Muhammad Ismail Qureshi Vs. Government of Punjab and others

f

IN THE FEDERAL SHARIAT COURT

(ORIGINAL JURISDICTION )

ijjlj '— i-p- J a 31 1— ^,1 ^^Jjl *_iL J i U J l Ljlj

PRESENT' MR.JUSTICE DR.TANZIL-UR-RAHMAN CHIEF JUSTICE

------ * MR.JUSTICE IBADAT YAR KHAN

MR.JUSTICE DR.FIDA MUHAMMAD KHAN

MR.JUSTICE ABAID ULLAH KAHN

1. SHARIAT PETITION NQ.6/L OF 1990

Mubammad Ismail Qureshi, Lahore ..... Petitioner J Versus

Govt, of Punjab Respondents J Petitioner -In-person

For Respondents Malik Maqbool Elahi, A.G. Punjab Mr.Nazir Ahmad Ghazi A.A.G.Punjab.

M r .Mohammad Younas Qureshi,Advocate.

Date of Institution 7.5.1990 Dates of Hearing 11,12,13/February,1991

2.SHARIAT PETITION No.7/L OF 1990 Haji Rana Muhammad Shabbir Petitioner Ahmad Khan,Multan

Versus

Provincial G o v t . o f .... Respondents Punj a b ,Lahore

Petitioner .. • • in person For respondents .... Malik Maqbool Elahi, A.G.Punjab.

Mr.Nazir Ahmad Ghazi, A.A.G.Punjab Muhammad Younas Qureshi,Advocate.

ik.

Date of Institution .... 10.5.1990 Datesof Hearing .... 11,12,13/February,1991

3. SHARIAT PETITION N0.26/L OF 1990

Haji Rana Muhammad Shabbir ... Petitioner - Multan

Versus

Provincial Govt, of Punjab, .... Respondents Lahore -

Petitioner. .... In person

For Respondents Malik Maqbool Elahi,A.G. Punjab Mr. Nazir Ahmad Ghazi, A.A.G.Punjab Mr.Mohammad Tounas Qureshi,Advocate

Date of Institution 6-10-1990

Datesof Hearing ... 11,12,13/February,1991

4. SHARIAT PETITION N0.30/L OF 1990

Muhammad Idrees, ... Petitioner Qasur

Versus

Govt, of Punjab ... Respondents For Petitioner C h .Abdnr Ragman,Advocate For Respondents Maiii Mnagbcel ftlaai.A.G.

lilli — ~ tynm-i*

A.A.

T:Ofe»

Date of Institution .....

Datesof Hearing ... 13_13^**e*meipv . 3

M

m■ mili ■hi

SHARIAT PETITION NO.6/1 OF 1990

Muhammad Ayub ... Petitioner Sialkot

Versus

The Islamic Republic of Respondents Pakistan etc.

For Petitioner Nemo

For Respondents Malik Haqbool Elahi,A.G. Punjab Mr.Nazir Ahmad Ghazi, A.A.G.Punjab M r . Mohammad Younas Qureshi,Advocate

Date of Institution 11.4.1990 Date of Hearing 13.2.1991

SHARIAT PETITION NO.42/1 OF 1990

Ghulam Ahmad Awan, ... Petitioner Bhakkar

Versus

G o v t . of Punjab .... Respondents Petitioner ... In' ‘person For Respondents Malik Maqbool Elahi, A.G. Punjab Mr.Nazir Ahmad Ghazi, A.A.G. Punjab Mr.Muhmmad Younas Qureshi, Advocate

Date of Institution 15-7-1990 Dates of Hearing .... 20-1-1991 13-2-1991

SHARIAT PETITION N0.6/L OF 1991

C h .Hab ibul1ah Petitioner Sheikhupura

Verus

Islamic Republic of .... Respondents Pakistan uetc..

For Petitioner .... Mr.Iqbal Ahmad Qureshi, Advocate

For Respondents .... Mr.Maqbool Elahi,A.G. Punjab Mr.Nazir Ahmad Ghazi A.A.G.Punjab and Mr.Muhammad Younas Qureshi Advocate

Date of Institution .... 20-1-1991 Date of hearing .... 13-2-1991

8. SHARIAT PETITION N0.11/L OF 1991.

Ch.Muhammad Saeed Cheema __ Petitioner Chowk Rangupura

Versus

Government of Punjab etc. Respondents For Petitioner Syed Sharif Hussain Bukhari, Advocate.

Mr.Maqbool Elahi, Advocate General ,Punj a b ,and ~~ Mr.Mohammad Younas Qureshi, Advocate.

Date of Institution 9-2-1991 Dates of Hearing 13,14/February, 1991.

9. SHARIAT PETITION N0.12/L OF 1991.

Mian Sher Alam, Advocate ... Petitioner Lahore

Versus

Governor of Punjab etc. ... Respondents Petitioner .... Tn person

For Respondents .... Mr.Maqbool Elahi, Advocate General, Punjab

Date of Institution •••• 12-1-1991 Date of Hearing .... 13.2.1991 Date of decision 30-5-1991

JUDGMENT

DR.TANZIL-UR-RAHlfAN,CHIEF JUSTICE:- By Judgment pronounced by the Shariat Appellate Bench, Supreme Court of Pakistan, in appeal . - Government of N.ff.F.P. Vs.

Said Kamal Shah as reported in PLD 1986 SC 360, the Punjab Pre-emption Act, 1913,was declared as void and ineffective with effect from 1st August ,1986. The Governor of Punjab, then, promulgated on 29th March,1990, the Punjab Pre-emption Ordinance No.V of 1990 which came into force at once in the Province of Punjab. The Ordinance comprised of 35 sections. On 25th May, 1990»the Governor of Punjab promulgated another Pre-emption Ordinance No.XII of 1990, whereby Ordinance V of 1990 was repealed. This Ordinance also comprised of 35 sections. On 30th August, 1990 the Governor of Punjab promulgated another Punjab Pre emption Ordinance No.XVIIS of 1990, whereby Ordinance XII was repealed. This Ordinance comprised of 37 sections.

On 26th November, 1990 still another Punjab Pre-emption Ordinance No.XXVII was promulgated whereby the previous Ordinance No.XVIII was repealed. The Ordinance comprised of 38 sections and was enforced in the Province of Punjab with effect from the said date viz 26th November,1990.

IV

2.On the date*of hearing of the above Shariat Petitions,the Punjab Pre-emption Ordinancce No.XXVII of 1990 was holding the field. On 13th/14th February,1990 the Judgment was reserved by this Court. In the meantime, on 21-3-1991,the Punjab Provincial Assembly, passed the Punjab Pre-emption Act of 1991 hereinafter called "the Act" By virtue of the said Act, the Punjab Pre-emption Ordinance No.XXVII of 1990 was repealed.

3.All the four Ordinances, referred to above, *ns pari iaeteria, were more or less the same except that ftjf by section 29 of Ordinance XVIII a provision was added as to the payment of additional price of the property pre-empted at the rate of 10% per annum. This provision of law was also incorporated in Ordinance No.XXVII of 1990, but it has been: deleted in the Act of 3^— 1991.. Furthermore, by section 36 of Ordinance xvill of which was also retained 1990 a saving clause was added/in Ordinance No.XXVII of 1990 relating to decrees, judgments or orders dismissing the suits of Pre-emption instituted or pending during the period bstm^milst of August, 1986 and 28th March, 1990.

This Section was retained in the Actaadis mastered as 35.

4.All the nine Shariat Petitions,as. detailed below, were filed in this Court*whereby a number of

T V

provisions of the Punjab Pre-emption Ordinancesas then in force* were challenged on the ground that they are repugnant to the Injunctions of Islam as laid down in the Holy Qur'an and Sunnah of the Holy Prophet.

.(i) SHARIAT PETITION N0.6/L OF 1990 (MOHAMMAD ISMAIL

VS. GOVT. OF PUNJAB

In this Petition Sections2(a),6(2),12,20,22,24, 25,27(3,4) 29,30 of the Punjab Pre-emption Ordinance No.V of 1990 and Sections30 and 31 (numbered^ as 32 and 33 in the Punjab Pre-emption Ordinance XXVII of 1990) have been -challenged^.

. ii) SHARIAT PETITION N0.7/L OF 1990 (HAJI MOHMMAD

SHABIR KHAN VS. GOVT. OF PUNJAB,LAHORE

By this petition, Sections 2(a),6(2),12,20,22,24, 25,27(3)and(4),29,30 and 33 of the Punjab Pre-emption Ordinance V of 1990 have been challenged.(Section 30,' has been re-numbered as 31 in Ordinance No.XXVII of 1990).

;±ii) SHARIAT PETITION N0.26/L OF 1990 (RANA SHABIR AHMAD

KHAN VS. GOVT. OF PUNJAB)

In this petition,Sections 2(a),13,24,30 and 31 and 34 of the Punjab Pre-emption Ordinance XVIII of 1990 have been challenged.

o

SHARIAT PETITION NQ.30/L OF 1990 (MOHAMMAD YQPNPS

VS. GOVT. OF PUNJAB.

In this petition Section 36 of the Punjab Pre emption Ordinance XXVII has been challenged.(re-numbered in the Act as 35).

v. SHARIAT PETITION NO.6/1 OF 1990 (MOHAMMAD AYTJB, VS.

CHIEF SECRETARY. PROVINCE OF PUNJAB ETC.

In this petition sections 1(3), 2(a), 11, 23(c) and 34 of Ordinance No.V of 1990 have been challenged. (Sec.34 is re-numbered as Section 36 in Ordinance XXVII of 1990).

vi SHARIAT PETITION NO.ll/L OF 1990 (MOHAMMAD SAEED

CTTEFMA VS. GOVT. OF PUNJAB)

By this Petition S e c t i on2(a) and 30 of the Punjab Pre-emption Ordinance XXVII of 1990 have been challenged.

vii. SHARIAT PETITION NO.42/1 OF 1990(GHULAM AHMAD AffAN

VS. GOVT.OF PUNJAB)

By this petition, Section 24 regarding the deposit of 1/3 purchase price., -Section 29 regarding the power of the Government of Punjab to exempt any property from pre-emption by notification, and Section 30 regarding period of limitation of one year of Ordinance V of 1990 have been challenged. (Sections29 and 30 in the Punjab Pre-emption Ordinance V of 1990 are renumbered as Sections 30 and 31 in Ordinance XXVII of 1990).

7ft_

viii. SHARIAT PETITION NQ.6/L OF 1991 (CH.HABIB ULLAH

VS. GOVT. OF PUNJAB

By this petition,Section 36 of the Punjab Pre-emption Ordinance XXVII of 1990,has been challenged.{j^huntoered in the Act as Section 35)

lx. -

S HARIAT PETITION N0.12/L OF 1990 (MIAN SHER ALAM

VS.GOVERNOR OF PUNJAB LAHORE THROUGH CHIEF SECRETARY

PUNJAB ETC)

By this petition Sections 13 and 36 of the Punjab Pre-emption Ordinance XXVII of 1990 have been chellanged. (Section 36 has been re-numbered as 35 in the Act).

5.By this Judgment we intend to decide all the aforesaid nine petitions.

6.As would appear from the above detailed description.

