MUKTHIAR ALI alias MUMTAZ ALI etc. vs MUMTAZ AHMED etc.
This matter involves petitions for leave to appeal against a judgment of the Lahore High Court, which had dismissed the petitioners' civil revisions and affirmed an appellate court's decision dismissing their pre-emption suit. The core legal question before the Supreme Court was whether the production of both witnesses of 'Talab-i-Ishhad' in court is a mandatory legal requirement for proving the performance of the pre-emption right. The Supreme Court held that the production of both marginal witnesses is not a mandatory requirement under the relevant laws. Consequently, the Court set aside the impugned judgment of the High Court, as it had erroneously relied on the absence of one witness to dismiss the suit without considering other issues. The case was remanded to the High Court for a fresh decision on the merits. The key principle laid down is that the failure to produce all marginal witnesses of 'Talab-i-Ishhad' in court does not automatically invalidate a pre-emption claim, provided the performance of the requirement is otherwise proven by available evidence.
- Is the production of both witnesses of Talab-i-Ishhad in court a mandatory requirement under the Punjab Pre-emption Act, 1991?
- Does the failure to produce all marginal witnesses of Talab-i-Ishhad render a pre-emption suit liable to dismissal?
- Punjab Pre-emption Act, 1991
- Qanun-e-Shahadat Order, 1984
ORDER
Tassaduq Hussain Jillani, J.--This order shall dispose of C.P.L.A. Nos. 3302 & 3303-L of 2203 as common questions of law and facts are involved therein.
2. Through these petitions, petitioners seek leave to appeal against the judgment dated 13.10.2003 vide which a learned Judge of the Lahore High Court dismissed petitioners Civil Revisions and affirmed the judgment of the Appellate Court dated 20.3.1996 vide which while reversing the judgment and decree of the learned trial Court dated 26.2.1995 petitioners suit was dismissed.
3. The only ground which found favour with the learned High Court to uphold the judgment of the Appellate Court was that petitioners produced only one out of the two witnesses of "Talab-i-Ishhad.
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4. Learned counsel for the petitioners submits that production of both the witnesses in Court is not mandatory requirement in law; that petitioner (PW.1) and one of the witnesses of Talab-i-Ishhad namely Sher Muhammad (PW.2) had fully proved the performance of "Talab-i-Ishhad" and that the judgment of the learned High Court on that score is not only against the law but also reflects the material evidence on record.
5. Learned counsel for the respondents, on the other hand has not been able to controvert the submissions made by petitioners' learned counsel that production of two marginal witnesses in Court is not a mandatory requirement under the Punjab Pre-emption Act, 1991 or under the Qanune-Shahadat Ordinance, 1984.
6. The contention raised by the petitioners' learned counsel has force. However, since the learned High Court has not adverted to the other issues, we are inclined to allow these petitions, convert the same into appeals and while setting aside the impugned judgment we are remanding the cases to the learned High Court to decide the matter afresh. The Civil Revision Nos. 725-D of 1996 & 801-D of 1996 shall be deemed to be pending before the said Court and shall be decided as mandated in law.
Cited by 3 cases
- DAWA KHAN (deceased) through L.Rs and others vs MUHAMMAD TAYYAB 2013 PLJ SC 609
- DAWA KHAN through L.Rs, and others vs MUHAMMAD TAYYAB 2013 SCMR 1113
- Dawa Khan (Deceased) Through L.Rs. And Other vs Muhammad Tayyab 2014 PSC 1376