' AMIR RANI MUSLIM, J.---This petition for leave to appeal is directed against the judgment dated 28-6-2010 of the Peshawar High Court, Peshawar, passed in Civil Revision No,223 of 2004, whereby the judgment of the first appellate Court decreeing the suit of the respondent was affirmed.
2. The facts material for deciding the present proceedings are that the respondent filed a suit against the petitioner for possession through pre-emption for an area measuring 40 x 60 feet, being part of khasra No,1828, Mauza Landi Kas, District Sawat, fully described in the heading of the plaint. It was pleaded that the respondent acquired knowledge of the sale of the suit land on Saturday i,e, 9-10-1999 at 3-00 p.m. Through the petitioner, who was present in the disputed land and had informed him about the purchase of the suit land @ Rs,30,000 from Muhammad .Fatal @ Katoray, upon which he loudly pronounced his desire to pre-empt the sale and that he send jirgas to the house of the petitioner, but he refused to acknowledge his superior right of preemption. The respondent send notice dated 9-10-1999 through registered A.D. Post, which was duly received by the petitioner. It was further pleaded that the market value of the suit land was Rs,25,000 but the sale consideration was shown as Rs,60,000 in order to defeat the superior right of pre-emption of the respondent and that he is shafi shareek, shaft khaleet and shaft ja'ar and had performed all the requisite talbs.
3. The petitioner-defendant filed written statement, inter alia, taking legal and factual pleas. Out of the divergent pleadings of the parties, the trial Court framed various issues and recorded evidence of the parties. The trial Court also appointed local commission to ascertain the factual position. The Commission submitted its report on 21-1-2001 to which neither , the petitioner/plaintiff nor the respondent/defendant filed any objection. Thereafter, by the judgment dated 7-4-2003, the trial Court dismissed the suit being barred by limitation. However, the trial Court held that the respondent has the superior right of pre-emption qua the petitioner, but he failed to make the first talb i,e, Talb-e-Muwathibat in time.
4. The respondent filed appeal before the Additional District Judge/Izafi Zilla Qazi-III, Swat. By the judgment dated 23-1-2004, the first appellate Court held the suit of the respondent within time, and decreed the suit of the respondent on payment of Rs,60,000 as sale consideration with further direction to the respondent to deposit the balance amount of Rs,50,000 within one month.
5. Feeling aggrieved, the petitioner filed civil revision before the learned Peshawar High Court, which was dismissed vide impugned judgment dated 28-6-2010, enhancing the sale consideration of the land from Rs,60,000 to Rs,65,000. Hence this petition for leave to appeal.
6. On 27-3-2012, the matter was fixed before a learned Division Bench of this Court at Peshawar when the following order was passed:- "During the hearing, learned counsel for the petitioners, in order to strengthen his point with regard to the mandatory nature of the examination of two witnesses of talb-i-ishhad rely on a judgment of this Court reported as Akbar Ali v. Muhammad Abdullah (2007 SCM R 1233). At the same time we found reference of a judgment of this Court in the impugned judgment by the High Court i,e, Mukhtiar Ali alias Mumtaz Ali v. Mumtaz Ahmed and others (PLJ 2007 SC 399), which has also been reported in 2007 SCM R 221, whereby examination of two witnesses of talb-i-ishhad was not found as mandatory.
2. Keeping in view the two dissenting views in the two judgments of the Supreme Court, it will be proper to place it before the larger Bench constituted for resolving such like issues of conflicting judgments. Office is directed to place the file before the honourable Chief Justice of Pakistan for placing the matter before the larger Bench at the Principal Seat of this Court."