Shariat PetitiorsatMbs' .1,2,5 and 7 were filed challenging several provisions of the Punjab Pre-emption Ordinance V, promulgated on 29th March, 1990- which stood repealed on 13th August, 1990. Shariat Petition at N o .3 was filed challenging the several provisions of Punjab Pre-emption Ordinance No.XVIII of 1990 which was repealed by Ordinance XXVII on 26th November, 1990.Thus the said Ordinances were non-existent on the datq/of hearing of the said petitions. With the result, the five petitions , as above mentioned, became infructuous .^aiiy^application for ammendment was filed I by the petitioners ,nor any oral request was made by them during the course of hearing. However, as this Court is

empowered to examine any law under its suo-moto juris diction, it is not deemed proper to dismiss the said Shariat Petitions on this technical ground. The Court has heard full arguments on the points raised by the petitioners in the light of the relevant provisions of Ordinance XXVII of 1990 which was then in force on the date$of hearing of the petitions, for the reason that the various provisions of the repealed Ordinances, as challenged before us, also found their way in Ordinance No.XXVII, as in force. More or less, the same provisions of law have been incorporated in the Punjab Pre-emption Act, 1991 which was promulgated after the hearing of the petitions was over,and the judgment was reserved.

7.Since the Punjab Pre-emption Act, 1991 is now the in force, the relevant provisions oij said Act are referred to in this Judgment for the sake of convenience and in order to avoid any ambiguity. Now,we proceed with the discussion section-wise, as challenged before us

SECTION 1(3).

8.Sub-Section(3)of Section 1 of the Act,as challenged,reads as under :-

"1. SHORT TITLE, EXTENT AND COMMENCEMENT :-

\ s

(3)It shall case into force at once” .

■e will examine this provision alongwith Section 35 of the Act SECTION 2(a).

9.' Section 2(a) as 'challenged, reads as under:- 2- DKFISiTIQgS.- In m i s Act, unless there is anything repugnant in the subject or context.

(a)"iratovable property" means immovable property situated in any area other than an urban area or within Cantonment limits as declared by any law relating to Local Bodies or Cantonments, as the case may be, for the time being in

force;"

In the above provision, the term "imnovable property" has been defined in a manner that the immovable property situated in an urban area or within the Cantonment limit, as declared by law relating to Local Bodies or Cantonments, stands excluded. In result, the Islamic provisions relating to the law of pre-emption will not apply to the immovable properties situated in such areas. It appears that by restricting the definition of immovable property, an indirect attempt has been made to exempt immovable

properties situated in those areas from the application and enforcement of the Islamic law of Pre-emption.

This exemption or, in other words, an exception is against the direct ahadith of the Holy Prophet ( f ~ y 4*1*41)1 ) as quoted below

4 l)l 4JJI J y ~ j • JU 4l)1 J —. U - ,j * ’ » d . f ijfcj , .j ; J 7 & JS*. L

{ U r if

(the Holy Prophet ( ^ 1-y *— *1* *1)I ) had decided about pre-emption in every joint property which has not yet been divided whether house or garden. (gahS|( Muslim, Beirut Vol.III P. 28)

10.It is to be noted that ^word " «»" mentioned in the above tradition, meant thereby "decided" or declared" is also mentioned in Verse 36 of Chapter 33, al^Ahz1ab of the Holy Qur'an which is reproduced as under:-

o' Ij— J 4-Jy~y y 4&) j - to* ^ » f j * / J— ® J— " 4-J y~j y *4^1 ij“J ’ O? *J-s-^1 f** O A • u -

( It is not fitting for a Believer, man or woman, when a matter has been decided by Allah and His Apostle to have any option, about their decision_ If anyone disobeys Allah And His Apostle, he is

indeed on a clearly wrong Path"

It is narrated —

* u-Ie J y—j : J >*= '*■>* cr. j s ^ r O* ( * J a _ J 1— »- jl j> J * , y c J )-i JS" , y ) ( TA ^ • r jJ> * )

(it is reported by Jabir Ibn Abdullah ..that " ; , the Holy Prophet( ^~y *— -U JJI ,^Ls> ) said right of pre-emption exists in every joint property whether land or house or garden.)

It is narrated by Ibn Abbas-

c iy — iJ ' ) jJL-j 4-1p U JI * U t J y—j J U ; J li yU * ^ I ( <y j

{ 1 i 6 ^3 * r alL** frj WU <U^ 1*3 # jylll 1) (.it is narrated by Ibn Abbas that^feoly Prophet said "the Co-owner is pre-emptor and there is the right of pre-emption in every thing’.’

(Al-Jami*Tirmzi,Cairo Vol.3

P.645.)

11.In the aforesaid tradition the word ’ JS’* meaning thereby "every" or "each" makes it evident that there is the right of pre-emption in every immovable property sold, situated in any - area. It may further be stated that during the lifetime of the Holy Prophet( y 4*1* JJI ) the pre-emption suits were brought before the Prophet in respect of the properties situated in Hakkah and Madinah 7t-

which were urban areas.

12.The Shari*ah has given right of pre emption to every (sharTk, a co-owner in the corpus of property), every (a co participator in the appurtenance of the property, such as right of passage, right of water or right of irrigation), and the Jar , a neighbour of adjoining property. It seems appropriate to refer to the following observation in the Judgment of the learned Chairman of the Shariat Appellate Bench of the Supreme Court, Muhamnad Afzal Zullah,j.

(now, Chief Justice of Pakistan) in the case of Government of H.W.F.P. Vs.Said Kamal (PLD 1986 SC 360) which, though brief but comprehensive, leaving thereby no ambiguity whatsoever either property-wise or person-wise, relating to pre emption under Islamic law. The observation reads as under:-

"If it is once established that there are only three categories of pre-emptors, then it would be repugnant to the relevant Injunctions if they are curtailed property wise or increased, person-wise. The Injunctions and these infringements will not be able to co-exist in the context of definition of repugnancy"

N

13.Borrowing thewords from the learned Chairman, " The injunctions ” aS laid, down in the above quoted ahadith of the Holy Prophet ( ^ j ) and "the infringments" as borne out of the definition of the word "immovable property" under Section 2(a), discussed earlier, cannot "co-exist in the context of repugnancy" to the Injunctions of Islam as laid down in the Holy Qur'an and Sunnah of the Holy Prophet ( ^ 1 j ). It is evident that

the extent of the right of pre-emption has been limited to gliafi' Sharxk ~ fr*-2 . Shafx r Khaleet _ £ j j and Sfrafi* Jar ^ f**-2 on the authoritv of the same ahadith. which establish that the right of pre-emtion is available in respect of every personal immovable property which is sold away, irrespective of the fact that it is situated in rural or urban area.Asrtne persons entitled to claim their right of pre-emption cannot be increased^ in the same manner^extent of pre—emptible immovable property cannot be curtailed,limited or restricted as contemplated by section 2(®<) of the Act. It is, therefore, declared that the provision of section 2(a) to the extent of exclusion of property-situated-id an

•*v»

urban area or within Cantonment limits as declared by any law relating to Local Bodies or Cantonments, as the case may be, for the time being in force,as discussed above, is repugnant to the Injunctions of Islam as laid down in the Holy Qur'an and Sunnah of the Holy Prophet( SECTION 2(d).

14;- Sub-section(d) of Section 2 of the Act, as challenged, reads as under "2(d). DEFINITION.- In this Act, unless there is anything repugnant in the subject or context -

(a).......................

(b).......................

<c) .......................

(d)"sale" means permanent transfer of the ownership of an immovable property in exchange for a valuable consideration and includes transfer of an immovable property by way of 'h&ba bil-iwaz’ or 'hiba ba-shart-ul-iwaz', but does not include -

(i)transfer of an immovable property through inheritance or will or gift, other than ’hiba bil-iwaz' or 'hiba bi-shart^til-iwaz';

(ii)a sale in execution of a decree for

J K /

money or of any order of a civil,

criminal, revenue or any other court or a Revenue Officer or any local

authority;

(ixi)exchange of agricultural land; and

(iv)transfer of an immovable property for a consideration other than valuable

consideration, such as the transfer of an immovable property by way of dower or composition in a murder or hurt

cases."

15.In sub clause(d) of section 2, while defining the word "sale" the transfer of an immovable t.

shart-ul-iwad” has been included in the definition of "sale". Some of the petitioners have challenged the above provision and have submitted that the transfer of an immovable property by way of ffhiba b i l - i w a d not.ansale" and therefore, not pre emptible. Maulana Mufti Ghulam Sarwar Qadri, the learned juris-consult is also of the same view.

Reliance has been placed by him on the following juristic views stated in different text-books of fiqh.

that is,

le

O J£ 0 1 •jH L j S j UJ 4f-» ,y 1m L: V J

J9

(1•T 1u i>*l lL t >4l u jJk Jl) t** li

|J»

l

(There is no pre-emption in gift except that there is a condition of some return C'iwad) alongwith it, at the time of contract of hiba, because in the end it becomes a sale.)

(Al-Hidayah jt.Multan, page 402).

» ,j'i iy L>,J ^ ' ’ o*

(11* » « al*- • ti ) * • ^0^ a JIjl j (If soae-one gifts to another person a house but did not pot a condition of return ('iwad) then he -----f gifted to the person who had gifted to him, a house in return (on his own), there is no right of pre emption in both the booses, neither in the house which had been given as gift nor the house given in return thereafter).

The submission of the petitioners including the learned Juris-consult that the Hiba b i l <iwa^ (gift for consideration) is not a sale does not seem .to be correct.

16, It may, in the first instance, be explained that when a gift is made for consideration it is called hiba bil'iwad which becomes valid and operative on receipt of considerationiwad). If gift is made for consideration, getting possession

over both the properties,in exchange, is essential. The hiba bil 'iwad is essentially a sale. It entails the following two conditions

i)Actually passing of the consideration (xwad) on behalf of the donee to the donor divesting himself, with bona;-fide intention, of the property at once and declaring and conferring the sam£ upon the donee.

ii)Possession or payment, as the case may be, should be actually, made over to respective donee(s).

17.If there is a simple gift without any consideration there is consensus of all the jurists that the property transferred by way of gift is not a sale and thus it is not pre-emptible. If there is a gift with consideration it becomes a sale and it is pre-emptible. If there is a gift with condition of return,it is also by consensus of all the jurists a sale pre-emptible on completion of both the gifts i.e. on taking possession or receiving consideration stipulated in the contract of gift.

1R. In our oninion hiba bil riwad or bA-shart- al-^iwad is one and the same thing as the *iwad -------r »

TK.

(consideration) is common in both, with a difference, only that in hiba bil *iwad the riwad (consideration) is present whereas in hiba bi-shart-al-iwad, the i w a d ( (consideration) is stipulated. The properties trnsferred in both the forms amount to sale and so are pre-emptible.

The juristic view referred to as (a) relied on by the learned juris-eonsult, in fact, supports the provision of law questioned before us. As regards the juristic view it mentioned as (b)^ relates to two different gifts which are without any consideration or stipulation, and, therefore, it is not relevant to the point at issue. There is,there fore,no repugnancy in clause (d) of section 2 of the Act.

SECTION 6(2).

19.. Section 6(2) of the Act, as challenged, reads as under:-

PERSONS IN WHOM THE EIGHT OF PRE-EMPTION VESTS.-

(a)..............................................

( b ) .....................................................................................................

Explanation.-

I)...............................................

I I ) ..........................................................................................................................................

Ill)...............................................

(2)Notwithstanding anything contained in sub section (1), the right of pre-emption shall be exercisable only in case of 'Zaroorat' or to avoid 'zarar'."

20.Sub-section (2) of section 6 as above is evidently against the Injunction of Islam for

the simple reason that in Islam the right of it 9 pre-emption is itself based on Zaroorat(necessity) a v and to avoid zarar ( h a r m h a s also been enunciated in Said Kamal's case (PLD 1986 SC 360). Reference my be made to the following observation from the said judgment appearing at page 382 : ......

