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‑‑‑ Art. 203‑F‑Land Reforms Regulation, 1972 (M. L. R. 115), para. 25(d) ‑Punjab Pre‑emption Act (I of 1913), S. 15, fourthly [except cl. (b)]‑Tenant's right of pre‑emption in respect of land com prised in tenancy‑ Co‑sharer's right to pre‑empt‑Effect of decision of Supreme Court (P' L D 1986 S

C 360) on tenant's right of pre‑ emption granted under para. 25(d) of Land Reforms Regulation, 1972 and co‑sharer's right of pre‑emption in S. 15 of Punjab Pre‑emption Act, 1913‑Provisions of para. 25(d) of M. L. R. 115 and provisions of S. 15, fourthly of Punjab Pre‑emption Act, 1913 [except cl. (b)] relating to right of pre‑emption having been declared to be repugnant to injunctions of Islam by Supreme Court (P L D 1986 S C 360), failure of Government to amend provisions of law so as to bring such provisions in conformity with injunctions of Islam by specified date viz., 31‑7‑1986, held, would render those provisions as ineffective and inoperative w.e.f. 31‑7‑1986.

Government of N.‑W. F. P. v. Said Kamal Shah P L D 1986 S C 360; Pakistan v. Public at Large P L D 1986 S C 240; P L D 1961 S C 69; 1983 C L C 2601; P L D 1984 S C 334; P L D 1985 S C 215 and 1962 C L C 2663 rel.

(b) Constitution of Pakistan (1973)‑

‑‑ Arts. 189 & 203‑GG‑Land Reforms Regulation, 1972 (M. L. R. 115), para. 25(d) ‑ Punjab Pre‑emption Act (I of 1913), S. 15, fourthly [except Cl. (b)]‑Judgment of Supreme Court (P L D 1986 S C 360), effect of‑Judgment of Supreme Court having become effective as from specified date, held, would be binding not only on High Court and Courts subordinate to it but also on all other Courts of Pakistan‑No option left but to accept consequences accruing from the judgment.

(c) Constitution of Pakistan (1973)‑

‑‑ Arts. 203‑F & 264‑West Pakistan General Clauses Act (VI of 1956), S. 4‑General Clauses Act (X of 1897), S. 6‑Punjab Pre emption Act (I of 1913), S. 15, fourthly‑" Repeal", right of Connotation‑Right of "repeal" being inherent in legislation alone, any change of law otherwise than by legislation, held, would not constitute "repeal" so as to protect any right, obligation acquired accrued or incurred under Punjab Pre‑emption Act, 1913‑Or previous operation of provisions of law declared as repugnant to injunctions of Islam or anything duly done or suffered thereunder before specified date viz., 31st July, 1986 or continuation of suits pending on specified date.‑[Words and phrases].

Dictionary of Legal Words and Phrases by William C. Cochran; Webster's Disctionary; Concise Law Dictionary by P. G. Cslorn; Legal Maxims Foreign Words, Terms and Phrases by Ommanuel Zafar; A Modern Ouide to Synonyms and Related Words; P L D 1964 S C 673 and P L D 1964 Dacca 795 ref.

(d) Constitution of Pakistan (19731

Chap. 3‑A & Arts. 203‑D (3) (b) & 264‑Words "repeal" and "deemed to have been repealed", non‑inclusion of in Art. 203‑D (3) (b)‑Effect‑Non‑inclusion of words "repeal" or "deemed to have been repealed" in Art. 203‑D (3)(b), held, would not render those provisions of law which had been declared to be repugnant to in junctions of Islam as repealed by judgment of Court‑Such provisions of law, however, would cease to have effect from specified date mentioned in judgment‑Law declared to be repugnant would remain on Statute Book unless recalled by Legislation, although same would 90asc to have effect‑Provisions of Art. 264 of Constitution (1970 would not apply to a judgment to give life to pending proceedings [Interpretation of statutes].

P L D 1958 Lah. 853; P L D 1959 S C (Pak.) 387 and P L D 1974 Lah. 545 ref.

(e) Constitution of Pakistan (1973)‑

‑‑ Arts. 203‑D & 268‑Punjab Pre‑emption Act (I of 1913), S. 15 Land Reforms Regulation, 1972 (M. L. R. 115), para. 25(d)‑Protec tion to laws existing at time of enforcement of Constitution‑De parture from preservation of protected laws‑Effect of Supreme Court Judgment (P L D 1986 S C 360) on right of pre‑emption declared to be repugnant to injunctions of Islam, held, would be to render provisions of S. 15, fourthly except (b) and para. 25(d) as void due to such repugnancy.

Although the Constitution under Article 268 accords protection to all the laws existing at the time of its enforcement in that whole of the Statute Book is preserved and is allowed to hold field until it is repealed or amended by due process of Legislation, yet a clear departure has been made under Article 203‑D from that manner which is recognised by the rest of the Constitution inasmuch as a body foreign to the field of Legislation i.e. Federal Shariat Court/Shariat Appellate Bench of the Supreme Court, have been empowered to declare law or provisions of law out of not only those which were preserved and recognised as valid by the Constitution but also from that corpus juris which has to come into being after the enforcement of the Constitution and this departure is not without wisdom and significance. The judgment has been given under the jurisdiction conferred by the Constitution, i.e. by virtue of Article 203‑D 1, 2, 3(b). So, the same to the extent it has declared the provisions of the Pre‑emption Act and M. L. R. 115 as repugnant to the Injunctions of Islam has on the crucial day become effective without intervention of the Legislature with the result that those provisions have become ineffective and unenforceable although the same will remain on Statute Book unless repealed through Legislation.

P L D 1965 Dacca 348 and P L D 1980 Pesh. 154 ref.

PLD1961 SC69rel.

