2002 PLP 971 (MLD)

Date of hearing 11th March, 199? The only question, failing for determination in this civil revision, is as to whether Muhammad Aslam/petitioner herein is the collateral of Din Muhammad/Seller and so is possessed of superior right of pre-emption qua Muhammad Tufail/vendee/respondent herein defendant No.1.

2. Stripped off non-essentials, material facts to be noted are that Muhammad Tufail/first respondent herein purchased suit-land (detailed in the plaint) in consideration of 60,000 rupees by means of registered sale-deed, dated 21-2-1982 from Muhammad Din/respondent No.2. Feeling aggrieved, Muhammad Aslam/petitioner pre-empted the above sale/alleging therein that he was son of Muhammad Tufail who was son of Noor Bakhsh son of Saudagar; that Din Muhammad/ seller was son of Allah Ditta son of Mehraj Din who was son of Saudagar; that the vendee was stranger and so petitioner had a better right of prior purchase qua the vendee. The suit was contested. Necessary issues were framed. On the evidence produced by the parties, the learned first Court found that Muhammad Aslam was the collateral of Din Muhammad and so he had a superior right of pre emption qua the respondent. On this conclusion, the learned Trial Court. decreed the suit. Feeling dissatisfied, respondent preferred Civil Appeal No.81/13 of -1984 which was allowed by the Appellate Court in following terms:-- "

8. The plaintiff-respondent has, relied upon the oral evidence consisting of only one witness Ghulam Muhammad who has appeared as P.W.1.. This witness in the cross-examination has not supported the Shajranasib as given in para. No.3 of the plaint. In an answer in, the cross-examination this witness has stated that Sandagar had three sons named Noor Bakhsh, Allah Din and Khawaja while according to the Shajranasib Saudagar had three sons named Miraj Din, Noor Bakhsh and Mlanda. It suggests that the witness does not have the knowledge of the parentage and the relationship of the plaintiff-respondent with the vendor. Muhammad Aslam plaintiff himself appeared and deposed in -the examination-in-chief and stated that Noor Bakhsh, the grandfather of the plaintiff had four sons Rehinat Ali, Hakim Ali, Muhammad Tufail and Fateh Muhammad. In the pedigree-table shown in para. No.3 of the plaint Noor Bakhsh has only three sons Hakim Ali, Tufail and Fateh Muhammad, Rehmat Ali is not shown as the son of Noor Bakhsh and I feel that the statement of the plaintiff in this regard is contrary to his earlier statement in the plaint. Thus, the oral evidence led by the plaintiff is not such that full reliance can be placed on such a statement. In fact the plaintiff has not cared to produce any elder members of his family to prove the relationship with the vendor. There is nothing on the file to show that Ghulam Muhammad is in any way related to the family of the plaintiff or even that he knows the family very well. I feel that the amount of evidence on the file is very scanty and no reliance can be placed on the same td decide that the plaintiff has superior right of pre-emption. I, therefore, decide the issue against the plaintiff-respondent and hold that the plaintiff respondent did not have superior right of pre-emption and he has failed to discharge the onus on him. The impugned judgment and decree is, set aside. The suit of the plaintiff Muhammad Aslam is dismissed."

3. This is how this revision petition has come to this Court. The learned counsel for the petitioner, at the outset, contended that the pedigree-table was not produced by the petitioner before the learned first Court as the same was not in his possession; that the petitioner/applicant had obtained its copy on 30-5-1984 from the Central Record Room; that this document clearly demonstrated that Muhammad Aslam was the descendant of the common ancestor, namely Saudagar and so it was a document of decisive significance. On the strength of above circumstances, he argued that Civil Revision No.944 of 1984 be allowed; that the above document be admitted as additional evidence and the petitioners' revision petition be allowed. He relied on Mst. Mangti v. Mst. Noori (1995 CLC 210) to contend that this Court even in revisional jurisdiction had authority to follow this course. The learned counsel for other side, however, supported the impugned decision. In reply, he contended that there was no evidence, whatsoever, on record to connect the petitioner with Saudagar. According to him neither Ghulam Muhammad nor Muhammad Aslam himself had proved his genealogical link with Saudagar.

4. I have heard the learned counsel for parties at considerable length and carefully attended to their conflicting contentions.

5. The only question as already noted, is as to whether Muhammad Aslam is the collateral of Din Muhammad. In order to prove his case, petitioner heavily relied upon Ghulam Muhammad P.W.1 besides himself, Ghulam Muhammad, while appearing as a witness, did not utter a single word with regard to his relationship with Muhammad Aslam or with regard to his source of knowledge. Before proceeding further it is necessary to be noted that such evidence falls within the ambit of Article 64 of Qanun-e-Shahadat. This provision came up for consideration before me in Rabia Bibi v. Muhammad Malik (1997 MLD 67). After the survey of relevant provision of law and applicable precedents it was held therein as under:-- That section 50 of Evidence Act/Article 64 of Qanun-e -Shahadat, 1984, pertains to admission of circumstantial evidence known as conduct evidence. This is the evidence of what the witness think, believe or infer in respect of facts in dispute, as distinguished from his personal knowledge of facts themselves. It is an exception to the principle that direct evidence is best evidence. (ii) This section makes only opinion was relevant and prescribes how this opinion is to be proved. It is only opinion on the basis of conduct which has been made relevant. In short it is the conduct which becomes as the foundation of belief/opinion/ judgment of a witness. (iii) The opinion evidence of that witness is relevant who is possessed of special means of- knowledge. The member of the families are ordinarily presumed to have special means of knowledge with respect to relationship of member of their family. An outsider also, if he can show that he too possesses special source of knowledge, can also give conduct evidence. The object and purpose of this evidence is to establish the relationship of one person with another."

6. Applying the above principles to the facts of case in hand, it is quite clear that neither Ghulam Muhammad belongs to family of petitioner nor he had shown any special means of knowledge with regard to genealogy of petitioners. He even did not describe the pedigree of petitioner. In cross-examination, he stated that Saudagar had three sons namely Noor Bakhsh, Allah Din and Khawaja. This statement was/is contrary to pedigree-table given in the plaint and even given in this certified copy of pedigree-table sought to be produced by petitioner by way of additional evidence. Muhammad Aslam was not able to support his claim as set out in plaint. On this state of affairs, the learned Appellate Court was eminently correct in coming to conclusion that the petitioner has, miserably failed to prove his superior right of pre-emption qua the vendee. The finding of fact rendered by Appellate Court is, thus, eminently justified and does not call for interference in revisional jurisdiction which is intended to cure the jurisdictional or legal error. As a result of foregoing discussion, this petition is bound to fail and is, accordingly dismissed. The petitioner shall bear costs of proceedings throughout H.B.T./M-1097/L Revision dismissed.