In the Supreme Court of Pakistan 
(Appellate Jurisdiction) 
 
 
 
 
 
 
 
 
Present: 
Mr. Justice Anwar Zaheer Jamali 
Mr. Justice Dost Muhammad Khan  
Mr. Justice Umar Ata Bandial  
 
Civil Appeal No.503 of 2006 
(On appeal from judgment of Peshawar High Court,  
Peshawar dated 20.2.2006 passed in R.F.A. No.177/2003) 
 
Dr. Pir Muhammad Khan  
Appellant 
Versus 
Khuda Bukhsh etc.  
Respondents 
 
For the appellant: 
 
Qazi Muhammad Anwar, Sr. ASC 
 
 
 
 
 
Mr. Sher Muhammad Khan, ASC  
 
 
 
 
 
Mr. M. S. Khattak, AOR 
 
For respondents No.1-5: Mr. Wasim Sajjad, Sr. ASC 
 
 
 
 
 
Syed Rifaqat Hussain Shah, AOR 
 
Respondents No.6-7:  
Ex-parte 
 
Date of hearing: 
 
24.3.2015 
Judgment 
 
 
 Anwar Zaheer Jamali, J – The relevant facts of 
the case leading to this litigation are summarized as under:- 
2. 
On 13.3.1991, the respondents No.1 to 5 (in 
short ‘the respondents’) filed a suit for possession through 
pre-emption against the appellant, in respect of land 
admeasuring 12 kanals 6 marlas, situated in village 
Balogram, Tehsil Babozai, District Swat (in short ‘the suit 
land’), before the Court of Assistant Commissioner Swat, 
empowered under the PATA Regulations 1975, to entertain 
C.A. No.503 of 2006 
2 
such proceedings. The plaint in this suit was rejected by the 
Court on 8.6.1991, on the ground that the sale of suit land 
had not been completed as yet, therefore, such proceedings 
were premature and incompetent. The appeal and the 
revision petition filed by the respondents against such order 
were also dismissed/rejected, vide orders dated 5.1.1992 
and 22.7.1992 passed by the Additional Commissioner 
Malakand and Home Secretary, NWFP, respectively.  
3. 
After the execution and registration of sale 
deed in respect of suit land in favour of appellant on 
26.1.1992, the respondents filed another civil suit for the 
same relief on 25.2.1992, with the averments that in order 
to defeat their right of pre-emption an exorbitant sum of 
Rs.15,00,000/- was shown as sale consideration of the suit 
land instead of its actual market value of Rs.1,92,000/-. In 
this suit, on an application dated 1.10.1992, filed by the 
appellant/vendee, 
vide 
order 
dated 
9.6.1993, 
the 
respondents were directed to deposit 1/3rd of the sale price 
and furnish bank guarantee for the remaining 2/3rd, which 
order they challenged before the Additional Commissioner 
Malakand for reduction of the sum to be deposited as 1/3rd 
of the sale price. The appellate Court reduced the sum from 
1/3rd to 1/5th vide order dated 18.12.1993, which order was 
upheld in revision petition before the Home Secretary 
C.A. No.503 of 2006 
3 
(NWFP), vide order dated 19.1.1994, with directions to the 
respondents to deposit the amount within two months. 
Instead of making compliance of such order, on 19.3.1994, 
the respondents filed an application for extension of time to 
deposit the pre-emption money, whereas in the meantime, 
by operation of law, on 14.5.1994, the suit was transferred 
from the Court of Assistant Commissioner to the Court of 
Senior Civil Judge/Aala Ilaqa Qazi, Swat, where, in terms of 
the Court order dated 17.5.1994, they were allowed to 
deposit 1/5th of the sale consideration at their own risk, 