7. The matter was referred to the larger Bench to resolve the conflict in the judgments referred to in the aforesaid order. The learned counsel for the petitioner has contended that the respondent has produced only one witness to prove talb-i-ishhad. According to him, section 13(3) of the Act requires production of two truthful witnesses to the talbs. The respondent having failed to prove the talbs by non-producing the required number of witnesses cannot legitimately seek decree in the proceedings. The learned counsel for the petitioners next contended that section 13(3) of the N.- W.F.P. Pre-emption Act, 1987 (hereinafter referred to as the Act), requires examination of two truthful witnesses to prove talb-i-ishhad. It was agued that the view taken by this Court in the case of Akbar Ali v. Muhammad Abdullah (2007 SCM R 1233) is in conformity with the language of section 13(3) of the Act. The learned counsel further contended that section 13(3) read with Article 79 of the Qanun-e-Shahadat Order, 1984 (hereinafter referred to as the Order) clearly contemplates that notice of talb-i-ishhad should be attested by two truthful witnesses, because it was a document which was required by law to be attested by two attesting witnesses to prove the talb. Non- examination of one of the witnesses out of the two would be violative of the mandatory requirement of proving the Falb in terms, of section 13(3) of the Act of 1987, and the suit, in such an eventuality, was liable to be dismissed. The learned counsel has next contended that both the witnesses to the notice of talb-i-ishhad were alive, but the respondent failed to offer any plausible explanation for non-production of one of the witnesses.
8. As against this, the learned counsel for the respondent has contended that since scribe had appeared in the witness box to support the contents of notice of talb-i-ishhad, therefore, the requirement of examining two witnesses to prove talb-i-ishhad in terms of section 13(3) of the Act was satisfied. He submitted that the provisions of Article 79 of the Order are to be read in conjunction with the provisions of Article 81 of the Order. He next contended that Article 81 of the Order provides that if a document is produced in evidence is admissible, then the executant is not required to prove its contents. In support of this contention he has relied upon the case of Zafarullah Khan v. Mst. Hakim Bibi (2000 YLR 2789), Mst. Fatima Bibi v. Mst. Nasim Akhtar (2000 YLR 2953) and Muhammad Zafaryab v. Mallik Muhammad Iqbal (2000 YLR 1468). He, however, concedes that both the witnesses to the talbs were alive and the respondent had not offered any plausible explanation for non-production of one of the witnesses at the trial. In support of his contention in regard to the examination of one witness of talb, he has relied upon the judgment of this Court in the case of Mukhtiar Ali @ Mumtaz Ali and others v. Mumtaz Ahmad and others (2007 SCM R 221).
9. We have heard the learned counsel for the parties and have perused the record. The provisions of section 13(3) of the Act require examination of two truthful witnesses, to prove the contents of the notice of talb-i-ishhad, which is mandatory in nature. It is consistent view of this Court since 1995 that in order to prove a document; Article 79 of the Order of 1984, requires production of two attesting witnesses to testify the same in Court. The language of section 13(3) of the Act makes it mandatory upon the party to examine two truthful witnesses of the notice to prove talb-i-ishhad, unless it is shown that one of the witnesses is untraceable and or has died, therefore, non- production of one of the witnesses, Without showing sufficient cause and or plausible explanation would be violative of this mandatory requirement of provjng talb-i-ishhad. The evidence produced before the trial Court for proving the talb-i-ishhad by the respondent, therefore, was violative of section 13(3) of the Act, as admittedly only one witness to the talbs was examined. The examination of the scribe by the respondent, in no way, can be construed to be in conformity with the language of section 13(3) of the Act read with Article 79 of the Order. The scribe cannot be categorized as I truthful witness of talb-i-ishhad. In the circumstances, we hold that the law laid down by this Court in the case of Akbar Ali on the issue of proving talb-i-ishhad by two truthful witnesses of the notice is correct and conforms to the language of section 13(3) of the Act read with Article 79 of the Order.
The Relevant paragraphs from the case of Akbar Ali are reproduced hereunder:-- "At the very outset, it would be relevant to refer in the instant matter though the notice of talb-i- ishhad was attested by two marginal witnesses, namely Muhammad Aslam and Faiz Muhammad but at trial only one marginal witness namely, Muhammad Aslam was examined as P.W.2. About non-examination of other marginal witness, namely, Faiz Muhammad, no explanation of any sort has been brought on record by the appellant. As per section 13(3) of the Act, it is mandatory that notice about talb-i-ishhad is to be sent in writing attested by two truthful witnesses under registered cover acknowledgement due, to the vendee, confirming his intention to exercise the right of pre-emption due. Its proviso further mentions that if the facilities of post office is not available, Talbi-ishhad is to be made in presence of two truthful witnesses. The provisions of Qanun-e-Shahadat would be applicable in the instant case as the Qanun-e-Shahadat Order was promulgated in 1984 and the right of pre-emption in the instant case was claimed by the appellant on 9-7-1992. Qanun-e-Shahadat Order, 1984, prescribes the mode of examining the witnesses whereby it is mentioned that if a document is required by law to be attested, it shall not be used as evidence until two attesting witnesses at least have been called for the purpose of proving its execution, if there be two attesting witnesses alive and subject to the process of the Court and capable of giving evidence, This Court in the case of Hamid Qayum and 2 others v.
