (in Shariat Appeals Nos.9, 10 and 12 separately with each section of the Act, 1991, whi~h is subject-matter of any of
1991). these appeals. .
Nemo for Respondents Nos.2 and 3 (in Shairat Appeal No.1O
1991). Section 2(a);
s. Abul Asim Jafri, Advocate-on-Record (absent) for Re:spc)n~lentNclJ.
(in Shariat Appeal No.12 of 1991). . .
5, The Act, 1991 has defmed the "immovable property" in section 2(a) in
Respondent No.2 in person (in Shari at Appeal No.12 of 1991). dle following words:--
Appellant in person (in Shariat Civil Appeal No.59 of 1992).
Nemo for Respondent (in Shariat Ciyil Appeal No.59 of 1992). "Immovable property' means an immovable property situatedin,other
areas than urban area or within Cantonment limits as declared by any
Dates of hearing; 22nd and 23rd February, 1993. law relating to local bodies or Cantonment as the case may be for the
JUDGMENT time being in force." '

MAUlANA MUHAMMAD TAOI USMANI, J.--- All these apllCIll . In this section any immovable property situated in urban area or
arise Ollt of the same judgment of the Federal Shariat Court, dated JIV'.J-.L;I'l'~ Cantonment limits has been exempted from the application of the law of
\ whereby certain provisions of the Punjab Pre-emption Act, 1991 with the result that no immovable property situated in an urban
examined in the light of the injunctions of Islam and were declared rel'lUgJ. .. .M can be pre-empted. The learned Federal Shariat Courl has found this
8 SC All' Pakistan Legal Decisions
1994 9
Muhammad Shabbir Ahmad Khan v. Government
SC 9
of Punjab Province (Maulana Muhammad Taqi Usmani. J)
exemption repugnant to the Injunctions of Islam ~n th~ authori~ ~! ~1 of
. of traditions of the Holy Prophet (p.b.u.h.) detailed m paras. categories of pre-emptors which cannot be· increased. Moreover, no suit for .
judgment. 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 flied within a
6 The question whether some properties can be exempt~ !vbm few months. Keeping all these restrictions in view, one can easiJy reach to the If
Ii ti of the law of Pre-emption has been thoroughlyexamme y
6; 0; ca. 'd Kamal's case and it was held that in the absence of 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 ag~nst the A

2,
Zar':r~t n: property Can be exempted from the Shuf'ah. The relevant DOlrtIOIli vendees.
:d
in the judgment-of Said Kamal's case is reproduced hereunder:-- .
10. It is, therefore, held that the exemption of alJ "1lle immovable
properties situated in urban areas does not fulm the requirement of
". iI). "'Il ~JI;.IL;S~J",J?"J~.JJI~~?ii~/J'(~ i!,JJI" Zaroorat on the basis of which a particular property can be exempted
I":~~ '-~ v" .. Y.k ~ '~;T iD . the Shari'ah from the application of the law of pre-emption. Thus
J.f v:t.lI2...t.lI~JiJ~~S::-JJ'(~{cC;J."~r JI,r ..JM ~;- ,JJII;: section 2(a) of the Act, 1991 is repugnant to th~ Injunctions of Islam to)
SUi~IOJJAOiv:~~J,r j L~,JJ.? ~..t~/{V'" J.
4-1~.
.,:....,
JI; L ~ ~.,c.;.1
,. the extent that it excludes all the urban properties and the properties 8
'Me
~09'I::. UJ.?,JJiJ,JJItJ',J~if. OJ,JJI'i-T-" IJ._ ifIf
~ /JAi • LJI~ )!;-, o.f
situated within the Cantonment limits.permanently from the application of the
~ v:(f'JJ Act. • .

., .. o.IJJJI:T'''..I.' ~. '''J .~..tto=. r:"~ t<·(.~~0J,JI;~. '-~{,JJtjlJ.fu~j 11. The appellant in Shariat Appeal No.10 of 1991 has tried to interpret
,,~ ~~..:...- jI ()It
. ". "-c.£vi ..:..l1~'-('("IOJJAI"J.f~'-~''i-~.f;.'',JJIIT-f~
___ r "v• •",J 1.t..1_ ­ :/ 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
CDumerated in section 134 of the Punjab Local Government Ordinance, 1979.
7. Moreo·ver, I'n the J' udgment of Mr. Justice M.uhammad Afzal Zullah He has prayed that this interpretation be afflfmed, and section 2(a) be
was specifically ~entioned that "if it is once estabbs hed th at thehre are iDterpretation.
declared to be inconformity with the Islamic .Injunctions subject to this
threecategones. of pre-e~ptors, t hen ~. 't will be repugnant tot
. ePLDrel(:vaarl
injunction if they are curtaIled propertyWJse or IDcreased personWlSe 12. The definition of "immovable property" is given in section 2(a) in the
SC 381. following words: of
as
~ ~ ~act ~au1
8 Ml' Chaudhry Ejaz Ahmad, Assistant Advocate-Gener.at
- "immovable property situated in any area other than an urban area or
... bel';'e us that was held in the abovequoted of b .
within cantonment . limits as decla,ed by any law 'elating to Local
case t hat a · proper d .
. ty can be exempted from pre-emption on e aslS Bodies or Cantonments, as the case may be, for the time being in
necessity The properties situated in urban areas have been exe~pte. m force."
Act 199i on this very basis because if the law of pre~~mp~on, IS
applicable to the urban areas also, it will lead to a flood of liti?atioD.ID the The contention of the appellant is that this section does not exclude all