(f) Constitution of Pakistan (1973)‑----

Art. 203‑D‑Land Reforms Regulation, 1972 (M. L. R. 115), para. 25(d)‑Punjab Pre‑emption Act (I of 1913), S 15, fourthly [except cl. (b)]‑Word "cease', connotation of‑Right of pre‑emption having already been successfully asserted before specified date Effect of such right stated in view of judgment of Supreme Court (P L D 1586 S C 360).‑[Words and phrases].

Word "cease" carries specific interpretation of total extinction. Whether the judgment is prospective or retorspective in its effect and whether an amendment in the Pre‑emption Act so as to apply the rule laid down in the judgment with retrospective effect is necessary or not, in all eventualities, the fact remains that in view of the distinguished features and peculiar nature of Law of Pre‑emption that the pre‑emptor shall not only possess his preferential right at the time of sale but shall also carry and retain the same both on the date of suit and on the date of decree in his favour and the provisions of M. L. R. 115 and the Punjab Pre‑emption Act having become void and ineffective on 31‑7‑1986, it is no more possible, under the law, to enforce the superior pre‑emptive right declared as repugnant to the Injunctions of Islam to grant decree in favour of the pre‑emptors claiming superior right on the basis of those provisions of law, in pending suits and appeals filed by unsuccessful pre‑emptors against the dismissal of their suits. The only exception to the above rule would be the cases in which the decree had already been obtained by the pre emptor prior to the crucial date because in case of such an existing decree, it cannot be said that the pre‑emptor was seeking to enforce his right to pre‑empt. The right having already been successfully asserted before the crucial date, the pre‑emptor had become full owner and was not required to retain his superior right after the decree in his favour or during the pendency of appeal, second appeal, and revision.

P L D 1981 Lab. 520; Kaju Mal v. Saling Ram 91 P R 1919 and Mohindar Singh v. Arur Singh I L R 3 Lab. 267 ref.

(g) Islamic Jurisprudence:‑

Pre‑emption‑Right to pre‑emption and " "‑Since such rights have not been brought on Statute Book through Legislation, same, held, could not be regarded as codified law of country so as to be enforceable.‑[Pre‑emptionl.

(h) Civil Procedure Code (V of 1908)‑

‑‑‑‑ O. VII, R. 11‑Punjab Pre‑emption Act (I of 1913), S. 15 Scope of O. VII, R. 11, C. P. C. stated‑Rejection of plaint‑Plaint of pending suit not to be rejected on ground that pre‑emptor having lost his right during pendency of suit, plaint did not disclose cause of action or suit had become barred by law.

For the application of Order VII, rule 11, C. P. C. material foreign to the plaint cannot be taken into account; that the plaint when filed, it did disclose the cause of action and if averments in the plaint were accepted as true, the plaint did not suffer from infirmity envisaged by Order VII, rule 11, C. P. C. Furthermore, the words "suit appears to be barred by law" used in rule 11 of Order VII, C. P. C., are of great signi ficance and contemplate only those suits, the cognizance or trial whereof has specifically been barred by law or provisions of law. The fact of the right having been taken away during the pendency of the suit does not operate as legal bar to the cognizance or the trial of the suit. Rule 11 cannot be stretched to include therein grounds of non‑maintainability of suit on the ground that rights have ceased to exist during the pendency of suit, it may tantamount to adding more grounds for the rejection of plaint. The terms "barred by law", "bad in law", "unenforceable under law" and a ineffective under the law" are not synonymous, so a plaint, cognizance of which was not specifically barred by law or provisions of law cannot be rejected on the ground that the right of pre‑emptor has become extinct during the pendency of the suit although the suit pending on crucial day may be dismissed on the ground of its non‑maintainability, or that the plaintiff/pre‑emptor has lost his preferential pre‑emptive right before a decree in his favour could be passed, by treating issue relating to the superior right as preliminary one.

(i) Constitution of Pakistan (1973)‑

Art. 203‑F‑Punjab Pre‑emption Act (I of 1913), S. 15, fourthly [except cl. (b)]‑West Pakistan General Clauses Act (VI of 1956), S. 4 General Clauses Act (X of 1897), S. 6‑Land Reforms Regulation, 1972 (M. L. R. 115), para. 25(d) ‑Civil Procedure Code (V of 1.908), O. VII, R. I1‑Judgment of Supreme Court (P L D 1986 S C 360), declaring right of pre‑emption granted to tenant and co‑sharer as repugnant to Injunctions of Islam‑Effect and extent of repugnancy on provisions of statutes conferring such rights and on pending suits stated.

Judgment of the Shariat Appellate Bench of the Honourable Supreme Court having become effective, the provisions of para. 25 clause 3(d) of M. L. R. 115 as well as provisions of section 15 [except clause (b)] fourthly relating to the right of co‑sharer of the Punjab Pre‑emption Act, ceased to have effect w.e.f. 31‑7‑1986; that the judgment of the Shariat Appellate Bench of the Honourable Supreme Court is binding not only on the High Court and the Courts subordinate to it but also on all Courts in Pakistan; that the judgment enjoys a declaratory status; that the judgment is not a repeal/implied repeal of provisions of law declared as repugnant to the Injunction of Islam, within the meanings of sections 6 and 4 of the General Clauses Act, 1897 and West Pakistan General Clauses Act, 1956, respec tively and Article 264 of the Constitution as well; that the judgment being as declaratory affects the suits/appeal filed by the unsuccessful pre‑emptors against the dismissal of suits, in the sense that the preferential pre‑emptory rights having become ineffective and extinct on 31‑7‑1986, it is not possible, under the law, to enforce those rights and grant decree in favour of the pre emptors in suits, appeals, revisions or writ petitions; that since the pre‑emp tor is not required to retain his preferential right after decree in his favour and the right having already been successfully asserted before the crucial the date, pre‑emptor bad become full owner, so the decree in favour of pre‑emptor granted before the crucial date will be immune subject to the merits of the case; that the two additional preferential pre‑emptory rights of " " and "" cannot be regarded as codified law of the country, so the same are not enforceable; that the law of Limitation to the extent it has been examined and declared repugnant to the Injunctions of Islam also ceased to have effect on the crucial date and that a plaint cannot be rejected by the trial Court or the Appellate Court under Order VII, Rule 11, C. P. C. by reason of the judgment.