*— j i_!lj ( p Lj <Lj 5 1II lirt ^ ,ii ita> ^1 l,t_i jJ m ii- *! 1-5L|1 i£±y^£ — ^A 1^J j)ji jii!■> ^ ^ JJ» ,j-u» 0^"J !>»' ^ _>jl o'j'J

.......j p>In'j a_jJj sJJI ci1 I _ 0 IX,I U ^ i ^ A sj Ij I L_>j jI O1-1'*f>~|111»

^ ,jl jj (jg—» t ^ ^Sm «J

JII1III‘lI I‘ l-i-Sl £> I-?^.l'l> '‘t—’

21.Hence, it is declared that sub-section(2) of section 6 is repugnant to the principle enunciated in the Sunnah of the Holy Prophet( {■ — Ju$ <-1**11' ).

SECTION 12.

22.- Section 12 of the Act, as challenged, reads as under :-

"I2.RIGHT TO REVOKE SALE.- Where the vendor has stipulated in the contract of sale that it is subject to revocation by him within a period, not exceeding sixty days, specified in such contract,

7/U

the right of pre-emption shall not be exercised until such period has expired:

Provided that option of defect in, or inspection of, the property or the stipulation as to the vendee's right to revoke the contract of sale shall not be a bar to the exercise of the right of pre-emption."

23.Some of the petitioners have challenged the vendor's right to revoke the sale as repugnant to the Injunctions of {j*+~ W- Islam but no hadith has been quoted^in support thereof. On the other hand, Imam Al-Kasani (d.587 AH), the author of Badai' Al-Sana'i writes- £-}ljU # J-aJl 4.)U ;L.t£3l ) y S-oijJI i —-*-- yj

( ) T l_ jC T £ It jit:\ J d tp * Ja m # 1 (There is no right of pre-emption in the property sold with stipulation of the option of revocation of sale by the vendor).

It seems pertinent to refer a passage from my book Majmu'ah Qawanin-i-Islam vol.vi,p.2032:

24.I further wrote:

fl-C — ijJ * |»j_i (J y - s l - i fl«*l j_j1 1.11 'ha |J_i1 <J i) I it lci 111.0 I «-UI

0-s*l J** ^■‘■a’***) J > » ^ JA £ ,j _ i I j|_ u _ > — jf J_. * l^iA-l ^ « U Jj 0-1 jjl ^is sU j*J i>*^ e ^ 0 *4-*4T* ‘ >**

^J

4j J_Jj ^ •» jS-f-J jjl< a-4=^**>»1 |»'-»' ^ -kP ->W» U^s^, jji ^ J-LS jUi^L- ^ j J ^ e ^ a-LU^-S^sj-5^ i £ j ^ ,i-fys ^ ^St Ul-isl t > * ^ ^ p>s> o^» £>»>> ^ f J - - . 1 - - ■ fS > \S c ^ o -1 (-£> U J > r ^ 1 w^i> ^jl »yk jl jjwv.l-i ^ ^ o -1 jiLS^iL* 1-^ -»j j U L <Ijfcj i «jL-» 4- 4* 43^ *!>►>« '■^ y° ** <wH- <£? J>® jSMS Js_yi j U * 1^i»l J- o-L^ 4lj» *jl^> jjI W^JJ «j|jj j-k- ^ Jsji'jW* LS j 0Tj_iaj> - ^ Jyj- I,l*J« L y ji3-L- 45V ^ ^ 0> Sl-i3 I--*j i-l*-® uJ-^ ( r .^ 1 a-ly-W^*!? ,y<'-> jl I " - 4* ^ fj* It is. therefore, held that section 12 is repugnant to the Injunction of Islam as laid down in the Holy Qur'an and Sunnah of the Holy Prophet.

SECTIQB 13(3).

25.Section 13(3) of the Act. as challenged, reads as under:-

DEHAHD OF FRE-BIPTIOif.-(l)..........................

(a)....................................

(b)....................................

(c)....................................

Explanation

I)......................................

I I ) .................................................................................................................

Ill)......................................

(3)Where a pre-enptor has made talb-i-muwathi under sub-section (2 ), he shall as soon thereafter as possible but not later than two weeks from the date of knowledge make talb-i-ishhad by sending a notice in writing attested by two truthful witnesses, under registered cover acknowledgement due, to the vendee, confirming his intention to exercise the right of pre-emption.

Provided that in areas where owing to lack of post office facilities it is not possible for the pre-emptor to give registered notice, he may make talb-i-ishhad in the presence of two truthful witnesses."

2l. Some of the petitioners have challenged that to a maximum period of two weeks for

making talb-i-ishhad and for failure to do so the >right of pre-emption to be extinguished is repugnant to the Injunctions of Islam. In support,no verse of the Holy Qur'an or Sunnah of the Holy Prophet has been cited. Apparently, it amounts to putting a restriction on making talb-i-ishhad within a certain period of time .which has not been fixed in the Holy t stated that Quran or the Sunnah of the Holy Prophet. I1rmay,hawsrer,be^ the right of pre-emption has been considered to be a weak right in property and, therefore, the jurists have been very anxious in putting restirctions on exercise of the said right, which are based on the traditions of the Holy Prophet ( ^La) jh 1 I I • ijjljjJ I jL f& I ) u La m I j < lI Uj I ( A T J* ft A o U

(that the right of rtShufa* is that of a person who makes an immediate demand for it). The condition yks for talb-i-ishhad is meant to affirm the taiah-j- naiwathjbat by making two witnesses to it before tJie seller or the buyer and if none of them is available,then, at the site, without loss of time. The fixation of time-limit of two weeks cannot, therefore, be stated to be repugnant to the Injunctions of Islam.

Likewise, the condition in talb-i-ishhad of sending a notice,in writing,by registered post also does not appear to be repugnant. In fact, ^AlA^uddin Al-Has-k.afi (dj.088 AH) in his book Al-Dur al-Mn&htar (vol.vj.pg.662-663) writes:

*-■ "»■■■■ £y J y~j y* i P or*-

( n r / v v T j* * j j ) * J J » -- V -- ^ ,J o' j (that is, if the pre-emptor is able to make talb-i- ishhad by sending in writing or through messenger and he does not make witness-: on it, his right of pre-emption shall become void and in case he is not able to do so his right of pre-emption shall not be extinguished).

27.Commenting on the above statement of AlcLiuddin al-Has-kafi, Allama Ibn-i-Sabidxn, known as 'Shami' (d.1256 AH) writes in his book Ifedd-al-Muhtar * , f (vol. vi.p .229) that the phrase( y— ^ ) is an indicative of the fact that the period of making witness is tied down with the pre-emptor's ability to do so.

28.We are, therefore, of the view that in sub s e c t i o n ^ ) of section 13 the phrase "subject to his ability to do so" be added.

Ik-

SECTION 16.

29* - Section 16, as challenged, reads as under:- ”16.DEATH OF PRE—EMPTOR.— Where a pre-emptor dies after making any of the demands under section 13, the right of pre-emption shall stand transferred to his legal heirs."

30.It has been challenged almost by all the petitioners that acording to Hanafi school of fiah there is a concensus of opinion that if the pre- emptor dies after making any of the talabfc his right is not heritable because the pre—emptor was not an owner of the property at the time of his death, except in the case of his right having been decreed by the court before his death. Reference was made to several quotations from the books of Hanafi fiqh but no verse of the Holy Qur'an or Sunnah of the Holy Prophet has been quoted in support thereof. On the other hand, the Maliki, Shafi'i, Hambali, Sahiri and Sbi’.i school of fiqh hold otherwise,. I have dealt with this subject in&&li -4**my book 'Majmooa-i-Qawanin-i-Islam.published by Islamic Research Institute, Islamabad, 1981(vol.vi,pp 2276 to 2281, reproduced as under : -

; <S Lta

~ - • ■ It- ■_ _yb ^ ax jiit <■> ^5Ljo j-i» ^ 5 i_sl^s>I «~.X ■ x r a* •■ .1 _.. j I x 1i Ij> 8X J j ifi.a .If. I J 1^ ~l *i 1 i_ i ItiJ jS J^L > j > >-SDt_o ^ sit a i i x - y g l jX j j -fel_iJI_.

Jx5L«j£ ^>^-1 ^u-1 Cujrfi V* Ji* <£®

, I—I g£iy g-i-ii i-a» j^a / 0*V* 'r'-^" £~“-£

I j-S &J Art 11 j—I jlo£l->^»i yg£ tjj-**-* 4J J3^ (J ^ « - j «-■- 0 3 J »J > S t 1 $ u^Kr - 1 ^ 4 -L e ^ " 1 ^ _ ^ M J «"■ '• i_*j 1^ ^ 11 # 1^1J J _j j t 1^ 1 frtfKfl ■■» t S j j^ t-B J 1-0 l-^(J“^ jS ^ft i u l- S J I .»

. 1 .j-iJ jls j-jt_ i |8-Sl-9- f-& V J-^t o l-j»

«L ijj g_i 41?! i£ ^ Jlw ^ u^ j J si I I yj Cj j J g- a i .ti J - J j ^-> *g_«J. 1_9|_±>I S-£ O-S"^ ' J -* -1- 1^ 5 - ^ w * jl> ^1 A il— ^ ^ j* I — ^ J jJ ^

^ U -I•■ 0 ^ ^ |» ja c - J3* <3«® <sr ,,^ ‘3* fj* 1®-9 J 3 l 8 j l J 1 *** _ ^ A J txw I

Xj i,iS t l _it ^jJ ^ 1-l .SI lu>)Lc g

J 2

>I

Ji xJI giI

U_J

l_ l>

»i»j a*, - .it -ic. Ijs ^ • «■*■ .<> ■ ^ L C ^ i u sltx L lx ' IX j j J J«jt-> ■jjO g-J-i.» J-fc5 ^->1^1 1^-?® ' Jt^5> '- '^ ^ » 0-=“ ( j j j &£jJuso J_ l5 jS J-olx- g .1 ini — Iw j* J- oIj » £ > IJ? ^ ' i . J j £ _Lslx-ax_.jJ ^ g^si jjlc ^ 0“' >> i5-,3® 8a" Cw L o j I L ^ &>*»* 0-=“ jl j S!j> j^ u 'I fi£® <&e* ~ ^

l»_■-j-^' e£J>?’ W

.I_j_>jlAil j_i i^_j Ij5 3^ j Io!il^>> l^ijlAi’l jjjJjjljj ^*'3® U^~*?

