Lawyers Directory Listing
Unlock direct contact details for up to 10 lawyers so you can call or WhatsApp the right legal professional and move your matter forward with confidence.
Shariat Appeals Nos. 4 and 5 of 1979 ; 2, 5. 7 and 15 of 1981, heard on 26th October, 1983.
(On appeal from the judgment and orders dated the 13th December, 1980, of the Federal Shariat Court of Pakistan, Islamabad, in S.P. No. 16 of 1979 ; S. P. No. 22 of 1980 and Order in S. P. No. 512 of 1981, dated 25th May, 1981).
‑‑ Art. 203‑D‑Islamic Jurisprudence‑Pre‑emption‑Repugnancy to injunctions of Islam‑Law of pre‑emption in Islam is a specified exception to general law of freedom of contract and purchase in Islam and would be repugnant to Injunctions of Islam if new exceptions are created‑There being only three categories of pre emptors, it would, held, be repugnant to relevant injunctions if exceptions were curtailed property‑wise or increased, person‑wise Injunctions of Islam and such infringement would not be able to co‑exist in context of definition of "repugnancy".‑‑[ Islamic Jurisprudence‑Pre‑emption).
‑‑‑ Sunnah‑Moamilat‑Ibadat‑Distinction ‑ Even if a Sunnah does not qualify to be a command and remains only a Ghuman, it nevertheless remains the Sunnah of the Holy Prophet (s. a. w. s.) Unless occasion exhausted itself and is not to occur again, that would command respect from believers, at a much higher padestal than the Ghumans of others and it has to be reconciled with all the Com mands of Allah in the Holy Qur'an which enjoin upon believers to
urdu
‑ ‑Pre‑emption‑No mention express or "implied" of a right of pre emption Islamic or customary is available in Holy Qur'an‑‑.Law of Pre‑emption is not a matter concerning Ibadaat i. e. prayers or rituals or devotion for which there may not necessarily exist a manifest intelligible rationale, a purpose or an explanation‑Law of pre‑emption be it customary or Islamic, concerns exclusively and wholly "maamlat" that is, social dealing of individuals, orderly arrangement of their affairs and for such matter rationale, purpose, mischief or wrong sought to be avoided and remedy or advantage sought to be advanced is readily ascertainable‑Out standing feature of Islamic Law of Pre‑emption is that unlike Islamic law of inheritance, marriage etc., it is equally applicable to Muslims and non‑Muslims‑‑Right of pre‑emption whether it is as a co‑sharer, as a neighbour or as a participator of immunities or appendages it is not further qualified or controlled by faith of vendor, vendee or other pre‑emptor‑Injunctions regarding right of pre emption were not decreed or declared at any one point of time encompassing entire field as regards properties which are pre emptible, right of pre‑emption or qualification of pre‑emptor but came piecemeal and was demonstrably situational and when a question arose, a controversy developed, a right was asserted, it was decided by recognising a right.‑[Pre‑emption].
‑‑‑‑ Pre‑emption‑Finality not attained by law of pre‑emption in Islam‑Purpose of Islamic law of pre‑emption being universally re cognized as one of convenience and peaceful enjoyment of one's own property, extension or curtailment of right mast necessarily be related to purposes which it serves. ‑[Pre‑emption].
Muslim Jurisprudence by Abdur Rahim; 1958 Edn., p. 51 ; Ahmad Hasan's Early Development of Islamic Jurisprudence and Sobhu Mahmassami's p. 242 ref.
‑‑‑ Pre‑emption‑Repugnancy of law to injunctions of Islam --Test‑Test of repugnancy is a strong but very restricted test‑ Repugnancy would result only if it were held that Islamic law of pre‑emption as understood todate by Hanafi Jurists to the exclusion of all others, is exhaustive, final and immutable both as regards category and as regards order of priority of pre emptor's right‑Test of repugnancy provided in constitutional dispensation is of Holy Qur'an and Sunnah of Holy Prophet alone Opinion of Jurists can be of avail not as a test but only' as aid to construction‑Task of Jurists is an altogether different one viz. of ascertaining law as appearing from Holy Qur'an and Sunah and was not of testing existing law by its repugnancy or of framing of a new law on the subject with a view to suppress Mischief and advance remedy.‑ (Pre‑emption).
‑‑ Pre‑emption‑Law‑Landlord and tenant ‑Repugnancy to Injunc tions of Islam‑ Repugnancy, when and how results‑
Repugnancy would have clearly resulted, if a tenant protected in his tenancy in the matter of tenure and enjoyment of land against the owner would have been denied right of pre‑emption. Repugnancy would have resulted if in commercial premises the Prophet had allowed the pre‑emp tion claims. Repugnancy would have resulted if a prospective heir with a supervening entrenched right in property not yet inherited would have claimed and had been denied the right of pre‑emption.
‑‑ Para. 25 (2) (d)‑Islamic Jurisprudence ‑Pre‑emption‑Repug nancy to Injunctions of Islam‑Scope of para. 25‑Tenant's right of pre‑emption‑ Regulation conferring on tenant the first right of pre‑emption being clearly in advancement of purposes of pre‑emption law in Islam is not repugnant to Injunctions of Islam. [Islamic jurisprudence].
--Pre‑emption‑No instance is discoverable from Sunnah where a right of pre‑emption may have been conceded in properties like shop, Sarai, Katra. Dharamsala, mosque or other similar buil dings‑Exempting such properties was not repugnant 'to Injunc tions of Islam.‑[Pre‑emption].
‑‑ S. 5‑North‑West Frontier Province Pre‑emption Act (XIV of 1950), S. 5‑‑Constitution of Pakistan (1973), Arts. 203‑A do 203‑J Islamic Jurisprudence‑ Pre‑emption‑Repugnancy to Injunction of Islam‑Provisions exempting properties from pre‑emption are not repugnant to Injunctions of Islam.
‑‑ S. 7 (2)‑Islamic Jurisprudence‑Pre‑emption‑‑Repugnancy to Injunctions of Islam‑Power of Provincial Government to declare by notification that "in any local area or with respect of any land or property or class of land or property or with respect to any sale or class of sales no right of pre‑emption shall exist"‑Law of Pre‑emption in‑ Islam being not founded on any precept of Holy Qur'an, being mundane in character, as practised during period of Holy Prophet (s. a. w. s.) was situational and did not attain finality, permanence and immutability to shut out all adjust ments and improvements‑Conferment of or existence of power to issue said notification cannot therefore be the subject‑matter of challenge.‑[Islamic Jurisprudence].
‑‑ S. 15 (b) (c)‑Islamic Jurisprudence‑ Pre‑emption‑Repugnancy to injunctions of Islam‑Category of pre‑emptors prescribed in S. 15 (b) (c)‑ Conferment of a right of pre‑emption on owner in the estate, Patti or sub‑divisions amounts to an extension of principle of avoi dance of intrusion of an unwanted outsider from neighbourhood to his exclusion from locality, village, or estate itself, or Patti or sub division of an estate‑Homogeneity of a locality or Patti, estate or village may require and justify extension of underlying principle Provision of S. 15 (b) (c), Punjab Pre‑emption Act, 1913 has nexus with object and serve purpose of Islamic law of Pre emption‑Provisions of S. 15 (b) (c) are just permissible extensions of underlying object and depends upon legislative will of community to agree and enact suitable modifications and cannot be struck down.‑[Islamic jurisprudence].