I
'tt' d the sale or purchase of the immovable properties . bemg a1\1\'8Jll1Ihe urban properties from the definition of "immovable property" but those
subject
CJ es an to the law of ,pre-emption, w.ill remam
. uncer tain t'
for th transactions
all tunes to properties only which relate to the locaf bodies or to the cantonments.
h
This may create a· permanant uncertamty and arassmen m e . fi 13. We have given due. consideration to the contention of the appeUant,
h~ dee~ed
the real estates. The legislature in the impugned Act
exemPt all the ..ban ...eas to avoid such ""'assmeo! an sue
litigation. Therefore, the exemption of urban areas should not ave
It it
rit is too far-fetched to be relied Upon. It is obvious that the word "or"
between the wonts ' "...ban ...ea" and "within cantonment limits" is C
which separates the "urban area" from the properties situated in the
declared repugnant to the Injunctions of Islam. limits. Therefore, the "urban area" cannot be restricted to that
9 The argument of the learned counsel mi~t have, been justifi: is situated in cantonment limits only. .
,elation to the Punjab P,e"emption ('oct of 1913 which a !"IM~ ~:'e 14. The appellanl has ""'the, a,sued that the wo,ds "as decl...ed by any
the persons entitled to the fight of f pre-e~Phon.: relating to Local Bodies or .Cantonments" qualify all the preceding words
r uirement of any Talab was necessary, and. t e pen 0 ·urban area" therefore, the section contemplates only those
w"! one ye.... In the Islamic law of pie"emphOn, th",e ...e only wroth ...e 'elating to the Local Bodies and the Cantonmenls.
Vol. XLVI
9
All Pakislan Legal Decisions
1994 Muhammad Shabbir Ahmad Khan v. Government SC 11
10 SC of Punjab Province (Maulana Muhammad Taqi Usmani, J)
. . . able on an" principle of interpret~ti?ii,
15 . This argument also IS not ten • J. Hying the words "WIthin based on Zaroorat and its main purpose is to avoid Zarar. But strangely
he words "as de<:lared by a~y law' dare ~tuha "Iurban area" which has eDough, after accepting this principle, the Court has struck down subsectiQn (2)
fact t d h ' oliling to 0 WI . of section (6), which does nothing but to emphasize on the basic philosophy on
cantonment Iimidts·ban theav:o~d ·or" from the subsequent calcateg!o,,,fI,.pers,·~mIMIII which the iaw of pre-emption is based in Shari'ah, u
totally separate Y . 134 of the Punjab La 2,
a pellant has referred to se~hon . restricted to specify the 19, We have paid due attention to the contention of the learned counse~ :d
cirdinance, 1979, but th~ se~tlon dalsoh IS 0 indication whatsoever to - . ..... ;,.10 seems to have force at the rust glance, bJ.lt a deeper approach to the
I I ounell an as n . 2(a)
vesting in the 0: c "Therefore the interpretation of seCtl~~ f 1991 unveils the misconception underlying it.
specification of "~r an area . 'ble at ali. The Shari at Appeal No. 0
by the appellan~ IS not accepta , 20. There are two words used in section 6(2) i.e. Zaroorat and Zarar. As
therefore, dismissed. ror the word Zaroorat, we have never come across any juristic opinion that the
law of pre-emption is based on Zarooral. The word Zaroorat is a specific term
~ction 6(2).;. . ---The right of ....... _III'.n is analogous to the word of necessity and emergency and as defined in
. h h 'uhi of pre-emption vest£. case of Qazalbash Waqf v. Land Commissioner PunJ'ab (reported in PLD
6 "6. Persons In w om ten
1 . SC 258), refers to a slate where a person is under apprehension of instant
emption shall vest -- ,
or the loss of one of his limbs or organs. If it is held that the right of
(a) firstly. in Shafi Sharik; can be exercised only in the case of Zaroorat, it will mean that a
d can exercise this right only in a case where he is able to prove that
(b) secondly, in Shafi Khalit; an claiming the right of pre-emption he will face an instant danger to his
• (c) thirdly, in Shafi Jar . or his organ, and this will be a condition which seems to be absurd on the F
of it, and is never warr<;lnted by any provision in the Holy Qur'an and
Explanation: . the corpus of nor has any of the Muslim Jurists ever opined, to the best of our
"Shafi Sharik' means a person who is a co-owner 10 that the right of pre-emption is subject to the doctrine of necessity
(1) undivided immovable property sold.
rtid ator in the special right attached to 21. The reference of Zarar, however, in the context of the right of pre­
'
o .