« itfl < l o j J j S .1 < l ~l_l I j j - J I |8fi ~l l.l I 1 ^ U J ilft.J ,Jil| _jll_jii £ !_ ■ &£ 0 .9 ? it ~ i.i 11 — , j —i* j l i lw> J_a i f |9 1-0-1 ^ . ii_> I i j S j £ < 1~ ■ »j ,jj> &-I g a 1 ^ ‘J g » I jtUJLs IX j i ) jtft 9wl £ > l-£ ^ _ d « l I J ,J .t |- j Cj l_3j-a^ 0 I J 1 a ll IJ> J J-S3-J * * ° - l- jJJ? * g ■j >Xj 4^ 3L&^m j~ t • ' ~ 'J ..‘ ^ ul~.' * & O l i jp j &£ j - f i M

^ iL ^ a J j ijI i * _,g- a U i _ s 4 > « l-J_j£> 4_i J <*.'h« '-.L ila» O ^ J 1J < g l i I 'wi 11 ^ l i I tLi <)>^ i l-u l - £ J | ) — 1-^ ^ 1i I^>_j A J .1~i ~i.» '.If^i sZt it f .9 »i (yy Lt» a.>-i*. f i m

lS ^ ' l l I> ^ A - i jt- lli..i» &_i J-J j | - * * j J 3- 5I ^M— 1 i j j ^ i\< tX j i i t j l J j l » ^ A i9 ^gj "11*1.0 J _ t S ^ ~i_ i I S o .i.9 j _i 4C j - 9 *i.a j j l I j L i* ^ (j-* « ^ . S - i M ^ i p A ^ j I a lia * u»l ^ 1i_j A ^ - A j *■ ^ J ^ I> * J !•£ Ic -L S ^-*^1 j_i ju I |juI

t c .ij J ^ j Io iU iS • 1- ^ j A ii.L-i^ D | j !-£ * s_ i ^ ii l _ i _ l j S 1*1^ —^ A 1* 1,_«^i l> ^ , c n 9 ^ ^ 1 »~l 9 j j a l ij 1y t <tjj , « < j S |J1II SC _ i j J i f i i J * ^ '1.11 j l d l l ^ > 4 c J 9ifi,0 J j l ^ 1 » ^-J 9ni J ^ l I.lf _< ^ !ja | *J A |o U > d» I > — ^ £_■ *\ g S ^ ^ ^ J - o Ia

YT& '6 )

—il lj- lfi j - IiJmjit 1

I J

4c <—l> o 'll Jj

* llj j (ja I jl J ll> I f J i9»*m . I f _» ^ 5 w i j d j iil y l J^I — 1-^ jS ( 1 1 1 —Y^ ♦ J -I a « j I l lPwo 11 J J « 1^ - i O j l a 1J - 1I ) — ^ g S l- > j A J 9 ~i *1.0 w w Ij )- ^ ij 1 .. 1 } 9j -£ « l l i g 1A j I 0 &-> l_ i j l ^ J i l j d u l l j r f w J ! s 4& j l3 ^ 1 ^ U“ I ^ ^*l >® il H 'Vf->-9 <S"A-t * I- * J 4j J 1a ll 1J > J - ° 1J < I . ■«

uSLLe ^ g _■ «-* & £jj. t u i j |j £ l .» iS ^ a a -j fc > j _ 1 ^ J il j * r-l'-c tsjL^*-*)— <J* o - ^ *3 <£*

(r^ rj-i>

[ ’■ J * ' - 1- 1.~i* 1 — ^A <JL>I I f j *' ,jj>

* ' * * ■ - A* l_J J o J I f j l i ._ ! IK 1 w ^ 1^ t ^ *-j °•*- •«I-1jf‘I ^ |j j^ l - n ^ L j l » j > J tlw i f » ■ t*» ^ 1 ^ j«o g_ j « jijiA i.vf- i ^ j»-S> 4jl .V»«J1Jj ImIm I^j ,! j I~l,Xa 11JjJ I

; .<LU ^SJU

^ i_i~n> H ^ » lii M L«1 J J & > )U ^ ~il* n II I s o l d e »-i -iL> ^ ^e&iLl j»L*l j$\ -£JL» f L»l ,^» ^ l.i'^H u i ,£* »J 1 ■ ; i..i M y > >-*- t b » ^ jy » L » 1 ^ jl »S ^ \ a S J ^ ijS — 1 « - -H i4 1 d i j ■lj -L ^ j * -~ .‘ l J J J r ftJ I f i ■ .1C I J l y i l <—l-lb jjl (bxt d> & ' *+ n

; »^il.m» ^c-91-t

g_i l i f 1g> . i f i ^ S u u j 1 3 4 <—fcib ^ - 1 J L jf-s l-ti # ^ A i-S ^ S {j » l Ifja J_i ^ j |. > j A g -* l j O y e ^ g j A m j A ] _ ^ & J |_ i j j j - i-9 , J - I ig J e £ _ i f w A l J -J I ,^ > I J — 1-£ l .» ^ A J ii~i '1 n u u U ‘15^'-!^' :jai < vV»Jl (■^T'Z'I ^ j WT

frv-i t

i Inha ids±

flitr j - § l ilf \ j | ^ - i t 1—J-U»J

rf ^ y /

* Ljjj jjl <l-£p &j Ji>l—■ l-S 4x-ii p £>^ l->p fjl j o^» ul p | ^ £ p J 1 «-••■! J •« >~i i‘ l j-o <—i lt~» j ^ l ,j- £ p —l« ^ L l-> p J 1~i 'i i> y j U ^ f I-j j j ^'■-* - II i ^ . l i a J l Lot OJ ,j_il ) _ l A j l - % p J i l - J l-^,j»1 ^ J - p ^»< (ara-n u»

H «->Li£ jjP-« ,p*l p vg-^V** *-&

I‘

*j ■■• ^ ■■* ■ ■* fcj he'iS l-£^ I‘miQ(j)I S^^jfel^l-ajj J jl — ^ o->* u - ^ j j - 3 J Ji5^Lr*l ^ - > 3 * ^ 3 * uL*» «£- cp*--!

l«£ - i |j > p i j Sf. 4m Ojp 1I^ > p w j i J —l■h^£«l

I S ^ ^ — 5^— J I

pi_ j

JJ

a

<p1._>l_ap J /• ■- p i Oa» I (»l-» I _ l - £ p S-j J SVi n >—w l.» ^ #L ijj jjl — ^"l-lJ j S J il_ * j £ * l_Lwl |j_LJ LJj-> JL?

< Sf ii?i

-v ^ y * £ ilj oAi j» o j j pi"<_sji^<■»j^I <j^i.tiijii.> —Y ,£ i p j l-P -r

* .* I I U. | p i fl InIli-3 j 1aid U J_ p I jjj ~l— I"| o ! |jlp >

iS JLj^ll -_ _lJ^-~‘I J i | « l <^.~ltflj 1J_i((-J k—L>I J S-J p 1— 4^ I— Smj

p to j j l l A j l - i J j ^ b J U u -iI p J£j ^ J p l _ya_> j j l , j p p 1-3 j-> , p pij_w p i i p > o p » , j-m O j p l p->l j*alw l-^p ic-i^ p

iVj 4.ft (£&-• p i j J I j 445^*"

iiw Ij IKb 1._i1^j-i | p-s Ijvj i-SJlo (»1^I l i j£ei —I— ij— Ji Ij

_l^ ij«*■-*■« 1^ * liJ J

jjl 1_ijp a_bJ]Ja« 1^ «tiliw ^ -j ^i fi sS ^> idiujjtf ^j-ujj

T^ -

O j > * y .l >i 3* i5* J-!*j

{£ n & * 6 g m ■«t.» H « t » l u 5 o -> l)—!•£ l->jA J i~i 'm ; ' ^ In I) lj.o 1-a I Jlf I*

J n y»l t S &J J j | _ J jj JJ ^ I *1IIM (JMI f _■ # ly ii Jjj £-&UO jS J >» Jjl — ^ 3 * *j *5 SmJ ^ j U ^ I jj a*! is"' ^ 3 ® ^jl->>^*i1jj o^“ Jl-« c^u*? ^ j jljJ ^ <s- ^ j l j a f t i i >?1 >4 # l-^ o -t ^ 3 * t f J L> ^ flu i j» t3 > 1^ &,<■*■> lj l 3 &iT i-S «r Vim 3 I1 ^ j j A > >-£_iI j j l i> jj ->g ■ ij—« jI 3 3J ^1 — 1^ 3^ ,3> |^ <^SjJ i~i.ii La> (jJt—1 jy 1 J3J u»l U Jail— ^ l-£ jJ 3^ 3^ -Sjj , 3» l-4_iI jS

£iil )--£* oriHi-j 1j 3»j j jjlJ-*?’O ^w1^s^* J-S 131" "(n f 4>-i-s f j J J-U

31.The above difference of opinion between the Hanafi schools on the one hand and the other schools of fiqh on the other, is based on the question whether the right of pre-emption is a personal right or a right in property. The Hanafi school of fiqh considers the right of pre-emption to be a personal right which becomes extinct on the death of the pre-emptor unless the said right has been confirmed by a decree of the court, whereas according to the other schools, this right relates to property. The Legislature seems to have approved Tf—

the opinion of the other schools of fiqh, as also preferred by the Council of the Islamic Ideology in its Draft Law of Pre-emption, approved by the Federal Government and sent to the four provinces as a m o d e l , which reads as under :— ”16 Death of pre-emptor.- Where a pre-emptor has died after making any of the demands under Article 13, his right of pre-emption shall stand transferred to his legal heirs."

32.We, therefore, find that the above provision is not repugnant to the Injunctions of Islam as laid down in the Holy Qur'an and Sunnah of the Holy Prophet { f-L-y «J* «LH JL+)

SECTION 20.

33.. Section 20, as challenged, reads as under :-

"20. WHERE THE PRE-EMPTION AND VENDEE EQUALLY

ENTITLED. (1) Where the pre-emptor and the vendee fall within the same class of pre-emptors and have equal right of pre-emption, the property shall be shared by them equally."

34.It has been contended by some of the petitioners that the above section requires to be struck down being un-Islamic as the Prophet's

P

words { ) used regarding *Shuf'a ” clearly

establish the pre-emptor's preferential right to purchase qua the vendee. The words " relied on by the petitioner, to say the^Least, are not relevant to the situation contemplated by the above provision, inasaach^-as . the said Hadith had a different context as stated in the Hadith £134 and 135)in Sahlh Muslim, referred • 1 • a

to above. A pre—emptor has a preferential right over a vendee, for example, a co-owner has got a preferential right over a vendee who is not a co—owner in the property or a co-participator in the property. Similarly an adjoining neighbour#/ ha# got a preferential right over a vendee who is not the adjoining neighboured or a neighboured at all. The question is what shall be the position if both the pre-em p tor and vendee have got equal right, for example, if the pre-emptor and the vendee are both co-owners or both^adjoining neighbours' : on either side. There is no explicit verse of the Holy Q u r 'an or the Sunnah of the Holy Prophet( *-U ) which may be put forward in support of the proposition that the lai as framed under section 20 is repugnant to the

3ft

Injunctions of Islam as laid down in the Holy Q u r ’an 0p the Sunnah of the Holy Prophet { (1—j *fi**UI j >»■> ) It may, however, be stated that the provision is in conformity with the Hanafi school of fiqh. It is w

so stated by Burhanuddin al-Margh£nani (d.593 A.H.)

in his well-known book 'Al-Hidayah* :- Ijl *jj JJ_» ty—1* LajuL)U al— mjlAJI j— IJ1 } * u ..■» jLar'in * j -■—? — fjr-*

( TA 1 _jO * t i * )

(if there are more than one pre-emptors in respect of property sold and they are equal in their rights, their rights of pre-emption in the said property will be equal).

35.We are, therefore, clear in our mind that the above provision of law is not repugnant to the Injunctions of Islam.

SECTION 21.

36.Section 21, as challenged, reads as under :- "21. IMPROVEMENTS MADE BY THE VENDEE.- Where a vendee has made any improvements in the immovable property before talb-i-ishad is made by the pre-emptor under sub-section(3) of section 13, the vendee shall be entitled to the cost of such improvements."

37.It is contended by some of the petitioners that the above provision of law is repugnant to the

* Injunctions of Islam but no verse of the Holy Qur'an ■or". the Sunnah of the Holy Prophet ( ^ l.,.j <*1* ) has been quoted, llaulana Huftl Ghulam Sarwar Qadri has, however, relied upon two extracts from Al-Hidayah and Fatawa-i-^lamgiri which are quoted below:- j L-b^JL yw I ■i.t.lL ^Lli) ipiS u*f

-_____ US * U 0 I, I y 'LJI S— J y U J lJ-I ‘U 0\ ( V 1A j* * 1 uL»- * 4*yJ*4 ) * 4 w l» ySjZ* ± J l (If the vendor makes some construction in the property purchased or does some plantation and then the pre- emptor gets a decision in his favour, it will be at the option of the pre-emptor either to get the property after paying the cost of such construction and plantation or to compel the vendee to remove the same).