‑‑ S. 15 (a). (b), cl. thirdly ‑Islamic Jurisprudence‑‑Pre emption‑Repugnancy to Injunctions of Islam‑Only provisions of S. 15 (a) (b), cl. thirdly recognizing a right of pre‑emption of a successor of vendor is repugnant to injunctions of Islam having no nexus.‑[Islamic jurisprudence].
‑‑ S. 15 (a) (b), cl thirdly‑Provision of S. 15 (a) (b), cl. thirdly has an altogether different colour and content and does not relate to any tangible right of pre‑emptor in preesenti in immov able property‑Provisions of 15 (a) (b) also. provide that pre‑emptor may be without any interest in immovable property yet may have a preferential right of pre‑emption simply on account of his status as an heir of vendor on basis of a mere spes succionis‑No nexus exists between such a pre‑emptor and object of law of pre‑emption in Islam and hence the law as it stands today has made these provisions repugnant to Injunctions of Islam inas much as they bear no relation or nexus to object of Islamic Law of Pre‑emption.
‑‑Pre emption‑Nothing in Holy Qu'ran itself is available on question of pre‑emption and jurists had relied on certain sayings of Prophet (a. a. w. s.) in this regard and there is conflict between the sayings.‑[ Pre‑emption].
‑‑ Pre‑emption ‑Ownership is considered to be a pre‑condition to exercise of right of pre‑emption‑When vendee denies ownership of property by reason of which claim is founded, pre‑emptor cannot pre‑empt unless he has proved his title. [Pre‑emption].
Sahih of Al‑Bukhari ; Jamia of. Tirmizi ; Hedaya : Fatawa‑i‑Alam. giri ; Gooman Sing v. Tripool Sing and others 8 W R 437 and Bebaree Ram v. Mussamut Shoobhudra 9 W R 455 ref.
‑‑‑‑ Art. 203‑D‑Repugnan4y to Injunctions of Islam‑Law may not be in conformity with juristic opinion of one or the other of the schools but that would not render such law repugnant for purposes of Art. 203‑D unless repugnancy is clearly brought out as against some specific Injunction either in the Holy Qur'an or the Sunnah‑‑ In order to establish repugnancy, it is necessary to show that there is something in Qur'an or Sunnah which expressly or impliedly con tradicts or is incompatible with impugned statutory provisions so that both cannot stand together and acceptance of one must amount to abrogation or abandonment of the other.
‑‑ Art. 203‑D‑Repugnancy to Injunctions of Islam‑Islamic Juris prudence‑Pre‑emption‑Nature of right of pre‑emption‑Views of various schools of thought in Islam‑Conflict‑No unanimity of view found among various schools of thought in Islam in regard to extent and nature of right of pre‑emption ‑Hanafi view alone cannot properly be made sole test of repugnancy.‑[Pre emption.]
‑‑ Pre‑emption‑ Right to pre‑empt cannot be said to be a creation of Islam. ‑[Pre‑emption).
‑‑ Right of pre‑emption‑Relevant Ahadith are neither exhaustive on the subject of pre‑emption nor exclusive of all other cases of persons and property. ‑[Pre‑emption].
Shah Wali Ullah Hujjatullan Al‑Baligha and Majelle (Preface), Part I ref.
‑‑ Pre‑emption‑Object‑Nature of right of pre‑emption would fall in category of those not relating to "Tableeg‑e‑Rasalat" or "Ibadat", this being so, right of pre‑emptiom must relate to "Muamelat" ‑If preservation of homogeneity of community or neigbbourhood be the "Illat" then, with the change in Illat, the law can also change.‑[Pre‑emption].
‑‑------Art. 203‑D‑Repugnancy to Injunctions of Islam‑Islamic Juris prudence‑Pre‑emption‑Three categories of pre‑emption rights recognized by Hanafi school are neither exhaustive nor exclusive and as such cannot be made the test of repugnancy for purpose of Art. 203‑D, Constitution of Pakistan (1973) ‑ Curtailment or extension of right of pre‑emption, that is, to preserve homogeneity of community is both possible and permissible in Islam.‑[Islamic Jurisprudence‑Pre‑emption].
Shariat Appeal No. 4 of 1979
Amirzada Khan, Advocate‑General, N.‑W.F.P. for Appellant.
Shariat Appeal No. 5 of 1979
Amirzada Khan, Advocate‑General, N.‑W.F.P. for Appellant.
Ghulam Mustafa, Advocate Supreme Court for Respondent.
Shariat Appeal No. 2 of 1981
Maulvi Sirajul Haq, Advocate Supreme Court for Appellant.
Hisamuddin, Advocate Supreme Court for Respondent.
Shariat Appeal No. 5 of 1981
Riaz Ahmad Pirzada, Advocate Supreme Court and Ch. Akhtar Ali. Advocate‑on‑Record for Appellants.
Raashid Aziz Khan, Additional Advocate‑General, Punjab with Ghulam Dastgir, Advocate Supreme Court and M. Kowkab Iqbal, Advocate on‑Record for Respondent No. 2.
Riazul Hasan Gilant, Advocate Supreme Court with Hafiz S. A. Rehman, Advocate Supreme Court for the Government of Pakistan.
Shariat Appeal No. 7 of 1981
Khan Hamid Ali Khan Sherwani, Advocate Supreme Court for Appellant.
Riazul Hasan Gilani,, Advocate Supreme Court with Hafiiz S. A. Rehman, Advocate Supreme Court for the Government of Pakistan.
Raashid Aziz Khan, Additional Advocate‑General, Punjab with Ghulam Dastgir, Advocate Supreme Court for the Government of Punjab.
Ch. Akhtar Ali, Advocate‑on‑Record for Respondent No. 2.
Shariat Appeal No. 15 of 1981
Ch. Fateh Ali Cheema, Advocate Supreme Court and Ch. Akhtar Ali, Advocate on‑Record for Appellant.
Riazul Hasan Gilani, Advocate Supreme Court with Hafiz S. A. Rehman, Advocate Supreme Court for the Government of Pakistan.
K. E. Bhatti, Advocate‑on‑Record for Respondent No. 2.
Raashid Aziz Khan, Additional Advocate‑General,‑ Punjab with Ghulam Dastgir, Advocate Supreme Court for the Government of Punjab.
Maulana S. Abdul Shakoor and Dr. Imtiaz Ahmad : Juris‑consult.
Dates of hearing : 23rd to 26th October, 1983.
I have had the advantage of going through the judgments of all the learned brothers on the Bench hearing these appeals. After careful examination of the very ably advanced two main points of view, I, with respect, am unable to agree with the reasoning of my learned brothers Shafiur Rahman and M. S. H. Quraishi, JJ. except that I agree that the Federal Shariat Court had the jurisdiction to examine the questions raised before it.
On the other hand, I agree with the propositions laid down on the law of pre‑emption in the leading judgment of my learned brother Pir Muhammad Karam Shah, J. as also with the similar propositions and specific points contained in the judgment of my learned brother Maulana Muhammad Taqi Usmani, J.
In particular I would also emphasise that paras. 4 to 10 of the latter judgment besides establishing the fundamental question that the law of pre‑emption in Islam is a specified exception to the general law of freedom of contract and purchase in Islam, also answers the point regarding repugnancy in case new exceptions are created. If it is once established that there are only three categories of pre‑emptors, then it would be repugnant to the relevant Injunctions if they are curtailed property‑wise or increased, person‑wise. The Injunctions and these infringe ments will not be able to co‑exist in the context of definition of repug nancy.
