IN THE SUPREME COURT OF PAKISTAN  
(Appellate Jurisdiction) 
 
 
 
 
PRESENT: 
MR. JUSTICE GULZAR AHMED  
MR. JUSTICE DOST MUHAMMAD KHAN  
 
Civil Appeal No.1208 of 2011 
(On appeal from the judgment dated 29.11.2010 
passed by the Lahore High Court Lahore in Civil 
Revision No.29/2008)  
 
Malik Muzaffar Ahmed 
…Appellant  
Versus  
Majlis-e-Ilmi Society thr. Muhammad Zubair  
 
..Respondent  
 
For the appellant: 
Khawaja Saee-uz-Zafar, ASC 
 
For the respondent: 
Raja Muhammad Irshad, ASC 
 
 
 
 
Syed Rifaqat Hussain Shah, AOR 
  
  
 
Date of hearing:  
15.12.2015 
 
 
 
 
  
JUDGMENT  
 
 
  
Dost Muhammad Khan, J.— This appeal has been filed 
against the impugned judgment of the learned Judge in Chamber of 
the Lahore High Court, Lahore rejecting the plaint of the appellant 
under Order-VII, Rule-11 CPC after setting aside the order of the Trial 
Judge, who rejected the application and held that after recording some 
evidence the question of exemption from pre-emption then would be 
decided.  
2. 
  
Learned ASC for the appellant vehemently contended that 
the learned High Court has fallen in error due to misinterpretation of 
the language of clause (a) of sub-section (1) of section 23 of the 
Punjab Pre-emption Act, 1991, which only provides exemption from 
exercise of right of pre-emption to the sale of Waqf Property or 
property used for charitable, religious or public purposes. To 
understand the scope and true language of the said provision of law, it 
is reproduced below:- 
CA 1208/11 
2 
“23. No right of pre-emption in respect of certain 
properties. –(1) No right of pre-emption shall exist in 
respect of sale of— 
(a) 
Waqf property or property used for charitable, 
religious or public purposes.” 
 
 
The learned ASC made attempt to take benefit of the defective 
language of the Statute without making efforts to discover the true 
intent of the Legislature, rather avoided to attend to that proposition 
despite quarries, made by the Court.  
3. 
 
The facts of the case are that, the respondent, Majlis-e-
Ilmi Society, purchased land measuring 123-K, 3-M, described in the 
heading of the plaint, from one Shoaib Ahmed for a sale consideration 
of Rs.47,00,000/-. This sale of land was pre-empted by the appellant 
being adjacent owner however, the respondent filed an application 
under Order-VII, Rule-11 CPC for rejection of the plaint on the 
strength of the provision of S.23 of the Punjab Pre-emption Act, 1991, 
as according to them the same was exempt from the pre-emption 
right. The application was dismissed as stated above however, the 
learned Judge in the High Court allowed the same and rejected the 
plaint.  
4. 
  
True, that the provision of S.23 ibid suffers from absurdity, 
ambiguity and inadvertent omission on the part of the drafter because 
along with the sale the word, ‘purchase’ was not added to the said 
provision.  
5. 
  
According to the NWFP (KPK) Pre-emption Act, 1987 this 
omission is not occurring there. The same is reproduced as under:- 
CA 1208/11 
3 
“23. No right of pre-emption in respect of certain 
properties. –(1) No right of pre-emption shall exist in respect 
of sale or purchase of— 
(a) 
A waqf property or a property used for charitable, 
religious or public purpose.” 
In view of the judgment in the case of Government of NWFP v. 
Malik Said Kamal Shah (PLD 1986 SC 360) majority of the 
provisions of the Punjab Pre-emption Act, 1913 and that of NWFP 
(KPK) Pre-emption Act, 1950 were declared against the injunctions of 
Islam and the governments were directed to amend the law according 
to the guidelines, given therein so to bring it in conformity with the 
injunction of Islam. To achieve the object, the Government of the day 
referred the matter to the Islamic Ideology Council to provide the law 
for all the provinces, also keeping in view the customs and traditions 
of each province, not against the injunctions of Islam and after 
consultation with the Law Division, Government of Pakistan had to 
forward the same to the governments so that the new draft law is 
enacted through Legislature.  
6. 
  
