This petition calls into question the judgments and decrees dated 5-3-1998 of the trial Judge and dated 14-4-1999 of the Appellate Court (District Judge, Nowshera) whereby suit of the petitioner for possession through right of pre-emption for the suit-land measuring 4 Kanals, 13 Marlas in Khasra Nos.414 and 415 in Village Zakhe, Nowshera was dismissed.
2. The learned counsel for the petitioner contended that both the learned Courts below have acted in disregard of law and well-settled principles of justice and have drawn unfair and unusual meanings from the evidence on record apart the findings recorded on one and the other issues are self-clashing, therefore, the same has resulted into grave miscarriage of justice.
3. The learned counsel for the respondent, however, maintained that the petitioner has failed to prove the making of Talbs as laid down under section 13 of the N.-W.F.P. Pre-emption Act, 1987, therefore, the suit was rightly dismissed.
4. As the submissions made at the bar were mainly confined to the issue of Talbs, therefore, the evidence on this point requires consideration.
5. The learned Appellate Court while giving findings on Issue No,3 regarding Talbs, on very minor and ignorable contradictions has jumped at the conclusion that due to contradictory evidence, the plaintiff has failed to prove making of Talbs according to law.
6. The learned trial Judge has recorded almost same and similar findings but additionally he also held that the mutation of sale was only entered and not attested, therefore, it does not confer any title on the vendee but surprisingly the issue was answered in the negative which is against the plain language of Issue No,2 struck on this point.
7. The contradictions which were made ground for dismissal of. The suit may be referred in the following lines:-- " That one of the witness to the Talbs namely Ali Akbar P.W.3 stated that no other person besides him, Dilawar Shah present in the Hujra at the time of making of Talbs by the petitioner while the petitioner has stated that his brothers were also present there. Again in view of the learned trial Judge there was contradiction in between the statement of P.W. Ali Akbar and Dilawar Shah because the former has stated that he and Dilawar Shah went to the Hujra of the plaintiff from their house while the latter has stated that they had first attended a Jirga whereafter they went to the said Hujra." It has also been pointed out that in the plaint the name of the informer was not mentioned who broke the news of sale and that it was in the evidence that such omission was supplied.
We have noticed in many cases that the learned trial Judges and learned Judges of the appeal Courts in making the appraisal of oral evidence on the question of Talbs put it to a very strict scrutiny by searching for faults, minor omissions and contradictions and in this way cause grave prejudice to the pre-emptors. Such approach by learned Courts below run counter to the sound judicial principles because the rate and standards for appraisal of evidence in civil cases are certainly different from those employed in criminal cases as for both the law has laid down different standards of proof. Viewed in the above perspectives, the approach and representation shown regularly by learned Judges of Courts below in declaring and branding the witnesses of Talbs as false or untruthful because of minor contradictions and omissions in their evidence is not a desirable practice and is disapproved. The Honourable Supreme Court in the case of Abdul Qayyum v. Mushk-e-Alam and another 2001 SCMR 798 has settled the principle of law on this point for all time to come which shall be complied with strictly. The first Talb called Talb-e-Muawathibat like any other fact is to be established through oral evidence and to prove it the law does not provide for any number of witnesses and being primarily a question of fact may be proved through the evidence of the pre-emptor alone if the same is cogent and believable. Articles 70 and 71 deal with the oral evidence and the mode of proof through oral evidence. It has long been settled through authoritative judgments that judicial wisdom prefer to ignore minor and insignificant discrepancies in statement of witnesses more particularly when they are examined after a long time on the facts to which they were witnesses. This principle is to be more liberally applied in cases where the witnesses are illiterate and rustic villagers. One cannot reasonably expect of such witnesses to be more accurate on the point of time and date. Otherwise too human faculty of memory has been noticed to faulter on insignificant, some time even on significant matters after a long time, therefore, any contradiction or insignificant discrepancies shall not be used as a device to defeat substantive rights. The right of pre-emption after the leading judgment of the apex Court in Syed Kamal Shah's case PLD 1986 SC 360 is no more a piratical right but it is a substantive one being so recognized by the Islamic Law and as such the same shall not be defeated on the basis of trivial matters and discrepancies arising out of the evidence of the witnesses whose evidence is recorded after sufficient long time. It is not uncommon that the witnesses of Talbs when examined, are subjected to a very taxing and searching cross-examination and usually questions almost of no relevance or having no direct nexus with fact in issue are put to them in a volley fashion. The degree and level of such cross- examination as we find in every pre-emption case is almost similar to the one where witnesses are subjected to it in criminal cases. The learned trial Judges do fail in their duties to control and regulate the process of cross-examination and the cross-examiner usually go unchecked and uncontrolled in such exercise. This practice is not acceptable at all because in this way not only the efforts for managing the crises of heavy backlog of cases are bound to receive set back but also that substantial time, attention and energy of the Courts is consumed in this way leaving little for them to be utilised in other pending matters involving more substantive rights. Not only this but also through prolong cross-examination when the witnesses are exhausted, and become helpless, then the desired contradictions are introduced which is a natural phenominon. The Hon'ble Supreme Court has consistently deplored and disapproved such brow beating tactics employed by the cross-examiner in putting prolonged cross-examination. The apex Court has firmly reapproved the view taken in the case of Muhammad Shafi v. The State PLD 1967 Supreme Court page 167 while dealing with a similar proposition in the case of Muddassir v.The State 1996 SCMR page 3. The Allahabad High Court in the case of Salagram v. Emperor hasalso taken almost same and similar view disapproving irrelevant and lengthy cross-examination on witnesses AIR 1937 All.