I am further of the view that the distinction made by Hazrat Shah Wall Ullah Sahib in the two categories of Moamilat as distinguished from Ibadat when occurring in the Sunnah of the Holy Prophet (S. A. W. S.), so ably highlighted in the judgment of my learned brother Maulana Muhammad Taqi Usmani, J., is extremely relevant to the understanding of the. "Injunctions" contained in the Sunnah. And would only add that even if a Sunnah does not on that test, with respect, to Shah Wali Ullah Sahib qualify to be a command and remains only a ghuman as in the stated instance, it nevertheless remains the Sunnah of the HOIN Prophet (S. A. W. S.). And unless the occasion exhausted itself and is not to occur again, it will command respect from the believers, at a much higher pedestal than the ghumans of others. It has to be reconciled with all the Commands of Allah in the Holy Qur'an which enjoin upon the believers to follow the Sunnah of the Holy Prophet (S. A W. S.)
With these short remarks I agree that these appeals except Nos. 4 and 5 of 1979 be allowed, as specified in detail in the judgments of Pir Muhammad Karam Shah and Maulana Muhammad Taqi Usmani, JJ.
1. The existence of an exception in a statute clarifies the intent that the statute should apply in all cases not excepted."
(Crawford : The Construction of Statutes, 1940, p. 610.
2. "Nor is it necessary that the exception be placed in any particular position in a bill. It has been placed in a separate section of the statute, and even in separate statute." (Op cit., p. 130)
3. "When the legislative purpose in enacting a statute is to effect a radical departure from a firmly established policy, such purpose will not be implied, but must be clearly expressed." (Op cit., p. 268).
Purchase by one person or corporation before an opportunity is offorded to others : also the right to make such purchase".
The Shorter oxford English Dictionary on Historical Principles, Vol. 11, p. 16531.
"In U.S. Australis etc., the purchase or right of purchase in preference and at a nominal price, of public land by an actual occupant, on condition of his improving it." (ibid)
" A privilege accorded by the Government to the actual settler upon a certain limited portion of the public domain, to purchase such tract at a fixed price to the exclusion of all other applicants ; One who, by settlement upon the public land, or by cultivation of a portion it, has obtained the right to purchase a portion of the land thus settled upon or cultivated, to the exclusion ‑ of all other persons."
(Black's Law Dictionary, 5th Edn., p. 1060),
"At common law, a term used to express the right of the King through his purveyours to buy provisions and other necessaries for the use of his household at an appraised value in preference to all others, and even without the consent of the owner."
(Corpus Juris Secundum, V. LXXII, p. 478).
" In international and commercial law, the term is used as expressive of the right of a Nation or country to detain the goods of strangers passing through its territories and seas in order to afford to its own subjects or citizens a preference of purchase." (ibid).
" One of the orthodot classification is that which distinguishes between substantive and procedural law, but it is difficult to draw a clear line between them.
(Paton : Jurisprudence, III Edn., p. 536).
" Law relating to the procedure of any Court."
I had the privilege and the benefit of reading the draft judgment., prepared and circulated by my learned brother, Mr. Justice Pir Muhammad Karam Shah. I have the utmost regard for his learning and wisdom. As I have formed a somewhat different view on the subject I have recorded hereunder a separate opinion for consideration. While doing so, I have adopted unquestioningly the correctness of the "ahadiths" enumerated and accepted as sound in the draft prepared by my learned brother.
The question requiring determination in these appeals filed under Article 203‑F of the Constitution is, broadly speaking, to what extent and how far are the provisions of the Pre‑emption Laws statutorily enforcible in the country at present "repugnant to the injunctions of Islam as laid down in the Holy Quran and the Sunnah of the Holy Prophet hereinafter referred to as the Injunctions of Islam". To be more specific there are five separate appeals, each challenging in its own way the specific pro visions of the Pre‑emption Law as indicated hereunder.
Government of N.‑W.F.P. is the appellant in Shariat Appeals Nos. 4 and 5 of 1979. Malik Said Kamal Shah and Syed Murad Shah had filed a petition under Article 203‑B, as it then stood, of the Constitution challen ging clauses (a), (c) and (d) of section 5 (properties exempted from pre emption). and section 7 (2) (power of Government to exempt properties and sales from right of pre‑emption) of the N.‑W. F. P. Pre‑emption Act claiming that these were repugnant to the Injunctions of Islam. The Shariat Bench of the Peshawar High Court by its judgment dated 1‑10‑1979 declared it to be so from the date of the decision requiring the Legislature to give effect to its decision within three months of the date of decision.
Haji Sadiq Baig and another, the appellants in Shariat Appeal No. 5 of 1981 and Husan Pari appellant in Shariat Appeal No. 2 of 1981 challenged the provisions of para. 25 clause 3 sub‑clause (d) of the Land Reforms Regula tion, 1972 conferring on the tenants of agricultural land the first right of pre emption. The former also challenged the provisions of section 15 clause (c) of the Punjab Pre‑emption Act in so far as it conferred right of pre‑emption on owners of the Patti or other sub‑divisions of the estate. They had filed petitions in the Federal Shariat Court under amended Article 203‑B of the Constitution. Their petitions were dismissed by the Federal Shariat Court for reasons to be examined later.
Mst. Khalidah Adeeba Khanum and another, the appellants in Shariat Appeal No. 7 of 1981 challenged the provisions of para. 25, clause (3), sub clause (d) of Land Reforms Regulation 1972 and also Article 10 and Article 120 of the Limitation Act in so far as these were made applicable to pre‑emption suits. Their petition was also filed in the Federal Shariat Court which dismissed the same for the reasons given in the connected Appeal No. 5 of 1981, the judgment being common to both.
Ali Bakhsh, the appellant in Shariat Appeal No. 15 of 1981, challen ged the provisions of section 15 (c) of the Punjab Pre‑emption Act in so far as it conferred the right of pre‑emption on the owners of the estate as well. This petition too was dismissed by the Federal Shariat Court for the reasons already noted by it.
All the Judges of the Federal Shariat Court were unanimous that the petitions filed by the appellants be dismissed. There reasons were, however, different. Three of the Judges held that the decision given by the Shariat Bench of the Peshawar High Court in an earlier Shariat Petition in the case of Haji Naimatullah Khan 'and another v. Government of ,Pakistan through Ministry of Law (P L D 1979 Pesh 104) on the same subject held the field. The second petition on the same subject was barred and the Federal Shariat Court was incompetent, being. a successor Court of the Shariat Bench of the High Court to re‑examine the question over again. The Chairman and another learned Judge were of the opinion that no such bar existed and on merits the appellants had failed to demonstrate that the specific provisions of the Pre‑emption Law challenged by them were repugnant to the Injunc tions of Islam.
Mr. Justice Aftab Hussain Chairman (Mr. Justice Salahuddin Ahmed fully. agreeing with him), held, that provisions of Martial Law Regulation No. 115 being a constitutionally protected instrument were not open to challenge as the definition of law contained in Chapter 3‑A of the Con stitution excluded the provisions of the Constitution. On merits too, it was found that the category of pre‑emptors ascertainable from the Sunnah of the Holy Prophet was neither exhaustive nor complete; that further additions could be made to it and that the "Zurrur" or inconvenience and damage sought to be avoided by the provisions of law of pre‑emption were a pointer to its scope, existence and modifications.