(II) "Shafi Khalit" means a pa h


immovable property sold, suc as fib
'oht of passage, right of PaliSagl:'~~i;)n is relevant and there is a large number of Jurists who have held that
• as
water or right of irrigation. , l a w of pre-emption has been enacLed in Shari'ah to avoid Zarar. But at the t.,
_ ho has a right of pre-emptIOn time it should be kept in mind that the removal of Zarar has been
(Ill) "Shafi Jar" means a person w d' . nt to the immovable by the Jurists as the philosophy underlying the law of pre-emption .
owning an immovable property a jUcc Dot as a precondition to the exercise of this right. No Jurist has ever said I
sold, _ . f a plaintiff in a case of pre-emp.lion is bound t.oprove that in the absence of I,
. . h " n subsection (1), the nght o. • to the sold property, he WIll face some kmd of Zarar. I'
(2) Notwithstandmg any! 109. I f "Zaroorat " or to aVOid Zarar",
shall be excrciseablc only m case 0 . of 22. It may be pointed out here with advantage that a particular law may
. . the exercise of the fight been enacted to serve a particular purpose based on a particular
17. In subsection t· dof
b' (2) to thiS
the con secdt~ot·n,
z. of "roorat
I Ion.... 0
or Zarar, The It ,IS not necessary f at t he app I"lcallon 0 f t hat Iaw to s how t hat
b ut .
emption has been su ~ec cd h' bsection as repugnant to the purpose has been served in each .case individually, For example the law
Shariat Court has declare t IS su 10 stop the vehicles when the red street signal is on. The basic purpose G
Islam. I gued law is to avoid a.ccidents, but il is nol necessary in each case 10 show thaI
. . d te-General vehement Yar , I . f 'd h' h h be 'd' d O h
18 The learned ASSistant A voca h 1 of the Muslim was an appre lenSlon 0 acci ent w IC as en avOi e. n t e
. d 'tion of all the sc 00 s dZ A even in the absence of any apprehension of accidenl, the law is fully

that it is an acceptc p~SI b' sed on the concept of Zaroo rat an .arar. and one cannot be allowed to violate il on the ground that the basic

that the right of ShuPah IS~. I ff ted between the two parties

a vahd sa e e ec f Z underlying the law is not available here. It is thus clear that the
arty cannot ch a II enge •. o· show that some sort a arar . .
to the islamic law unless ~e IS ableht
P 1 The learned Federal Sharlat of basic philosophy of the law cannot be taken-as a precondition for

h' b VIrtue of t at sa e. f application of that law.

been afflicted to 1m y I h s accepted that the l~w 0

according to the learned c01)'nsc, a _,

USC All Pakistan Legal Decisions Vol. XLVI 1994 Muhammad Shabbir Ahmad Khan v. Government SC 13
of Punjab Province (Maulana Muhammad Taqi Usmani, J)
23. No doubt, the basic philosophy of the Jaw of pre-emption is to avoid learned Federal .Shariat Court has not referred to any particular 'Verse of the
Zarar, but is not incumbent upon a plaintiff in the case of pre-emption to prove Holy Qur'an or to a Hadith of the Holy Prophet (p.b.u.h.) to the effect that the
the Zarar in each case individually. The traditions of the Holy Prophet right of revocation of a sale cannot extend beyond three days. Thelearned
(p.b.u.h.) on which the right of pre-emption is based, have never referred to a 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 if
concept of Zarar, nor did they make it a precondition for the exercise of this
the right of revocation should be limited to three days only while according to 2,
right. Instead, the existence of Zarar has been assumed in every case of pre­
other Jurists it can extend to one month; rather, some other Jurists have :d
emption where a plaintiff has fulfilled the basic conditions for the right of pre­
In
emption, such as making .the three Talabs, which will automatically show tha~ extended the period even beyond that. In such circumstances, it cannot be said
that the provision of sixty days contemplated in section U is repugnant to the Ie
he wants to avoid Zarar by his laying the claim of pre-emption. Therefore, the
Ie
procedure prescribed for the three Talabs is sufficient ~o establish the ri~~ ~d Injunctions of Islam or to a specific provision of the Holy Our'an and Sunnah.
an additional condition to prove the Zarar, cannot be lDlposed on a plamtlff m 11. After a careful study of the judgment of the Federal Shariat Court in
the case of Shuf'ah. . this respect, we feel that the argument of the learned Assistant Advocate- J
24. Although the removal of Zarar can be taken as a basic philosophy General has force. There is no specific Hadith of the Holy Prophet (p.b.u.h.)
underlying the Jaw of pre-emption, but in the manner in which it ~~ been laid which confmes the right of revocation to three days only. The traditi9n relied
down in section 6(2) of the Act 1991 it has become a precondition for ~e upon by the Federal Shariat Court is that of Habban Ibn Munqiz (~,:JJ cJ'-l )
exercise of the right of pre-emption ·and onus to prove the Zarar has been laid who was inexeperienced in the business matters and the Holy Prophet
on the pla~tiff without which he has been denied the right of pre-emption. The (p.b.u.h.) had advised him that whenever he enters into a contract of sale, he
logical result of section 6(2) is that if a person who is a co-sharer of a vendor should say to the other party:
has made all the three Talabs required under section 6(1) of the Act 1991, but "I will have the right of revocation for three days."
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 rejecte4: ~uch a 28. On the basis of this Hadith the learned Federal Shariat Court has
person is entitled to the claim of pre-emption under .the express t~adlhons of reached the ~onclusion that the right of revocation is confined to three days
the Holy Prophet (p.b.u.h.), but section 6(2) debars him from the right of pre­ only, but we fecI that this is not the correct interpretation of the Hadith quoted
emption. Therefore, this subsection contravenes the Injunctions .of Islam as above. The Holy Prophet. (p.b.u.h.) had advised him to reserve the right of
laid down in the Sunnah of the Holy Prophet (p.b.u.h.), and the Judgment of revocation for three' days only in the case of Habban, but it is nowhere
the Federal Shariat Court being well-founded, the appeal of the Punjab mentioned in the Hadith that the right of revocation for more than tbree days
Government in this respect is dism.issed. is not allowed in Shari'ab. 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
Section 12: judgment of the Federal Shariat Court itself.
25. Section 12 of the Act 1991 reads as follows:-­ ']!). Since there is no specific prohibition in the Holy Qur'an and Sunnah
"12: RighI to revoke sale.---Where the vendor has stipulated in the contrad against the right of revocation for more than three days and a number of
. of sale· that it is subject to revocation by him within a period, . nd Muslim Jurists also have opined that the right of revocation can be extended to
. ex~eeding sixty days, specified in su~h contract, .the right of pre­ a
one month and the legislature has taken view which is not in direct conflict J
emption shall not be exercised until such period has expired: . 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
Provided that option of defect in, or inspection of, the property or the Government regarding section 12 an? set aside the judgment of the Federal
stipulation as to the vendee's right to revoke the contract of sale shaD Shariat Court in this respect.
not be a bar to. the exercise of the right of pre-emption."
Section 13(3):
The learned Federal Shariat Court has declared this section repugnaDl
to the Injunctions of Islam on the ground that i.t has p~esc~ibed th~ period <i 30. Section 13(3) of the Act 1991 reads as under:-~

