' MUHAMMAD BASHIR JEHANGIRI, J.---The appellant purchased the suit land through registered sale-deed dated 7-10-1992. Two suits were filed to pre-empt the sale, one by Ghulam Muhammad respondent No,1 and the other by Himat Khan respondent No,2. Both the suits were dismissed by the trial Court vide judgment dated 11-4-1994 holding that the plaintiffs failed to prove making of necessary Talabs The learned District Judge by his judgment dated 11-1-1996 accepted the appeal of Ghulam Muhammad respondent and decreed his suit, but dismissed the appeal of Himat Khan respondent. Feeling aggrieved, the appellant brought the matter in revision in the High Court but with no better result as his revision petition was dismissed in limine by the Lahore High Court, Rawalpindi Bench, holding that findings of the learned District Judge on the issue of Talabs are well-founded and are based on proper evaluation and appreciation of the evidence brought on record by the respective parties.
2. In this appeal leave to appeal was granted to consider the proposition as to whether the finding of the learned trial Judge that "neither the place where the pre-emptors/respondents obtained the knowledge of sale was mentioned in the plaint nor were the names of the persons in whose presence they learnt of the sale and made "Talb-i-Muwathibat' " indictated therein".
3. As the learned counsel for the parties have addressed arguments on the Talab in addition to the legal question noted in para. 2 ante, we proceed to decide the same at the outset.
4. The learned trial Judge found on Issue No,3 which covered the plea that the requirements of 'Talabs' as envisaged by section 13 of the Punjab Preemption Act (IX of 1991) (the Act) were not fulfilled. In this context, the learned trial Judge while holding that the pre-emptor/respondent had successfully proved the making of 'Talb-i-Muwathibat' but "as regards the making of 'Talb-i- Ishhad' was concerned, he has not been able to substantiate it". According to the learned trial Judge Sikandar Khan (P.W.2) who testified to the making of 'Talb-i-Ishhad' by the pre-emptor is the real cousin of the preemptor and admittedly was arrested as an accused in the case of murder of the uncle of defendant No,1 and, thus found him to be "very interested witness and he has appeared due to close blood relationship with the plaintiff and due to strong enmity with the defendant No,1". The learned trial Judge then went on to observe that the second witness, namely, Muhammad Hanif was not examined by the pre-emptor and that making of 'Talb-i-Ishhad' has to be proved by the two truthful witnesses but in this case second witness, namely, Muhammad Hanif had not been examined it could not, therefore, be determined that he was a truthful witness. It was, thus concluded that the pre-emptor/respondent had utterly failed to prove the making of 'Talabs'.
5. The learned Appellate Court did not, however, agree with aforenoted findings of the learned trial Judge and reappraised the evidence adduced by the pre-emptor/respondent. It was noted by the learned Appellate Court that the preemptor/respondent appeared before the trial Judge on 13-6- 1993 when his statement was recorded and, therefore, the date of knowledge would fall on the 13th or 14th of December, 1992 which dates are "in complete conformity with the averments of his pleadings" as set out in para. No,2 of the plaint. It was further observed that the plea of the pre- emptor/respondent that he made 'Talb-iMuwathibat' before Sikandar Khan and Muhammad Hanif P.Ws., which fact had been categorically stated by him in the trial Court on oath; that he had further deposed that the defendant/appellant was residing in Abu Dhabi during the relevant time, therefore, he took the P.Ws., to the suit land where "he made a declaration that he would exercise his right of pre-emption". It was then noticed that he had sent a written Notice Exh.P1 to the defendant/vendee which was attested by two witnesses, namely, Sikandar Khan and Muhammad Hanif P.Ws.; that the former attesting witness of the Notice Exh.P-1 had appeared as P.W.2 and "had supported the statement of Ghulam Muhammad appellant on all material particulars". The learned Appellate Court also noted that Muhammad Hanif (P.W.3) was produced in Court but for the reasons best known to the trial Judge, his statement was not recorded. The contention of the respondents that the examination of the two attesting witnesses of the Notice Exh.P-1 was sine qua non and as Muhammad Hanif (P.W.3) had not been examined, the said Notice, therefore, remained unproved was repelled by holding that Muhammad Hanif did appear before the trial Judge, but his statement was not recorded, therefore, it could not prejudice the case of the pre- emptor/respondent. Again, the receipt of Notice had been admitted by the appellant's attorney when he was examined in the Court as D.W.2. Article 113 of the Qanun-e-Shandat, 1984 was referred to by the learned Appellate Court to hold that facts admitted need not be proved and since the receipt of Notice had been admitted by Aurangzeb, attorney of the appellant, it need not have been proved, It was, thus, held that the pre-emptor/respondent had "fully established the requirements of Talabs in accordance with law" the finding of the trial Judge on this issue was reversed and the suit, as stated earlier, was decreed.