The learned counsel for the appellants contended on the basis of reasons given on merit by the three learned Judges that as the law of pre‑emption was restrictive of the right of the owner and of the seller to hold, enjoy and deal with their properties, it had to be construed strictly and must be confined to the three instances or rights ascertainable from the Sunnah of the Holy Prophet. The priority fixed thereunder was also, according to the learned counsel, as held by the three learned Judges, final and binding. No departure therefrom was possible.
As regards the competence of 'the petitions, the learned counsel for the appellants contended that a new chapter had been added in the Constitution and, it empowered the Shariat Bench of the High Court in the first instance, and subsequently by amendment, the Federal Shariat Court, to pronounce on the validity of the law and the test for it was also indicated. The definition of law in no manner ousted the examination of M. L. R. 115 or the provisions of the Pre‑emption Law. The definition of law as given had to be construed as a whole and in the context of the new jurisdiction conferred on the Bench of the High Court and subse quently on the Shariat Court. As 'no provision of the Constitution itself was under challenge, the bar did not exist. The Constitution either vali dated or in validated and continued and protected the existing laws as on the commencing date. As held in M. Yamin Qureshi v. Islamic Republic of Pakistan and another (P L D 1980 SC 22) the qualified protection did not bar their examina tion and rejection of those which did not stand up to the test provided under the Constitution itself.
In addition, the appellants contended that so far as the N.‑W. F. P. Pre‑emption Laws were concerned, they had already been declared repug nant to Holy Quran and the Sunnah and against it no appeal had been filed by the Government with the result that that law and particularly the provisions which were held repugnant had ceased to have effect and had to be completely ignored. That declaratory .judgments, according to the learned counsel for the appellant, had attained finality and could not be challenged directly or indirectly.
Mr. Rashid Aziz, the learned Advocate‑General then Additional Advocate‑General contended that the M.L.R. 115 was not open to scrutiny under Chapter 3‑A of the Constitution because it had been given special protection by provisions of Article 24, Article 253, Article 268 (2) and Article 269 of the Constitution. What the Court could not accomplish directly, it could not achieve indirectly either. Iii view of such protection it was not possible for the Courts under Chapter 3‑A to. create a dent in these constitutional provisions.
Mr. Gilani, the learned Advocate for the Central Government, con tended that there is unanimity among the jurists that the right of pre emption exists in a co‑sharer. The other clams are all disputed. However, he has pointed out that there is a purpose or an Vat and as soon as it is ascertained it acts as the justification for the order and the command and if it is modified in course of time by changes occurring in the society or otherwise, the command itself is liable to suitable modifications or adjustments.
Presidential Order No. 22 of 1978 which was published for general information on 4‑12‑1978 and was to take effect on the 12th day of Rabi ul‑Awwal 1399 Hijri, provided for the first time by Article 6 thereof, and this was independent of the Constitutional provisions, that "a Shariat Bench may, either on the petition of a citizen of Pakistan or the Federal Govern ment or a Provincial Government or of its own motion ; examine and decide the question whether or not any law or provision of law is repug nant to the Injunctions of Islam as laid down in the Holy Quran and the Sunnah of the Holy Prophet hereinafter referred to as the Injunctions of Islam." The law was defined in clause (a) Article 2 to include any custom or usage having the force of law but does not include the Con stitution, any fiscal law, Muslim Personal Law, any law relating to the procedure of any Court or Tribunal or any law relating to the levy and collection of taxes and fees or banking or insurance practice and pro cedure". Article 4 provided for the constitution of a Shariat Bench in the High Court and Article 5 provided for the establishment of a Shariat Appellate Bench in the Supreme‑Court.' Article 9 provided that no Court or Tribunal, including a High Court and the Supreme Court, shall entertain any proceedings or exercise any power or jurisdiction in respect of any matter within the power or jurisdiction of a Shariat Bench or the Shariat Appellate Bench. This Presidential Order was to "have effect notwith standing anything contained in the Constitution or any other law for the time being in force".
Presidential Order No. 3 of 1979 which followed was published for general information on 7‑2‑1979 and it was given effect arid enforced on the 12th day of Rabi‑ul‑Awwal, 1399 Hijri i.e. the 10th of February, 1979. It was called Constitution (Amendment) Ordinance, 1979. The Constitu tion of 1973 suffered a material change thereunder whereby a new Chapter 3‑A was added in Part VII, of the Constitution. Article 203‑A provided that :‑‑
"The provisions of this Chapter shall have effect notwithstanding anything contained in the Constitution."
Article 203‑B conferred a new jurisdiction on the High Court, in the following words:
"203‑B. Conferment of jurisdiction on High Court.‑(1) A High Court may, on the petition of g citizen of Pakistan or the Federal Government or a Provincial Government, examine and decide the question whether or not any law or provision of law is repugnant to the Injunctions of Islam as laid down in the Holy Qur'an and the Sunnah of the Holy Prophet, hereafter in this Chapter referred to as the Injunctions of Islam."
By Presidential Order No. 1 of 1980 Constitution (Amendment) Ordinance 1980 published and given effect to from the 26th of May 1980 a new Chapter 3‑A was substituted in the Constitution for the earlier one introduced by P. G. 3 of 1979. A new Federal Shariat Court comprising five Members including the Chairman was established by Article 203‑C. Clause (2) of Article 203‑H required that all proceedings under clause (1) of Article 203‑B of the Constitution that may be pending before any High Court immediately before the commencement of this Chapter shall stand transferred to the Court and shall be dealt with by the Court from the stage from which they are so transferred. Appeals from the decision of the Federal Shariat Court lay to the Supreme Court and it was ,prescribed in clause (2) of Article 203‑F that the provisions of clauses (2) and (3) of Article 203‑D and clauses (4) to (8) of Article 203‑8 shall apply to and in relation to the Supreme Court as if reference in those provisions to Court were a reference to the Supreme Court.
By Presidential Order No. 4 of 1980 enforced on the 21st of June, 1980'certain minor amendments were made which are not very material for deciding the questions involved herein.
Two facts stand out in the appeals under consideration so far as the bar of jurisdiction is concerned. The first is that no specific constitutional provision was at any stage pleaded or upheld against the pristine provisions of N.‑W. F. P Pre‑emption Act or the Punjab Pre‑emption Act. It is the engrafted provisions of Land Reforms Regulation 1972 para. 25 clause (d) conferring on the tenant of agricultural land in respect of his tenanted land, the first right of pre‑emption which was sought to be protected by invoking a constitutional bar. The second fact is that there was no direct, categorical unequivocal bar, constitutional or otherwise pleaded at any stage. What was pleaded was an indirect, inferential bar, deduced or implied from other provisions of the Constitution e.g. Articles 269, 268(2) and 8(3). The learned Judge. uphold ing the bar observed :‑‑
"The question arises : can the Court declare anything invalid or bad which is declared valid by the Constitution The answer to this question must be in the negative. But here the Court is confronted with another difficulty which to say the least is insurmountable. It cannot declare any provision of the Constitution as repugnant to Islamic Injunction. Any declaration of repugnancy with Shariah of the provisions of law placing ceiling on ownership or reducing it, would amount to declaration of those Constitutional provisions as bad which declare those laws either valid or untouchable.
