the right of pre-emption (Haq Shuf'a) under the Khyber Pakhtunkhwa Pre-Emption Act, 1987: A Complete Guide

In the tribal and agrarian society of Khyber Pakhtunkhwa, land is not merely property — it is identity, inheritance, and livelihood. The idea that a stranger could walk in and purchase land adjacent to your home, or buy into your shared family property, has long been considered deeply unjust under both custom and Islamic law. It is precisely this concern that the Khyber Pakhtunkhwa Pre-Emption Act, 1987 (Act X of 1987) was enacted to address.

The Act gives certain persons a legal right — known as Haq Shuf'a or the right of pre-emption — to purchase an immovable property in preference over any outside buyer, at the same price and on the same terms. The preamble of the Act makes clear that its purpose is to bring the law of pre-emption in conformity with the Injunctions of Islam as set out in the Holy Quran and Sunnah, following recommendations of the Council of Islamic Ideology.

This guide explains the Act in full — who benefits from it, how to exercise it, what can go wrong, and what the Supreme Court of Pakistan has said about its application.

What Is the Right of Pre-Emption?

Section 2(c) of the Act defines the right of pre-emption as:

"A right to acquire by purchase an immovable property in preference to other persons by reason of such rights."

In simpler terms: when a property owner decides to sell, certain people — by virtue of their relationship to that property — have the first right to buy it. A stranger cannot step in until these persons have been given the opportunity.

The right only arises in the case of a sale (Section 5). The Act defines "sale" under Section 2(d) as a permanent transfer of ownership of immovable property in exchange for valuable consideration. It also includes hiba-bil-iwaz and hiba bi-shart al-iwaz (conditional gifts in exchange for consideration).

However, the following are not treated as sale for purposes of pre-emption:

• Transfer through inheritance or ordinary gift
• Sale in execution of a court decree
• Creation of occupancy tenancy
• Exchange of agricultural lands for better management
• Transfer by way of dower or blood money compensation

This distinction is critical — and as we will see later, it has been directly addressed by the Supreme Court.

Who Has the Right? — Three Categories of Pre-Emptors

Section 6 of the Act identifies three classes of persons in whom the right of pre-emption vests, in the following order of priority:

1. Shafi Sharik — The Co-Owner

The first and strongest right belongs to a person who is a co-owner in the undivided corpus of the property being sold. If you jointly own a house or piece of land with others, and one co-owner sells his share to a stranger, the remaining co-owners have the highest claim to pre-empt that sale.

2. Shafi Khalit — The Participator in Special Rights

The second class includes persons who share special rights attached to the property — such as a right of passage, right of passage of water, or right of irrigation from a shared source. These are people who are not co-owners in title but are connected to the property through shared infrastructure or access.

Section 7(2) further refines priorities within this class. For example, a person with a right of irrigation from a watercourse directly connected to the sold land has precedence over someone with only a general right of irrigation from the wider canal.

3. Shafi Jar — The Neighbor

The third and weakest right belongs to a person who simply owns adjacent immovable property. Neighborhood alone gives a right, but only after the first two classes have been excluded.

Immovable Property — What Is Covered?

Section 2(a) defines immovable property to include land, building, house, shop, water tank and well. Section 11 further clarifies that trees or a standalone building structure sold without the underlying land do not attract pre-emption. However, where land is sold together with trees and buildings on it, those appurtenances are included in the pre-emption claim.

How to Exercise the Right — The Three Demands

This is the most procedurally significant part of the Act, and also the area where most pre-emption suits fail. Section 13 requires a pre-emptor to make three successive demands, in the following strict order:

Financial Requirements — Depositing the Sale Price

Section 24 imposes an important financial obligation on the pre-emptor. Upon filing suit, the court will require the plaintiff to deposit one-third of the sale price in cash within a period fixed by the court. Where no sale price is mentioned in the deed or mutation, one-third of the probable value is deposited.

Failure to deposit within the fixed period results in automatic dismissal of the suit. Similarly, if the pre-emptor withdraws the deposited amount before decree, the suit is dismissed.

After the decree, if the final price determined by the court exceeds the deposited amount, the pre-emptor must deposit the remaining amount within thirty days of the decree (Section 25). If the final price is less, the excess is refunded.

When the Right Is Lost — Waiver and Abatement

Waiver (Section 15)

The right of pre-emption is lost if the pre-emptor acquiesces in the sale or does any act — by omission or commission — that amounts to a waiver. This could include congratulating the buyer, assisting in possession, or remaining silent when action was expected.

Abatement (Section 17)

If the pre-emptor sells or transfers his own property — the one on the basis of which he claims pre-emption — before the court passes a decree, his right of pre-emption abates (comes to an end). Furthermore, the person who acquires the pre-emptor's property also does not inherit this right.