The 
Islamic 
Ideology 
Council, 
after 
considerable 
deliberations with Jurists on “Islamic Fiqa” with regard to right of pre-
emption, all ancillary and allied matters and after consultation with the 
Law Division drafted the proposed law for the provinces and forwarded 
the same to their respective governments. It was in this background 
that, the new Pre-emption Act of NWFP (KPK) was notified on 
26.04.1987. While the Government of Punjab in the first instance 
through an Ordinance dated 27.08.1990 promulgated by the Governor 
of Punjab, enacted the new law, which after making some 
amendments therein, was passed by the Provincial Legislature and 
after getting assent of the Governor of the Province, the same was 
CA 1208/11 
4 
issued on 6th April, 1991 in the extraordinary Gazette of Punjab 
Province.  
7. 
  
In both the Acts of the two provinces, the provision of S.23 
thereof provides protection from right of pre-emption to “Waqf” 
property or a property used or attached to charitable or religious 
institutions however, in the provision of the NWFP (KPK) Pre-emption 
Act, as cited above, the words “sale and purchase” both are used 
however, the word “purchase” is missing from the similar provision of 
the Punjab Pre-emption Act, 1991. In the same provision of the Punjab 
Pre-emption Act, S.23(2), the property purchased or acquired by the 
Federal or the Provincial Government or local authority is also given 
exemption from pre-emption. This provision was challenged along with 
some other provisions of the Punjab Pre-emption Act, 1991 before the 
Federal Shariat Court on the plea that the same were against the 
injunctions of Islam.  
A larger Bench of the Federal Shariat Court in the case of 
Muhammad Ismail Qureshi v. Government of Punjab (PLD 1991 
Federal Shariat Court 80) has held as under:- 
 
“That the provision of section 23(2) is not 
repugnant to injunction of Islam as property, which 
is to be pre-empted, must be owned by a person. 
That is why, the properties which are Waqf or used 
for charitable, religious and public purposes are not 
pre-emptible. On this analogy, the State-owned 
properties also are not pre-emptible because they 
are not property of a person. Extending the 
principle further, a property acquired by the State 
for public purposes does not remain property of a 
person or an association of persons. Therefore, a 
property for public purposes, as envisaged in 
Shariah, is not pre-emptible.”  
CA 1208/11 
5 
8. 
  
The learned Judge of the Lahore High Court in the case of 
Muhammad Farooq v. Muhammad Amin Trust Chakwal (PLD 
2007 Lahore 431) also held that “the record did not deny that 
vendee was a trust or Waqf and purchased the property as such--- 
Deed of trust was produced which was a registered document------ 
Purposes of trust were setting up of a hospital on modern lines and 
to serve people of locality around--- Chairman of vendee Truest 
appeared as witness and stated that the land was purchased for 
constructing a hospital.” This statement was not challenged in cross-
examination thus, it was held that, “plain reading of S.23(1)(a) of 
Punjab Pre-emption Act, 1991 showed that prohibition was regarding 
sale of waqf property or property used for charitable purposes--- 
Intention however, clearly appeared to save the property purchased 
for charitable user from rigours of exercise of right of pre-emption.” 
9. 
  
Now it is to be seen in light of the universally 
acknowledged cannon of interpretation and construction of Statutes as 
to what was the intent and object of the Legislature by enacting the 
provision of S.23 of the Punjab Pre-emption Act, 1991.  
After going through the injunctions of Islam, as already held by 
the Federal Shariat Court, exemption from right of pre-emption given 
to the properties, purchased by the charitable or religious institutions, 
was the clear intent and object of the Legislature. This was correctly 
perceived and the drafter has not committed any error while drafting 
S.23 of the NWFP (KPK) Pre-emption Act, where the words, sale and 
purchase” both are used. 
10. 
  
The primary object of the provision of law of the Punjab 
Pre-emption Act was to protect and save from pre-emption also the 
properties purchased by these institutions because the property 
CA 1208/11 
6 
purchased by it, is used for charitable, religious and public benefit 
connected therewith and not for monitory or financial gain. If the 
interpretation, the learned ASC for the appellant suggested, is placed 
on the said provision of law, in our view, the very intent and object of 
the Legislature would be defeated. This would be destructive to its 
implied intent and object it wanted to achieve. 
11. 
  