The question of the validity of the Regulation came up for considera tion before the Supreme Court in Mehreen Zaibunnisa v. The Land Commissioner, Multan and others P L D 1975 S C 397. It was held to be constitutionally immune from attack. It was further held that:
All amendments made to Martial Law Regulation 115 were given protection from the Fundamental Rights, and saved from repeal being included in the first and the Seventh Schedule to the Interim Constitution, and such inclusion was given retrospective effect from the commencing day of the Constitution'. (P. 422)."
We do not think that any such bar in fact exists so far as the new Constitutional dispensation is concerned. An entirely new power was conferred on the Specified Courts or benches thereof. A test of repugnancy 'i.e. Injunctions of Islam was prescribed. This empowerment had its own inhibitions and limitations, and, but for these, it transcended all constitutional protections and safeguards. For example all laws, but not the Constitution, Muslim Personal Law, any law relating to the procedure of any Court or Tribunal" or, any fiscal law or law relating to the levy and collection of taxes and fee or banking or insurance practice and procedure" could be tested on this standard "notwithstanding anything contained in the Constitution". To apply this test of repugnancy to the Constitution or a provision thereof is one thing and to apply this test to any other law, validated, continued or protected under the Constitution is another. The first is prohibited, the second is not.
Article 269.of the Constitution declares inter alia all Martial Law Regulations "to have been validly made by competent authority and shall not be called in question in any Court on any ground whatsoever". In spite of such a comprehensive and complete bestowing of competency, validity and immunity they had .o be protected by express provision of Article 8(2)(b) against their inconsistency with Fundamental Rights. On the same reasoning if such laws were to be protected against the normative test of Injunctions of Islam, there had to be express provision in similar words for them in Chapter 3‑A of the Constitution. With such a categorical conferment of power, none of the inhibitions being attracted or applicable, it cannot be said that the Court was precluded from examining such laws directly or indirectly. The case of Meheen Zainbunnissa, in the absence of a similar provision in Chapter 3‑A as is to be found in Article 8(2)(b) of the Constitution cannot be brought in aid for implying restriction and limitations in the constitutional power.
It is a fact that in ' the Holy Qur'an there is no mention express Or implied of a right of pre‑emption Islamic or customary. The law ‑of pre emption is not a matter concerning "Ibadaat" that is prayers or rituals or devotion for which there may not necessarily‑exist a manifest intelligible rationale, a purpose or an explanation. The law of pre‑emption be it customary or Islamic concerns exclusively and wholly, "Maamlat' that is social dealing of individuals, orderly arrangement of their affairs, and for such matters the rationale, the purpose, the mischief or wrong sought to be avoided and the remedy or advantage sought to be advanced is readily ascertainable. Another outstanding feature of the Islamic law of Pre‑emption is that unlike the Islamic Law of inheritance, marriage etc. it is equally applicable to Muslims and non‑Muslims. A tight of pre emption whether it is as a co‑sharer, as a neighbour or as a participator or immunities or appendages, it is not further qualified or controlled by the faith of the vendor, vendee or the other pre‑emptor. This would point on the one hand to its purely mundane character. and on the other to its universality. Finally, the injunctions regarding right of pre‑emption not decreed or declared, at any one point of time encompassing the entire field as regards the properties which are pre‑emptible, the right of pre‑empties or the qualification of pre‑emptors. It came piecemeal. It was demonstrably situational. As and when a question arose, a controversy developed, a right was asserted, it was decided by recognising a right. The very first Hadith on the subject first in point of time and unanimously , recognized and relied upon by all sections of. the Muslims is in the following words:
A section of the Muslim population including toe Shias and the Shaafis considers this to be the beginning and the end of the right of a pre‑emptor. It is recognised by these sects to exist only when there are two and not more than two co‑sharers of the property and a share of one of them is sold. As and when the partition takes place there ceases to be any right of pre‑emption available.
There are other Ahadiths which have been re‑produced in the judgment of my learned brother Mr. Justice Pir Muhammad Karam Shah whereby a similar right is found to exist in the neighbour and one who participates in immunities and the appendages. From these stray instances arising at different points of time, it cannot be said that either at any particular point or on the revelation of all the three instances finality was attained by the law. Its purpose being universally recognised as one of convenience and peaceful enjoyment of one's own property, the extension or the curtailment of the right must necessarily be related to the purposes which it serves:
Mr. Abdur Rahim in his book "Muslim Jurisprudence." (p. 51, 1958 Edition) has remarked that the ultimate basis of and justification for law must be sought in human reason'. Ahmed Hasan (The Earl Development of Islamic Jurisprudence) observes :‑ ‑
"The Qur'an and the Sunnah no doubt provide us with same legal rules with regard to the individual and social life of Muslims. But human life being dynamic, requires laws that should change with the changing circumstances. Ray is an instrument that enables the coverage of diverse situations and enables Muslims to make new laws according to their requirement. The period of Umar's Caliphate abounds in such instances."
At page 242 Sobhu Mahmassami in his book observes as follows :‑
The test of repugnancy of enacted law to the injunctions of Holy Qur'an and the Sunnah was‑introduced for the first time in the constitution and it was notwithstanding any provision of the Constitution to the contrary. The word repugnant' has come to acquire a known and fixed connotation in law as would appear from the following discussion in the case of Province of West Pakistan v. Mehboob Ali and others (PLD 1976 SC 483).
"According to the Oxford Dictionary the word 'repugnant' means 'contrary or contradictory to, inconsistent or incompatible else'. In Union SS Co. of New Zealand v. The Commonwealth 1925 36 C L R 130 it was observed that no doubt the word repugnant is often used loosely or rhetorically but in considering the acts of parliament the strict meaning should prima facie be applied. According to Corpus Juris Secundum Vol. 42 p.‑541 the word 'inconsistent' is of broad signification implying contradiction, qualities which cannot co‑exist, not merely a lack of uniformity in details, and judicially defined as meaning contradictory in, harmonious, logically incompatible ; contrary the one to the other, or, so that one infers the negation, destruction, or falsity of the other ; or the acceptance or establishment of the one implies the abrogation or abandonment of the other; as in speaking of inconsistent defenses or the repeal by a statute of all laws inconsistent herewith. Having regard to the judicial interpretation of the word inconsistency and repugnancy I have no doubt whatever, in my mind that it is not right to suggest that merely because the definition of Local Council has been enlarged in rule ,(h) so as to include Municipal Committees, it becomes so inconsistent as to be destructive of the statutory definition of the term. Rather the definition has been enlarged only 'for the purpose' of the 1963 Rules, and this is in keeping with the general purpose and tenor of both the statutes as manifested by the fusion of Chapter VIII of the Order into the Ordinance. Not only that. According to Article 92(6) of the order, the Rules framed there under, shall be deemed to form part of this Order and shall have effect accordingly. This is a complete answer to any question as to the vires of rule 2(h) and also rule 6."
