N.-W.F.P. Versus HUSSAN PARI

ORDER

1. JUSTICE MUHAMMAD AFZAL ZULLAH (CHAIRMAN).‑‑These two Review Petitions have been filed against judgment of this Court in Shariat Appeal Government of N.‑W.F.P. v. Malik Said Kamal Shah P L D 1986 S C 360‑‑Shariat Review Petition No.2‑R of 1986 is barred by 263 days and Shariat Review Petition No.l‑R of 1987 is barred by 334 days. The applications for condonation of delay do reflect good explanations only for short periods of time. Admittedly, considerably long periods of this inordinate delay have not been explained. While A according to the accepted principles so far followed by this Court, each day of the delay has to be explained by the; party concerned, it is not denied that long periods of delay have not been explained.) These petitions accordingly merit to be dismissed as time‑barred.

2. When questioned as to what are the points on which the petitioner‑Governments seriously consider that the review of the judgment would have been necessary, learned counsel pointed out two aspects: One, that the right of pre‑emption of a tenant is sought to be restored through review of judgment; and two, that even during the routine enforcement and operation of the law of pre‑emption, often need for exemptions arises; the petitioners would have made an attempt, through these review petitions, to obtain an order leaving the necessary scope in this behalf.

3. The question of right. of pre‑emption of a tenant was examined at considerable length. All aspects thereof were very carefully considered when rendering the original judgment. Even if the petition for review would not have been dismissed as time‑barred, it is very doubtful whether the petitioners would have succeeded on merits, in obtaining a review order on the first question.

4. On the second question, we feel that it would not be necessary to review our judgment so as to allow what is sought by the learned counsel because, the same has already been considered and allowed. However, in order to remove any doubts, further clarification of the relevant part of the. judgment can be made even when dismissing the review petition as time‑barred. In exercise of the power of this Court to do complete justice, which can be done on application or otherwise, we accordingly suo motu proceed to explain and clarify the position.

5. A relevant paragraph at page 44 of the judgment reads as follow s

6. ,

7. There is enough scope for making exemptions with the limitations: firstly, they should be on the basis of the principle of '(ZAROORAT)'; and secondly, they should not be left to the discretion of the executive Government but would have to be included in the legislation itself. The use of the word '(AARZI)' signifies a further power to the legislature in this behalf to add or substract from the list of exemptions granted from time to time. As to what is '(SHADID)', it has to be left to the judgment and wisdom of the legislature depending upon the facts and circumstances relating to each subject of exemption. However, all this would be subject to the condition that the word ( SHADID ) would have to be construed in accordance with the injunctions of Islam. The use of word (SHADID) is only emphasise this aspect of (ZAROORAT) that, it has to be established in true Islamic sense. It would not be enough, merely to mention the word (ZAROORAT) to justify an exemption. The Court would have the power to strike it down if Zaroorat is not established. All exemptions so made, of course, would be in addition to the well‑known accepted exceptions which the legislature can specify without resort to Zaroorat; for example: the waqf properties, or the properties owned by the Government as already indicated (para 82 of the original judgment).

8. We have intentionally refrained from visualising all the possible occasions for exemptions based on Zaroorat in the true Islamic sense and the subject for obvious reasons, has been left open.

9. With the foregoing observations and clarifications, these time‑barred petitions for review accordingly, are dismissed.

10. Before closing this order it is necessary to notice two C . M . Ps. (CMP No.l of 1988 and CMP No. 2 of 1987), filed in the two review petitions by the same person with a view to become party therein. The main petitions have been dismissed as time‑barred, these C.M.Ps. are also dismissed, because no matter remains pending, wherein to consider the locus standi of the applicant.

11. There shall be no order as to costs.

12. M.B.A./N‑46/S Petition dismissed