Death of Pre-Emptor (Section 16)

If the pre-emptor dies after making any of the demands under Section 13, the right transfers to his legal heirs. This is an exception to the general rule under Section 19 that the right is non-transferable.

The Right Is Non-Transferable and Indivisible

Section 19 makes clear that the right of pre-emption cannot be transferred to another person and is indivisible. A pre-emptor must claim the entire pre-emptible property — he cannot claim only a portion of it.

Joint Pre-Emptors

Where the right vests in more than one person of the same class, Section 8 provides flexibility: they may exercise the right jointly, or if all do not act together, then two or more may act jointly, and if not, then each may act separately.

Where multiple pre-emptors are found to be equally entitled, Section 9 directs the court to distribute the property among them in equal shares — regardless of the proportional size of their existing shares in the property. The illustration in the Act makes this particularly clear: if B holds one-third and C holds one-sixth of a house, and they both pre-empt A's one-half share, that half is split equally between B and C — not according to their existing proportions.

Properties Exempt from Pre-Emption

Section 23 lists properties in respect of which no right of pre-emption exists:

• Waqf property or property used for charitable, religious, or public purposes
• Property sold or purchased by the Federal Government, Provincial Government, or a local authority
• Property acquired by government under any law

Improvements Made by the Buyer

Section 21 protects a buyer who has made improvements to the property before the pre-emptor's Talb-i-Ishhad. In such cases, the buyer is entitled to recover the cost of those improvements from the pre-emptor.

However, under Section 22, any improvement in the status of the buyer (such as becoming a co-sharer through inheritance) after the suit is filed does not affect the pre-emptor's right.

Price Determination by the Court

Where parties disagree on price, Section 27 empowers the court to determine whether the stated sale price was fixed in good faith. If the court finds the price was genuine, it binds the pre-emptor. If the price was not fixed in good faith, the court determines the market value instead.

Under Section 28, the court may consider the following in determining market value:

• The price actually received by the seller
• Average annual net profits of the property
• Value of similar property in the neighborhood
• Value of similar property shown by recent past sales

Role of Ulema in Proceedings

Section 30 contains a unique provision: any party to pre-emption proceedings may engage an Alim from a recognized Deeni Madrasah — in addition to, or instead of, an advocate. This reflects the Islamic character of the law and the legislature's intention to allow religious scholars to assist in interpreting Sharia-based principles in court.

Matters Not Covered — Governed by Shariah

Section 33 provides that any matter ancillary or akin to the provisions of the Act that is not specifically covered shall be decided according to Shariah. This makes the Act an open-ended framework grounded in Islamic jurisprudence, with Fiqh filling any gaps.

The Supreme Court's Guidance — Amir Waheed Shah v. Ajmal Khan (2023)

The Supreme Court of Pakistan, in Civil Appeal No. 271/2015 decided on 20th November, 2023 (reported as 2024 SCMR 105), provided important guidance on the relationship between the three-demand procedure and transactions that may be structured to evade pre-emption.

In this case, a piece of land in Bannu was sold to Mst. Gul Zahira Bibi through mutation No. 1809. Almost immediately after the sale was sanctioned, she gifted the same land to her sons through mutation No. 1810. The respondent (plaintiff) sought to pre-empt the original sale and challenged the gift as a sham transaction — but critically, he only issued a Talb-i-Ishhad notice to the original buyer (Mst. Gul Zahira Bibi) and made no demand at all in respect of the gift transaction.

The Supreme Court drew a sharp distinction between a device and a disguise:

• A device is a legitimate and lawful method of arranging one's affairs — such as genuinely gifting or exchanging property — which may lawfully defeat a pre-emption claim. This is permitted.
• A disguise is when a transaction is given a false colour to evade third-party rights. When this happens, the court has not just the function but the duty to lift the veil, see through the disguise, and determine the real nature of the transaction.

This judgment reinforces a fundamental principle of the Act: procedural compliance with Section 13 is not a technicality — it is the foundation of the right itself.

Conclusion

The Khyber Pakhtunkhwa Pre-Emption Act, 1987 is a carefully structured piece of legislation rooted in Islamic principles of community, proximity, and shared interest in land. It protects co-owners, neighbors, and those with shared rights from having strangers inserted into their property relationships without their consent.

But the right is not automatic. It must be actively and correctly exercised — through the three-step demand process, within strict time limits, with financial deposit, and with full procedural integrity. As the Supreme Court has made clear, even a genuine grievance will fail if the pre-emptor does not follow the law precisely.

For anyone dealing with property transactions in KPK — whether as a seller, buyer, or potential pre-emptor — understanding this Act is not optional. It is essential.

Useful Resources

• Peshawar High Court — Official Website
• Supreme Court of Pakistan — Judgments
• KPK District Courts Portal
• Property Lawyers in Peshawar — Zia Law Firm