The test of repugnancy is a strong but very restricted test; Repugnancy would result only if it were held that the Islamic Law of Pre‑emption as understood to date by the Hanafi Jurists to the exclusion of all others, is exhaustive, final and immutable, both as regards the category and as regards the order of priority of the pre‑emptor's right. The test provided in the constitutional dispensation is of Holy Qur'an and the Sunnah of the Holy Prophet alone. The opinion of the jurists can be of avail not as a test but only as aid to construction. Besides, the task of jurists was an altogether different one viz. of ascertaining the law as appearing from the Holy Qur'an and Sunnah. It was not of testing the existing law by its repugnancy or of framing of a new law on the subject with a view to suppress the mischief and advance the‑remedy. Surprisingly, none is at variance with regard to the purpose and the object of law of pre‑emption. If that be so and the exercise be not one of extracting or ascertaining the law, through various periods of history, or from instances taken from the Sunnah of Holy Prophet (in the absence of a command in the Holy Book), then the demands of repugnancy alone have to be satisfied. Repugnancy would have clearly resulted, if all tenant protected in his tenancy to the matter of tenure and enjoyment or against the owner would have been denied right of pre‑emption. Repugnancy would have resulted if in commercial premises the Prophet bad allowed the pre‑emption claims. Repugnancy would have resulted if a prospective heir with a supervening entrenched right in property not yet inherited would have claimed and had been denied the right of pre‑emption. But then there is no such instance of repugnancy forthcoming.
Taking up now the tenant's first right of pre‑emption conferred and recognized by clause (d) of sub‑para. (2) of para. 25 of the Land Reforms Regulation 1972 it has to be noted that by sub‑para. (1) of the same para. the tenant has been granted security of tenure in the matter of possession and enjoyment of his tenancy. By sub‑para. (2) of the same para. statutory partnership on specified terms is established between the landlord and tenant for beneficial use of the land by tenant. After accomplishing these the law further grants to such a tenant the first right of pre‑emption in respect of the land comprised in tenancy. it is true that as commonly understood right of pre‑emption goes with the ownership and not with any subordinate right in property but then such a traditional concept or ownership implies, at owners will, a right to immediately possess and enjoy the owned property notwithstanding any contract to the contrary. But where this right to immediately possess and enjoy the property is not available, it will be not advancing the object or purpose of pre‑emption but would manifestly be defeating or frustrating it if right were conferred on such an owner and not on the person present on the land and in its enjoyment to the exclusion of the owner. The question before us is not whether such protections should have been granted to the tenant, not whether such clogs on owners' right are proper. For the purposes of these appeals, such are the facts. The law conferring on such a tenant the first right of pre‑emption being clearly in advancement of the purposes and objects of the Pre‑emption Law is not repugnant to the Injunctions of Islam.
Next are the properties exempted from Pre‑emption (section 5 of Punjab Pre‑emption Act 1913 and section 5 of N.‑W.F.P. Pre‑emption Act 1950). The former exempts (a) shop, Serai, Katra (b) a Dharamsala mosque or other similar building. The latter exempts (a) a shop, Serai. Katra or club (b) a Dharamsala, mosque, church, or other similar charitable institutions or buildings (c) agricultural land or village, immovable property, consisting of an area measuring not more than two Kanals purchased by a resident of the village in which such land is situated, where he neither owns a house nor a vacant site measuring more than one Kauai for constructing a house for his own occupation (d) agricultural land or urban immovable property consisting of an area measuring not more than ten Marlas purchased by a resident of the town in which such land or property is situated where he neither owns a house nor a vacant site measuring more than five Marlas, for constructing a house for his own occupation". The exemptions under the N.‑W.F.P. Pre‑emption Law are more extensive and numerous.
There is no instance discoverable from the Sunnah of the Holy Prophet where a right of pre‑emption may have been conceded n properties like shop, Sarai, Katra, Dharamsala, mosque or other similar building. Therefore, there is no case of repugnancy in exempting such properties. Similarly no instance of purchase of a small area for constructing a house for residence by a shelterless person is discoverable in the Sunnah of the Holy Prophet. That test being satisfied, the next question would be whether such exemptions have a nexus with the manifest purposes and objects V law of pre‑eniption or there is total absence of it, whether such exemption serve to any extent the purpose and object of the law of Pre‑emption or have a tendency to defeat it. The exempted properties fall in two broad categories. The first are of properties not used as abode, where public in general has a right of access and has also a qualified right of stay on the premises. In other words, the access, the entry and the stay on such premises is not by invitation or permission. The transfer of ownership .of such property, as distinguished from the nature of its use, would nor in any manner add to the beneficial enjoyment of the other property. Hence by exempting the properties of this category no serious inroad on the enjoyment of one's property is caused. The second category is of properties acquired for affording shelter to people who according to established standards are shelterless. This effort of a shelterless person to provide for himself and his family a shelter against the physical elements is at once raised. to the level of "ibadaat" in Islam and what reaches that level of sanctity must prevail over mundane rights of convenience, comfort and ease of others, living around.
These exemptions are, therefore, not repugnant to Injunctions of Islam. They have a nexus with the purpose and object of the law or pre‑emption, and advance, rather than defeat it. Hence they cannot be declared to be beyond the legislative competence, applying the test provided in Chapter 3‑A of the Constitution.
The other legislative provision challenged is section 7, subsection (2) of the N.‑W. F. P. Pre‑emption Act. The Legislature by this subsection conferred a power on Provincial Government to "declare by notifica tion that in any loco) area or with respect of any land or property or class of land or property or with respect to any sale ox class of sales no right of pre‑emption shall exist". The challenge is not that a delegation by the Legislature to the Provincial Government of its powers is against the Injunctions of Islam. The contention that Islamic Law of Pre‑emption as interpreted and understood by Hanafi Jurists is exhaustive and complete in all respects and no addition 'or exemption can be made or allowed in any circumstance by any authority whatsoever. We have at the very beginning taken note of this argument and held that the law of pre‑emption being not founded on any precept of the Holy Qur'an,. being mundane in character, as practised during the period of Holy Prophet was situational and did not attain finality, permanent, and immutability, to shut out all adjustments and improvements. On that principle the conferment of or existence of such a power with the Government, cannot be the subject‑matter of chellenge. The exercise of it in any given case can of course be challenged on the ground that it bears no nexus to the purposes and objects of the Islamic Law of Pre‑emption, or that exercise of the power in a given case defeats rather than advance its purposes.
In three Appeals (No. 5 of 19 1, No. 7 of 1981 and No. 15 of 19811, the challenge is to the category of pre‑emptor prescribed in section 15 clauses (b) and (c) of the Punjab Pre‑emption Ad. The conferment of b right of pre‑emption on the owner in the estate, Patti or sub‑division ,44 amounts to an extension of the principle of avoidance of intrusion of as r, unwanted outsider from the neighbourhood to his exclusion from the locality, village, or the estate itself or the Patti or sub‑division of an estate. The homogenity of a locality a Patti, estate or village may require and justify the extension of the underlying principle. Considering the historical background of our own rural communities, the tribunal settlements, the customary law, it cannot be said that these provisions have no" nexus with the object or do not serve the purpose of the law. They are just permissible extensions of the underlying object and it of course depends upon the legislative will of the community to agree and enact suitable modifications. It cannot be struck down on the tests enunciated above.
The priority assigned by clause (a) and sub‑clause thirdly of clause (b) of section 15 of the Punjab Pre‑emption Act has an altogether different colour and content. It does not relate to any tangible right of the pre‑emptor in presentai in immovable property. A pre‑emptor may be without any interest in immovable property yet may have a preferential right of pre emption simply on account of his statuts as an heir of vendor, on the basis of a mere spes succionis. There is not the slightest nexus between such a pre‑emptor and the object of the law of pre‑emption. Such a nexus did, however, exist in respect of Agricultural land inherited by vendor before 16‑3‑1948 till the decision in Federation v. Muhammad Ishuque (P L D 1983 S C 273) was given and promulgation of Ordinance No. XIII of 1983 as before that the supervening, intangible right of an heir over property not yet his own was recognized and was also enforcible at law: The law as it stands today has made these provisions repugnant to the injunctions of Islam inasmuch as they bear no relation or nexus to the objects of Islamic Law of Pre. emption.
