AKBAR Versus SAIRA BIBI
The Supreme Court of Pakistan heard a petition seeking leave to appeal against a judgment of the Lahore High Court dated 12-7-1986, which had dismissed the petitioners/vendees' civil revision arising out of a pre-emption decree passed in favour of the respondent. The petitioners raised two principal grounds: first, that although the pre-emption decree was passed prior to 31-7-1986, it was rendered void by the retrospective effect of the Shariat Appellate Bench decision in Government of N.-W.F.P. v. Malik Said Kamal Shah; and second, that the decree was invalid because there was no assertion or proof on the record establishing that the pre-emptor and vendor were Muslims. The Supreme Court dismissed the petition, holding that the retrospective operation argument was unavailable and already rejected in precedent, including Muhammad Masood Khan Bhatti v. Mst. Ghulam Fatima. The Court further ruled that the objection concerning religious faith was an afterthought that had not been raised at the proper stage.
- Whether the judgment of the Shariat Appellate Bench in Said Kamal Shah's case has retrospective operation to annul pre-emption decrees passed prior to 31-7-1986?
- Can an objection regarding the religious faith of a pre-emptor or vendor be entertained if it was not raised at the proper stage during trial?
ORDER
1. MUHAMMAD AFZAL ZULLAH, J. --Leave to appeal has been sought from judgment dated 12-7-1986 of the Lahore High Court; whereby petitioners,/ vendees' Civil Revision arising out of a pre emption decree passed in respondent's favour, was dismissed.
2. Learned counsel has pressed only two grounds; One, that the decree, though having been passed before 31-7-1986, would be hit by the judgment of the Shariat Appellate Bench of this Court in Government of N.-W.F.P. v. Malik Said Kamal Shah (P L D 1986 S C 360). He has argued that though the judgment became effective on 31-7-1986, it would have retrospective operation so as to annul the decree, in this case. Secondly, he contended that the ground on which the respondent succeeded required that the plaintiff /pre-emptor and the vendor should be Muslims and there being no assertion or proof on the record in this behalf, the decree should have been sell aside.
3. The first ground is not available to the petitioners. This Court has held it in a number of cases including Muhammad Masood Khan Bhatti v. Mst. Ghulam Fatima (1987 S C M R 1206).
4. The second ground is an afterthought. This objection was not taken at the proper stage. It is accordingly repelled.
5. This petition has no force and is dismissed.
6. M.B.A./A-151/S Petition .dismissed.