()) Civil Procedure Code (V of 1908)‑

‑‑ S. 115‑Punjab Pre‑emption Act (I of 1913), S. 15‑Revisional jurisdiction, exercise of‑In absence of non‑reading or misreading of evidence concurrent findings of Courts below on questions of fact, held, could not be disturbed in revisional jurisdiction.

Sh. Zia‑ud‑Din Ahmad Qamar for Appellants.

Ch. Muhammad Jahangir Arshad for Respondents.

Pir Rafi‑ud Din Shah, Mirza Manzoor Ahmad and Riaz Anwar Amicus curiae.

Dates of hearing : 4th, 10th, 22nd, 26th, November and Ist December, 1986.

Muhammad Rafiq and others, sold agricultural land measuring 19 Kanals 12 Marlas situated in village Qabula Tehsil Pakpattan, District Sahiwal, to Khan Muhammad, Muhammad Din and Muhammad Ibrahim, defendants/appellants for ostensible price of Rs. 22,050 and mutation of sale was attested on 29‑4‑1974. On 24‑4‑1975, Nazar Din deceased, father of Ghulam Rasool and 4 others respondents filed suit for possession by pre‑emption against Khan Muhammad and others, vendees, in the Court of Civil Judge, Pakpattan, claiming superior right on the basis of being real uncle of the vendors and co‑sharer in the estate as well. It was also averred in the plaint that a sum of Rs. 9,800 only was bona fide fixed and actually paid as sale price of the suit land but to defeat the pre‑emptive right it was fictitiously shown as Rs. 22,050 in the mutation. The suit was resisted whereon 6 issues were framed. The trial Court vide judgment and decree dated 20‑7‑1978 while deciding issues other than issue No. 4 against the vendees/appellants, decreed the suit subject to the payment of Rs. 22,050. Feeling aggrieved thereby, the defendants/appellants filed appeal which was entrusted to learned Additional District Judge who vide his judgment and decree dated 10‑3‑1980 remanded back the case to the trial Court directing that:

"an issue in terms of preliminary objection No. 1 contained in the written statement be framed and the same be decided after affording opportunities to produce their respective evidence. The findings of the learned trial Judge on issues Nos. 1 to 6 are maintained for the time being. The learned trial Judge shall give fresh finding on issue No. 7 according to his findings on the issue of court‑fee. It is made clear that the parties can agitate and contest issues Nos. 1 to 6 if desired in the appeal preferred after fresh decision of the suit."

On remand, the learned trial Judge framed additional issue No. 1‑A, as follows :‑

"whether the suit is undervalued for the purposes of court‑fee and jurisdiction, if so, what is its correct valuation and to what effect "

On 17‑10‑1984, the learned trial Judge decided this issue against the defendants/appellants and again decreed the suit. The appeal filed by the defendants/appellants against this judgment and decree failed on 31‑7‑1986, hence this regular second appeal.

2. Sh. Zai‑ud‑Din Ahmad Qamar, the learned counsel for the appellant has challenged the findings of the Courts below on issues Nos. 1, 2, 3 and 6, which are as under :‑

issues:

"(1) Is the suit barred by time O. P. D.

(1‑A) Whether the suit is undervalued for the purposes of court‑fee and jurisdiction, if so what is its correct valuation and to what effect

(2) Has the plaintiff waived his right O. P. D.

(3) Have the defendants incurred Rs. 10,410 on the improvements of the suit land O. P. D.

(4) Is the plaintiff equipped with superior title to pre‑emption O. P. D.

Challenging the findings of the Courts below on issues Nos. 1, 2 and 3, the learned counsel submitted that the same suffer from misreading and mis -appreciation of relevant evidence in that on 21‑4‑1974 not only the receipt Exh. D‑1 with regard to the payment of sale price was executed by the vendors and report with regard to the transaction of sale of the suit land in favour of vendees/appellants was entered in Roznamcha Waqiati' but also the physical possession of the suit land was delivered to them and as such, the suit which was filed on 24‑4‑1974 was barred by time; that in the same set of circumstances another suit filed by the same pre‑emptor against Riaz Ahmad and others, pre‑empting different sales made on 21‑4‑1974, mutation whereof was attested on 29‑4‑1974, was dismissed by the trial Judge; that the evidence led on issues relating to waiver and improvements was not appreciated in its true perspective and that the reasons given by the Courts below in support of their findings on the aforesaid issues are flimsy, far‑fetched and unconvincing. As far issue No. 6 relating to the superior right of Nazar Din plaintiff to pre‑empt the sale attested on 29‑4‑1974 on the grounds of being Yakjaddi and co‑owner in the estate, the learned counsel referred to the judgment of the Shariat Appellate Bench of the Supreme Court reported as Government of N.‑W. F. P. v. Said Kamal Shah PLD1986SC360, hereinafter to be referred as "the judgment", to contend that the alleged superior right of plaintiff/pre emptor has been lost and taken away through the judgment before the action initiated on the basis of sale, the subject‑matter of the suit, could attain finality, the respondent/pre‑emptor could not claim superior right of pre‑emption and his suit merited dismissal on 31‑7‑1986 when the appeal was decided by the learned District Judge; that in any case, the preferential right of plaintiff having been lost and taken away pursuant to the judgment during the pendency of appeal/second appeal, the decree granted by the Trial Court on the basis of being Yakjaddi was no more sustainable. Contrarily the learned counsel for the respondent maintained that since the pre‑emptor had successfully obtained the decree for possession by pre‑emption before the judgment became effective on 31‑7‑1986 (hereinafter called "the crucial date"), therefore, his preferential right having been merged in the decree of the Court it would henceforth be regarded as a source of right for the decree- holder, such a decree, therefore, calls for no interference on the ground that the judgment had taken away the right of the plaintiff to pre‑empt the sale.