The other provisions challenged are sections 19, 20 and 30 of the Punjab Pre‑emption Act and section 10 of the Limitation Act. There are provisions relating to procedure and they stand excluded from the definition of law as given in clause (c) of Article 203‑E of the Constitution. Hence they are not open to scrutiny.
The upshot of the above discussion is that only the provision of law (sections 15 (a) and 15 (b) clause thirdly of Punjab Pre‑emption l0 Act) recognizing a right of pre‑emption of a successor of the vendor is found to be repugnant to Injunctions of Islam having no nexus. The appeals are to be accepted to that extent alone, with no order as to costs.
I had the advantage of going through the judgments proposed to be delivered one by Pir Muhammad Kar m Shah, J. and the other by Shafiur Rahman, J. No doubt, I have great respect for the erudition of my learned brother Pir Karam Shah particularly in Shariat matters, but on a careful study of the various aspects of the controversy before us, I am inclined to agree with view taken by Shafiur Rahman, J.
2. The main question, arising in these appeals, ‑on‑which I would express myself briefly, is whether the right of pre‑emption is confined in Islam to only three classes of pre‑emptors, namely, (a) co‑parceners in the property, (b) sharers in amenities and appendages and (c) neighbours, and whether any law enacted by the State to curtail ‑or extend that right to any other class of persons having interest in the property must be held to be against the Injunctions of Islam.
3. The Peshawar High Court held that the right of pre‑emption has been conferred ‑in Islam "on the persons who fall within the categories of co‑owners, participators in amenities and appendages and owners of con tiguous properties", that "the law laid down by these Ahadis would, there fore, be applicable with all it's force on the matters relating to the right of pre‑emption in the sale of immovable property" and that "the only exception created by (The‑ Holy Prophet as Law Giver) is the one having reference to the sale of well and date trees". The extension of this exception "to any property or any Sale or class of sales" in the view of that Court is "in flagrant violation of the Injunctions of Islam".
4. The Federal Shariat Court, by a majority decision, however; took altogether a different view. It held that the object of pre‑emption in Islam is to remove Zarar or damage, that it cannot be laid down that what is harmful to the society as a whole in oneage shall always remain harmful to it, that if the intention is to repel Zarar the method of repelling it may also change with the lapse' of time and that "in any case where the exigencies of the State so require and the harm to the interest of the public may be minimised only by not caring for the harm 'to the interest of individuals, preference will be given to the elimination of public harm on the following rule laid down in the Mejelle, page 6:
'26. To repel a public damage (Zarar) a private damage is preferred. The prohibition of an unskilful doctor is a branch from this rule.'
The Federal Shariat Court thus concluded that "in. the larger interest of the public the State cannot only grant the right of pre‑emption to new categories or classes but can also withdraw the concession or suspend the right for minimising public Zarar". The ‑Federal Shariat Court, though it agreed that the principle that a pre‑emptor must be an owner of property in order to be able to claim his right as such pre‑emptor, originated from traditions but held that "if once right is conceded to the state to add to these categories in the interest of public welfare the owner ship of property cannot be considered to be a basic requirement of the right of pre‑emption".
5. The conclusion reached by my worthy brother Pir Muhammad Karam Shah, J. is that according to Sunnah of the Holy Prophet the right of pre‑emption is confined to the aforesaid three classes of persons only, that,. therefore, there is no scope for extending that right to any one else, and that any addition thereto could be only by analogy (Qiyas) but Qiyas would not be correct because:
6. As there is nothing in the Quran's itself on the question of pre‑emption, jurists had relied on certain sayings of the Prophet in this regard. The relevant Ahadis are :‑
" I. On the authority of Jabir, son of Abdullah, said he, "the Prophet has ordered for pre‑emption in case of every such property as has not been divided. But when boundaries and passages have been marked out then there is no pre‑emption." (Sahib of Al‑Bukhari).
On the authority of Jabir, said he, "The Prophet of Allah said 'When the boundaries have been laid down and roads marked out then there is no pre‑emption.". (Jamai of Tirmizi).
On the authority of Ibn Abbas, said he "The Prophet of Allah said: "The co‑sharer has the right of pre‑emption and pre‑emption lies in everything." (Jamai of Tirmizi).
II. On the authority of Amr, son of AI‑Sharid said he, "I was stand ding by Sa'd, son of Abu Waqqas when there came Al‑Misawar, son of Makhrama, and placed his hand on one of my shoulders". Then there came Abu Rafi, the servant of the Prophet, and said, 'O Sa'd purchase from me the two houses that are next to your house." Sa'd said "by Allah I will not purchase them". AI‑Misawar said. "By Allah you shall have to purchase them" Sa'd Said, "By Allah I will give you 4,000 Dirhems and even that by instalments." Abu Rafi said, "I am already being paid 500 Dinars for them, and if I had not heard the Prophet saying that the neighbour has the grea test right on account of his being near in proximity, I would not have given you these houses for 4,000 Dirhms particularly when I am certain of getting 500 Dinars for them". Then Abu Rafi gave those houses to Sa'd. (Sahib of Al‑Bukhari).
III. On the suthrity of Abu Imran said he, "I heard Talha, son of Abdullah" quoting Ayisha I said.' "O Prophet of God I have two neighbours ; to which of the two shall 'I sell the share first " The Prophet said "to the one whose door is nearer to yours" (Sahib of Al‑Bukhari)
On the authority of Samurah, said he, "The Prophet of Allah (peace be on him) said 'The neighbour of the house has the greatest right (to pre‑empt) the house." (Jamia of Tirmiz)
The above Sayings find mention also in the other compilations by Abu Dawud, Ibn‑i‑Majah and Nasai.
7. Apparently, there is conflict between the first and the other Sayings because according to the first Saying the rights of pre‑emption is confined to the sharers in undivided property and ceases as soon as the property is divided and boundaries and passages are marked out, where after there is to be no pre‑emption. In fact all other Schools in Islam, except Hanafi School, confine the right of pre‑emption to the partners of undivided property. According to Hedaya.
"Shafei is of opinion that a neighbour is not a Shafee because the Prophet has said, "SHAFFA relates to a thing held in joint pro perty, and which has not been divided off : "when, therefore, the property has undergone a division, and the boundary of each partner is particularly discriminated, and a separate road assigned to each, the right of Shaffa can no longer exist. Besides, the existence of the right of Shaffa is repugnant to analogy, as it involves the taking possession of another's property contrary to his inclination ; whence it must be confined solely to those to whom it is particularly granted by the LAW. Now, it is granted particularly to a partner ; but a neighbour cannot be considered as such; for the intention of the LAW, in granting it to a partner, is merely to prevent the inconveni ences arising from a division ; since if the partner were not to get that share which is the subject of the claim of Shaffa, a new purcha ser might insist upon a division, and thereby occasion to him a great deal of unnecessary vexation ;‑but as this argument does 'riot hold good on behalf of a neighbour, he therefore, is not entitled to the privilege of Shaffa."
Under the Shia Law, according to Syed Ameer Ali, "co‑sharers in the property, that is, shafi ‑ i ‑ Sharik alone are entitled to the right of pre‑emption". The Hanafi School, however, relying on the other precepts of the. Prophet already reproduced earlier hold that, the right of Shaffa in the neighbour stands established.
