Appellants/plaintiffs filed a suit, pre-empting the sale made in favour of the respondent-vendee claiming the superior right of the pre--emption, on the basis of being collateral of the vendor. In the plaint, the pedigree-table has been drawn showing Dasvandi, as a common ancestor of the plaintiffs and the vendor. This suit was contested by the respondent denying the right of pre- emption; issue of superior right of pre-emption was framed; the appellants produced pedigree- table Exh.P.1 and also examined Abadan P.W.I, Mengta P.W.2, Jamal Din P.W.3 and Atta Muhammad, one of the plaintiffs-appellants appeared as P.W.4. After conclusion of the trial, learned Civil Judge, decreed the suit on 26-2-1983, holding that the appellants have been able to prove that they are collaterals of the vendor. On appeal, filed by the respondent, this finding has been reversed, resultantly. The suit of the plaintiffs has been dismissed on 12-5-1983. Learned Appellate Court has held that the oral evidence led by the appellants, is hearsay in nature and no much weight can be given to the same. As regards the Pedigree-table Exh.P.1, it is concluded that on the basis of such Pedigree-table, the appellants have failed to connect that they are the collaterals of the vendors; neither the name of common ancestor is mentioned in the Pedigree-table Exh.P.1 as per the pedigree drawn in the plaint, nor appellants-plaintiffs are shown to be successors of the common ancestor.
2. Learned counsel for the appellants by relying upon the judgments reported as Rehman v. Noora through his Legal Heirs 1996 SCM R 300, Muhammad Naeem and others v. Ghulam Muhammad 1994 SCM R 559 and Ahmed and others v. Allah Diwaya and others 1998 SCM R 386, contends that the Pedigree-table by itself is no proof of the relationship until and unless the same is corroborated by oral evidence. Oral evidence led by the appellant amply proves that the appellants-plaintiffs are the collaterals of the vendor and this evidence has been erroneously discarded by the learned Appellate Court. He has drawn my attention to the statement of P.W.1, who stated that he, the vendor and the plaintiffs are the refugees from the same Mouza in India and that the vendor is the son of Elahi Bakhsh; Elahi Bakhsh, was the son of Ghana; the name of Ghena's father was Mehtab; father of the plaintiffs was Khair Din; Khair Din's father was Pir Bakhsh; Pir Bakhsh, Mehtab and Boota were the real brothers, However, in cross-examination, he admitted that he had not seen Ghena who had died before to his recollection. P.W.2, also narrated the same facts, of being refugees and residents of the same Mouza and also describes the Pedigree-table. P.W.3, claims to be the cousin of the plaintiff and vendor and states that grandfather of the vendor and his grandfather were the real brothers. In cross---examination, he admitted that Ghena and Noor Bakhsh, had died before his birth. He was aged about 55 years while at the time of making statement on 18-5-1977.
3. On the basis of the above oral evidence, it is submitted that the relationship was duly proved and, therefore, even if the Pedigree---table does not connect the vendor and the pre- emptores/plaintiffs to a common ancestor, still this evidence was sufficient to establish the relationship.
4. Arguments heard. In order to enable the Court to form an opinion, as to the relationship of one person to another, the evidence led by the parties to prove such relationship has been made admissible only, if such evidence qualify the criteria laid down in Article 64 of the Qanun-e- Shahadat Order, 1984, which is reproduced below:-- "When the Court has to form an opinion, as to the relations of one person to another, The opinion expressed by conduct, as to the existence of such relationship of any person who as a member the family or otherwise, has special means of knowledge on the subject, is a relevant fact."
5. From the above, it is clear that witnesses testifying about relationship must lay down the foundation of existence of their knowledge about the relationship on the basis of express conduct such as being the family member or other having special means of the knowledge of relationship e.g. a friend of the family. But this must be founded upon the existence of their conduct, with the family of whom the relationship is to be proved. P.W.1 and P.W.2 had merely stated that they belonged to the same Mouza in India, where the appellant's and vendor's predecessor lived but they have never deposed or claimed that by the expressed conduct and inter action with their family, they have special means of knowledge about the relationship. In a case reported as Ghulam Muhammad and others v. Allah Yar and others PLD 1965 (W.P.) Lah. 482, while interpreting the provisions of section 50 of the Evidence Act, which are similar to the Article 64 of the Qanun-e- Shahadat Order, it has been held as under:-- "In Pakistan, the evidence is limited to the opinion as expressed by conduct and there is no other section in the Evidence Act, 1872, under which, the evidence of general reputation can be received in proof of relationship.
Whether the statement by a person has any basis which could give it value or admissibility the witnesses must be first asked by the party producing them to state the source of their information about the relationship sought to be proved and it cannot be left to chance or cross-examination to bring out these facts."
"Under section 50 of the Evidence Act, 1872, what is made admissible is 'the opinion expressed by conduct' as to the existence of a particular relationship and not merely a statement as to that relationship. In other words, according to section 50, when the Court has to form an opinion as to the relationship of one person to another, it is the opinion expressed ' by conduct' as to the existence of that relationship of any person whether member of family or otherwise who has special means of knowledge on-the subject, is a relevant fact. The intention underlying the section is clarified by two illustrations to section 50 according to which the opinion of friends and members of the family who have special means of knowledge, is relevant because it is based on the conduct and treatment of the persons concerned. Generally speaking an opinion cannot be a substitute for evidence of facts in issue and is inadmissible under the Evidence Act as hearsay. Section 50, however, is one of the exceptions to the general rule against hearsay. It is, therefore, essential that in order to lay the foundation for the admission of evidence under this section its ingredients must be brought out positively. Where, therefore, the witness gives no evidence of the conduct on which his information about the relationship is based, the opinion of the witness about the relationship would be irrelevant and inadmissible in evidence."
6. In the instant case, statements of P.W.1 and P.W.2, does not qualify the touchstone of Article 64, the scope whereof has been elaborated by the two judgments cited above. Particularly when both these witnesses in the cross-examination, conceded that they have not seen Ghena, father of Elahi Bakhsh, from whom the plaintiffs succeeded and claimed being collaterals of the vendor. In the light of above, I am constrained to hold that the evidence of these two witnesses is not relevant, enabling the Court to form an opinion about the relationship of the appellants and the vendor.
As regards the statement of P.W.3, he is stated to be the cousin of the plaintiffs, thus, was an interested person. Besides, he has not elaborated the pedigree, rather merely stated that his grandfather as also the grandfather of the vendor were the real brothers. He does not prove the relationship with exactitude. Moreover, he was about 55 years of age at the time of making the statement, and has not stated that, by expressed conduct, he has the knowledge of such relationship. Therefore, I hold that the appellants had not been able to prove the relationship on the basis of oral evidence. It may be reiterated that learned counsel for the appellant himself has conceded, and it is also vivid from the Pedigree-table Exh.P.1. And such document is absolutely inadequate to prove that the plaintiffs and the vendor were related. Not only the name of common ancestor is missing but name of the plaintiffs and the vendor is also not mentioned therein. This document as has been rightly held by the learned Appellate Court, is of no help to advance the case of the appellants-plaintiffs.