which they accordingly deposited on 18.5.1994.  
4. 
During the further proceedings in the suit, 
issues were framed by the Court on 25.5.1994. However, on 
9.6.1994, the vendee/appellant filed another application for 
dismissal of the suit on the ground that respondents failed 
to deposit 1/5th of the pre-emption money within two 
months, as directed by the appellate Court in its order dated 
19.1.1994. The Court of Senior Civil Judge, Swat, vide its 
order dated 7.7.1994, allowed the said application and 
accordingly dismissed the suit on this ground. This order 
was challenged by the respondents before the Court of 
District Judge by putting notional valuation of the appeal at 
Rs.200/-, though plaint in the suit was admittedly valued at 
Rs.1,92,000/- and at the relevant time the District Judge, 
C.A. No.503 of 2006 
4 
Swat,  by virtue of section 18 of the Civil Courts Ordinance 
1962, lacked pecuniary jurisdiction to hear any appeal 
valuing more than Rs.50,000/-. This appeal, upon such 
objection raised by the appellant was, therefore, dismissed 
as withdrawn on 22.9.1994. Later on, these two orders were 
upheld by the Peshawar High Court, vide order dated 
11.3.1997, passed in R.F.A. No.60 of 1994, against  which 
C.P.L.A. No.932 of 1997 was filed by the respondents before 
the Supreme Court of Pakistan, which was converted into 
appeal and accepted vide order dated 27.11.2002, and the 
case was remanded to the Court of  Senior Civil Judge/Aala 
Ilaqa Qazi, Swat, to decide it afresh on merits, in terms of 
the following observations:- 
“i) Both the parties be permitted to lead evidence in 
support 
of 
their 
respective 
contentions 
and 
thereafter, the matter be decided on all the points 
including legal pleas, which may be raised on the 
basis of pleading of the parties.  
ii) The matter shall be decided, as early as possible, 
preferably within six months from receipt of this 
order.”. 
5. 
In the post remand proceedings, parties 
evidence was recorded, other procedural formalities were 
completed and finally the suit of the respondents was 
dismissed by the Court of Senior Civil Judge/Aala Ilaqa 
Qazi, Swat, vide its judgment and decree dated 5.11.2003. 
C.A. No.503 of 2006 
5 
On 17.12.2003, this judgment was challenged by the 
respondents before the Peshawar High Court, Peshawar in 
R.F.A. No.177 of 2003, which was allowed vide impugned 
judgment dated 20.2.2006 and consequently, their suit was 
decreed. It is against this judgment that the present appeal 
has been preferred by the appellant/vendee. 
6. 
We have heard the arguments of Qazi 
Muhammad Anwar and Mr. Wasim Sajjad, learned Sr. ASCs 
for the appellant and respondents respectively. In his 
submissions, learned Sr. ASC for the appellant made two 
fold submissions. In the first place, he challenged the 
maintainability of the appeal instituted before the Peshawar 
High Court, Peshawar on 17.12.2003, for the reason that 
looking to the valuation of the suit in the plaint, which was 
Rs.1,92,000/-, it should have been preferred before the 
concerned Court of District Judge, having enhanced 
pecuniary jurisdiction from Rs.50,000/- to Rs.5,00,000/- by 
virtue of amendment in the Civil Courts Ordinance by Act 
No.IV of 1994, dated 19.8.1994, extended to PATA w.e.f. 