LojuliL 4_I 2 Lt~j * ^

<jr Jl 4. * U \ p -L -z ^ * i * <JLr—** * )

‘H

(If the vendee makes some construction or plantation or cultivates crops on the land, the case is decided in favour of the pre-emptor, the vendee shall be compelled to remove the construction and plantation and hand over possession of the property to the pre-emptor).

38, However, in this respect^I may reproduce some of the extracts from my book 'Majmooatot-Qawanln-i-Islam’

(op.cit. vol-VI, pp.2303 -2312, as under

iCImo i~i»

J —1-9 ^ « ( S X - i £ ^ j X d g _ l inr J 1 J —IJ »

W ^ j j i>f ~i C i j l-ax u_ia> aJU l ax j 4.ti.»

g -I.Ann I f - I J- I JJ I j£ k 2 * » l - £ !—> C l> jJ ,J-1 jjjA jT j I ■!_>j > 8 K- L _ I ^ j A L i £-Lj I ^ 1 ^ 81* i i J > ^ j« l liljl 8_i y Z ^ e l> jT yS ^»Ui\ 8j iS yo I ,j»1

OI n < 1 ,j _m J il j ^ i L e l u-1 ^ 5 1 J j-m g .j

i 8 j^ L l^ £ ^ - *•j j ^ ax j *—- i j 8 ^ l ^ j A jl^iT<*»l ^ jjC y l ji jA 1-lijA ^ ^ a jlx d l 8ai liU 1

^ ^ » 1 j T 8 X j i « < tj a 3 x j J y J> L > j i l jj l ,J-<5|.» yS 8 x j 9itu J 5 ..IX-i j -j ^ i j S J il j L tl^ l j£ j l i L j > j j ^ s l - > jJ? l jj I j £ J-el-> ^ 1 .H U jl j j .jL j» l |»-S> &_i — ^ J J J .i?^

^^A^

l- a>l JmJ u

»|I

If ni l

yS < ■ i l j ^ J jA L ftj ^ 8 ^ l. i | ^ ^’iiiilJ> l _ i^ 8 J I-£jA8 l<ij 9 L£ 81 *ini ,j_ka £—ijiTi .If-i jjul «1-^jA l_jj^ _jIfcVil

&*' J1** JJ I « 1 ^ j £ jJ*al^ y £ 8XjXULe i~i n _i 9 ^ ^ - i ci I > 5J JJ 1 l^ -l j^ J ® 8 *iVm i; i *i 1-^ l l j U l» ^gS ^ A j (J—1-9 ^.A.li9 j l X -IJ» u lll u l l i j O-l — IJi ^ A j ^ i1 - 9 j-*£-J 8 .rwi .1 L _ l j j l ^ j | j > j A I—I Jl^ i (juI ^ - j 1 .ti U _ J I < ^S b ^ ~ A j ,J\ [., Lg& *»a ajI^Lvl J< aj jjl j Jj J J ,I?I» J-^ ,JUI ^ J ~l ifl.9 j l l l_l II f _) ^jZi.iLo Sj I^imI Jx -9 8£ (Jj? — I"ii^w jS ■•■»_■aJ~^^j..1.1jXl j O 1-SJ I_I O Jj> I k5LiOiXd ^ jjA 8-u>- i ^ 1 jA . ; u ^ jj

H i j L j »u«J I j O-11 « )— fjil Jr? j j ^>">■» 1 ^ ) ^ Ijl 1-^ ( '■!_•~.^J-»—‘1-IA-1I 9J I~.-w- IIJj I_i^l->j-j p—j > 8 I "■■».» j j Jl I >AC-J £ l-Xa J I -1-Jj> I j | i ; i . i . i i ^ 5 JSLij &£ 1-^jA j l - i - v»l j^ f o ^ y l J 1^ * - £ j j — j S iS j Z m tS j j 1 ^ j j I ^ -1 ^ ic

(IVu® r t f ^ ' - e is J l- j- s )

• ,<;j1.1,1,

uaayi .J ^ l ^® l-=>^ U** is> !* ^ -^ ijjJ j

» 2 » » jJ 1v ^ ( J - " <J*I *«-!» ^ ' »- £r} Vti -LC-J ji I ■ ^ j ••«*- C u l ^ jZ> £> I ^ 2 j - a^t j-£i_f»l ^ ji« a _ j] u»1 p _ i U ^j - ui ^ I j T aj

ln r^ “ iP " ^ fj^ £+*~ &***(

1 jA i_9j*3 J 1^ l-£ JJ> ^jJ-a jJ - J > j> 9 *"^ 1-^ <£^‘ !■> le jti 2-j j j < 03“^ J j £-* (.S ^ ^ I j l j ^ u » l ^A (IYY u°‘ iiijjjt O J .' .•** r" ^l_o13— <S;J^

; *JLLi.a Lgc-9l«£

jja u U j J mI ^~_j git. j i l u £ _ |j j j 2..I.P g jjj |_ j J j j i 4 -s l-il 1 ^ p.n 3 0 ^ “ ^x ^ -^l**-n ^3 J-J-* ^ '»-> I J-S” iS L £j a L -jl u l^ l &-■ < l^ jA J i ,^-»l-«l o « l >^3* ^ - •! _ l ^ j A Lli ‘ * I 'u*J l_i l - j j ^ id A -i-lc j-L * e J - s l l^ ,ju l W i»| j |_ j j 5 i _ i o l ^ i£ j a <s^-9 l - i I u» l i_>b“ ^ J&° tJJX-J-le J«el j-» ^ A 2-91-a I 2-J j ^ l jjl —l ^ j A

t II U T^ < » ■- a-t, J f c j 5_ i j S I j j <JA j jjjJ iijJ 4^1 m.J> ‘^ A jiu _^S _■«•*■■l.£jA ,3sv jj~i.‘n yj ^Ali J-<-*^WW

^j_-- ac-j Ja j &_i jil jj-SjJ * lijiJj J-sIj* ,3^ 1-^ J- — ,j j A J j j y» * l* - 3 j <J-** O j3 * s u -l jA w ijjo ^ e -^ - •» ^ X jjA £-*l-i J-si J a _i S_> i S i_i j j f _^ ^ 03® Ujl^i &£ &_i lj->jJ ,jjJ^£jAjl-aJu £_il-j Ij^io « _ » L iS ^ ,^ « -» L £ *-*>» 5 ;l- ^ * 4 - ll ts-*^® L* U_rj^ J^j^a flmi 1" ^ j^uLl j-£I&£

£_ti£jjl Ijl-jJjS 4JU1 4tjjJ ^

l^y» J-sL> j3> &-> ^jl-A* igmS j-'f.» 1^Aij f-Ul-S *J -<• i_» |^ JjJ j-^

I^S U*t U £ - ^ tfr1 J Iujj > j ^I u _i_)| «1-^j-&1j^-> ^jA.. s_,i5 ^ a I^iIw j J 3-»j — LSja fjiJ Io j J a-5jI-a* >S ^-j vti v .< jL^i ^(^*1 £ £ j£\S ^ *3 £*> O^-0

» ^ fl_.t o* — ^£t\-> Ia Jj o-^>

t**- £ J* £■*!* ‘ is***

J j iJ rfa, ^ J j j S J a _> ^ 0 ^ i> jJ *>1^ - U -k a i j* ,£ - o J J tfijJ j S 0 l s S ^A I j C u I j j ^j-5 : u^A jj gl.:i-a»^J 1 i I. i_ih> .ll to i j . t j ^ J I ) —■1-S ^ i \ - > > » ^-S" {r*r u» <v c

o^> a-1'-'-*J O' ^a !_*T J*»L» yS ujil« ^> ^_uiio j j y->jj I U“’>^ Ui-*>JJ,-=\S,51 0 jT £ ^1 > j ^ A j J >?>» ^

o> ^ J a_. j j l ^ S iS U I^ J

,J-U> 'jS ^ 0-1 Jr? ^ . T ^ j j ' ‘ iJrf^&r* 3$ ^b jjo Sj 4>j^l ^ J^La J^i(>JV_j 4 4jwj»lj

iS^-t> t1-Sjd j^Ojj.flu.1 f£> ^<er? — ^'j £T**J O^rf-i £ ^ j ZlL » iS ^ j 4-J J j J i-i-jP A I j - . j J — l_>* j l > -3jO J a _> 0^1 jjl U'J'M* 0--1 'J' 3^ £-'»"' 1 ^ u-l

s_j i5 I_jI^jJ <-*>!-»— Jj-»o'',£-"■:■***J

— ^ £-J3b0 Jjj

r^“4 £_**£ s-S^jJt 1jl£4j^» ^ i L > 1ftj lio £->A* II Sj ^ o » l l - ^ j £ I j l »- i a .J j j » ^ 0jj> jJ L w j l r f i ^ 0 “' 3 ^ 4-J e£ * l —il - a > i ^ I - j - i ^ “’ n-H >_j>1-o y S , j ^ > ^ ^ 1-> ^ C jj^ a ^1 jA-p -_>ilj> ^ ^ Ji' ■>**e':' f-»':'-»*!

» IS**'J^jl

$> e£* o3r,n"-t* l» j3*j jj' ^ ^IjTjefw j-vi-> ^ O J ^ J 0 '-s'l-e-C ^rJ-5 ^ J {^iJ-J-^

j l 4 -fj> I- j I-£ Ij! 0 - u > Cj j ^ o ^ <£ ^ _ J ^ <£-9'-*' £* **3-*““ ^A U&£J ^A_. 4_j l5«ew» — 1-$<£j^ Iji 0"=“ °JJ-9 ^ s^-1^ j 'a ^' j3> ].£ £^fJj£ JwcIj - a-Sj t8.a^u»il 4 ^-j i. t» I—i^*l-> l-jj-l

(H A — l ' < j* ° <Y c 4-»I o j o ^ O ' ^ j * J -9'^

39.The above section makes it specific that the improvements, if any, made by the vendee before the pre- emptor 1s making the talab-i-isfrhad, the pre-emptor will be bound to pay for the improvements made for, while taking the property by virtue of his right of pre-emption. As

+ stated earlier there is no verse of the Holy Qur'an and the sunnah of the Holy Prophet ( 4— *111 ) which can he invoked in the aid of declaring the provision as repugnant thereto. The above provision of law seems to have been enacted in public interest which can be said to be based on a well-known Hadith of the Holy Prophet ^ Harm and retaliation by harm not allowed.

It may be stated that the vendee makes the improvements before making talb-i— ishad by the pre-emptor. The vendee is unaware of the claim of the pre-emptor, if any.

It , cannot,, therefore-,: be said that the above provision is repugnant to any verse of the Holy Qur'an or Sunnah of the Holy Prophet( p-U, )■ °“ the other hand the provision of law conforms to the principle laid down in the Hadith,quoted above.

SECTION 22.

40s Section 22, as challenged, reads as under :-

"22. IMPROVEMENT MADE IN THE STATUS OF THE VENDEE -

DEFENDANT AFTER INSTITUTION OF THE SUIT.- Any improvement made in the status of a vendee-defendant after the institution of a suit for pre-emption shall not affect the right of pre-emptor-plaintiff."

41.One of the petitioners, while challenging section 22, submitted that the above provision of law is gp— S

not In accordance with the Qur'an and Sunnah of the Holy m Prophet -j *111 ), in as much as it dis-entitles the vendee/defendant, from defending the suit, whose status is improved subsequently after the institution of the suit.