sixty days for the exercise of right of revocation while, In the VIew of the
Demand of Pre-emotion:

Federal Sh~iat Court, the right of revocation cannot extend beyond three days.
(1) The right of pre-emption of a person shall be extinguished unless such
26. The learned Assistant Advocate-General raised the objection that the
1994 Muhammad Shabbir Ahmad Khan v. Government SC 15

Vol. XLVI of Punjab Province (Maulana Muhammad Taqi Usmani, J)

9
14 SC All Pakistan Legal Decisions
appellant wants to reopen this issue but his standpoint seems to be
person makes demands of pre-emption in the following order, contradictory. On the one hand he has emphasized on the concept of Taqlid
namely:-­ 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
(a) Talab-i-Mawathabat, Khusumat cannot be taken as fatal to the claim of pre-emption. But on the Ir
other hand, he denies that the Talab-i-Muwathabat is a prerequisite for the 2,
(b) Talab-i-Ishhad, and claim of pre-emption, which is an established view of Imam Abu Hanifah, on :d
(c) Talab-i-Khusumat. the ground that this view of Imam Abu Hanifah is not based on the authentic in
Hadith. In Said Kamal's case, we have referred to the Ahadith on which the
EXJlI1).nation: concept of Talab-i-Muwathabat is bascd and it is also mentioned therein that
(i) 'wralab-i-Muwathabat" means immediate demand by a pre-emptor in the jurists have taken these Ahadith as authentic. Therefore, the objection
the sitting or meeting (Majlis) in wh.ich he ~as come to kn~w of the raised by the appellant against the requirement of Talab-i-Muwathabat is not
saine, declaring his intention to exercise the right of pre-emptlon. tenable.

Nole.-- Any words indicative of intention to exercise the right .of pre­ 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

emption arc suflicient.


right of pre-emption under the view of Imam Abu Hanifah while according to

(ii) "T~ab-i-Ishhad" means demand by establishing evidence. 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 onmam

(iii) wralab-i-Khusumat" means demand by liIing a suit. Muhammad over the view of Imam Abu Hanifah while the view of Imam Abu

(2) When the fact of sale comes into the knowledge of pre-emptor Hanifah should have been preferred.

through any source, he shall make Talab-i-Muwathabat.


33. It should be clarified here that according to the Constitution of

(3) Where a pre-emptor has made Talab-i-Muwathabat under Pakistan (Article 203-F) this Court has the jurisdiction to strike doWn a law

subsection (2) he shall, as soon thereafter but not later th~ two we~ks which is found to be Irepugnant to the Injunctions of Islam as laid down in the

from the date of knowledge, make Talab-i-Ishhad by sen?mg a nollce Holy Qur'an and Sunnah. This jurisdiction cannot be exercised where a

in writing attested by two truthful witnessesun~er a r.eS'~tere~ cover particular law or a provision of a law is repugnant to any of the different views

acknowledgment due, to the vendee confirmmg hiS IOtentlon to taken by different Muslim jurists, unless it is shown that the said law is

exercise the right of pre-em ption: r.epugnant 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 Hply
Provided that in areas where owing to lack of Post Office facilities it is Qur'an and Sunnah against subjecting the right of pre-emption to making three
not possible for the pre-emptor to give registere~ notice, he may make Talabs without an inordinate delay.
Talab-i-Ishhad in the presence of two truthful witnesses.
34. Moreover, the appellant himself had admitted that Imam Muhammad

(4) Where a pre-emptor has satisfied the requireme~ts of Talab-i­ is of the view that the delay in Talab-i-Khusumat nullifies the right of pre­

Muwathabat under subsection (2) and Talab-I-Ishhad }lnder emption. Even a large number of Hanif Jurists have preferred this view. In

subsection (3), he shall make Talab-i-Khusumat i~ the Court of Raddul Muhtar, a well-known book of Islamic Fiqh, it is mentioned by Ibn-e­

competent jurisdiction to enforce his right of pre-emptIOn. Abideen:

