2001 PLP 355 (MLD)

Muhammad Ilyas v. Ghulam Muhammad and another 1999 SCMR 958 and Haji Noor Muhammad through his Legal Heirs v. Abdul Ghani 2000 SCMR 329 ref. (b) Qanun‑e‑Shahadat (10 of 1984)‑‑‑ ‑‑‑‑Art.133‑‑‑Veracity of witness‑‑‑Mode and procedure to judge‑‑‑To have his veracity judged the witness should enter the witness‑box, state whatever he has to say on oath and then subject himself to cross‑examination‑‑ Examination‑in‑chief and cross‑examination constitute a complete statement made by a witness which enables the Court to judge as to whether the witness is truthful or otherwise. Ch. Inayatullah for Petitioner. The respondent acquired the suit land by means of an exchange Mutation No.420 attested on 31‑1‑1995. On 23‑4‑1996 the petitioner filed a suit for possession of the suit land claiming that the transaction was in fact a sale. Inter alia, it was stated in the written statement that Talbs had not been performed and that the petitioner never approached the respondent to make Talb‑e‑Ishhad or to serve her on a notice thereof. Issues were framed. Evidence of the parties was recorded. The learned trial Court decreed the suit on 30‑7‑1998. Feeling aggrieved the respondent filed an appeal which was heard by a learned Additional District Judge, Chunian who allowed the same and dismissed the suit on 13‑7‑2000.

2. Learned counsel for the petitioner contends that the learned Additional District Judge has acted with material irregularity in the exercise of his jurisdiction while allowing the appeal of the respondent inasmuch as he has misread the evidence and that his judgment proceeds in violation of law declared by the superior judiciary. ,

3. I have gone through the copies of the record appended with the Civil Revision. I find that in para. 4 of the plaint it was stated that a week before the institution of the suit on 23‑4‑1996 while she was sitting in the Majlis in the village suddenly the petitioner acquired knowledge of the sale and made Talb‑e‑Muathibat. Thereafter she went to the respondent accompanied, by witnesses to make Talb‑e‑Ishhad. On her refusal to transfer the land to the petitioner she sent a notice attested by witnesses, to the respondent. In her statement as P.W.1 she had stated that Ashraf and Sattar came to her and Ashraf informed that Muhammad Shafi vendor had sold the land, whereupon she declared that she has a superior right of pre‑emption; three/four days thereafter they came to Chunian and notice was sent. In her cross-examination she says that Ashraf is her brother while Sattar is the brother‑in- law of Ashraf. The said Ashraf has appeared as P.W.3 who has made a statement in line with the statement of the petitioner but adding that in the Majlis the respondent was also, present when he informed his sister of the sale.

4. The said statements of P. Ws. 1 and 3 are in negation of the pleadings contained in para.4 of the plaint wherein it has been asserted that immediately after making Talb‑e‑Muathibat the petitioner proceeded to approach the respondent to make Talb‑e‑Ishhad in presence of witnesses.

5. I also find that Sattar, the other alleged witness of notice (Exh.P.1) has not been produced. No reason is forthcoming as to why Sattar was not produced. The only, inference that can be Uawn is that had he been produced, he would not have supported the petitioner. I may note here that Ashraf, P.W.3 has not stated at all that Sattar was also there when Talb‑e -Ishhad was made through the notice and that he signed the same. So far as the petitioner, P.W.1 is concerned, she has not stated at all that Talb‑e- Ishhad was made in presence of two witnesses. Learned counsel refers to the case of Muhammad Ilyas v. Ghulam Muhammad and another (1999 SCMR 958) and Haji Noor Muhammad through his Legal Heirs v. Abdul Ghani (2000 SCIVIR 329) to argue that the production of notice or of its witnesses was not necessary to constitute a valid Talb‑e‑Ishhad. I have examined the said judgments and I do not find any such proposition spelt out therein. On the other hand, section 13 of the Punjab Pre‑emption Act, 1991 lays down in clear terms that Talb‑e‑Ishhad had to be made in the presence of two "truthful" witnesses who are to attest the notice. It is true that the witnesses may not sign the notice or for that matter even a pre‑emptor may not sign the notice but the evidence that such Talbs had been made in presence of truthful witnesses can never be dispensed with and the said judgments do not go on to state that such a dispensation is possible. In the present case the petitioner as P.W.1 has not stated that Talb‑e‑Ishhad was made in the presence of two truthful witnesses while P.W.3 has stated only this much that the Talb was made in his presence and he had signed the notice. There is no evidence at all that the second witness was present or that he had signed the notice attesting the fact that the Talb had been made in his presence: Above all, to my mind the only test available in our system of jurisprudence and the procedure applicable to the proceedings of a Court to judge the veracity of a witness is that he should, enter the witness‑box, state whatever he has to say on oath and then subject himself to cross‑examination. It is the sum total of examination‑in‑chief and the cross‑examination which constitutes a complete statement made by a witness and enables a Court to judge as to whether he is truthful or otherwise. When the law insists that the Talbs had to be made in presence of two truthful witnesses, the non‑production of the second, witness particularly in the circumstances of the present case which can be gleaned from the evidence I have referred to above, is fatal to the case of the petitioner. This Civil Revision is without any force and is accordingly dismissed in limine. Q.M.H./M.A.K./U‑7/L Revision dismissed.