' KHALID MEHMOOD, J.--- This revision petition under section 115, C.P.C. Is directed against the judgment and decree dated 14-6-2005, whereby learned Additional District Judge-VI, Mansehra on acceptance of appeal of respondents and by setting aside judgment and decree of Civil Judge-I, Balakot dated 29-4-2004 dismissed the suit of petitioner.
2. Petitioner has filed a suit for possession through pre-emption with respect to property fully described in the heading of plaint against respondents on the basis of co-sharership of the property. Respondents appeared and contested the suit by filing written statement and learned Civil Judge after recording evidence and hearing the parties vide judgment dated 29-4-2004 decreed the suit of petitioner. Feeling aggrieved, respondents preferred appeal and learned appellate Court after hearing the parties accepted the appeal and dismissed the pre-emption suit of petitioner. Feeling aggrieved, the petitioners have filed instant revision petition.
3. Learned counsel for petitioners argued that petitioner having superior right of pre-emption on gaining knowledge peformed talb-emuwathibat followed by talb-i-ishhad in accordance with law and learned trial Court on proper appraisal of evidence on record rightly decreed his suit whereas learned appellate Court on the basis of conjectures and surmises set aside the well-reasoned judgment and decree of trial Court and dismissed the suit of petitioner, which is liable to be set aside.
4. Learned counsel for respondents opposed the arguments advanced by learned counsel for petitioner and supported the impugned judgment and decree of the court below.
5. Arguments heard and record perused.
6. Before parting further for giving findings on the present case, I would like to appreciate the laborious assistance rendered by learned counsel for the parties on legal and factual aspects of the present case, as a unique point of law is involved in the case. The Pre-emption Law is a customary law, which was adopted by our Sharia having effect on the harmony of the Society. In fact the theme behind this pre-emption law is for smooth running of the relation which has been developed among the common, joint and adjacent owners of the property/holdings from the time of their forefathers. After the passage of time the pre-emption law has been developed in our parts of the country. Before the promulgation of Pre-emption Act; 1987 the previous Pre-emption Act, 1950 was very simple and some sections of law have been deleted in the present Preemption Act, which is out come of the renowned judgment delivered in the case of Syed Kamal Shah's case by the Apex Court.
7. Without discussing the details and differentiate the vires of the previous and present Pre- emption Act, I would like to confine myself to the point of law involved in the case regarding the recording of statement of attorney, its evidentiary value and legal impact on the pre-emption suit.
In the present case the informer, namely, Muhammad Nasim Khan, who was later on appointed as attorney for conducting the case on behalf of the pre-emptor is also the only witness of the performance of talb-e-muwathibat by the plaintiff. Though under the law as envisaged under Order III, Rules 1 and 2, C.P.C. An attorney can appear and give statement on behalf of the principal/plaintiff but in the pre-emption suit the performance of talb-e-muwathibat is totally a personal knowledge, which can only be proved by giving his own statement and to face the test of cross- examination from the other side. Articles 132 and 133 of the Qanun-e-Shahadat Order, 1984 expressly oblige the concerned party, who had personal knowledge to appear before the trial Court in order to disclose the real facts and also to face the test of cross- examination from other side.
Articles 132 and 133 of the Qanun-e-Shahadat Order, 1984 provide:--- "132. Examination-in-Chief etc.--- (1) The examination of a witness by the party who calls him shall be called his examination-in-chief.
(2) The examination of a witness by the adverse party shall be called his cross-examination.
(3) The examination of a witness subsequent to the cross-examination by the party who called him, shall be called his reexamination.
133. Order of examination. --- (1) Witnesses shall be first examined-in-chief then (if the adverse party so desires) cross-examined then (if the party calling him so desires) re-examine.
(2) The examination and cross-examination must relate to relevant facts but the cross- examination need not be continued to the facts to which the witness testified on his examination- in-chief.
(3) The re-examination shall be directed to the explanation of matters referred to in cross- examinations and, if new matter is, by permission of the Court, introduced in re-examination, the adverse party may further cross-examine that matter."
8. The attorney in a pre-emption case can participate in the proceedings in order to support the cause and defend the rights so accrued to his principal by recording his statement before the Court. The feelings, expressing through jumping demand, the re-action and the surrounding circumstances witnessed by the other witnesses is purely a personal knowledge, hence, truth can only be unearthed and brought on record if pre-emptor himself appears in the Court and faces the test of cross-examination. In numerous cases the apex Court has repeatedly held that the attorney also having personal knowledge of performance of talbs can only appear on behalf of the pre- emptor if he has been expressly empowered to deliver such a statement regarding the performance of talb-e-muwathibat and talb-e-ishhad that too if the pre-emptor is unable to appear in person due to sickness, being out of country or serving in the far-flung areas which can convince the Court that due to prevailing circumstances the pre-emptor is unable to attend the Court.