31. Haji Rana Muhammad Shabbir Ahmed Khan, the appeUa~t in S~ariat
Appeal No.9 of 1991, while appearing in person, had challenged thiS secllon of
the Act 1991 on the ground that it has made the thre~ Talabs a man~atory
requirement for the exercise of the right of pre-em.ptlon. W~ heard him at wrhe Fatwa should be given today on the basis of the view of Imam
length and also perused the written arguments submitted by him. I.n fact, ~e Muhammad 'because a. big change has taken place in the
question of the requirements of three Talabs has ~een thoroughly dlScu~e~ 10 circumstances: (see Vo1.6, p.226).
Said Kamal's case where it was held on the authOrity of a numbe~ of tr~dltlons
that the right of pre-emption is subject to these t~ree Talabs. ThiS findmg has 35. • Another objection raised by the appellant is that the requirement of
been affirmed by Suo Motu Review (reported 10 PLO 1990 SC 865). The
All 1994
16 SC Pakistan ~gal Decisions Vol. XLVI ~uhamm~d Shabbir Ahmad Khan v. Government SC 17
of Punjab ProVIilce (Maulana Muhammad Taqi Usmani, J)
TaIab-i-Ishhad means nothing more than that the pre~emptor expresses his ~dvocate-General. The learned Federal Shariat Court while d·din .
intention to claim pre-emption before two witnesses, but section 13(3) of the ISSue, has not referred to any provision ofthe Our' S'unnah eCl g this
Act 1991, as reproduced earlier, has made it mandatory on the pre-emptor ~o of Islamic Juris d . an or or to any book
. . pru ence; mstead, reliance is placed on section 21-A f
issue a notice to the vendee that he intends to file a suit of pre-emption against prevIOus Punjab.Pre-emption Act, 1913 since repealed, which ds °d the
him. The appellant's contention is that such a notice has not been made , rea as un er:-­
mandatory by any of the Muslim Jurists, therefore, the provision of such a "21-A.--Any in!provement, otherwise than through any inh ·t
su . d· en ance or
notice is against the Injunctions of Islam. . c~ss..on, rna ,e. m the status of a vendee-defendant, after the
L
mstltutlOn of a SUIt for pre-emption shall not affect th .gh f
36. We have found that the point raised by the appellant has been duly emptor-plaintiff in such suit." e n t 0 pre-
taken care of by the Federal Shariat Court in its j.udgment. It is true that the
notice is not a necessary ingredient of Talab-i-Ishhad, but it is evident that this I .4~. It appea:s t.hat while framing section 22 of the Act, 1991 th
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.
I
~:~~,::u:e~~i~d~:e ~:r!~o~:~: saidhrsectio~ 21(~),
o.f ththe andh~ :a
I ed F d al lWISe an tough inhentance" Th
Procedural provisions may vary from time to time according to the expediency earn . e . er Shariat Court has found the omission' of this hras . . e
the Injunctions of Islam on the ground that th . p e a s agamst
and in so far as they do not violate any Injunction of Islam they cannot be held acco t f e lDlprovement taking place on
repugnant to the Holy Our'an and Sunnah. . un 0 a natural factor, such its inheritance should ha be
~egarded. But we feel that if the legis~ature had deemed it fitV~o :~it t :
37. For the reasons stated above, the Appeal No.9 of 1991 with regard to p ase and to protect the pre-emptor agamst all kinds f· .
section 13(3) of the Act, 1991 is hereby dismissed. ;otviolate any !njunction of Islam as laid down : t:p~;~mg:::! d:~
unnah, rather It seems more pertinent to treat all kinds f b
Section 22: improvements equall Th .. 0 su sequent
his status b his y.. e question IS n~t whether the vendee has i,mproved
38. Section 22 of the Act 1991 reads as foIlows:-­ . y consc~ous a~t or othelWlSe. The question is one of rinei Ie
~e ~ight of p~e-emphon anses on the basiS of those states of affah.s w~ch
"22. Improvement made in the status of the vendor-defendant after
~X1St ~t the hme. o~ sale. I~ the vendee had no right of pre-emption at that
time w~ ~~e plamtiff had It, the right of the plaintiff is established,' which
institution of the suit.--Any improvement made in the status of a
vendee-dCrendant after the institution of suit for pre-emption, shall ~ot. efeate~ by any subsequent event which takes place after the M
not affect the right of pre-emptor plaintiff."
~~~mti°l.cnJof ~he sUdIt. Thelsame principle has been enumerated by the scholars
urlSpru ence a so.
39. The learned Federal Shariat Court, while discussing the vires of this
section, has reached the conclusion that if an improvement has been made by It is mentioned m AI-Fatawa ' A1-Almgiriyyah, a well-known
the conscious act of the vendee, it may be objectionable for being tainted with compilation of Fiqh:
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 -(o.Jr-,q(,,-u,/1~)~;r~~A/fV!b~cfli,r,c),~~,
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 ~e princi~le is. t~at pre-emption could only be claimed on the basis
basis Of this rmding, the learned Federal Shariat Court has directed the Punjab o ownershIp e~sl1~g at the time of sale and not on the basis of a
Government that the phrase "other than through any inheritance" should be subsequent ownershIp." .
inserted in section 22 of the Act.
40. . The learned Assistant Advocate-General contended that the learned ::lS~3.
A careful study of the relevant details in the books of Isla '. I
rudence.makes it c1e~ that the Muslim jurists are of the opinion that :~c i
p
Federal Shariat Court has not cited any verse of the Holy Our'an nor any aoi~o~e~e~~ m .ghthe s~atus cif the vendee after the institution of the suit doc~ jl N