In other words, as stated in the petition, the impugned section 22 excludes the improvements in the vendee's status which is acquired by him, after the institution of the suit against him. Ho verse of the Holy Qur'an or any Hadith of the Holy Prophet ( j *1)1 ) has been quoted in support thereof. However, reference may be made to some of the decisions of our Superior Courts wherein the juristic principle on the subject has been enunciated.

42.In Ghulam Muhammad and another Vs.Bagga and others (PLD 1962 (W.P.) Lahore 693) a Division Bench of the erstwhile West Pakistan High Court, Lahore,observed that -

"The next question is whether the improvement effected by the plaintiff-respondents in their status after the date of the sale but before the institution of the present suit can be of any avail. There does not appear to be any specific provision in the Punjab Pre-emption Act on this subject on the lines of section 21-A of the Act which deals with the improvement in the status of the vendee-defendant made after the institution of a suit for pre-emption. That section appears to permit, by implication, a vendee-defendant I k /

V to improve his status after the sale but before the institution of a suit for pre-emption. The position with regard to a pre-emptor, however, appears to be different. A Full Bench of the Lahore High Court observed in Faiz Muhammad vs.

Fajar Ali(AIR 1944 Lah.l72)that the vendee is on the defensive and is entitled to arm himself with a shield in order to protect his right which had accrued to him on the basis of his contract.

A pre-emptor is on the other hand, an aggressor.

It is he who wishes to dislocate the vendee and it is he, therefore, who must show that the superior right to pre-emption which he had at the date of the sale continues to remain superior at all relevant times. If he fails to show that, he must fail in his suit. Hence, it is not permissible for a pre-emptor to so improve his position before the date of the institution of the suit although after the date of the sale as to render the improvement made by the vendee in his status after the institution of the suit for pre-emption against him ineffectual". It may be remarked that the last sentence obviously refers to the position as it prevailed before the introduction of section 21-A of the Pre-emption Act.

Ve are in respectful agreement with these observations, which are in accord with the definition of the "right of pre-emption" given in section 4 of the Pre-emption Act. According to that section, a right to acquire a property by pre-emption arises on the date of the sale. The result, therefore, is that the decree obtained by the plaintiffs on the 28th of August

■v

. I

- AS- ~

1954 cannot help improve their status to that of being co-sharers- They must stand or fall on the basis of their status of being simple owners in the estate."

43.In another case Abdul Majid v.Tora Baz Khan (PLD 1975 Lahore 592);, i l was observed J. that "Admittedly, it is not open to a pre-emptor to defeat a vendee by improving his position after sale. However, by virtue of section 21-A of the Punjab Pre-emption Act, it is open to a vendee to defeat a pre-emptor by improving his status but he could do this only up to the institution of the suit. Row if the pre-emptor has lost his first qualification, the second qualification was not in existence at the time of the sale and it naturally cannot enure for the benefit of the pre- emptor. I am fortified in this view by the following terse observations in Fiaz Muhammad vs.

Fajar Ali Khan and another (AIR 1944 Lah.172).....

44.It seems beneficial to also refer to section 21-A of the Punjab Pre-emption Act, 1913, since repealed, which reads as under :-

"21-A. Any improvement, otherwise than through inheritance or succession, made in the status of a vendee-defendant after the institution of a suit for pre-emption, shall not affect the right of the pre-emptor-plaintiff in such suit."

45.It appears that the legislature kept in view the provision of the said section 21-A but seems to have

consciously omitted the excepting phrase "otherwise than through inheritance or succession". An improvement made subsequently, by conscious act of the vendee may be objectionable for being tainted with mala-fide or having =aoquired the same by deceitful means but an improvement on account of natural phenomena e.g. inheritance, requires and exception^should not have been disregarded which seems to be based on the principle of Istihsan. We would, therefore, direct the respondent that the phrase "otherwise than through inheritance" be inserted in section 22 of the Act.

SECTION 23 (2).

4-6, Sub section(2) of section 23, as challenged, reads as under

"23. NO RIGHT OF PRE-EMPTION IN RESPECT OF CERTAIN

PROPERTIES.- (1)...............................

(a)..................................

(b)..................................

(2)The property acquired by the Federal or a Provincial Government or a local authority in pursuance of any law shall not be pre-emptible."

17 ^ In some of the petitions clause(c) of sub-section

(1)of section 23 was also challenged. Since clause(c) of the said section does not find place in the Act, it is not required to be examined. However, sub-seetion(2), of

IK

iii »i>«iiwi'»iulj'i— »Miimnu i»qn «i «mi

section 23, as also challenged has been retained in the Act.

48.It is an established rule that a property which is to be pre-empted must be owned by a person. That is why^ the properties which are Waqf or used for charitable, religious and public purposes are not pre-emptible. On this analogy, the State owned properties also are not pre-emptible because they are not property of a person.

Extending the principle further, a property acquired by the State for public purposes does not remain property of a person or an association of persons. Therefore, a property for public purposes, as envisaged in Shariah, is not pre—emptible. Sub—section (2) of section 23 is thus not repugnant to the Injunctions of Islam as laid down in the Holy Q u r 1an and Sunnah of the Holy Prophet ( JL-j *Js. Jj I )

SECTION 24.

49.Section 24, as challenged, reads as under "24. PLAINTIFF TO DEPOSIT SALE PRICE OF THE PROPERTY.-(1) In every suit for pre-emption, the Court shall require the plaintiff to deposit in such Court one-third of the sale price of the property in cash within such period as the Court may fix:

Provided that such period shall not extend beyond thirty days of the filing of the suit:

Provided further that if no sale price is mentioned in the sale deed or in the mutation, or the price so

mentioned appears to be inflated, the Court shall require deposit of one-third of the probable value of the property.

(2)Where the plaintiff fails to make a deposit under sub-section (1 ) within the period fixed by the Court, or withdraws the sum so deposited by him, his suit shall be dismissed.

(3)Every sum deposited under sub-section(l) shall be available for the discharge of costs.

(4)The probable value fixed under sub-section(l) affect the final determination of the price payable by the pre-emptor."

50.Almost all the petitioners have challenged the above section,but none of them has quoted any verse of the Holy Qur'an or- the Sunnah of the Holy Prophet (^ I j ..Je-Jjl in support of their contention that no deposit of sale price or any part thereof is required to be deposited in the court at the time of the filing of the suit of pre-emption. Some juristic views, however, from different text books . of Hanafi fiqh have been relied on. There seems to be no concensus of the opinion among the jurists, for example, according to Imam Muhammad, the sale price of the property pre-empted should be deposited in the court at the time of talb-i- khusumat,Iwhich implies the depositing of full price.

Reference may be made to the following:

^ \ jJ ZgLof J*A>± j j j J^» )

3-- -|>j j-*U» l i . l j j h J I jji Jli ‘U»iJ( J-5 L^,; ^ Jif U-- r• O® u — ^ ^ *JL>J-* > *>-"% t^-9* o«*s ^ 0 *i J-®^ ( ) 1 ♦ _J>» ® £ » 4Zlj$ Ityds» i, jll^JI J J jb>»il )ta J > jJ o' means that if he did'nt deposit the sale price in the court because the sale price is not required to be deposited before judgment. It has been stated in Hidayah and this is the narration in "al-Asl" and it has been related from Muhammad that judgment will not be given unless the pre-emptor deposits the sale price in the court and so has been related by Hasan from Abu Hanifah" ).

The provision of law as enacted by the Provincial Assembly seems to be based on Ijtihad, taking into account the realities of time and place. It cannot be disputed that in the earlier period of Islam the litigation used to be con cluded in a few days* time, whereas in our age the litiga tion, for various reasons, is protracted and takes a long period of time.-tA*i-**9* ^ * J s K t Z : ^OAfi**;}** There is, therefore, no repugnancy of the said provision to the Injunctions of Islam.

SECTION 25 - 27.

51.Section 25,26 and 27 of the Act, as challenged, are taken up together, which read as under :- "25. DEPOSIT OR REFUND OF EXCESS PRICE.- (1) Where a Court passes a decree in favour of pre-emptor on payment of a price which is in excess of the amount already deposited by the pre-emptor, the Court shall require the pre-emptor to deposit the remaining amount within thirty days of the passing of the decree.

(2)Where a decree is passed for a lesser amount than the amount already deposited by the pre-emptor, the Court shall refund the excess amount to such pre-emptor.

"26. SOM DEPOSITED BY PRE-EMPTOR NOT TO BE ATTACHED.-

No sum deposited in or paid into Court by a pre-emptor under the provisions of this Act shall, while it is in custody of the Court, be liable to attachment by any Civil, Criminal, Revenue or any other Court or a Revenue Officer or a Local authority."

"27. DETERMINATION OF PRICE.- (1) Where the parties do not agree to the price at which the pre-emptor shall exercise his right of pre-emption, t h e Court shall determine whether the price at which the sale purports to have taken place was fixed in good faith or paid, and if it finds that the price was not so fixed or paid, it shall fix the market value of the property as the price to be paid by the pre-emptor.

(2)If the Court finds that the price was fixed in good faith or paid, it shall fix such price to be paid by the pre-emptor."

52.These provisions relate to the several incidents arising from the deposit of sale-price of the suit property claimed by pre-emptor. All these provisions are based on Ijtihad. No verse of the Holy Q u r 1an or Sunnah of the Holy Prophet ( ^-- 1 ^ *1)1 ) has been cited by the as?

petitioners. The members of the Assembly,^representatives of the people, are fully competent to legislate on the m subject based entirely on Ijtihad.

53.We, therefore, find no repugnancy in the above provisions.

9 H B

"29. GOVERNMENT MAY EXCLUDE AREAS FROM PRE-EMPTION.-The Government may, in the public interest, by a notification in the official gazette, declare that in any local area or with respect to any sale or class of sale, no right of pre-emption shall exist or only such limited rights, as it may specify, shall exist."

54.By this section the Government has been empowered to declare that in any local area or with respect to any sale or class of sale, no right of pre-emption shall exist. According to the Hadith of the Holy Prophet (f-Lj sJJI l_rL») no property can be exempted from the right of pre-emption as discussed earlier while examining section 2(a) of the Act. However, the Government in dire necessity may exempt specific property from the right of pre-emption if it is acquired^in the public interest.

Section 26 of the Majalla al-Ahkamul ’Adliyah states » j j-~0 »JI jj- All J •

("small harm will be borne in order to avoid great harm").

On the above principle, the jurists have allowed the price-control when the prices are artificially increased in the market. However, such powers of the Government are not unlimited and must be restrictd only to meet the dire necessity. Moreover, the interpretation of "public niKy'

5D

interest" in this regard must necessarily be based on the principles of Shariah.