Now the question is, whether the Court can supply the 
omissions through necessary inference till the amendments are made 
in the relevant provision of S.23 of the Punjab Pre-emption Act. In this 
regard, the famous Jurists and celebrated Judges of the superior 
courts of different countries have consistently held that, if there is an 
occasion where there is inadvertent omission on the part of the drafter 
and if interpretation on that account is placed in a way to give effect to 
the omission, not only it will defeat the intention of the Legislature but 
will also result into harmful drastic consequences. Therefore, in such a 
case, it becomes imperative for the Courts to fill-up the gap and to 
supply the omission, so to avoid the obvious destructive effect on the 
true intent of the Legislature. It is also a bedrock principle of 
interpretation and construction of Statutes that in a case of ambiguity 
and absurdity or inadvertent omission, the Court has to make 
departure from the plain meaning of the Statute and to adopt a 
construction, which would further and carry the object of the 
Legislature into effect by resorting to drawing inference therefrom.  
12. 
  
In the comprehension of a Statute, certain factors cause 
objective doubts as to the meaning of Legislative text. These are called 
doubt-factors. The drafters, either due to inadvertent omission or 
deliberately, avoid to use unnecessary words for the object of brevity. 
This technique is called ellipsis, meaning thereby that the obvious is to 
CA 1208/11 
7 
be provided by implication in such a case. The Courts have the powers 
to fill-up the lacuna in the Statute through necessary implied addition.  
13. 
  
It is also a cardinal principle with regard to interpretation 
of Statute that the Courts have the powers, in cases where there is a 
manifest contradiction of the apparent purposes of the enactment or 
the way, the literal construction is likely to lead to a result, not 
intended by the Legislature, to modify the meaning of the words or to 
supply the obvious omission due to result of inadvertent mistake on 
the part of the drafter. This is called a secondary construction of the 
Statute, where primary construction defeating the purpose of 
enactment shall be departed from, so to make the Statute sensible by 
giving effect to the legislative intent. In the cases of inadvertent 
legislative omissions, defeating the very object of the whole scheme of 
law, the Courts have the powers to supply the omissions, making the 
Statute purpose oriented, workable and sensible, by giving effect to 
the legislative intent. This principle was firmly adopted in wide sense 
by the Supreme Court in the famous case of Al-Jehad Trust v. The 
Federation of Pakistan (PLD 1996 SC 324). Similar view was held 
by the Supreme Court in the case of Mian Muhammad Nawaz Sharif 
v. President of Pakistan (PLD 1993 SC 473).  
14. 
  
In view of the principles, discussed above, and after 
reading the provision of S.23 of the Punjab Pre-emption Act, 1991 and 
the entire scheme of the law, we entertain no amount of doubt that 
the word, “purchase” which is mentioned in the similar provision of 
the NWFP Pre-emption Act, 1987, has been omitted from the said 
provision of the Punjab Pre-emption Act, due to mistake, albeit 
inadvertently on the part of the drafter and while following the above 
construction and interpretation of Statute on the above principles on 
CA 1208/11 
8 
the controversy in issue, it is felt fully justified to supply the omission, 
rendering the said provision of law meaningful, workable and sensible, 
so to give effect to the intent of the Legislature.  
15. 
  
Accordingly, the word “purchase” must be read in the 
provision of S.23 of the Punjab Pre-emption Act and in the head-notes 
appended to it.  
16. 
  
As a result of above conclusion and findings, this appeal is 
found devoid of all legal merits. Hence the same is dismissed. The 
impugned judgment of the High Court is upheld.  
Note: Before concluding this judgment we 
deem it appropriate that copy of this judgment 
be sent to the Law and Parliamentary Affairs 
Department/Ministry, Government of Punjab 
with the recommendation to bring necessary 
amendments in the provision of S.23 of the 
Punjab Pre-emption Act, by adding the word, 
‘purchase’  so to avoid future unnecessary 
litigation in this regard. Early action on the 
part of the government of Punjab would be 
appreciated.  
 
Judge  
 
 
Judge  
 
Islamabad, the   
15th December, 2015 
Nisar /-‘ 
Approved For Reporting 
