' MUHAMMAD ILYAS, J.---This order shall dispose of C.P.S.L.A. No,104-L/95 as well as C.P.S.L.A. No, 105- L/95.
2. These petitions have arisen out of two suits for pre-emption. Transaction involved in one of the suits was an exchange but it was alleged by the petitioners, Atta Muhammad and others, who were pre-emptors in both the suits, that the exchange was in fact a sale. The other transaction was, undoubtedly, a sale. Both the transactions involved in the suits were in favor of the respondent, Matloob Alam Khan. The two suits were decreed by a Civil Judge of Mailsi, District Vehari. On appeal, however, the District Judge, Vehari, dismissed both the suits. Petitioners then filed revision petitions before the Lahore High Court, Multan Bench, Multan, which were dismissed by a Single Judge thereof by one judgment. Hence the aforesaid petitions for leave to appeal against his judgment.
3. The respondent made statement, copy Exh.P5, in the suit in which the transaction was clearly a sale. After closure of evidence in the other case, a copy of his said statement was produced in the suit, relating to the exchange in question, in order to contradict him. It was taken into consideration by the learned trial Court while decreeing the suits but the other Courts excluded it from consideration.
4. It was contended by learned counsel for the petitioner that learned Judge in Chamber as well as the learned District Judge had erred in not taking into account the statement, copy Exh. P5.
5. There are numerous authorities on the point that a previously made statement of a witness cannot be taken into consideration for the purpose of contradicting him, without confronting him with that statement. One such authority has been reported as Sikandar Hayat and 4 others v.
Master Fazal Karim (PLD 1971 SC 730). In the said case, large number of precedent cases were cited on a point similar to the one raised before us. The question involved in the case under report was with regard to a notice, Exh.D1. Relevant observations made by Mr. Justice Waheeddin Ahmad, with whom Mr. Justice Hamoodur Rahman, Chief Justice, had agreed, read as follows:-- "The learned counsel for the appellants has contended that the omission in the notice should have been put to the defendants in order to contradict their statement. In support of this contention he has relied on the cases of Firm Malik Des Raj Faqir Chand v. Firm Piara Lal Aya Ram and others (AIR 1946 Lah. 65) and Bal Gangadhar Tilak and others v. Shrinivas Pandit and others (AIR 1915 PC 7). On the other hand, the learned counsel for the respondent has contended that under section 21 of the Evidence Act, it is not necessary for the parties relying on an admission to put it to the other party in cross-examination such a document in order to contradict him. In support of proposition he has relied on the cases of Ch. Andra Kanwar v. Chaudhry Narpat Singh (ILR 29 All. 184), Raheem Bakhsh v. Nathu Bibi and others (PLD 1951 Pesh. 61), Ghulam Nabi Corporation Ltd. v. Khan Iftekhar Hussain Khan of Mamdot (PLD 1962 Lah. 370), Ajodhya Prasad Bargava v. Bhawani Shankar Bhargava and another (AIR 1957 A11.1) and Venkatlal Baldeoji Mahajan v. Kanhiyalal Jankidas and others (AIR 1963 M.P. 155). After going through these decisions I am of the view that the principle of law enunciated in the case of Firm Malik Des Raj Fakir Chand v. Firm Piara Lal Aya Ram and others lays down the correct law. In this case it was held as under:-- ' Where a party has gone into the witness-box on the point in issue and in the witness-box has made a statement inconsistent with the admission or the statement made in the witness-box involves the denial of the previous admission, or runs counter to that admission, then the previous admission cannot be used as legal evidence in the case against that party unless the attention of the witness during cross-examination was drawn to that statement and he was confronted with the specific portions of that statement were sought to be used as admissions. Without complying with the procedure laid down in section 145, the admission contained in the previous statement cannot be used as legal evidence against that party'.
' This principle- was also enunciated in the case of Bal Gangadhar Tilak and others v. Shrinivas Pandit and others. It was held in that case as under:-- 'On general principles it would appear to be sound that if a witness is under cross-examination on oath he should be given the opportunity, if documents are to be used against him, to tender his explanation and to clear up the particular point of ambiguity or dispute. This is a general, salutary and intelligible rule and where a witness's reputation. And character are at stake the duty of enforcing this rule would appear to be singularly clear.'
'In the present case, the learned Judge of the High Court has raised an adverse inference" against the defendants in respect of the plea of estoppel and waiver on the basis of Exh.D.1, in which the defendants had omitted to mention it. In my opinion, if the plaintiff wanted to raise any such inference against the appellants he should have given an opportunity to explain it to the defendants when they appeared in the witness-box.
6. Now, the law of evidence, which is in force, is contained in Qanun-e-Shahadat Order, 1984, and Article 140 thereof is couched in the same words as section 145 of the Evidence Act, 1872.
7. In the case before us, as stated above, Matloob Alam Khan did enter the witness-box in the case relating to exchange in question but he was not confronted with the statement, copy Exh. P.5, made by him in the suit relating to the sale. We have also noted that Exh. P.5, was placed on the record of the suit relating to the exchange in dispute, by making an application to produce additional evidence after the parties had closed their evidence therein.
8. Learned counsel for the petitioners did not cite any precedent case laying down law other the one enunciated in the case of Sikandar Hayat. We would, therefore, like to rely on the dictum in the case of Sikandar Hayat.
9. There is also the well-known principle of natural justice that nobody should be condemned unheard. In view of this principle, Matloob Alam Khan should have been given an opportunity to explain his position visa-a-visa his statement, copy Exh. P5, before drawing an adverse inference against him. This was, however, not done. Lapse in this regard, therefore, militates against the said rule of natural justice as well.
10. Upshot of the above discussion is that the learned District Judge as well as the learned Judge in Chamber were justified in not taking into consideration the statement in dispute, and therefore, their approach in this regard is unexceptionable. In other words, they did not commit any illegality in excluding the disputed statement from consideration.
11. Another point canvassed by the learned counsel was that the exchange involved in the present case was, in fact, a sale and was, therefore, pre-emptible. Learned District Judge and the learned Judge in Chamber have, however, held otherwise. We have gone through the document embodying the terms of the exchange, namely, Exh,D1. Whether or not the transaction in question was an exchange or a sale, was a question of fact on which there is concurrent finding of the learned Courts other than the learned trial Court. Learned counsel has not pointed out anything in the document, containing terms of the exchange in question, or in the evidence on the record, to show that the finding with regard to the nature of the exchange in dispute requires examination by this Court.
12. In the circumstances, we refuse leave to the petitioners to appeal against E the judgment of the learned Single Judge and dismiss their petitions specified at the outset.