55.It seems pertinent to refer to the following observations of the Supreme Court in Said Kamal's case

(PLD 1986 SC 360) :

0-Lj jJJI o j 1 « £ jjl"

jJ1 \y> ^ » ■j k Ij*1_1_) j_> * 1—V

,j> (-S’ l£_ii j-Laj jA i-*ig iJJ I lj-leuujJ»w>T I.l.j... * I. I.n'l^l ."lull o-1

I)j« j i C,>j j j ^ J_>ai 1 - 9 J_I £-31 j-8 ^ ■“'S'i < 1-^j* <-3^> j OAj jjl ^jU #j jjl « ,£* J^j o-iLxj^ ^ 3___ e__a_ jjt ,^1 j ^ o > ^ i J**

^j_>| jl.j-!^! 5_I j.!>iiii» I— jj*s l_> <1 ‘i.'.vJjl |i (» a.?. ^l^tc ja» jjl < ^jftl

l^ft^j CiijiUa* j*l-i»l (_s-»I * ij-j-

56 Borrowing the observations made by the learned Chairman of the Shariat Appellate Bench of the Supreme Court, Mr.Justice Muhammad Afzal Zullah in the case of NWFP vs. Hussan Pari (NLR 1988 SD 212) on the construc tion of the word "Zaroorat" (necessity), it may be stated that as to what is "public interest," it has to be left

to Judgment and wisdom of legislature depending upon facts and circumstances relating to the property excluded from pre-emption. However, all this would be subject to condition that the public interest would have to be construed in accordance with the Injunctions of Islam. It would not be enough merely to mention the words "public “ — ' interest" to justify an exemption of a property or properties from the right of pre-emption. The Courts would have powers to strike it down if public interest is not established according to Shariah. We are, therefore, of the view that section 29 of the Act, in the terms it has been couched, gives a very wide and unbridled power to the Government which may even go to the extent of nullifying the object and purpose of the law of pre-emption in the garb of "public interest". The Government may exclude from pre-emption a property in public interest, as the exemption recognized by Shariah is only with regard to a property owned by the State or Waqf property or a property for charitable and religious purpose. The section, as it stands, appears to be repugnant to the Injunctions of the Sunnah of the Holy Prophet ( Ja-=>-k .Reliance is also placed on the judgment of the Supreme Court in Suo Moto Review reported in PLD 1990 SC 865 at page 872, as under:-

- i

Ij j j ^ &£Jj ^£<±*£^1 ij.ti^injl jj jj i —a—*1 — jj-Lii — ^ 1

^A j «^»4c i ^A j laj*a^ #■£ j l - j ~i ^ I #j j^ C w ji ,j » l .> ^ J ,I ^ I j i j J I a i l 1w> I—I 1j_ k « j _jA C *_i£ j j jfll-J* 1—i j! ^A _i 1 £ -3 J <L_i - J ^ A ^ j Xj j - i ^ ' | AI*".I j A ^ i~i_if. j j ( '-*1 jJJ jol^j>kj) yl >> Tj .iftj '■'»>?• Jyliu O^Lm JG ”- ^ A |al^> l I A J I—i ,a y * 1 (S—k-ii — ,j j A iS " * ^ 0^^*

SECTION 30.

57^ Section 30 of the Act, as challenged, reads as under:-

"30. LIMITATION.- The period of limitation for a suit to enforce a right of pre-emption under this Act shall be four months from the date -

(a)of the registration of the sale deed;

(b)of the attestation of the mutation, if the sale is made otherwise than through a registered sale deed;

(c)on which the vendee takes physical possession of the property if the sale is made otherwise than through a registered sale deed or a mutation; or

(d)of knowledge by the pre-emptor, if the sale is not covered under paragraph(a) or paragraph (b) or paragraph (c).M

5g^ Almost all the petitioners have challenged the above provision as repugnant to the Injunctions of Islam.

Some of them like petitioner in Shariat Petition N0 .6 /L of 1990, favour the period of limitation of one year,

r

whereas the others have pleaded for a lesser period than four months. One or two petitioners have also pleaded for one month only. No verse of the Holy Quran or Hadith of the Holy Prophet ( ) has

heen quoted in support of either view. On the point of limitation for talb—i—khusumat. I have written in my book 'Majmooa—e—Qawanin-i-Isiam’ vol:vi page 2339 that -

j__3 ^

Jil ^ j_ i i L jyi u i i s£*jJjU

jj j LlJ-JI j-U!

59?. Dealing with the point of limitation a learned Member of the Shariat Appellate Bench of the Supreme Court in Said Kama 1 *s case (P1J) 1986 SC 360,page 459,.

paragraph 102) Mr.Justice Maulana Muhammad Taqi Usmani observed that :

X- -1 _■ 8_tJUu (J-^O JjJLft*

0 jjU 'jS ifiJ u i &S-L> € 'jA ,^ 1 J j j l - * 15 * ** 15* q j j \a $> l-S 4c-ii jjl — jje I-S ( substantive law J.j-Ul 0 j j | j £jb ^ 1 *J 1 -S j* ^ l - > U“ * |ol^j u3lC 1-feM -'!>_•» jS C*C l-a*» l# pI-C j£ '-tUV

1 < 1-^jA ft l-^> l l^A_> 45 < l-> J - l y - l |» l-£ » l

l- f 1^ 8J1j w ^ j^ /1 j i j —> JLj |^ £ w « l4 0>Xo J j V . b Cm w- l l > JJ I J 1^-1 I ^_>_LI»" u l u I J-O > —l-U»’ ,_jAj O j j*» j ' i ^ - i |JI1>

j < ^ M > y la > J j o l'i |^X»> j j l — ^ A ^ l —i_i 8-i < f l-^JLa ji> _^Jb l—I 111 —^ A 1-0 J-9 £ l_l_> ^j—L4 I.T-1 i ^ 'l-l I l—1»1«0 S 1-1 |Sj- £ J-l>-J j_l_l jA f-lfi g .j».> ^ - > J j£ J-^C j —i J I 1 t_jJJa” j j 1 " 71i.i *i I jr t 1^ j a l j j I f i^l j 1 j 0 4 w X l M l ^ < j |iS -»'* ■ ■- ■ «JA-> Jj*! « ^ 5 l-> jA I J J —il IM-L» l-S^ -1<_I-I> lju * ^ A 1Jj ^»> l-> l-* J ^ J j - i « u O i J j j f -fl , ^ - u l ^ 2 iJ ^ ^ jj£ > j 1j io * ii» I-- Cxd j-a > j —- i ! J i- s J - ia ,ja £ £ *J—14 O j j j ^ 1_J£-Sl J 1 ^j - lo jj- > — ^ A * l-t -S.? <-1 llo -a . ^ * >1? q— '■ j j J u 1 > I j- s ,j —m u _ i j 1^1 ill-La i_j *C..,J < j A l-S l^!.~>-0 I Is l-S-J l-s J j > < ^ I-a J-S £ l_ - j ••’- « - ■ » 1-.-^- lg - '- j I u d i &-I &£ ^^A j ^ - 1 - u J 1^1 lLj I—i 1 * ij_jA y -> j j l — l—i ^ J l-o-CLj—1 J^mlj — ^ - iA l,> , j j j A ij—fcyJ 4 j | —i j j ^jA j —lc.0 ■—’-Lo J - l j i s -5_i1 j I j» ^ _ > 4_L IJL o 1 ^ j I O-i j > j-> I- '■ ■ 3j

60.it may be stated that the Council of Islamic

Ideology, then headed by me,in its Draft Ordinance

proposed a period of limitation to be 120 days. Perhaps,

the Punjab Provincial Assembly has adopted the same

view and has, therefore, fixed four months.

)>tn»

61.The^provision of limitation is a matter based

on 'Ijtihad' and it cannot be said that the fixing of the

^miiBHHillll

period of limitation to four months will be repugnant to the Injunctions of Islam. The Provicial Assembly which comprises of the representatives of the people has prescribed a period of limitation of four months, which to be cannot be said /repugnant to the Injunctions of Islam.

SECTION 31.

62.Section 31 of the Act, as challenged, reads as u n d e r :-

"31. NOTICE.-(1) The Officer registering the sale deed or attesting the mutation of a sale shall, within two weeks of the registration or attestation, as the case may be, give public notice in respect of such registration or attestation.

(2)The notice under sub-section (1) shall be deemed to have been sufficiently given if it is displayed on the main entrance of a mosque and on any other public place of the village or place where the property is situated.

(3)The charges for the notice under sub-section

(2)shall be recovered from the vendee by the Officer registering the sale or attesting the mutation, as the case may be, at the time of such registration or attesta tion of mutation."

63.One of the petitioners has challenged the said provision as repugnant on the two following traditions of the Holy Prophet ( jl*!* sJJI vrLs ) which are

reproduced as under :-

o' } * o'* * ^sj-“ O j yt dr-*" o' J-*% ^ f—1~« £-»o0 ) V 4— . jJfcf A-_*j^. jJ y Ul» t <£}jZ ‘Lt ( T ^ e «uuu2J I w L

("It is not permissible (Halal) for a land owner to sell his land without informing (offering) his co sharer who may purchase it or refuse to do so, but if he sells it out without informing(offering) him then he shall have the superior right (of pre emption) qua the said land.)"

U —i j *,- * L » J i>: j f * j ij l «_J 15” j51— I ( Jl S * ) * 4— Sl^t ,^1*

("Anyone of you who owns land or Qasis shall not sell it unless he makes an offer to his co-sharer (to purchase it)."

64.It is submitted by the petitioner that according to the Traditions, as cited above, it is required by the vendor to give a notice to his co-owner before the sale and not after the sale. In this respect we would like to refer to the following extract from the judgment in Said Kamal's case (PLD 1986 S.C.360) at page 459 paragraph 102 wich is reproduced as under P-U: "jUil

IS ijn iiy J u£_> | f j I u-44 O d a 5—i^ g.a .If i — I 1 a,;l> l-S I ~ t£w j * Ij> \

1 Ky

The above traditions postulate intimation to the pre-emptor before the sale so that he may exercise his option to purchse the property or leave it. But the second part of the hadith also postulates that in case the property sold without consent of the pre-emptor,it will not affect the sale but the pre-emptor will be better entitled to claim it. It does not affect the right of pre—emption. The law provides for a notice after sale which seems to be in consonance with the principle that the right of Shufah is created only after sale.

fed' ( ^ -M j ^ ). A notice after slad, thus, does not appearto be repugnant to the Injunctins of Islam.

It will, however, be more suited to attain the object underlving the above hadith, if a notice prior to sale

A

is also provided in the Act.

SECTION 33.

65,. Section 33 of the Act, as challenged, reads as under :—

"33. APPLICATION OF THE CIVIL PROCEDURE CODE AND QANPN-E

SHAHADAT ORDER, 1984.- The provisions of the Code of Civil Procedure, 1908 (Act V of 1908) and Qanun-e-Shahadat Order, 1984 (P.O.X of 1984) or any other law on the subject for the time being in force shall, mutatis mutandis, apply to the proceedings under Ordinance."

67.One of the petitioners has challenged the application of the Civil Procedure Code and Qanun-e- Shahadat Order, 1984, as repugnant to the Injunctions of Islam. The provisions of the Code of Civil Procedure 1908 and the Qanun-e-Shahadat Order 1984 are in the nature of procedural law. By virtue of section 33 of the Act, the provisions of Civil Procedure Code and the Qanun-e-Shahadat are meant to regulate the proceedings only. The petitioners have not challenged any provision of the Civil Procedure Code or Qanun-e- Shahadat Order before this Court, we cannot, therefore, declare any repugnancy in section 33 in applying the Code of Civil Procedure and Qanun-e-Shahadat Order or any other law on the subject, until such provisions, as repugnant to the Injunctions of Islam,are challenged before us.

SECTION 35 READ WITH SECTIOW 1(3)

OF THE ACT._________________________

67* Section 1(3), as challenged, reads as under:-

"SHORT TITLE, EXTENT AND COMMENCEMENT.- (1)..........

(3)It shall come into force at once."

68.Section 35 of the Act, as challenged, reads as under

* "35. SAVING. (1) Notwithstanding in any other law for the time being in force, all the decrees, judgments or orders dismissing the suits of pre-emption, instituted or pending between the 1st day of August, 1986 and the 28th March 1990 (both days inclusive), in which the right of pre-emption was claimed as is available under this Act, shall be of no legal effect, and such suits, on an application made by the aggrieved person, within sixty days oncoming into force of this Act, shall subject to sub-section(2), be decided afresh according to the provisions thereof.

(2)Notwithstanding anything in sectiorsl3 and 30, in respect of the suits mentioned in sub-section(l), the period of limitation shall be one year and it shall be sufficient if the pre-emptor establishes that he had made 1Talb-i-ishhad’ in the presence of two truthful witnesses."