3. Since the question posed for determination before this Court relates to the assessment of legal effect of the judgment on sales, suits, appeals, second appeals, revisions and writ petitions affected/filed/pending before, on or after the crucial date and is not only of public importance but also involves interpretation of constitution and statutory law, so I requested Pir Rafi‑ud‑Din Shah, Mirza Manzoor Ahmad and Mr. Riaz Anwar, the learned Senior Advocates to assist the Court as amicus curiae in resolving following questions:

(i) Whether or not the judgment has rendered clause (iii) (d) of para. No. 25 of M. L. R. 115 and section 15 (except clause (b) fourthly relating to the right of co‑sharers) of the Punjab Pre‑emption Act as in operative after 31‑7‑1986

(ii) What is the legal status of the Judgment

(iii) Whether or not the judgment is repeal/implied repeal of clause (iii) (d) of para. No. 25 of M. L. R. i15 and section 15 (except clause (b) fourthly of the Punjab Pre‑emption Act within the meaning of sections 6 and 4 of General Clauses Acts and Article 264 of the Constitution of Islamic Republic of Pakistan, 1073, hereinafter called as "the Constitution"

(iv) Whether or not the judgment is retrospective in effect so as to hit the sale completed before the crucial date and also of right of pre‑emption claimed on the basis of para. No. 25 of clause (iii) (d) of M. L. R. 115 and section 15 (except clause (b) fourthly) of the Punjab Pre‑emption Act, although no amendment in the Pre‑emption Act so as to apply the rule laid therein with retrospective effect, has been made so far

(v) What is the effect of the judgment on the continuity of the suit as a result of right having accrued earlier

(vi) What is the effect of the judgment on appeal filed by vendee/ defendant against the judgment and decree in favour of pre‑emptor pending decision on the crucial date

(vii) What is the effect of the judgment on appeal filed by the plaintiff/ pre‑emptor against dismissal of his suit pending decision on the crucial date

(viii) Whether the judgment has the effect of conferring right to pre-emption the basis of being Moheet' and neighbour, if so whether the same is enforceable under the law although it has not been brought on the Punjab Pre‑emption Act through proper legislation

(ix) What is the effect of the judgment on the question of limitation for filing pre‑emption suit

(x) Whether the plaint of the pending suits could/can be rejected on the basis of judgment

Pir Rafi‑ud‑Din Shah, the learned counsel argued for the proposition that the judgment was retrospective in effect. He maintained that the judgment enjoys a declaratory status; that it is not repeal implied repeal of the provisions of law declared therein as repugnant to the injunction of Islam; that the appellate as well as a Court exercising the revisional powers can take into consideration subsequent events including any change in the law because on filing appeal, the entire matter becomes re‑opened and sub judice and has to be decided according to law prevailing at the time of appeal and that once revision petition is admitted. the proceedings subject to the scope and limitation prescribed in section 115 of the Civil Procedure Code are re‑opened for examination and the new aspect of law will date back to the inception of the Punjab Pre‑emption Act. Mirza Manzoor Ahmad, the learned counsel is of the view that since no specific date on which the decision of the Court would become effective has been stated in the judgment, therefore, the provisions of law declared as repugnant to the Injunction of Islam have not become ineffective and the law remains as it was before 31‑7‑1986. Kanwar Akhtar Ali, the learned counsel adopted the arguments addressed by Pir Rafi‑ud‑Din Shah. Mr. M. Jehangir Arshad, the learned counsel for the respondents argued for the propositions that unless the Punjab Pre‑emption Act is amended so as to apply the rule laid down in the judgment with retro spective effect, it will not affect the sale which was complete before the crucial date and will also not affect the rights claimed by pre‑emptor on the basis of those provisions of law in pending case, inasmuch as, the judgment being a "repeal" of those provisions of law, does not affect the previous operation of any enactment or repeal or anything duly done or suffered thereunder and will also not affect any right, privilege, obligation or liability acquired, accrued or incurred under those provisions of law.

4. For the purpose of proper appreciation of the arguments addressed at bar, the observation made by His Lordship Mr. Justice Taqi Usmani, J. in para. No. 105 of his Judgment, order of the Court, relevant provisions of the Constitution, West Pakistan General Clauses Acts, Martial Law Regulation and Punjab Pre‑emption Act, may be reproduced advantageously :‑‑

ORDER OF THE COURT

"We while agreeing with the reasoning in the judgment of Shafi‑ur Rehman, J., that the Federal Shariat Court had the jurisdiction to entertain, adjudicate and decide the petitions out of which the3e 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."

The Constitution of Islamic Republic of Pakistan, 1973

"Article 203‑A : The provisions of this Chapter shall have effect not withstanding anything contained in the Constitution."

"Article 203‑D. (1) The Court may, either of its own motion or on the petition of a 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 Quran and the Sunnah of the Holy Prophet, hereinafter referred to as the injunctions of Islam."

(2) If the Court decides that any law or provision of law is repugnant to the Injunctions of Islam, it shall set out in its decision :‑

(a) the reasons for its holding that opinion ; and

suffered thereunder and will also not affect any right, privilege, obligation or liability acquired, accrued or incurred under those provisions of law.

4. For the purpose of proper appreciation of the arguments addressed at bar, the observation made by His Lordship Mr. Justice Taqi Usmani, J. in para. No. 105 of his Judgment, order of the Court, relevant provisions of the Constitution, West Pakistan General Clauses Acts, Martial Law Regulation and Punjab Pre‑emption Act, may be reproduced advantageously.

(b) the extent to which such law or provision is so repugnant ;

and specify the day on which the decision shall take effect ;

(3) If any law or provision of law is held by the Court to be repugnant to the Injunctions of Islam,‑

(a) the President in the case of a law with respect to a matter in the Federal Legislative List or the Concurrent Legislative List, or the Governor in the case of a law with respect to a matter not enumerated in either of those Lists, shall take steps to amend the law so as to bring such law or provision into conformity with the Injunctions of Islam ; and

(b) such law or provision shall, to the extent to which it is held to be so repugnant, cease to have effect on the day on which the decision of the Court takes effect."