tradition of the Holy Prophet (p.b.u.h.) to show that section 22 of the Act 1991 e ea . e rJ • t 0 pre-emptor, no matter whether the improvement was
is repugnant to the Injunctions of Islam or that the insertion of the proposed made by an mtentlonal act of the vendee or has taken place acco d· t
phrase therein is necessary. Datural event, like succession.' r mg 0 some

41. We are inclined to accept this contention of the learned Assistant 44. Therefore, it is held that section 22 of the Act 1991 is not repugnant to 10
;

Vol. XLVI ·1994 · Muhammad Shabbir Ahmad Khan v. Government SC 19


All pakistan Legal Decisions
18 SC of Punjab Province (Maulana Muhammad Taqi Usmani, J)
..d d in the Holy Qur'an and Sunnah. The \0 . 47. It is, therefore, held that the condition of depositing a certain part Of)
fu~~:~~~~h~f :~t;::S~:riat ~~urt in~his respect is set and theasi~e the sale price in the Court'at the time of institution of the suit as contemplated · p
under section 24 of·the Act 1991 is not repugnant to the Injunctions of Islam as
I
appeal of the Punjab Government IS accepted. . . , laid down in the Holy Qur'an and Sunnah. The Appeal No.9 of 1991 in this
respect is dismissed. . . . . If
S$<ction 24: 2,
45. Section 24 of the Act 1991 reads as follows: Section 35: :d
. I . f th ont'·rtv --(1) In every suit for pre­ 48. Section 35 of the Act 1991 reads as foUows:~- in
"24. Plaintiff to depOSit sa e pnce 0 e pr r;Uf· · ., ch Court Ie
emption, the Court shall require the plaint~f t~~t!:s~ch period "35. ~--(1) Notwithstanding anything in any other law for the time Ie
one-third of the sale price of the property 10 .
. being in force, all the decrees, judgments or orders dismissing the suits :a
as the Court may foc of pre-emption, instituted or pending between the 1st day of
. d bond thirty days of the August, 1986 and the 28th March, 1990 (both days inclusive) in which
Provided that such penod shall not exten ey
filing of the suit: the right of pre-emption was claimed as is available under this Act
.' t" ned in the sale-deed or shall be of no legal effect, and such suits on an application made by
Provided further that if n~ sale pnce ~ men 10 . be inflated, the
the aggrieve4 persons within sixty days of coming into force of this Act
in the mutation or the pnce so mentIOned appears to I al f th
shall subject ~ to subsection (2), be decided afresh according to the
; Court shall req~re deposit of one-third of the probab e v ue 0 e
provisions ther~of.
property. . . . .hin (2) . Notwithstanding anything in sections 13 and 30, in respect of the suits

. t"ff fails to make a depOSit under subsection (1) Wlt


h a pIam I
(2) Were • h 0 deposited by mentioned in subjection (1), the period of limitation shall be one year

the period flxedby th~ C~urt, or Wlthdraws t. e sum s and it shall be sufficient if the pre-emptor establishes that he had

him, hiS suit shall be dismISSed. made Talab-i-Ishhad in presence of the two truthful witness.e~

(3) Every sum deposited under subsection (1) shall not affect the final 49. It should be noted for · a pfoper understanding of this saving clause
determination of the price payable by the pre-emptor. , that the . decision of this Court in Said Kamal's case took effect on 31st of
The a ellant in Appeal No.9 of 1991 has challenged ~ provision on .July, 1986 whereby the Punjab Pre-emption Act, 1913 ceased to have effect.
46. pp . Sh "ah to deposit one-third of the sale 'The Government of Punjabwas supposed to enact a fresh Law of Pre-emption
the basis that it is not necessa~ 10 an ed to a number of juristic on the basis if Islamic Injunctions before 31st of July, 1986. But unfortunately
price within the stipulated penod. He h~. re~erru ence where it is held that the new law was not promulgated before 29th of March, . 1990. In the
opinions mentioned in the books of IslamiC Jun~pr d th' f filing his suit
intervening period no statute law was available with regard to pre-emption.
the pre-emptor is. not liable to bring the :ef~~C; ~ pr~=':y provision of The purpose of section 35 is to protect all those suits which were instituted or
of pre-emption. But the appe~an~ has ag H h himself admitted that there were.pending during thiS interregnum period subject to the condition that the
the Holy Qur'an and .S~ah 10 hiS support" \~ts in this respect. Although right of pre-emption is available for the plaintiffs under the law of pre-emption
is a difference of ?p1Olon among ~heH~~ .!nd Imam Abu Yousuf, it is not
m
which was promulgated on 29th of March, 1990. However, by' virtue of
according to the View of Imam Au. rice while filing the suit, yet subsection (2) such suits were exempted from the application of section 13 of
mandatory on the pre-empto~ to depOSit the saleJ. be imposed on him.
the Act and were consequently given a concession regarding the requirement
Imam Muhammad is of the View that such a con l1~n can Imam Muhammad
f of Talabs. The period of limitation was extended for such suits to one year and
It is obvious that the legislat~re has. adopted eds ~ew °time The legislature,
the
the requirement of Talab-i-Muwathabat and requirement of sending a notice
'ch t be more consistent Wlth the ne 0 our '. I
whi seems o . . ' h . taken into consideratIOn the 003 to the vendee was dispensed with.
while framing this sectIOn, has per aps fi al decision of a suit of