8. Ownership (milk) was considered to be a precondition to the exercise of the right of pre‑emption. II has been commented in the Farawa-i‑Alamgiri . "At the time of the sale there must be milk ownership of the pre‑emptor in some property by reason of which he claims the right of pre‑emption, the pre‑emptor has no right by reason of a mansion of which he is merely an occupier whether a tenant on hire or on 'ariat' nor will he have the right of pre‑emption if he had sold this property before this transaction, nor if he has converted it into a masjid. The milk owner‑It ship of the pre‑emptor must be established, at the time of the denial of his claim, by means of absolute evidence. This tantamounts to the estab lishment of the right. If the vendee denies the ownership of the house by reason of which the claim is founded, the preemptor cannot pre‑empt until he has proved .his title. This is according to the views of "Imam Abu Hanifa and Imam Muhammad and one of the two reports of Abu Yousuf also mentions the same view." Basing on the above, it was held as early as 24th September, 1867 in Gooman Singh v. Tripool Singh and others (8 W R 437):
"The Muhammaden Law nowhere recognizes the right of pre‑emption in favour of a mere tenant upon the land ."
It was likewise held on 8th April, 1868 in Beharee Ram v. Mst. Shoobhudra (9 W R 455) that‑
"mere possession gives no 'Huk Shuffa according to Muhammaden Law. There must be owership ('milk') in the contiguous land."
9. It must, however, be noted that Muhammaden Law as understood and interpreted in the above cases by the Courts is based on the juristic principles (Fiq‑h) as expounded by the scholars of legal thought in Islam. But here, in a matter arising under Article 203‑D of the Constitution we are concerned with the question whether the law is repugnant to the Injunctions o: Islam as laid down in the Holy Qur'an and the Sunnah of the Holy Prophet. A law may not be in conformity with the juristic opinion of one or the other of the Schools but that would not render the same repugnant for the purposes of Article 203‑D unless the repugnancy is clearly brought out as against some specific Injunction either in the Qura'n or the Sunnah. In order to establish repugnancy, it is necessary to show that there is something in the Qura'n or the Suanah which expressly of impliedly contradicts or is incompatible with the impugned statutory provisions so that both cannot stand together and the acceptance of one must amount to the abrogation or abandonment of the other. As already stated, there is nothing in the Quran's on the subject. In construing the Sunnah we must in the first instance notice that all the Schools are not unanimous on its interpretation except as regards a co‑sharer's right of pre‑emption. The reason given by Imam Shafei for excluding the right of pre‑emption on the basis of vicinage is grounded in the first Hadith itself. The Shia School, as already pointed out, also does not go beyond the right of the co‑sharer of undivided property or of a person having an existing interest of a substantial nature such as common pathway or water‑course and "a (son who has only an easement over another's Pro perty, or a mere neighbour has no right to claim the property in question in preference to a third person," Again, although according to Shia law, a partner in the property sold has the right of pre‑emption, there is no such right if when there are several sharers and one of them only sells his share, though some legists hold otherwise. The Schools also differ on the question of heritability of the right to pre‑empt. According to Hanafi School, the right is rendered void if the pre emptor dies before taking osier possession of the property or before obtaining a decree therefor from Court. According to Shafeis and Shia,, however, the right is heritable and devolves upon the heirs of the pre emptor. There thus being no unanimity of view among the various Schools of thought in Islam in regard to the extent and nature of the right off; pre‑emption, the Hanafi view alone cannot properly be made the sole test of repugnancy.
10. It is agreed generally that pre‑emption was in vogue in the Arab Tribes before the advent of Islam. The right to pre‑empt, be said to be a creation of Islam. On the either hard It appears that on. certain questions asked from the Prophet, he signified his approval or otherwise. The questions were asked because the questioner wanted to satisfy himself that the practice already existing in the society found approval or not from the new religion. The questions asked, therefore, were essentially for seeking clarification in given situations. That may explain why the right which was first confined to a co‑sharer of undivided property was extended to other categories also. It can thus be reasonably inferred that the relevant Ahadith are neither exhaustive on the subject nor exclusive of all other cases of persons and property.
11. Shah Wali Ullah, in Hujjatullah AI‑Baligha, while dealing with Ahadith as a source of Ahka'm‑e‑Sharia has placed them in two categories, namely, (1) those relating to Tableegh‑e‑Wasalat and (2) those having no such relation. In the first category, according to him, are matters which are based on Wahee or on the Holy Prophet's Ijtihad. For the second category, the author says:
Similarly while dealing with the meaning of Ilm Fiq‑h, it has been commented in the Maielle (Preface Part I) that
"The propositions of the practical part of the Sher' refer either to matters of the future life, and these are the provisions of the law which relate to the ceremonial part of religion (Ibadat), or they refer to matter of the present life, and these are divided into the parts‑marriage, dealings between people and their relations with and conduct towards one another (Mu'amelat) and punishments."
The nature of the right of pre‑emption would, in my humble view, fall in y the second category described by. Shah Wali Ullah or "Mu'amelat" as described in Majelle as it can hardly be said to relate to Tableegh‑e -R'asalat or 'Ibadat' inasmuch ac all it seeks is a measure of expediency for preservation of the homogeneity of a tribe or society. There is little doubt that the purpose behind the rule of pre‑emption, from the earliest times it was conceived, was to prevent intrusion of strangers in .the property or the locality so that the homogenity of the tribe or the community is not disturbed or inconvenienced. According to Durr‑ul‑Mukhtar:
According to Ameer Ali, "the right of pre‑emption in the Muhammadan system owes its origin to motives of expediency and a desire to prevent the introduction of a stranger among co sharers and neighbours likely to cause inconvenience or vexation". According to Hedaya, Imam Shafei, who recognized the right of pre‑emption only in the co‑sharer of undivided property, was of the opinion that "for the intention of the LAW, in gran ting it to a partner, is merely to prevent the inconveniences arising from a division ; since if the partner were not to get that share which is the subject of the claim of Shaffa, a new purchaser might insist upon a division, and thereby occasion to him a great deal of unnecessary vexation" This being so, the right of pry:‑emption must relate to Mu'amelat. Moreover, if the preservation of the homogeneity of the community or the neighbourhood be the 'Illat then with the change in Illat, the law can also change.
12. For these reasons I am of the view that the three categories of pre‑emption rights recognized by the Hanafi School are neither exhaustiv0l nor exclusive and as such cannot be made the test of repugnancy for the purposes of Article. 203‑D of the Constitution. A curtailment nr extension of the right, not inconformable to the basic objective of such right, that is, to preserve homogeneity of the community, is both possible and per missible. The draft judgment of Shafiur Rahman. J., therefore, reflects the correct view with which I agree.
We while agreeing with the reasoning in the judgment of Shafiur Rahman, J., that the Federal Shariat Court had the jurisdiction to enter tain, adjudicate and decide the petitions out of which these appeals ,had arisen, order accordingly.
On merits, following the majority point of view, Appeals Nos. 4 and 5 of 1979 are dismissed, and all other appeals are allowed in terms of the formal last part of the judgment of Maulana Muhammad Taqi Usmani, J. If possible a consolidated law of pre‑emption be enacted accordingly till 31‑7‑1986. There shall be no order as to costs.
M. B. A. Order accordingly.
Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.
🔍 Find a Lawyer