6.8.1995. Thus, the proceedings in appeal before the 
Peshawar 
High 
Court 
were 
incompetent 
and 
not 
maintainable in law. As to the merits of the case, his 
submission was that during the intervening period, before 
the application of NWFP Pre-emption Act 1987 to PATA 
C.A. No.503 of 2006 
6 
w.e.f. 25.9.1994, the claim of respondents was regulated 
under the general provisions of Muhammadan Law, which 
provided strict conditions for compliance regarding making 
demands 
of 
‘talb-i-muwathibat’ 
and 
‘talb-i-ishhad’ 
in 
conformity with it, which, in the present case were not 
fulfilled by the respondents, but this important legal aspect 
of the case was not at all attended to by the High Court in 
its impugned judgment, while extending relief to them. For 
this purpose, he also referred to the pleadings of the 
respondents as per averments made in the plaint, and 
contended that such averments lacked material facts and 
particulars, which were necessary and required to be 
disclosed by the respondents for effectively exercising their 
right of pre-emption. Even the names of two attesting 
witnesses of talb-i-ishhad were not disclosed in the plaint or 
the purported notice dated 18.2.1992, which in the given 
circumstances of the case, were extremely necessary besides 
disclosure of other material facts such as time, date, month, 
year and place where talb-i-muwathibat and talb-i-ishhad 
were made by the respondents. For this purpose, he also 
invited our attention to the two lists of witnesses; one 
submitted by the respondents on 9.6.1994 after the framing 
of issues on 25.5.1994 and the other on 6.3.2003 submitted 
during post remand proceedings in the suit, which 
contained the names of two different sets of witnesses. His 
C.A. No.503 of 2006 
7 
further submission was that this material flaw in the case of 
respondents that the two witnesses of talb-i-ishhhad now 
examined by them were not cited in the earlier list of 
witnesses submitted by them in the year 1994, was 
sufficient to falsify their claim of pre-emption. He also 
argued that delay in making talb-i-muwathibat and talb-i-
ishhad in contravention to the requirements of the principles 
of Muhammadan Law was yet an additional factor, which 
was apparent upon perusal of evidence of the respondents 
and their witnesses. Thus, overlooking all these important 
legal aspects of the case, the High Court was not justified in 
passing its impugned judgment in favour of the respondents 
in a superficial manner. He further made reference to the 
judgment of the trial Court of learned Senior Civil 
Judge/Aala Ilaqa Qazi, Swat dated 5.11.2003, wherein, 
according to him, some material aspects of the case were 
duly considered by the Court, which resulted in the 
dismissal of the suit of the respondents. In support of his 
contentions, learned Sr. ASC, Qazi Muhammad Anwar, 
placed reliance upon the following cases:- 
i) 
Government of NWFP versus Said Kamal Shah(PLD 
1986 S.C. 360); 
ii) 
Sardar Ali versus Muhammad Ali(PLD 1988 S.C. 287); 
iii) Safida Begum versus Ibrahim (PLD 1989 S.C. 314); 
iv) Muhammad Hanif versus Sultan (1994 SCMR 279); 
C.A. No.503 of 2006 
8 
v) 
Abdul Hameed versus Muzamil Haq(2005 SCMR 895); 
 