171.
It is the primary duty of Judge to control and regulate the process of cross-examination and to strike a fair balance between the parties before him. Only effective control from the Court/Judge would bring uniformity and consistency in the process of cross-examination, therefore, Courts/Judges are required to be vigilant and not to remain oblivious of their duty in controlling the process of cross-examination. They are required by law to see that this right is not abused by the party and at the same time not to unreasonably curtail the said right in a manner causing prejudice to other party. The Court should remain mindful of the universal principle that witnesses in the system of justice occupy very respectable place because they contribute a lot and render valuable services in giving evidence enabling the Courts of law for reaching at a just conclusion while deciding a case/lis pending before it, therefore, it is the solemn duty/obligation of the Court/Judge to protect witnesses from any type of embarrassment or humiliation at the hands of the opposite-party through the tool of cross-examination. In pre-emption cases another phenomenon which has assumed a permanent character is that the delivery postman and booking clerk of the concerned post office are invariably examined by the pre-emptors to prove the sending and service upon the vendee the notice of Talb-e-Ishhad which is not a fruitful practice rather it works the other way. Under the provisions of section 26 of the West Pakistan General Clauses Act, 1956 once a notice is sent through registered post with a proper address of the vendee defendant thereon then there is a strong statutory presumption that the service has been effected and the same has reached the addressee. The statutory presumption thus attached to the same would not require the evidence of the delivery postman or the booking clerk of the post office concerned and only duly stamped receipt issued by post office authorities and the Acknowledgment Card, if any, received back would be sufficient proof that the notice was duly served upon the vendee defendant thus the taking of evidence of the said witnesses is an unessential formality. In view of the great number of pre- emption cases pending in the trial Courts many of such officials of the post offices are required to attend the Courts for giving evidence, this factor goes certainly against the public interest at large because due to their absence from their duties the public at large must suffer. The learned trial Courts, therefore, shall not call for examination these witnesses in the first instance and the receipts for the Registered Post A.D. Which are receivable in evidence be made part of the record and in any case if strong evidence in rebuttal is led by the vendee defendant which is sufficient enough to dislodge the said statutory presumption so attached to itthen thereafter the said officials may be summoned at any time at the close the trial. Now coming to the evidence in the instant case the same has been discarded for minor contradiction or omission as discussed above which is against the principles of law, resultantly the findings rendered by the learned Courts below to this effect has caused miscarriage of justice.
Under the well entrenched principle of law only glaring omissions, contradictions and dishonest improvements introduced/brought in evidence of witness would render it unreliable. The contradiction in between the statement of P.W. 3 Ali Akbar and that of Dilawar Shah P.W.4 on the question of attending or not attending the Jirga and then going to the Hujra and the contradiction on the point that brothers of the plaintiff were present or not in the Hujra at the time of making of first Talb are certainly of a very trivial nature, not sufficient to discard their entire testimony, both learned Courts below while holding the contrary view have acted illegally by disregarding law. Both the P. Ws. And the pre-emptor otherwise on salient features of the making of Talb-e-Muwathabat have given consist evidence of mutually corroborative value despite the fact that they were examined almost after 2 years. No doubt this Court while, exercising revisional jurisdiction is not required to enter upon the reappraisal of evidence but here the learned Courts below have acted in disregard of law and well-settled principles relating to appraisal of evidence as a result both have reached at patently wrong conclusion resulting into miscarriage of justice, therefore, when the element of injustice caused to the petitioner is apparent on record then certainly the findings recorded by it are not immuned from the corrective process of this Court under the provision of section 115, C.P.C. Accordingly this petition is accepted, both the impugned judgments and decrees of the learned two Courts below are set aside, the suit of the plaintiff is decreed. The market value worked out by the Patwari Halqa was not disputed at the bar, therefore, the same is fixed at Rs,1,00,000. The petitioner is directed to deposit the same within a period of 30 days, however, if be has already deposited any amount in the trial Court then the remaining amount shall be deposited within the same period. These are the detailed reasons for my short order of 16-4-2003.