MUHAMMAD AZIZ and others vs Syed HAIDER ALI SHAH and others
This matter comes before the Supreme Court of Pakistan in four appeals, wherein the learned counsel for the appellants conceded that no decree had been passed in favour of the appellants/plaintiffs prior to 31st July, 1986, rendering their pleas untenable in light of settled precedent. The core legal question concerned the viability of pre-emption claims in the absence of a pre-existing decree before the crucial cutoff date, following the jurisprudence established in Sardar Ali v. Muhammad Ali (PLD 1988 SC 287) and subsequent rulings. The Supreme Court dismissed the appeals, holding that the appellants could not succeed without a pre-existing decree before the specified date. The key principle laid down is that pre-emption claims failing to meet the temporal and substantive requirements established by authoritative judicial pronouncements regarding the law of pre-emption cannot be maintained, and litigants must be properly advised by the Bar regarding Islamic law principles of pre-emption to avoid frivolous litigation.
- Can a pre-emption suit succeed if no decree was passed in favour of the plaintiff before 31st July, 1986?
- What is the effect of the settled case-law following Sardar Ali v. Muhammad Ali on pending pre-emption matters?
- What role does the Bar play in advising litigants regarding the Islamic law of pre-emption and avoiding frivolous litigation?
1. MUHAMMAD AFZAL ZULLAH, C.J.---in these four appeals learned counsel for the appellants stated and admitted that no decree having been passed in favour of the appellants/plaintiffs before 31st July, 1986, they cannot succeed on the pleas raised in these matters.
2. ' The position taken by the learned counsel is reasonable. After the decision in the case of Sardar Ali v. Muhammad Ali (PLD 1988 SC 287), for some time undoubtedly the law remained unsettled; but now, it stands settled by several judgments of this Court following the judgment passed in Review by the Shariat Appellate Bench of this Court and other judgments by the other Benches of this Court; which reiterate the said view.
3. One learned counsel, however stated that some observation be made for preserving the rights of the plaintiffs under the present statutory dispensation on the law of pre-emption. We have no hesitation that if the plaintiffs have any rights they should not be deprived of them but as held in several other similar cases they should be put on caution against raising false pleas and stating incorrect facts. An advice otherwise should not be given to them; as, it might result in hardship, expense and humiliation. Secondly, the parties like the plaintiffs/appellants in such like cases should be given proper advice regarding the development of this branch of law. For example, the recently announced judgment of the Federal Shariat Court in Muhammad Ismail Qureshi v.
4. Government of Punjab PLD 1991 FSC 80 has further annulled some of the latest Punjab Laws as being repugnant to the Injunctions of Islam as contained in the Quran and Sunnah. Similarly it is the duty of the gentlemen of the Bar to study the case-law on Islamic Law of preemption more carefully than it was necessary earlier. It is available in the precedent law of pre-independence India-- particularly from Allahabad High Court and is now abundantly available from our own High Courts of Sindh and Balochistan. There this law has been successfully applied for long time by the Civil Courts. As a result of very scrupulous adherence to Islamie Law and Principles in the field of Shufa, frivolous litigation in this field was controlled many years ago. And it is for that reason that the cases coming to the Courts in the said two Provinces on the subject of pre-emption were very small in number as compared to Punjab and N.-W.F.P., where the laws enacted on the basis of other considerations and in the spirit of jurisprudence, gave rise to unscrupulous and uncontrolled litigation.
5. ' With the foregoing remarks these appeals are dismissed. There shall be no order as to costs.
Cited by 6 cases
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- Mst. MEHRAI And Others vs MUHAMMAD ALI And Other 1995 MLD 492
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- MUHAMMAD SHAFFI through Legal Heirs vs Major MUHAMMAD AKRAM 2000 YLR 1831