Article 203‑F.‑(1) Any party to any proceedings before the Court under Article 203‑D aggrieved by the final decision of the Court in such proceedings may, within sixty days of such decision, prefer an appeal to the Supreme Court Provided that an appeal on behalf of the Federation or of a Province may be preferred within six months of such decision."

Article 203‑GG. Subject to Articles 203‑D and 203‑F, any decision of the Court in the exercise of its jurisdiction under this Chapter shall be binding on a High Court and on all Courts subordinate to a High Court.

Article 264. Where a law is repealed, or is deemed to have been repealed, by, under, or by virtue of the Constitution, the repeal shall not, except as otherwise provided in the Constitution,‑

(a) revive anything not in force or existing at the time at which the repeal takes effect ;

(b) affect the previous operation of the law or anything duly done or suffered under the law ;

(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under the law ;

(d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against the law ; or

(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation,. liability, penalty, forfeiture or punishment and any such investigation, legal proceeding or remedy may be institu ted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed, as if the law had not been repealed.

West Pakistan General Clauses Act, 1956

Section 4(l) : Where this Act or any other West Pakistan Act repeals any enactment then unless a different intention appears, the repeal, shall not :‑

(a) revive anything not in force or existing at the time at which the repeal takes effect,

(b) affect the previous operation of any enactment so repealed or any thing duly done or suffered thereunder, or

(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactmeut so repealed, or

(d) ..

(e) ..

(2) The provisions of subsection (1) shall apply on the expiry or with drawal of any Ordinance promulgated by the Governor as if it had been repealed by a West Pakistan Act."

Martial Law Regulation 115

"Para. 25‑(3) (d) : Subject to the other provisions of this Regulation, a tenant shall have the first right of pre‑emption in respect of the land comprised in tenancy."

Punjab Pre‑emption Act, 1913

"Section 15. Subject to the provisions of section 14, the right of pre emption in respect of agricultural land and village immovable property shall vest‑

(a) Where the sale is by a sole owner or occupancy .tenant or, in the case of land or property jointly owned or held, is by all the co sharers jointly, in the persons in order of succession, who but for such sale would be entitled, on the death of the vendor or vendors, to inherit the land or property sold ;

(b) Where the sale is of a share out of joint land or property, and is not made by all the co‑sharers jointly,‑

firstly, in the lineal descendants of the vendor in order of succession ;

secondly, in the co‑sharers, if any, who are agnates, in order of succession ;

thirdly, in the persons, not included under firstly or secondly above, in order of succession, who but for such sale would be entitled, on the death of the vendor, to inherit the land or property sold :

Provided that in case where the sale is by a Muslim, the firstly and secondly shall be inapplicable, and the thirdly shall read as follows :‑‑

thirdly, in the persons in order of succession, who but for such sale would be entitled, on the death of the vendor to inherit the land or property sold.

fourthly, in the co‑sharers ;

If no person having a right of pre‑emption under clause (a) or clause (b) seeks to exercise it,‑

firstly, when the sale affects the superior or inferior proprietary right and the superior right is sold, in the inferior proprietors, and when the inferior right is sold, in the superior proprietors ;

secondly, in the owners of the patti or other sub‑division of the estate within the limits of which such land or property is situate ;

thirdly, in the owners of the estate ;

fourthly, in the case of a sale of the proprietary right in such land or. property, in the tenants (if any) having rights of occupancy in such land or property ;

fifthly, in any tenant having a right of occupancy in any agricultural land in the estate within the limits of which the land or property is situate.

Explanation.‑In the case of sale by a female of land or property to which she has succeeded on a life tenure through her husband, son, brother, or father the word agnates' in this section shall mean the agnates of the person through whom she has so succeeded."

5. An examination of the provisions of law and the operative parts of the judgment makes it crystal clear that Shanat Appellate Bench of Honourable Supreme Court has declared that the provisions of para. 25(d) of M. L. R. 115 as well as the provisions of section 15 (except clause (b) fourthly relating to the right of co‑sharer) of the .Punjab Pre‑emption Act, are repugnant to the Injunctions of Islam that the Honourable Court had given 31‑7‑1986 by which date the President in case of M. L. R. 115 and Limitation Act and the Governor of the Punjab in case of Pre‑rmption Act, 1913, were required to take steps to amend the law so as to bring such provisions of law in conformity with the Injunctions of Islam ; that no steps apparently have been taken by the President as well as the Governor to amend the provision of law so as to bring such provision; in conformity with the Injunctions of Islam, by the specified day on which the judgment would become effective rendering the aforesaid provisions of law as Kaladam' i.e. void and that as a consequence of the failure on the part of President and the Governor to amend the law as required by Article 203‑D(3)(a) of the Constitution, those provisions of law have, ipso facto, become ineffective, inoperative and have ceased to have effect w.e.f. 31‑7‑1986. It has been laid down in case Pakistan v. Public at Large PLD1986SC240.

"When fixing the date sufficient margin will have to be allowed to the Government and the Legislature concerned to take steps and then to make the law in accordance with the Injunctions of Islam (Article 203‑D(3)(a)) ; because if due to paucity of time it is not done, there being no scope for condonation of delay ex post facto, the impugned law shall in any event become ineffective (Arti cle 203‑D(3)(b)j. The ensuing consequences can be well imagined including those of hardship to the public.".

The judgment which has taken effect on 31‑7‑1986 is very much binding not only on this Court, on all Courts subordinate to it butt also on all other Courts in Pakistan by virtue of Articles 203‑GG and 189 of the Constitution and cannot be questioned in any) manner. So, there is no option but to accept consequences ensuing therefrom. This brings me to the most important question for determi nation i.e., whether the judgment tantamounts to repealing the provisions of law declared as repugnant.