vi) Pir Muhammad versus Faqir Muhammad (PLD 2007 
S.C. 302); 
vii) Muhammad Ismail versus Muhammad Yousaf (2012 
SCMR 911) and 
viii) Muhammad Ali versus Humera Fatima (2013 SCMR 
178). 
7. 
Conversely, Mr. Wasim Sajjad, learned Sr. 
ASC for the respondents, in his arguments contended that it 
was not at all the requirement of law that each and every 
minute detail about the mode and manner of exercise of 
right of pre-emption by the respondents in support of their 
claim was to be unfolded in the plaint or the names of their 
witnesses of talb-i-ishhad were to be disclosed in the plaint. 
Thus, such arguments have no legal force. He further 
argued that indeed the proceedings in the case in hand, 
having been instituted on 26.2.1992, during the intervening 
period when no statutory law of pre-emption was in force in 
PATA, are to be regulated under the principles of 
Muhammadan Law of pre-emption, as held by the Supreme 
Court in the cases of Sardar Ali and others versus Additional 
Secretary Home and TA Department & others (1996 SCMR 
1480) and Muhammad Siddique versus Muhammad Ashraf 
(2005 SCMR 1231). However, for this purpose, the 
respondents, in order to prove their case, have met all the 
legal requirements of making talb-i-muwathebat and talb-i-
C.A. No.503 of 2006 
9 
ishhad, as per Muhammadan Law, which fact has been duly 
appreciated by the High Court in its impugned judgment. 
Thus, such findings of fact recorded by the appellate Court 
are not open to interference in this appeal. Responding to 
the arguments on behalf of the appellant about two lists of 
the witnesses filed by the respondents, he did not dispute 
that names of both the witnesses of talb-i-ishhad i.e. Sher 
Bacha son of Amir Bacha and Abdul Khaliq son of Yaray did 
not find place in the first list of witnesses filed by the 
respondents in the year 1994. However, regarding this 
aspect, he argued that it is not an issue of such a serious 
magnitude which could prove fatal to their case, as it can be 
considered as an instance of oversight or mistake at the time 
of submission of earlier list of witnesses on behalf of the 
respondents. Stressing upon the genuineness of the claim of 
respondents, learned Sr. ASC also made detailed reference 
to the proceedings in their earlier suit for pre-emption filed 
by them before the registration of sale deed on 26.1.1992, 
which reflected the clear stance of the respondents in setting 
up their adverse claim of pre-emption over the suit land, and 
tempted 
the 
appellant 
for 
showing 
exorbitant 
sale 
consideration of Rs.15,00,000/- in the registered sale deed 
to defeat their claim. Replying to other arguments of the 
learned Sr. ASC for the appellant, as regard the forum of 
appeal availed by the respondents against the judgment of 
C.A. No.503 of 2006 
10 
the Senior Civil Judge dated 5.11.2003, he contended that as 
per the provisions of Suit Valuation Act and the provisions of 
Civil Court Ordinance 1962 read with Amendment Act IV of 
1994, at the time of filing the appeal on 17.12.2003, the 
remedy was rightly availed by the respondents before the 
Peshawar High Court, thus no exception could be taken 
regarding this legal position. For this purpose, he also made 
reference to the contents of the plaint in the suit and the 
memo of appeal filed before the High Court, showing 
flexibility in the stance of the respondents regarding 
valuation of the suit and leaving it open for adjudication by 
the Court itself. Summing up his arguments, learned Sr. ASC 
contended that right of pre-emption under the Muhammadan 
law is a substantive right, which shall not be allowed to 
succumb at the alter of technicalities of law, particularly, in 
an Islamic State, as in the present case from no stretch of 
imagination it could be said that the respondents ever 
defaulted in fulfilling their legal obligations in this regard. In 
support of his submissions, learned Sr. ASC placed reliance 
upon the following cases:- 
i) 
Sher Muhammad versus Ahmad (AIR 1924 Lahore  
 
