MUBARAK KHAN vs ALI REHMAN And Other

ORDER

NAIMUDDIN, J.---This is petition for leave to appeal from the judgment of Peshawar High Court, Circuit Bench, Abbottabad dated 16-9-1989 whereby revision filed by the petitioner, being No.66 of 1987, was dismissed.

The brief facts, as stated by the petitioner, are that the petitioner pre-empted Khasra Nos. 1254 and 1255 in village Labarkot purchased by respondent No.1 in the names of respondents Nos.1-4 in the Court of Civil Judge, Mansehra. The same transaction, according to the petitioner, was pre-empted by respondents 1-5 and both the suits were consolidated. While the petitioner's suit was dismissed the suit filed by Respondent 5 was decreed. Both the parties went in appeal before the District Judge, Mansehra where a compromise was entered into between other vendees and respondent 5 who gave up his right of pre-emption in respect of an area of 6 kanals 17 marlas and only a small strip of 3 marlas was agreed to be transferred to him for approach to his land. Without consolidating the petitioner's appeal the appeal of other vendee was accepted and the appeal of petitioner was dismissed on 14-4-1979. A revision against the order was accepted and it was decided by the Peshawar High Court that both the appeals should have been decided together and the case was remanded. On remand the District Judge, after consolidating the appeals, again dismissed the appeal of the petitioner, who again went in revision before the High Court which has been dismissed by the order impugned in this petition.

3. We have heard Mr. Imtiaz Muhammad Khan, learned counsel for the petitioner.

4. It is admitted position that no pre-emption decree in favour of the petitioner was passed before 31-7-1986. No decree could have been passed in view of the judgment in the case of Government of N.-W.F.P. v. Said Kamal Shah PLD 1986 SC 360 read with Sardar Ali and others v. Muhammad Ali and others PLD 1988 SC 287. The High Court relying on the decision of Sardar Ali's case has held that no decree could be granted in favour of the petitioner.

The judgment given by the Appellate Bench of the Supreme Court in Said Kamal Shah's case has been explained by the Shariat Appellate Bench of the Supreme Court in a suo motu Shariat Review Petition, which was decided on 5-7-1989. The Shariat Appellate Bench has observed, inter alia, as follows: "(1) The Shariat Appellate Bench of the Supreme Court is empowered to explain, clarify or review its own orders.

(2) The Shariat Appellate Bench in Government of N.-W.F.P. v. Said Kamal Shah PLD 1986 SC 360 found that all clauses of section 15 of the Punjab Pre-emption Act, 1913, were against the Injunctions of Islam. Accordingly, the effect of the said judgment was that after 31-7-1386 no part of it (section 15) continued to have any legal effect."

This view has been followed by a Full Bench of this Court in Mst. Aziz Begum etc. v. Federation of Pakistan etc. (Const. Petition No.1-R of 1988) and connected matters and thus the view expressed by this Court in the case of Ahmed v. Aziz Ahmed etc. PLD 1989 SC 771 has become ineffective.

6. As regards the N: W.F.P. The Province has already, following the judgment of the Shariat Appellate Bench of the Supreme Court given in Said Kamal Shah's case, introduced a new legislative measure. But the Rule laid down in Said Kamal Shah's cases continues to govern the field.

7. We, therefore, find no merits in this petition and accordingly dismiss it.