The dictionary meaning of the relevant

terms may be quoted with advantage : In Dictionary of Legal Words and Phrases by William C. Cochran,‑" Repeal" is to annul, or set aside, a law by a legislative act". In Webster's Dictionary, the meanings of word "Repeal" is, "to recall law, or statute, to revoke, to abrogate by authority". Its noun is "revocation or abrogation". In Concise Law Dictionary by P. G. Oslorn, the meaning of the word "Repeal" is "abroga tion of a statute or part of a statute by a subsequent statute". In the same dictionary, the meaning of the word ex post facto is "by a subsequent act". In Legal Maxims Foreign Words, Terms and Phrases by Ommanuel Zafar, ex post facto is, (From a law made after) ; i.e., the law is retrospective, being passed only after the thing prohibited was done. Every law that takes or impairs a vested right is retrospective.

In A Modern Guide to Synonyms and Related Words' the word "effect" is that it can refer to the successful accomplishment of an intended action. The meanings of the word "cease" most often suggest an abrupt stopping. It appears to me that the judgment is not "repeal" of those provisions of law declared as repugnant to the Injunctions of Islam within the meaning of section 4 of West Pakistan General Clauses Act, 1956, section 6 of the General Clauses Act, 1897 and Article 264 of the Constitu tion. The words "Whether this Act or any other West Pakistan Act repeals any enactment" and the word "Whether this Act or any Central Act or Regulation made after the commencement of this Act repeals any enactment made or hereinafter to be made" used in section 4 of the West Pakistan General Clauses Act, 1956 and section 6 of the General Clauses C Act, 1897, respectively, are of great significance and tend to show that the right of repeal is inherent in legislation alone, therefore, any change of law otherwise than by legislation will not constitute "repeal" so as to protect any right, previlege, obligation or liability acquired, accrued o incurred under the Punjab Pre‑emption Act or previous operation of the provisions of law declared as repugnant to the Injunctions of Islam of anything duly done or suffered thereunder before the crucial date and also the continuation of the suit pending on that date. The Supreme Court in a case reported as P L D 1964 S C 673 has held that when un constitutional statute is declared by the Court to be void, the Court does not thereby repeal the statute but merely holds it to be ineffective or inoperative. The expression "void Law" does not mean that it was effaced from the statute book. The contention that a law declared as void should entail consequences similar to those of repeal of statute was repelled and it was categorically enunciated that the word "void" as regards law clearly implies that its provisions have become totally unenforceable. In case reported as P L D 1964 Dacca 795, it was held that the expression "repeal", "deemed to have been repealed" and "void" used in different Articles of the Constitution of 1962 cannot be taken to have been intended to convey the same meaning and nor can the consequences that flow such happening be taken identical and that the Court's function is not to legislate. Had it been the intention of the Framer of Chapter 3‑A of the Constitution to repeal/deemed to have been repealed, the law or provisions of law declared as repugnant to the Injunc tions of Islam by reason of the judgment then nothing stood in its way to include the words "repeal" or "deemed to have been repealed" in Article 203‑D(3)(b) and would not have used the words "ceased to have effect on the day on which the decision of the Court takes effect". In case reported as P L D 1958 Lab. 853, it was held that invalidity was not equivalent to repeal of provision. The Court cannot give relief under an invalid law. In case reported as P L D 1959 S C (Pak.) 387 all 446 ‑the meaning of the word "void" was explained as being "not in operation" , "not enforceable" or "in abeyance" and these expressions do not have effect of a repeal or abrogation of any law. The case reported as P L D 1974 Lah. 545 is an authority on all fours with the principle o law involved in the instant case. Some writ petitions were pending in the High Court pertaining to terms and conditions of service when the) Service Tribunals Act, 1973 in consonance with the provisions of Article 212 of the Constitution came into force and thereby the said writ petitions abated. It was contended that provisions of Article 264 on the subject of repeal would become applicable enabling the continuation of the said writ petitions in the High Court despite the change in law. The contention was repelled as in Article 264 of the Constitution, there was a clause to the effect that the said article is to operate "except as otherwise provided in the Constitution". Article 212 of the said Constitution contained such provisions of exception. So, Article 264 on the subject of repeal could not be applied for the continuation of the said writ petitions. In the instant case also the over riding aspect of provision of Chapter 3‑A of the Constitu tion is much in evidence as per Article 203‑A which is to the effect that "the provisions of this Chapter shall have the effect notwithstanding anything' contained in the Constitution", hence, Article 264 of the Constitution does not apply to the judgment to give life to the pending proceedings. The law unless recalled by Legislation remains on the Statute Book but it may some times cease to have effect for various reasons. For instance, the offence of section 153‑B was created in 1962 but for this offence no corresponding amendment was made in Schedule‑11 of Cr. P. C. to provide the procedure for the trial, etc. for the said offence, thus this offence remained on the Statute Book but the same was ineffective in the terms as was held in case reported as P L D 1965 Dacca 348. It was held in case reported as P L D 1980 Pesh. 154 that the law or provision declared as repugnant ceases to have effect and the provisions of law so declared as repugnant get extinct but that would not amount to removal of law from Statute Book. Although, the Constitution under Article 268 accords protection to all the laws existing at the time of its enforcement in that whole of the Statute Book is preserved and is allowed to hold field until it is repealed or amended by due process of Legislation, yet a clear departure has been made under Article 203‑D from that manner which is recognised by the rest of the Constitution in asmuch as, a body foreign to the field of Legislation i. e. Federal Shariat Court/Shariat Appellate Bench of the Supreme Court, have been empowered to declare law or provisions of law out of not only those which were preserved and recognised as valid by the Constitution but also from that corpus juris which has to come into being after the enforcement of the Constitution and this departure is not without wisdom and significance. The judgment has been given under the jurisdiction conferred by the Constitution, i. e. by virtue of Article 203‑D‑1, 2, 3 (b). So, the same to the extent it has declared the provisions of the Pre‑emption Act and M. L. R. 115 as repugnant to the Injunctions of Islam has on the crucial .day become effective without intervention of the Legislature with the result that those provisions have become ineffective and unenforceable although the same will remain on Statute Book unless repealed through Legisla tion.