9. In the present case nothing has been brought on record that petitioner/pre-emptor was unable to attend the Court due to the reasons of his sickness, being out of country or serving in the far- flung" areas, which could justify his non-appearance. Muhammad Nasim Khan P.W-7, the informer and attorney, was the only person who was present at the time when plaintiff performed the alleged talb-e-muwathibat, hence, without corroboration of the testimony of the only witness produced regarding performance of talb-e-triuwathibat cannot be considered for proof. It was incumbent upon the petitioner being pre-emptor to have appeared in the witness box for the corroboration of the factum of talb-emuwathibat. It cannot be ignored that said attorney is not only the informer of talb-e-muwathibat rather he is also witness of notice talb-eishhad. Non- appearance of petitioner before the Court without any cogent and plausible reason has created serious doubts regarding the credibility of the performance of talb-e-muwathibat as well as talb- eishhad: In cases of appearing of attorney instead of petitioner law has been laid down in the following cases by the Apex Court:---
(1) Fazal Rehman v. Khurshid Ali and another (2012 SCM R 1106),
(2) Mst. Hussan Bano v. Vali-ur-Rehman (2007 SCM R 1344),
(3) Mst. Lalan Bibi v. Muhammad Khan (2007 SCM R 1193)
(4) Muhammad Mal Khan v. Allah Yar Khan (2002 SCMR 325)
10. Now it is settled law that for proof of performance of talbs, preemptor can appoint his attorney in certain cases and who can appear-before the Court in support of cause of the pre-emptor. The criteria for appointment of attorney and for its consideration, the following conditions would have legal sanctity and sanction if:--- ' Firstly; If pre-emptor is abroad and residing at far-flung area can appoint attorney and the attorney so appointed should have expressly been empowered for the performance of talbs on behalf of the pre-emptor, ' Secondly; if attorney so appointed was present in the Majlis where talb-e-muwathibat was performed and who had also the knowledge of performance of notice talb-e-ishhad.
' Thirdly; in support of the statement of attorney other evidence should also be produced for corroboration of the testimony of said attorney; and ' Fourthly; the cogent reasons i,e, minority, serious illness, pqrdanashini and inability of pre-emptor to appear before the Court should be brought into the notice of the Court so that plea of inability of pre-etnptor could satisfy the Court and thereafter evidence of attorney can be considered.
' In this respect law has been laid down by the Legislature under section 14 of the N.-W.F.P. Pre- emption Act, 1987 which is as under:- "14. Demands by the guardian or agent.--- Where a person is unable to make demands under section 13, his guardian or agent may make the required demands on this behalf".
12. An exercise of right of pre-emption is a feeble, piratical being personal right of a pre-emptor based upon personal knowledge and act. Hence, regarding performance _ of talbs, pre-emptor can appoint an attorney, who should have the personal knowledge of talbs performed by the pre- emptor, and who can appear and record his statement on F behalf of his principal. In case pre- emptor abstained from appearing in the witness-box without assigning any cogent reason, instead, thereof his attorney appeared before the trial Court, in such state of the case adverse inference could have been drawn against the pre-,. Emptor as envisaged under Article 129(g) of the Qanun-e-Shahadat Order, which reads:- "129. Court may presume existence of certain facts. The Court may presume the existence of any fact, which it thinks like to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.
(g) that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it; "
13. In case of non-appearance of pre-emptor, it can safely be held that had the petitioner appeared in the witness-box the performance of both the talbs would have been smashed. In this respect wisdom can be drawn from the following cases:
(1) Hamayun Naseer v. Muhammad Saeed Akhtar (2007 CLC 809),
(2) Muhammad Ali Khan and others v. Abdul Hafeez (2012 M LD 242).
14. Moreover, for corroboration, it is requirement, of law that available witness(es) should be produced before the Court so that after going the test of cross-examination, the credibility of witness could be ascertained and exact facts should be brought on record so that court should come to right and just conclusion.. In this respect reliance can be placed on Sarfaraz Khan v. Abdul Qayyum reported as 2008 YLR 101, wherein it has been held that testimony of such a witness cannot be relied upon without production of the other corroboratory evidence. Similar nature case wherein pre-emptor did not personally appear in the court rather her attorney appeared in the witness box has been dealt with in the case of Dilshad Begum v. Mst. Nisar Akhtar reported as 2012 SCM R 1106, where it has been held as under:--- "Page 1109-"C" The contention that the pre-emptor has an option to appear or not to appear to prove Talb-e-Muwathibat in view of section 14 of the N.-W.F.P. Pre-emption Act, 1987, would not be tenable as the said provision is qualified and can be availed only if the pre-emptor "is unable to make demands" and has valid reasons for non-appearance. The reasons could be minority, his or her sickness or any other disability but has to be pleaded in terms of the said provisions."
"Page 1112 "G & H" There is no cavil to the proposition that a preemptor can be represented through an attorney but there has to be, valid reasons for non-appearance which in the instant case are lacking. The learned High Court condoned this infirmity and reversed the concurrent judgments on the ground that though educated but she could not afford and endure the agonies of appearing as a witness in civil matters". Little did the High Court realize that it is in evidence that the power of attorney was given by her in favour of PW7 Habib-ur-Rehman in the premises of the, Tehsil court. If she could appear at Tehsil level, what prevented her to appear, before the trial Court or having herself examined through a commission in terms of 'section 132 of the Civil Procedure Code".
15. In the light of the above reasons and the law laid down by the apex Court, it can safely be held that the statement of attorney without express authority by .The principal to record his statement regarding the performance of talbs and without any rhyme and reason or justification for non- appearance of plaintiff/petitioner before the trial Court, the statement of solitary witness, who is not only the informer but also witness of performance of talb-e-muwathibat and talb-e-ishhad by the plaintiff/pre-emptor and attorney of the plaintiff cannot blindly be relied upon.
16. Mere statement of informer being attorney cannot be accepted for the proof of talbs in absence of other corroboratory evidence specially when pre-emptor did not appear without assigning any cogent reason, therefore, it can safely be held that petitioner has failed to prove his case and has rightly been non-suited by the Courts below.
17. In the wake of what has been discussed above, it is held that the concurrent findings of facts recorded by the learned Courts below are unexceptionable and would, therefore, not call for interference by this Court in revisional jurisdiction.
18. Consequently, this revision petition being bereft of merit is hereby dismissed with no order as to costs.