SABIR KHAN Versus MUHAMMAD ALI
Sabir Khan and another filed suit in the Court of learned Additional Deputy Commissioner, Swat with powers of Deputy Commissioner under PATA Regulation against Muhammad Hayat Khan and another for possession through pre-emption of land mentioned in the heading of the plaint. The said suit was resisted by the respondents/defendants by filing written statement. The learned Trial Court referred the matter to Jirga and on receipt of the Award held that 1/3rd should go to each of the plaintiffs/pre-emptors and the remaining 1/3rd be left to vendee/defendants. The said order was maintained in appeal and revision by the forums under Regulation. One of the parties filed Writ Petition No.448 of 1986 before this Court which was allowed and the orders/decrees passed by the forums under Regulation were declared to be illegal and the case was remanded to revisional Court vide order dated 29-9-1989. The revisional Court once again maintained the orders dated 23-9-1985, 8-5-1986 and 20-9-1986 which forced the respondents to file Writ Petition No.408 of 1994 before this Court, which was accepted and all the impugned orders were set aside and the case was remanded to the Senior Civil Judge/Aala Illaqa Qazi Civil of District Swat for decision afresh in accordance with law vide order dated 28-3-1995. The learned Senior Civil Judge dismissed the suit vide judgment and decree dated 22-10-1999. Feeling aggrieved with the said judgment and decree, the petitioners filed appeal in the Court of learned Additional District Judge, Swat which too was dismissed vide judgment/decree dated 17-12-1999. Being not contented with the judgments and decrees of the Courts below the petitioners has filed revision petition in hand.
2. Mr. Mian Iqbal Hussain, the learned counsel representing the petitioners argued that while remanding the case to the learned Senior Civil Judge this Court in Writ Petition No.408 of 1994 had directed to decide the suit according to N.-W.F.P. Pre-emption Act, 1950, but the Courts below failed to apply the said law.
3. It was also argued that PATA Regulations had been declared void vide judgment reported in PLD 1995 SC 281, therefore, Riwaj ceased to exist and the Courts below had erred to apply section 4 of the N.-W.F.P. PATA Regulation II of 1975. The judgment (PLD 1992 SC 442) was wrongly relied upon and made applicable to the case in hand.
4. On the other hand Mr. M. Waris Khan, the learned counsel representing the respondents argued that while remanding the case back vide order dated 28-3-1995 passed in Writ Petition No.408 of 1994, this Court directed to determine the rights of pre-emption in accordance with the provisions of the N.-W.F.P. Pre-emption Act, 1950 but it was no where directed that the question of limitation be also decided according to the said law. The judgment of the august Supreme Court of Pakistan PLD 1992 SC 442 was in the field and was applicable to the case, therefore, the same had been rightly applied by the Courts below.
5. It was further argued that there was concurrent finding of Courts of competent jurisdiction which needs no interference by this Court while exercising revisional jurisdiction. Reliance was placed on (1997 SCMR 1138).
6. I have heard the learned counsel for the parties and perused the record.
7. While deciding Writ Petition No.408 of 1994 on 28-3-1995 this Court ordered:
"The N.-W.F.P. Pre-emption Act, 1950 has been made applicable to Malakand Division by Regulation II of 1974 enforced on 20th May, 1974, therefore, the concerned forums were to determine the right of pre-emption in accordance with the provisions of that Act and not in accordance with the usage or Riwaj. It is clear that the qualifications for superior right of pre-emption as embodied in the Pre-emption Act of 1950 have not been kept in view by any of the lower Courts. We, therefore, set aside all the impugned orders and remand the case to Senior Civil Judge/Aala Illaqa Qazi (Civil) of District Swat for decision afresh in accordance with law. No order as to costs. "
According to the above quoted paragraph the concerned forums were directed to determine the right of pre-emption in accordance with the provisions of N.-W.F.P. Pre-emption Act, 1950 and not in accordance with the usage or Riwaj. The argument of the learned counsel for the respondents that only the rights of pre-emption of the parties were to be determined, as per directions of this Court, in accordance with the N.-W.F.P. Pre-emption Act, 1950 but the question of limitation for filing the suit was to be taken into consideration in accordance with the judgment of august Supreme Court of Pakistan reported as PLD 1992 SC 442 has forced in it. No doubt this Court had given the above-quotes directions that the suit in hand be decided in accordance with the N.-W.F.P. Pre-emption Act, 1950 but it appears that the judgment or august Supreme Court of Pakistan in case titled as Khalilur Rehman and 3 others v. Talizar Khan (PLD 1992 SC 442) was not brought to the notice of this Court when the order dated 28-3-1995 was passed. The question as to whether the case should have been decided according to the provisions of N.-W.F.P. Pre-emption Act, 1950 or according to the Riwajnama of Swat needs determination in this case. The answer to this question is that the law which was more in accord with the Islamic principles should be adopted. A similar proposition came up for hearing before the Lahore High Court in Haji Nisam Khan v. Additional District Judge, Lyallpur and others (PLD 1976 Lahore 930) in which it was held:--
"There might still be many more cases and subjects wherein Islamic Law has been applied either to fill in .a vacuum in the existing statute or one out of two possible interpretations of written law which was in accord with the Islamic Law was adopted; or, whenever the law left discretion to the Court to act or not to act in a certain manner, the principles of Islamic Law applicable to the situation, were noticed and applied. It would be, thus, legitimate to conclude that the case-law, after independence, is indicative bf a marked trend by the superior judiciary in Pakistan to apply Islamic Law and its principles wherever the statute law is either silent or is to be interpreted or leaves discretion to the Court to act in one or the other manner. "
The said judgment was affirmed by the august Supreme Court of Pakistan in the case of Muhammad Bashir v. The State (PLD 1982 SC 139) and in Khalilur Rehman and 3 others v. Talizar Khan (PLD 1992 SC 442). In a same case when the question of time for filing pre-emption suit was under consideration, the august Supreme Court of Pakistan in Khalilur Rehman and 3 others v. Talizar Khan (PLD 1992 SC 442) after examining the history of the relevant legislation of laws applicable in PATH came to conclusion that the question of limitation would be governed by the provisions contained in para. 255. of Dastoorul Amal which was in accord with Islamic Law of Shufa.
8. It was in obedience to judgment of august Supreme Court of Pakistan in Said Kam al Shah's case that N.-W.F.P. Pre-emption Act, 1950 was repealed and new Act of 1987 was promulgated in N.-W.F.P. with effect from 28-4-1987. N.-W.F.P. Pre-emption Act, 1987 was extended to PATA with effect from 25-4-1995. From the date of repeal of the N.-W.F.P. Pre-emption Act, 1950 till extension of the new Act of 1987, in the interregnum as per above-quoted judgment of august Supreme Court of Pakistan (PLD 1992 SC 442) the period of limitation for filing pre-emption suit was to be governed by the provisions contained in para. 255 of Dastoorul Amal.
9. Keeping in view the above dictum laid down by the august Supreme Court of Pakistan, I am of the view that the Courts below have rightly dismissed the suit as well' as appeal filed by the petitioner. I have not been able to find out any material irregularity or any jurisdictional error or defect warranting interference in the impugned concurrent findings recorded by the Courts of competent jurisdiction. Resultantly, the revision petition in hand is dismissed with no orders as to costs.
H.B.T./839/P Revision dismissed.