6. The learned Judge in Chambers of the High Court while upholding the finding of the learned Appellate Court on Issue No,3 involved in the case observed as follows:-- "The sending of notice and its contents were proved through witnesses and also through admission of these facts by the vendee/present petitioner. The learned first Court had rejected the testimony of Sikandar Khan P.W., on the ground that he was an interested and inimical witness and this view of the first Court was found by the learned District Judge to be erroneous as the deposition of the witness in the Court was found to be truthful and trustworthy. The learned District Judge also concluded that the testimony of Sikandar Khan stood further corroborated by deposition of Ghulam Muhammad. The conclusions drawn by the learned District Judge are well-founded and are based on proper evaluation and appreciation of the evidence brought on record by the respective parties. No misreading or non-reading of the material on record by the District Judge has been manifested. The impugned judgment and decree, under the circumstances, call for no interference. The revision petition submitted by the petitioner is without any substance and same is rejected in limine."
' The only question surviving for determination in this appeal is whether the pre- emptor/respondent has been rightly held to have made 'Talb-i-Ishhad' strictly in accordance with section 13 of the Act. Before adverting to the question as aforesaid subsection (3) of section 13 of the Act is reproduced hereunder:-- "(3) Where a pre-emptor has made Talb-i-Muwathibat under subsection (3), he shall as soon thereafter, as possible but not later than two weeks from the date of notice under section 3.4, or knowledge, whichever may be earlier, make Talb-i-Ishhad by sending a notice 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: ' Provided that in areas where due to lack of post office facilities it is not possible for the pre-emptor to give registered notice, he may make Talb-e-Ishhad in the presence of two truthful witnesses."
A bare reading of subsection (3) of section 13 of the Act, would show that where a pre-emptor has made Talb-i-Muwathibat under subsection (2) he shall as soon thereafter as possible, but not later than two weeks from the date of notice under section 34 or knowledge, whichever may be earlier make Talb-eIshhad by sending a notice in writing attested by two truthful witnesses under registered cover acknowledgement due to the vendee confirming his intention to exercise of right of pre-emption. (Underlining by us provides emphasis), The Trial Judge appears to have ignored the well-entrenched proposition of law that in civil matters it is the preponderance of evidence which goes to prove or disprove a point in issue. Again preponderance of evidence in civil matters is not judged on the touchstone of the proof in a criminal matter where the charge is required to be proved to the hilt on the basis of unimpeachable evidence.
8. The rules of evidence for civil and criminal cases are, in general, the same but some provisions of the Qanun-e-Shahadat (10 of 1984) are peculiar to criminal cases, and others, peculiar to civil cases, e.g. Confession (Articles 37 to 43) character, (Articles 66 and 69) incompetency of witness (section 120 of the Evidence Act, 1872 since repealed) admissions (Articles 31 to 33), estoppel (Articles 114, 115 and 116). Thus, whereas in a civil case a mere preponderance of probability is sufficient basis for decision, in a criminal case persuasion of guilt must amount to "such a moral certainty as convinces the minds of the Tribunal as reasonable men beyond all reasonable doubt".