6. As far, legal status of the judgment I am of the view that the decision of the Shariat Appellate Bench of the Supreme Court in declaring, the nature of the provisions of the pre‑emption Act and M. L. R. 115 a void owning to their repugnancy to the Injunctions of Islam is obviously' declaratory. The authority in support of the principle is case reported spa P L D 1981 Lah. 520.

7. It may be noted that the word "cease" carries specific interpretation of total extinction. Whether the judgment is prospective or retrospective in its effect and whether an amendment in the Pre‑emption Act so as to apply the rule laid down in the judgment with retrospective effect is) necessary or not, to my mind, in all eventualities, the fact remains that in view of the distinguished features and peculiar nature of Law of Pre emption that the pre‑emptor shall not only possess his preferential right at the time of sale but shall also carry and retain the same both on the date of suit and on the date of decree in his favour and the provisions of M. L. R. 115 and the Punjab Pre‑emption Act having become void and ineffective on 31‑7‑1986, it is no more possible, under the law, to enforce the superior pre emptive right declared as repugnant to the Injunctions of Islam to grant decree in favour of the pre‑emptors claiming superior right on the basis of those provisions of law, in pending suit and appeals filed by unsuccessful pre‑emptors against the dismissal of their suits. The only exception to the above rule would be the cases in which the decree bad already been obtained by the pre‑emptor prior to the crucial date because in case of such an existing decree, it cannot be said that the pre‑emptor was seeking to enforce his right to pre‑empt. The right having already been successfully asserted before the crucial date, the pre‑emptor had become full owner and was not required to retain his superior right after the decree in his favour or during the pendency of appeal, second appeal, and revision filed by the vendee/defendant. In case Mst. Bibi Jan and others v. Miss R. A. Monni and others P L D 1961 S C 69,their Lordships of the Supreme Court had examined a case where notification under section 8 (2) of the Punjab Pre‑emption act bad been issued after the decree had been passed in favour of the pre‑emptor/plaintiff. In that connection the entire law was examined and discussed. The observations of their Lordships at page 75 may be quoted conve niently:‑

"The reported cases in which a decree had been obtained by the pre‑emptor in the Court of first instance before a notification under section 8(2) of the Punjab Pre‑emption Act, 1913, was issued, are easily distinguishable from those in which the right to pre‑empt had not yet been incorporated into a formal adjudication by a Court. In the former type of cases, it could be reasonably argued that the right to sue had merged in the decree of the Court, which would henceforth be regarded as the source of rights, for the decree‑holder. Such a decree would, therefore, call for no interference on the ground that a notification subsequently promulgated, had taken away the right of pre‑emption in similar cases. The teal difficulty arises in the cases of the second type, of which Kaju Mal. v. Saling Ram 91 P R 1919 and Mohindar Singh v. Arur Singh. 1. L. R. 3 Lah. 267 may be cited as representative. With all respect, it seems to us that the learned Judges in those cases, interpreted the words of the notification too narrowly in their anxiety to save vested rights. The words of the notification appear to us to be plain and to be fairly suspectible of the interpretation that with the promulgation of the notification, all rights of pre‑emption would cease to exist in the area mentioned in the notification, whether they pertained to sales that had already taken place or to those which were to be held thereafter. The only exception that could be recognised to this proposition would be in favour of cases in which decrees had already been obtained by the pre‑emptors, prior to the notification. In the case of such an existing decree, it could not be said that the pre‑emptor was seeking to enforce his right to pre‑empt. The right had already been successfully asserted before the date of the notification. But in the absence of any such adjudication by a Court, there is no reason why full effect should not be given to the comprehensive words of the notification so as to non‑suit plaintiffs who may have filed suits for pre‑emption before the date of the notification as well as debar all pre‑emptors from instituting suits to enforce their right of pre‑emption in the area in question subsequent to the date of the notification."

On the same analogy it seems that in the absence of any such adjudication by a Court, there is no reason why full effect should not be given to the plain and comprehensive words used in the judgment as well as Article 203‑D(b) i.e., "such law or provision shall to the extent to which it is held to be repugnant cease to have effect on the day on which the decision of the Court takes effect", so as to non‑suit the plaintiffs whose suits have not been decreed before the crucial date as well as to debar all pre‑emptors from instituting suits to enforce right of pre‑emption on the, basis of the provisions of law declared as repugnant to the Injunctions of Islam because the preferential pre‑emptive right possessed by them ha become void, ineffective and extinct on the crucial date. This rule would be equally applicable to the appeal filed by unsuccessful pre‑emptor because by reason of the judgment, he having lost his right to pre‑empt before the crucial day, is no more entitled to the grant of decree in his favour. I am fortified in this view of the matter by judgment of the Supreme Court reported as P L D 1961 S C 60 ; 1983 C L C 2601 ; P L D 1984 S C 334 ; P L D 1985 S C 215 and 1982 C L C 2663. In these cases the effect of taking away the right to pre‑empt during the pendency of suit/appeal was considered, discussed and determined. The observation made in para. 7 of the last quoted judgment may be reproduced with advantage :‑

"Undoubtedly the notification in question would be operative from the date of its publication in the official Gazette and not retros pectively but the appellants are required to show that they had superior right of pre‑emption not only at the time of sale, the institution of the suit but also till the passing of decree by the competent Court. The notification in question extinguishes the right of pre‑emption in respect of the sale of the suit land and therefore, the appellant obviously could not maintain his superior right of pre‑emption till the date of decree. The case relied and cited by learned counsel for the appellants is distinguishable inasmuch as that the learned Judges in the case did not address themselves to the question whether the plaintiff lost his right of pre‑emption before the date of decree. The notification issued in that case hit alienation of the properties in general effected through public action under the orders of the Court of Wards as distinguishable from the facts of the instant case wherein the notification in question specifically relates to the sale of the land in dispute. The impugned judgment/order of the learned trial Court holding the suit of the plaintiff having become infructuous from the date of operation of the notification is unexceptionable."

