1999SCMR958 (PLP)
MUHAMMAD ILYAS — Appellant Versus GHULAM MUHAMMAD and another — Respondents
| Citation | 1999SCMR958 (PLP) |
| Forum / Court | Supreme Court of Pakistan |
| Bench Members | Muhammad Bashir Jehangiri and Sh. Riaz Ahmed, JJ |
| Parties | MUHAMMAD ILYAS — Appellant Versus GHULAM MUHAMMAD and another — Respondents |
| Primary Law | (a) Punjab Pre-emption Act (IX of 1991), (c) Constitution of Pakistan (1975), (b) Punjab Pre-emption Act (IX of 1991) |
Q1: What are the key laws and sections cited in 1999SCMR958 (PLP)?
This judgment primarily cites: (a) Punjab Pre-emption Act (IX of 1991), (c) Constitution of Pakistan (1975), (b) Punjab Pre-emption Act (IX of 1991), (d) Punjab Pre-emption Act (IX of 1991) as referenced in Pakistani case law index.
Q2: Which judicial bench decided the case 1999SCMR958 (PLP)?
The case was heard and decided by the Supreme Court of Pakistan bench comprising: Muhammad Bashir Jehangiri and Sh. Riaz Ahmed, JJ.
Q3: What is the official citation format for this judgment on Pakistan Law Portal?
Cite this legal precedent as: 1999SCMR958 (PLP) (MUHAMMAD ILYAS — Appellant Versus GHULAM MUHAMMAD and another — Respondents). Read the full summary and cross-referenced laws free on Pakistan Law Portal.
Laws Cited
Representation
- Muhammad Munir Peracha, Advocate Supreme Court instructed by Ijaz Muhammad Khan, Advocate-on-Record for Appellant.
- Ch. Nasir Ahmad, Advocate Supreme. Court instructed by Imtiaz Muhammad Khan, Advocate-on-Record for Respondent No. 1.
- Asmatullah, Advocate Supreme Court for Respondent No.2.
- Date of hearing: 28th April, 1998.
- 10. At the conclusion of he arguments of the learned counsel for the parties. Mr. Muhammad Munir Peracha, learned Advocate Supreme Court, representing the appellant, informs us that the revision filed by Himat Khan, rival pre emptor, against the judgment and decree of the learned District Judge was pending decision in the High Court and, therefore, the judgment should not be `` announced in this appeal.
- Khalid Khan, Advocate Supreme Court for Petitioners. Fazal Ilahi Siddiqui, Advocate Supreme Court for Respondents.
Headnotes / Summary
(On appeal from the judgment, dated 7-3-1996 of the Lahore High Court, Rawalpindi Bench. Rawalpindi passed in Civil Revision No. 102-D of 1996).'
S. 13
Constitution of Pakistan (1973), Art. 185(3)
"Talb-i- Muwathibat"
Leave to appeal was granted by Supreme Court to consider the question as to whether the finding of Trial Court that neither the place where the pre-emptors obtained the knowledge of sale was mentioned in the plaint, nor were the names of the persons in whose presence they learnt of the sale and made Talab-i-Muwathibat indicated therein.
S. 13
Qanun-e-Shahadat (10 of 1984). Art. 113
Demand of pre emption
Talab-i-Muwathibat and Talb-i-Ishhad
Principles. A bare reading of subsection (3) of section 13 of the Punjab Pre-emption Act, 1991 would show that where a pre-emptor has made Talb-i-Muwathibar under subsection (2) he shall, as soon thereafter as possible, but not later than two weeks from the date of notice under subsection (3) or knowledge, whichever may be earlier, make Talb-i-Ishhad by sending a notice in writing attested by two truthful witnesses under registered cover acknowledgement due to the vendee confirming his intention to exercise of right of pre-emption. It is the preponderance of evidence which goes to prove or disprove a point in issue Again preponderance of evidence in civil matters is not judged on the touchstone of the proof in a criminal matter where the charge is required to be proved to the hilt on the basis of unimpeachable evidence. The rules of evidence for civil and criminal cases are. in general, the same but some provisions of the Qanun-e-Shahadat (10 of 1984) are peculiar to criminal cases, and others, peculiar to civil cases, e.g. confession (Articles 37 to 43) character, (Articles 66 and 69) incompetency of witness (section 120 of then Evidence Act, 1872 since repealed) admissions (Articles 31 to 33), estoppel (Articles 114, 115 and 116). Thus, whereas in a civil case a mere preponderance of probability is sufficient basis for decision, in a criminal case persuasion of guilt must amount to "such a moral certainty as convinces the minds of the Tribunal as reasonable men beyond all reasonable doubt". Unlike criminal cases, in a civil case, it cannot be said that the benefit of every reasonable doubt must. necessarily, go to defendant. Merely because witness had been charged for the murder of the uncle of vendee would not be enough of a reason to discard his testimony in matter of pre-emption and discredit him to be an untruthful witness particularly when he had only put his signatures as a marginal witness to the notice of Talb-i-Ishhad. A witness who comes in the witness-box is presumed to be truthful unless this presumption is rebutted in the cross-examination by showing the features in his testimony rendering him untruthful. Having not been cross-examined the witness would be presumed to be a truthful witness. Where the witness of the vendor had acknowledged the receipt of notice sent by the pre-emptor, he would be deemed to have admitted the plea that the notice was sent to the vendor and had been duly received by him under Article