Unlike, criminal cases, in a civil case, it cannot be said that the benefit of every reasonable doubt must necessarily go to defendant. (See Commentary on Article 2 of Qanun-eShahadat, 1984 by Khalil-ur-Rehman Khan, J., Fifth Edition, pp. 48 and 49).
9. Merely because Sikandar Khan P.W.2 had been charged for the murder of the uncle of defendant No,1 would not be enough of a reason to discard his testimony in this matter of pre-emption and discredit him to be an untruthful witness particularly when he had only put his signatures as a marginal witness to the notice of Talb-i-Ishhad. The other witness of the notice of Talb-i- Muwathibat, namely, Muhammad Hanif, was brought in the witness-box, but as rightly pointed out by the learned first Appellate Court that he was not examined for the reasons best known to the trial Judge. In any case, if he had entered the witness-box the appellant had the opportunity of cross-examining him on the point that he was not a truthful witness. It is settled law that a witness who comes in the witness-box is presumed to be truthful unless this presumption is rebutted in the cross-examination by showing the features in his testimony rendering him untruthful. Having not been cross-examined by the appellant, he would be presumed to be a truthful witness. In any case, the learned Appellate Court and also the learned Judge in Chambers of the High Court have rightly held that Aurangzeb, attorney of the appellant, appearing as D.W.2 before the trial Judge, has acknowledged the receipt of Notice Exh.P1 sent by the respondent and that under Article 113 of the Qanun-e-Shahadat, 1984 he would be deemed to have admitted the plea that the notice was sent to the appellant and had been duly received by him.
9. The learned Appellate Court as well as the High Court has, therefore, rightly come to the conclusion that Talb-i-Ishhad in the circumstances of this case, has been duly made by the pre- emptor respondent as required by section 13(3) of the Act and that the trial Judge on the contrary view by being erroneous is not sustainable had erred to hold otherwise.
10. At the conclusion of the arguments of the learned counsel for the parties, Mr. Muhammad Munir Peracha, learned Advocate Supreme Court, representing the appellant, informs us that the revision filed by Himat Khan, rival preemptor, against the judgment and decree of the learned District Judge was pending decision in the High Court and, therefore, the judgment should not be announced in this appeal.
11. We are not impressed by the submission made at the bar, firstly, because the case has not been at the outset brought to the notice of this Court that the revision petition filed by the rival pre- emptor in this case was pending decision in the High Court and, secondly, because it is a case of rival pre-emptor and if he ultimately succeeds in the High Court he can file a review petition to consider his plea of sharing the land under the relevant provisions of the Punjab Pre-emption Act (IX of 1991). We have, therefore, decided to announce the judgment notwithstanding the pendency of the civil revision filed by Himat Khan, the rival-pre-emptor in the case.
12. Reverting to the question on which leave has been granted as to whether the finding of the learned trial Judge that "neither the place where the preemptor/respondent obtained the knowledge of the sale was mentioned in the plaint nor were the names of the persons in whose presence, they learnt of the sale and made Talb-i-Muwathibat indicated therein. In C.As. Nos.44, 573 and 574 of 1997 titled Sar Anjam v. Abdul Raziq decided on 30-4-1998 after surveying almost the whole case-law on the requirement of the procedural law to set out in the pleadings, the details of the evidence and the names of the witnesses we have held in para. 10 is as under: "The above survey of case-law would, thus, lead us to the conclusion that the pleadings of the parties should contain only material facts and are, therefore, not required to contain the gist of evidence and names of witnesses. The suit for pre-emption is no exception to this general proposition which is by now well-entrenched in our judicial system."
13. We have, therefore, no hesitation to hold that it is not a sine qua non for the pre-emptor to specify in the plaint almost all the witnesses in whose presence he had made Talb-i-Muwathibat and also specifying the time and then to make the said Talab under section 13 of the Act.
14. For the foregoing reasons, we see no merit in this appeal which is accordingly dismissed. But the parties are left to bear their own costs.