69.Section 35 of the Act saves all suits of pre emption which were "instituted" or were"pending" during the 1st day of August, 1986 and the 28th March, 1990 (both days inclusive) in which the right of pre-emption was claimed , as is available under this A c t , notwithstanding any decree, judgment or order dismissing the said suits having been passed by the Courts of law, provided the aggrieved person makes an application for their revival within sixty days of coming into force of the Punjab Pre-emption Act, 1991. It further provides that such suits shall be decided afresh subject to

r-

V

its sub-section \2), according , to the provisions of this Act. Sub-section(2) provides that notwithstanding anything in sections 13 and 30, in respect of the suits mentioned in sub-section(l), the period of limitation shall be one year and it shall be sufficient if the pre-emptor establishes that he had made 1Talb-i-Ishhad1 in the presence of two truthful witnesses.

70.It has been held in Said Kamal's case (PLD 1986 SC 360) that the demand of pre-emption by making three Talabs is a substantive part of the Islamic law of pre-emption (as now mentioned in section 13 of the Act). Likewise, it has also been held in the said judgment that the period of limitation for filing suit of pre-emption, which is termed in the Shariatylaw as Talb-i-Kfrusoomat, is also a substantive part of the law of Pre-emption (as now provided in section 30 of the Act).

We are, therefore, of the view that sub-section(2) of section 35 amounts to making inroad in the application of the substantive part of the Islamic law of pre-emption which cannot be traversed in the manner it is intended.

71.According to sub-section(3) of section 1, the Act shall come into force at once. By virtue of promulgation of the Ordinance V of 1990, Punjab Pre lim

ji (inn uni'oiiH'in i»n |j»<

emption Act, 1913 was repealed on 29-3-1990. It may, however, be mentioned that the said Act, by virtue of the judgment of the Shariat Appellate Bench of the Supreme Court in Said Kamal's case (PLD 1986 SC 360), had already been declared void and had ceased to be effective with effect from 1-8-1986, as also explained and >7V in Suo Moto Shariat Review Petition No.l-R of 1989, in Shariat Appeal Nos.4 and 5 of 1979 and Shariat Appeal Nos.

2,5,7 and 15 of 1981.Government of N.W.F.P and others V.

Malik Said Kamal Shah and Others.(PLD 1990 SC 865). Thus, no suit pending on and after 31-7—1986 under the provisions of Punjab Pre-emption Act, 1913 could be proceeded with, as the statute, in effect, had then become non-existent by Constitutional mandate, except the cases in which decrees had been passed at any stage, before 31-7-1986 as held in Sardar Ali's Case (PLD 1988 SC 287) and approved by the Shariat Appellate Bench in Suo Moto Review, referred to above.

72.It may be stated that during the interregnum period of 1st August, 1986, and 28th March, 1990 the provisions of Islamic law of pre-emption were to hold the field as also observed by the Shariat Appellat Bench of the Supreme Court in unrepoxted. Shariat Review Petition No.l-R/90 (Federation of Pakistan Vs. NWFP and others).

Though the observation was made in respect of some provisions Hk.

of the Pakistan Penal Code relating to murder and hurt having been declared repugnant to the injunctions of Islam, the same are equally applicable to the Punjab Pre-emption Act, 1913 finally declared repugnant to the Injunctions of Islam by the Shariat Appellate Bench of the Supreme Court.

73.It, therefore, needs to be mentioned that it has, inter-alia, been stated in sub-section (2).of Section 35 that the period of limitation for filing suits mentioned in sub-section (1) shall be one year, and that the talab-i-Ishhad is to be established by producing two truthful witnesses. It may be stated that the period of limitation has already been held to be a substantive part of the law of Pre-emption and so is the case with the talabs. Failure to make the Talabs "at proper times" extinguishes the so-called right of pre-emption; hence it is not a part of procedural law but falls in the substantive field, rather an integral part of the right of Shufak(Safia Begum Vs. Ibrahim PLD 1989 SC 314).The exclusion made or exception provided in sub-section (2) of Section 35, regarding Sectionsl3 and 30 in relation to the saving of suits pending on 31-7-1986 or instituted thereafter during the interregnum period viz 1-8-86 to 28-3-1990 is repugnant to the injunctions of Islam.

74.It seems pertinent to reporduce some extracts from Safia Be gam V. Tivrahini (PLD 1989 SC 314) which read:-

"However, it may be observed that the spirit, ethos and content of the Islamic law of Shufa as discussed in these judgments is absolutely different from the then prevalent statutory laws of pre-emption. This aspect was also noted in the case of Ghulam Qadir with reference to another judgment of this Court on the nature of the Islamic law of Shufa in the case of Azizur Rehman PLD 1988 SC 384. AmongfJst others in Said Kamal's case;

(i)the order and priority, in which the so-called Islamic grounds were mentioned in the statutory laws, was found not to be in the same order as in Islam:

(ii)the ground/rights mentioned in the stautory provisions by

itself would not create a right in Islam unless accompanied by

TV-

another substantive part thereof, namely, Talabs in absence whereof, it was held the right is extinguished;

(iii)the period of limitation within which the suits were filed under old law contravened substantively the basic Islamic Law of Shufa;

(iv)thus the institution of the suits at particular time within the permissible statutory period of limitation, having itself been hit there could not be any occasion for continuing such like suits;

(v)the rule of substitution in the statutory law of pre-emption was considered as non existent in the Islamic Shufa;

(vi)the very definition of pre-emption assume in the statutory laws involving a concept of gain in property and otherwise enrichment was held as un-Islamic;

{vii^ while in the statutory laws there was no control on exceptions, in the Islamic Shufa they would not only be controlled but very rare:

(viii)and many other considerations; particularly, when the suits under the annulled laws were filed, e.g. on grounds of co-shareship other pre-emptors who could also have filed suits (if Islamic law was criterion), on the basis of contiguity and co-ownership in way or watercourse, could not and did not file the suits; as they were not permitted to do so in the context of the right of pre-emption granted to various categories priority-wise in the annulled laws."

It was observed further;

"This should leave no doubt that on account of innumerable reasons it was considered as impossible to keep alive and effective some parts of the challenged statutory law and annul the others.

It would have left this branch of law in uncertainty.......................

It is in this very context that it was specifi cally held that the particularisation of some provisions ( ^ . did not

mean that the remaining provisions were not in conflict with the injunctions of Q u r ’an and Sunnah. It has already been demonstrated that if the remaining provisions would have been left operative, the results would have negated the decision of the Court itself."

It was further observed;

"Before dealing with the next point it is necessary here to deal briefly with an impression as if the requirement of Talabs has been introduced by this Court for those cases which were instituted before 31st July, 1986 on the grounds of co-shareship etc., wherein pre- emptors had not obtained decrees. This mis conception should have been removed by the judgment of this Court in the case of Ghulam Qadir v.Nawab Din PLD 1988 SC 701, wherein it was demonstrated in what context the short orders were passed in the cases of Sher Muhammad and Muhammad Shuaib. It was unfortunate tendency of some litigants who despite the Supreme Court judgment otherwise, persisted and wanted to purspe . their cases without justification and would go to the extent of filing false affidavits in the pursuit of lust for enrichment and greed. On the other hand in the case of Sher Muhammad reference to the requirement of Talabs was in the context

'IK-

V

of the rule laid down in the case of Sardar Ali.

It was in the sense that the Court had not permitted the continuance of the suits without decrees for various reasons e.g. the Talabs were not made in these cases and it is in this light that an example was given about a learned counsel himself,who had not even heard of the expression "Talabs". It is, therefore, not correct to say that if the condition of Talabs would have been satisfied in these cases they could have proceeded;

apart from the fact, that the Talabs could not have at all been made.

This has led to another point raised, namely, that the Talabs could not have been made by the pre-emptors at the time when the statutory law was in force as there was no requirement for the same. This is so. That is why amongst others it was one reason which led the Court(Shariat Appellate Bench) not to keep alive the grounds relating to co-shareship etc., in the statutory laws. It was impossible to keep alive those grounds/suits under the umbrella of Islamic Law, the essential conditions whereof were neither fulfilled nor could be fulfilled with retrospective effect. Hence, neither the Court itself intorduced the requirement by Talabs for the prior pending suits nor it ruled that the Talabs could then be made or now be made with retrospective effect. It was the insistence in the arguments raised repeatedly, case after case (that the ground of co-shareship,contiguity etc. having not been annulled, they would continue to benefit the plaintiffs) that the obvious deffi- ciencies including that Talabs were mentioned in the short orders. In any case line of argument stands closed by the judgment in the case of

Ghulam Qadir. Accordingly the further argument that the Supreme Court introduced legislative measure of Talabs in the pending cases as if this condition could be satisfied in those cases, is far from what was ruled or intended. The reality is that as in some other changes of law some litigants do lose some of their rights as extinguished, in this matter also some pre-emptors did lose on account of change/annulment of law. What is lacking is the acceptance of the realities."

It was further held;

"It is, therefore, not correct to say that this Court has prevented the filing of suits with new causes of action after 31st July, 1986. It would however, be seen in individual cases when they come before the Courts, as to whether the substantive law including that of ground and Talabs as also other limitations, substantive and procedural, are complied with in accordance with the Islamic Law. For example;

retrospective Talabs w ould not be possible at all."

75, An apprehension has been expressed before us by Mr.Rana Shabbir Ahmad, a petitioner, that the plaintiffs will file false affidavits with regard to talabs . The apprehension cannot be said to be baselss. In some cases it was noticed that

there has been an unfortunate trend of submitting false affidavits regarding Talabs. This trend was, however, stopped by the Hon'ble Supreme Court in Ghulam Qadri's case (PLD 1988 SC 701), It may, however, be observed that the Courts should be vigilant in accepting such affidavits or evidence and in case it is found that the plaintiff or any witness has filed a false affidavit or adduced false evidence, the Court should inmediately charge such persons for perjury and punish them according to law. Reference may be made to the judgment dated 14-1-1991 of the Supreme Court in Bashir Ahmad vs. Lai (PLD 1991 SC 376) and two latest un reported Orders (1) in the cases Raees Ahmad Khan vs.Mahmood in Civil Appeal No.36 of 1990 and (2) Ghulam Ahmad and another vs. Mohammad Ibrahim in Civil Petition No.l31/L of 1991 dated 13-4-1991 and 20-4-1991, respectively.

76.To sum up, for the reasons discussed above,sections

(A?*

2(a),6(2),12,13(3),22,29 and 35^of the Punjab Pre-emption Act, 1991, to the extent stated-thereunder, are declared as repugnant to the Injunctions of Islam laid down in the Holy Qur'an and Sunnah of the Holy Prophet. They are declared as void and will cease to be effective as on 31st December,1991, unless amended and altered by the Provincial Legislature to bring them in conformity with the Injunctions of Islam as discuss ed above.The above Shariat Petitions stand di^osed of accordingly.

V

77,. Before parting with the matter, we would like to add that this Court examined only those provisions of the Punjab Pre-emption Act, 1991, which were challenged through several petitions submitted in this Court. It does not, therefore, mean that the other provisions of the Act not referred to or discussed herein are in conformity with the Injunctions of Islam as laid down in the Holy Qur'an and Sunnah of the Holy Prophet ( ^ aOJI ^ >•

M • *•

(Dr.'Tanzil-ur-Rahman ) Chief Justice

v

J T “(Abaid - Ullah Khan ) Judge

Islamabad, the 30th May,1991 'Naseer*

.. mbbbbb\

Summary from the court's website

Full judgment

Please confirm

Summary from the court's website

Full judgment

Similar judgments