113. Qanun-e-Shahadat 1984. Talb-i-Ishhad, in circumstances had been, duly made by the pre-emptor as required by section 13(3) of the Punjab Pre-emption Act, 1991. In circumstances. Commentary on Article 2 of Qanun-e-5hahadai. 1984 by Khalil-ur-Rehman Khan, J., Fifth Edn., pp, 48. 49 ref --Art. 185
Punjab Pre-emption Act (IX of 1991), S. 13
Counsel of the vendor at the conclusion of the argument informed the Supreme Court that revision filed by a rival pre-emptor against the judgment and decree of the District Judge was pending decision in the High Court and, therefore, the judgment should not be announced in the appeal-- Held, since the matter of revision being pending at the High Court had not been brought to the notice of Supreme Court at the outset and if rival pre-emptor would ultimately succeed in the High Court, he could file a review petition before the Supreme Court to consider his plea of sharing the land under the relevant provisions of the Punjab. Pre-emption Act, 1991
Supreme Court, in circumstances, announced the judgment notwithstanding the pendency of civil revision by the rival pre-emptor.
S. 13
Civil Procedure Code (V of 1908), O. VI, R. 2
Pre-emption suit- Making of Talbs
Pleadings of the parties has to contain only material facts and are not required to contain the gist of evidence and names of witnesses
Not a sine qua non for the pre-emptor to specify in the plaint almost all the witnesses in whose presence he had made Talab-i- Mubathibat and specify the time and then to make the Talb under S. 13 of Punjab Pre-emption Act, 1991. Commentary on Article 2 of Qanun-e-Shahadat 1984 by Khalil-ur- Rehman Khan, J., Fifth Edn., pp. 48, 49 fol .
Judgment & Decree
MAMOON KAZI, J.
The petitioners have called into question the judgment of the Peshawar High Court dated 16-7-1998, accepting the respondent Raza Hassan and ordering the petitioners to ,admit the said respondent in the first year of M.B.,B.S. during the Session 1997-98 in Khyber Medical College, Peshawar.
2. The said respondent had applied for admission to one of the medical colleges in the Province of N.-W.F.P. on self-finance basis. After name of the respondent had appeared in the list of successful candidates, the admission policy was altered by the petitioners in view of the instructions received in this regard from the Health Department vide their letter, dated 29-11-1997. In the category in which the respondent had applied for admission, twelve seats were allotted to the doctors' children resulting in drastic curtailment of seats for the other candidates. Thereafter, the respondent, failing to elicit a satisfactory response from the petitioners, filed a writ petition before the High Court.
3. The petition filed by the respondent was allowed by the High Court as it was held that the respondent had acquired a vested right. Directions were consequently issued to the petitioners, as pointed out earlier.
4. The judgment of the High Court has been assailed on the plea that, final selection of the candidates had yet to be made, therefore, before any decisive step had been taken, the petitioners had a right to alter the admission policy. Consequently, the findings of the High Court that the said respondent had acquired a vested right to the admission were completely unwarrannted by law, Learned counsel for the respondent, on the other hand, has fully supported the order passed by the High Court writ petition filed by
5. Although we are fully conscious that universities in Pakistan enjoy complete freedom to take decisions in their own matters and interference by the Courts in such matters would be the least desirable except for exceptional circumstances. But in the present case, it would not be out of place to observe that for this litigation the petitioners have only themselves to blame. Even if the petitioners have power to amend or alter any rule embodied in the prospectus, such action appears to be completely ill-advised after the had process of admissions already commenced.
6. The respondent is already attending M.B.,B.S. classes in Khyber Medical College, Peshawar in pursuance of the impugned judgment. When this petition was filed, it was placed for Chamber's Orders before a learned Judge of this Court on 3-9-1998, but, the petitioners' request for suspension of the operation of the judgment of the High Court was declined and the said respondent was allowed to avail the benefit of the impugned judgment until final decision of this case.
7. Therefore, even if the petitioners ultimately succeed in this case, by such time considerable time would elapse, keeping in view the backlog of cases pending in this Court. Under the circumstances would it be appropriate to deprive a student of his career in medicine when he would already have reached the fag-end thereof. We are, therefore, not inclined to interfere with the judgment of the High Court in any case.
8. In the result, the petition is dismissed and leave is refused. C.M.A. No. 115-P of 1998 seeking action for contempt of Court against the Principal, Khyber Medical College, Peshawar, is dismissed as the same is not pressed by the learned counsel for the respondents. M.B.A./C-23/S Petition dismissed.