The principles with regard to the consequences of extinction of the right of pre‑emption during the pendency of suits laid down in the aforementioned authorities can safely be applied to the judgment by reason whereof the right of pre‑emption claimed on the basis of the provision of para. 25 clause (3)(d) of M. L. R. 115 as well as the provision of section 15 ' (except clause (b), fourthly relating to the right of co‑sharer) of the Punjab Pre‑emption Act have been taken away on the crucial date. There the right to pre‑empt had extinguished by the force of a notification and here the right to pre‑empt has become extinct by reason of the judgment passed under the powers conferred by Chapter 3‑A of the Constitution.

8. Coming now to the question whether the judgment has conferred right to pre‑empt on " and "" I feel that since the rights have not been brought on the Statute Book through Legislation so far, therefore, the same cannot be regarded as a codified law of the country so as to be enforcible under the law.

9. Dealing with the last question whether the plaint of a pending suit can be rejected under Order VII, rule 11, C. P. C. on the ground that the pre‑emptor having lost his right during pendency of the suit, the plain either does not disclose cause of section or the suit has become barred by law, my answer is in the negative, in that for the application of Order VII, rule 11, C. P. C., material foreign to the plaint cannot be taken into account ; that the plaint when filed, it did disclose the cause of action and if averments in the plaint were accepted as true, the plaint did no suffer from infirmity envisaged by Order VII, rule 11, C. P. C. Furthermore, the words "suit appears to be barred by law" used in rule 1 l of Order VII, C. P. C., are of grant significance and contemplate only those suits, the cognizance or trial whereof has specifically been barred by law or provisions of law. The fact of the right having been taken away during the pendency a of the suit does not operate as legal oar to the cognizance of the trial of the suit. Rule I1 cannot be stretched to include therein grounds of non‑1 maintainability of suit on the ground that rights have ceased to exist during the pendency of suit, I am afraid, it may tantamount to adding more grounds for the rejection of plaint. The terms "barred by law", "bad in law", "unenforceable under law" "ineffective under the law" are not synonymous, so a paint, cognizance of which was not specifically barred by law or provisions of law cannot be rejected on the ground that the right of pre‑emptor has become extinct during the pendency of the suit although the suit pending on crucial day may be dismissed on the ground of its non maintainability, or that the plaintiff/ pre‑emptor has lost his preferential pre emptive right before a decree in his favour could be passed, by treating issue relating to the superior right as preliminary one.

10. The above discussion leads to the conclusions that the judgment of the Shariat Appellate Bench of the Honourable Supreme Court having become effective, the provisions of para. 25 clause 3 (d) of M. L. R. 115 as well as provisions of section 15 (except clause (b) fourthly relating to the right of co‑sharer) of the Punjab Pre‑emption Act, ceased to have effect w. e. f. 31‑7‑1986 ; that the judgment of the Shariat Appellate Bench of l Honourable Supreme Court is binding not only on the High Court and the

Courts subordinate to it but also on all Courts in Pakistan ;that the judg ment enjoys a declaratory status ; that the judgment is not a repeal/implied repeal of provisions of law declared as repugnant to the Injunctions of Islam, within the meanings of sections 6 and 4 of the General Clauses Act, 1897 and West Pakistan General Clauses Act, 1956, respectively and Article 264 of the Constitution as well, that the judgment being as deciara tory affects the suits and appeal filed by the unsuccessful pre‑emptors against the dismissal of suits, in the sense that the preferential pre‑emptory rights having become ineffective and extinct on 31‑7‑1986, it is not possible, under the law, to enforce those rights and grant decree in favour of the pre emptors in suits, appeals, revisions or writ petitions ; that since the pre emptor is not required to retain his preferential right after decree in his favour and the right having already been successfully asserted before the crucial date, the pre‑emptor had become full owner, so the decree in favour of pre‑emptor granted before the crucial date will be immune subject to the merits of the case ; that the two additional preferential pre‑emptory rights of "" and " cannot be regarded as codified law of the country, so the same are not enforceable ; that the law of Limita tion to the extent it has been examined and declared repugnant to the Injunctions of Islam also ceased to have effect on the crucial date and that a plaint cannot be rejected by the trial Court or the Appellate Court under Order VII, rule 11, C. P. C. by reason of the judgment.

11. As far the merits of the case, I have not been able to persuade myself to agree with the learned counsel for the appellant. I find that the Courts below have applied conscious mind to the relevant evidence and have given sound and cogent reasons in support of the conclusions arrived at by them. The findings of the Courts below on issues Nos. 1, 2 and 3 do not suffer from non‑reading or misreading of any material evidence. The] learned counsel has not pointed out any misreading or non‑reading of material evidence by the Courts below. The mutation was attested on 29‑4‑1974, so, the suit which was filed on 24‑4‑1975 was well within time. There is no cogent evidence to the effect that the vendee had taken under the sale, the physical possession of the suit land on 21‑4‑1974 or that the suit land was capable of admitting physical possession. The Courts below have appreciated evidence led on the issues in accordance with law and the case law laid down by the Superior Courts. For all these reasons, I am of the view that no exception can be taken to the impugned judgments and decrees. There being no merit, the appeal is dismissed, leaving the parties to bear their own costs.

12. Before parting with the judgment I want to bring on record my appreciation of the valuable assistance ‑rendered by Pir Rafi‑lid‑Din ,Shah, Mirza Manzoor Ahmad and Mr. Riaz Anwar, Advocates. They have ably assisted the Court with hard work in this case as amicus curiae.

A. A. Appeal dismissed.

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