period of litigation which is normally spenltd~hfore t:~i:ed the right of pre­ SO. The learned Federal Shariat Court held that the requirement of all the

. If I Muhammad cou ave s J • •


three Talabs being a substantive part of Islamic . law of pre-emption, as

pre-emption. mam .. h I rice while the legal swts In


emption to the condition of ~ep.osltmg t e sa .e-p th; legislature of today can declared in Said Kamal's case, the cOncession given in section 35(2) for the .

those days used to conclude Wlthm abf~w da~~:;hat the non-depositing of the pending suits is repugnant to the Injunctions of'Islam.

ut such a condition for the more 0 VlOUS r .


~e price may encourage the frivolous suits of pre-emption. 51. The learned Assistant Advocate-General contended before us that this
20 SC All Pakistan Legal Decisions Vol. XLVI 1994 Muhammad Shabbir Ahmad Khan v. Government SC 21 9
of Punjab Province (Maulana Muhammad Taqi Usmani, J)
saving clause is meant to protect the rights of those pre-emptors who had filed pre-emption on the basis of contiguity or co-sharership without meeting the
the suits of pre-emption before the operation of the judgment of this Court in necessary requirement of Talabs, because both are claiming a right which is
Said Kamal's case. Since, in those days, the Punjab Pre-emption Act, 1913 was not recognised by the Sharjah and there is no reason to differentiate between
in force where the requirements of Talabs were not mandatory, the plaintiffs the two by giving one of them protection and denying it for the other. R
who had rued suits of pre-emption without making such Talabs had committed lr
no wrong, and it was in all fairness to them that they should be protected while 56. We need not repeat the provisions of Sunnah 'of the Holy Prophet 2,
enforcing a new law. It was in this context that section 35 was framed and it (p.b.u.h.) on the basis of which it was held in Said Kamal's case that all the :d
should not have been declared repugnant tOo!the Injunctions of Islam. , three TaIabs are the substantive part of the Islamic Law of pre-emption, but ID
once this principle is est~blished, no concession in this respect is justified from Ie
52. We have paid due attention to the coqtention of the learned counsel. the Shariah viewpoint. The reasons given by the learnedFederal Shariat Court Ie
In fact, section 35(2) has protected two categories of suits. It has protected, in this respeq are well-(ounded and the judgment given on their basis needs no
firstly, the suits instituted after 31st of July, 1986, and, secondly, the s~ts which in~erference by this Court. ",
were pending at that date. The argument of the learned counsel ~th reprd to
the fIrst category (i.e. the suits instituted after 31st July, 1986) is misconceived 57,. H ~ thrrefore, ~eld tb~ sec~ion 3S(~) ,of t~e Act 1991 is repugnant to
on the face to it, because the judgment in Said Kamal's case had taken effect the IOJUll~tlOns of Islam m so far as It e~omptitb~ cases pending or instituted
on 31st of July 1986 whereby the Punjab Pre-emption Act, 1913 had ceased to 4\1finS the period frolll 1&t of A\lgu~t, 19M to 28th of Marcil, 1990 from the,
have effect. Therefore, ,the plaintiffs of those cases filed their suits at a time requirelll~nts of Talab-i-Muwathabat, and ext~nds the tight of limitation for
when Punjab Pre-emption Act, 1913 was not in the fIeld, and they cannot claim
them up to one year, However, the provision of sending a notice to the ~endee, 5
as contemplated in,section 13 of the Act 1991, caJl be dispensed with in relation
any concession on the basis of Punjab Pre-emption Act, 1913.
to these suits, because as mentioned earlier, sending of notice is' not a
53. However, the argument of the learned counsel may apply to the suits substantive requirement in the Shari'ah to effect the Talab-i-Ishhad. On the
pending on 31st of July, 1986. But if this argument is accepted in its full force, contrary, it is procedural provision enacted by the legislature on the basis of
it should have been applied to those plaintiffs also who were entitled to the expediency. Therefore, it, is open for the legislature to dispense with this
right of pre-emption in the Act of 1913 but were denied this right under the requirement altogether or with respect to certain cases.
Act, 1991. For example heirship was a valid ground for pre-emption under the
previous Act of 1913, but it is not a valid ground under the existing Act, 1991. 58. With these observations the appeal of t,he Government of: Punjab in
Now, if a plaintiff rued a suit of pre-emption on the ground of heirship before relation to section 35(2) is hereby dismissed.
31st of July, 1986, he could argue that he,bad instituted the suit at a time when , 59. Sh;uiat Civil Appeal No.59 of 1992 has been ftled by Mr. Mir Afzal
heirship was a valid ground for pre-emption, therefore, his right shouldobe S?n of G~uIam Rasool who had instituted the suit of pre-emption in a property
protected under the new law. But the legislature did not protect his suit under SItuated Ul Abbottabad but in accordance with section 29 of the N.-W.F.P~ Pre­
section 35 for the simple reason that his claim to pre-emption is not warranted ~mption Act, 1987 that property Was exempted from the application of the law
by the Injunctions of Islam. The same reasoning should have been adopted in of pre-emption. This section 29 of the N.-W.F.P. Pre-emption Act, 1987 has