Muhammad Azeem through Legal Heirs and another PLD 1995 SC 381, has held that if the writing or signatures is on' a document which is by law required to be attested, then the execution and signature on the document can be proved only by calling in evidence the attesting witnesses of the document.
10. Even in Mahomedan Law, 1987, the demands for claiming right of pre-emption have been defined as follows:- "225. Demands of pre-emption - No person is entitled to right of pre-emption unless:-
(I) he has declared his intention to assert the right immediately on receiving information of the sale. This formality is called talb-imuwathibat (literally, demand of jumping, that is, immediate demand) and unless
(2) he has with the least practicable delay affirmed the ihtention, referring expressly to the fact that the talb-i-muwathibat had already been made and has made a formal demand
(a) either in the presence of the buyer, or the seller, or on the premises which are the subject of sale (b) , and
(b) in the presence at least of two witnesses. This formality is called talb-i-ishhad (demand with invocation of witnesses)
11. On perusal of above provisions Mahomedan Law as well as of Punjab Pre-emption Act it is clear the demand of talb-i-ishhad is to be expressly made in presence of two witnesses and for its prove, it is mandatory that both be examined and face the test of cross-examination to determine their truthfulness."
' In the aforesaid judgment, the Hon'ble Judges have taken note of the case of Hamid Qayyum v.
Muhammad Azeem (PLD 1995 SC 381), which mandates that in order to prove contents of a document two attesting witnesses are required to be examined.
10. We have also perused the case of Mukhtiar Ali. The Relevant paragraphs there-from are reproduced hereunder:-- "(4) Learned counsel for the petitioners submits that production of both the witnesses in Court is not mandatory requirement in law; that petitioner (P.W.1) and one of the witnesses of talb-i-ishhad namely Sher Muhammad (P.W.2) had fully proved the performance of "Talb-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 Qanun- e-Shahadat Order, 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 aferesh. The Civil Revision Nos,725-D of 1996 and 801-D of 1996 shall be deemed to be pending before the said Court and shall be decided as mandated in law.
11. We have noticed that the Hon'ble Judges of this Court has only recorded the contentions of the learned counsel representing the parties and has remanded the case to the High Court without recording their finding on the issue of production the number of witnesses of the talbs. We are of the considered view that in the aforesaid judgment the Hon'ble Bench has not taken a different view as has been propounded in the case of Akbar Ali on the issue of proving talb-i-ishhad by examining two truthful witnesses in Court.
12. The contention of the learned counsel for the respondent that under Article 81 of the Order, if a document produced is admissible in evidence, the party relying upon it is not required to prove its contents, is without force and misconceived. Admissibility of a document in evidence, by itself, will not absolve the party from proving its contents in terms of Article 79 provided under the scheme of the Order. The case law cited by the learned counsel for the respondent in support of his contention is distinguishable on facts has no nexus to the case in hand.
13. We, for the aforesaid reasons, convert this petition into an appeal and allow the same. As a consequence, the impugned judgments of the learned High Court and the first appellate Court are set aside and judgment of the trial Court is restored. The respondent shall also bear the cost of the proceedings throughout. The above are the reasons for our short order dated 24-3-2013, which reads as under:-- "For the reasons to be recorded later, this petition is converted into appeal and allowed. As a result whereof judgment of the learned Peshawar High Court dated 28-6-2010 and that of learned 1st Appellate Court dated 23-1-2004, are set aside and the judgment of learned Civil Judge dated 7- 4-2003 is restored. The respondent shall also bear the cost of the proceedings throughout."