the' cases where the plaintiffs had rued their suits without fulfilling the been declared by the Federal Shariat Court as repugnant to the Injunctions of
necessary requirements of Talabs in their proper times. But the legislature has Wam with effect from 31-12-1991. As the suit of the appellant was ftled before
fully protected the cases of the latter under section 35(2) while the former have that date, he could' not perhaps benefit froniihe judgment of the Federal
not been given any protection. ' Shariat Court. 'Therefore, he has prayed this Court to declare that the
"

54. It shows that the legislature has not taken the provisions of Talabs as a judgment of the Federal Shariat Court, dated 17-3-1991 whereby certain
substantive part of the Islamic law of pre-emption, and, treating it a procedural provisions of the N.-W.F.P. Pre-emption Act, 1987 including section 29 thereof,
matter, has given concession to the pending ~s in this respect. have been declared un-Islamic should be made applicable to his (!lJSe also.

55. It is fully established in Said Kamal's case and also in a large number 60. In fact" we, .while sitting as the Shariat Appellate Bench of the
of subsequent cases decided by this Court that the requirements of a,Il the three Supreme Court of Pakistan, cannot give ~uch a relief in individual disputes.
Talabs form a substantive' part of Islamic law of pre-emption and failure to O\lf jurisdiction in this capaCity is confmed to examine any existing law in the :r
, make Talabs at their proper time results in extinguishing the very right of pre­ light of the Holy Qur'an and Sunnah and to declare whether or not a law is
emption. From this point of view, there is no difference between the persons repugnant to the Injunctions ofIslam. Section 29 o(the N.-W.F.P. Pre-emption
claiming pre-emption on the basis of heirship and between the ones who claim Act, 1987 h~ been declared by the Federal Shariat Court as repugnant to the
22 SC All Pakistan Legal Decisions Vol. XLVI . 1994
NasruDahKhan lienjrav. Government
SC 23
of Pakistan (Saad-Saood Jan, J)

Injunctions of Islam and the Appeal ftled by the N.-W.F.P. Government in this
Court against the said judgment has also been withdrawn by the Provincial P L D 1994 Supreme Court 23

Government. Therefore, the impugned provision of section 29 is no more Present: Saad Saood Jan, AjmaJ Mian and

existing on the statute book. We cannot declare whether ' or not a particular Saeeduzzaman Siddiqu4 JJ

provisions of law or a judgment of a Court is applicable to an individual suit.


The appeal is, therefore, misconceived and is consequently dismissid. e,p,LA. No. 15 of 1993
II'

ConclUsion: NASRULLAH KHAN HENJRA---Petitioner


2,
tel
. 1. The upshot of the above discussion is that the fonowing provisions of versus
lD
the Punjab Pre-emption Act, 1991 are declared to be repugnant to the Ie
GOVERNMENT OF PAKISTAN, MINISTRY OF INTERIOR

Injunctions of Islam as laid down in the Holy Qur'an and Sunnah of the Holy
AND NARCOTICS CONTROL, ISlAMABAD

Prophet (p.b.u.h.):--· ,.
. and 3 others---Respondents
(i) Section 2(a) in so far as it excludes from the deflOition of 'immovable (From the judgment/ord flab'
property" all properties situated in urban areas or within Cantonmenl
. ( . dated 22-12-1992 in Writ Petition ~0~130 OfO~~l~ Court, RaWalpindi Bench,
li m~ . . ' . I

C.P.LA_ No. 485 of 1993


(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 Shuf'ab on the basis of KHALm KHAN and another---Petitioners
Zaroorat or to avoid Zarar.
versus
(iii) Section 35(2) in so far as it exempts the suits of pre-emption u'""UILUU... . GO
or pending between 1st day of August, 1986, and 28th March, VER~E~ OF PAKISTAN through Ministry
from the requirements of Talab-i-Muwathabat and because they . 0 ntenor and Narcotics Contro~ .
extended the period of limitation for such suits to one year. The Islamabad and 3 others---Respondents
Appeal No.12 of 1991 rued by the Government of Punjab with rp.IY:utl . (From the judgment/orde f L a b '
to these three sections is dismissed. dated 3-10-1993 in Writ Petition N~.~2 Qf ~::nf.lgh Court, Rawalpindi Bench,
(2) The following provisions of the Punjab Pre-emption Act, 1991 are C.Ps.LA. Nos. 492 to 494 of 1993
found repugnant to the Injunctions of Islam: ' - -
(i) Section 13(3). Mst. AKHTAR MALIK and 2 others---Petitioners
(ii) Section 22. versus
(iii) Section 24. FEDE~TION OF PAKISTAN through Secret
The appeal of the Punjab Government with regard to these Intenor, Islamabad and 5 others---Respondent;'
sections is allowed. (F h' d .
. . rom t e JU gment/order of Lahore High C . .'
3. Shsriat Appeal No.9 of 1991 (Haji Rana t-fuhammad Shabbir AbIlDMII""...... 3-10-l993 in Writ Petitions No&.963,964 and 971 ~~)~alPlOdi Bench,
v. GoveI1l!lient of Punjab), No.10 of 1991 (Jan Muhammad v. GoverilmeDt N

Punjab), and No.59 of 1992 (Mir Afza1 v. Ejaz Akbar) are dismissed. os.15, 485 and 492 to 494 of 1993, decided on 13th October, 1993.

4. This decision shall take effect on 31st of December, 1993 whereby Extradition Act (XXI or 1972)­
provisions of Punjab Pre-emption Act, 1991 declared to be repugnant to
. . . of Pakistan (1973) Art 15 & F d al . . '.
Injunctions of Islam shaD cease to have effect to the extent of their Part I, item No.3---Soo f ' . '. e er legIslative
M.BA./M-1827/S Order Act 19'n' ~ 0 Art,15, Constitution of Pakistan (1973)--­
• ~Istituti()n;~.-J ' IS n~t VOId on account of its conflict with Art 15 f th
. lI'es of legISlation]. . 0 e