380); 
ii) 
Ghulam Hussain Shah versus Hidayatullah Khan 
(1981S.C.(AJK&K) 55); 
iii) 
Ditta Khan versus Muhammad Zaman (1993 MLD  
 
2105); 
C.A. No.503 of 2006 
11 
iv) 
Fazal-ur-Rehman versus Zavedi Jan (2005 CLC  
 
1415);  
v) 
Daud Shah versus Waris Shah (2014 SCMR 852) and 
vi) 
Muhammad Hanif versus Tariq Mehmood (2014  
 
SCMR 941). 
 
8. 
We have carefully considered the submissions 
made before us by the learned ASCs and scanned the case 
record of the proceedings in the suit before the Court of 
Senior Civil Judge/Aala Ilaqa Qazi, Swat, as well as the 
appellate Court. For the just disposal of this appeal on 
merits, there is no dispute between the parties that the suit 
for possession through pre-emption having been instituted 
by the respondents on 25.2.1992, when there was no 
statutory law of pre-emption inforce in KPK and PATA, its 
proceedings are to be regulated under the general principles 
of Muhammadan Law of pre-emption. Moreover, at this 
stage, only the post remand proceedings in terms of the 
order dated 27.11.2002, passed in Civil Appeal No.744 of 
1998, as reproduced above, are relevant and material for 
this purpose. 
9. 
The instant suit for possession through pre-
emption was instituted by the respondents before the Court 
of Assistant Commissioner, Saidu Sharif on 25.2.1992, with 
the assertions that after their failure in getting the requisite 
relief of pre-emption in the first round of litigation for the 
C.A. No.503 of 2006 
12 
technical reason that sale deed in respect of suit land in 
favour of appellant Dr. Pir Muhammad Khan was not 
registered by that time, when they got such information 
from the office of Sub-Registrar on 15.2.1992, they 
immediately made talb-i-muwathibat  and talb-i-ishhad and 
thus became entitled for a decree for pre-emption in their 
favour. In reply to these assertions, written statement was 
filed by the appellant on 26.07.1992, wherein, besides, 
denial of facts regarding exercise of right of pre-emption by 
the respondents by making talb-i-muwathibat and talb-i-
ishhad in accordance with the principles of Muhammadan 
Law, maintainability of the suit was also challenged on 
various legal grounds.  
10. 
At the stage of evidence, the respondents/ 
pre-emptors had in total examined seven witnesses out of 
whom PW-1 Hidayatullah Khan was one of the pre-emptor. 
He firstly deposed that it was the time of Zuhr prayer in the 
year 1991 and month of March, when Aziz-ur-Rehman alias 
Lali Gul reached at their (pre-emptors) hujra and informed 
them about the sale of the suit land. Soon thereafter, he for 
self and on behalf of his brother Karim and other brother 
Adalat Khan exercised their right of pre-emption by making 
talb-i-muwathibat and talb-i-ishhad. However, after their 
failure in the first round of litigation, when they again 
acquired the knowledge of sale on 15.2.1992 from the office 
C.A. No.503 of 2006 
13 
of Sub-registrar, that sale of suit land had taken place 
through registered sale deed on 26.1.1992, they made talb-i-
muwathibat and then talb-i-ishhad in presence of PWs Sher 
Bacha and Abdul Khaliq. He further stated that it happened 
at 10:00 a.m. on the same day, which was Saturday. Later 
on they also went to the suit land and again made talb-i-
ishhad, in presence of witness Mian Gul Bashir Bacha, who 
had also reached there. In addition to it, the other witnesses 
examined on behalf of respondents are PW-2 Aziz-ur-
Rehman alias Lali Gul, PW-3 Mian Gul Bashir, PW-4 Abdul 
Khaliq, PW-5 Sher Bacha, PW-6 Moosa Muhammad 
(Postmaster), and PW-7 Sher Akbar (Patwari). From the 
deposition of these witnesses, we have noticed that the 
respondents have examined PW-4 Abdul Khaliq and PW-5 
Sher Bacha as witnesses, in whose presence PW-1 acquired 
knowledge about the execution of registered sale deed dated 
16.1.1992, in respect of the suit land in favour of the 
appellant and he for self and on behalf of other respondents 
exercised their right of pre-emption by making talb-i-
muwathibat and talb-i-ishhad. Surprisingly, name of none of 
these two witnesses of talb-i-ishhad had appeared in the first 
list of witnesses dated 09.6.1994, while the name of only one 
witness Sher Bacha had appeared in the second list of 
witnesses dated 19.3.2003, which contained names of other 
witnesses Shah Rawan son of Totkey, Gul Zamin Khan son 
C.A. No.503 of 2006 
14 
of Gojer, Shah Sefyan son of Muhammad Akber, Sarbuland 
Khan son of Sober, Safor son of Katuza and Razi Mund son 
of Wazir. Thus, even in the second list of witnesses the name 
of other witness of talb-i-ishhad PW-4 Abdul Khaliq was 
missing, which surfaced only when he appeared in the 
witness box to depose. This fact alone is sufficient to show 
that introduction of their name as witnesses of two talbs was 
an afterthought and for this reason alone names of these 
two witnesses of talb-i-muwathibat and talb-i-ishhad were 
also withheld by the respondents in their pleadings. This 
admitted fact from the case record, thus, seems to be fatal to 
the claim of the respondents as regards their right of pre-
emption under the general principles of Muhammadan Law, 
which cannot be overlooked or condoned for the reason that 
it may be due to oversight or some mistake that names of 
these witnesses, except PW-5 Sher Bacha, remained        
uncited in the two lists of witnesses. Not only this, but from 
the careful reading of evidence, adduced on behalf of the 
respondents, we have also seen that there are also material 
contradictions as regards their claim of acquiring knowledge 
of sale on 15.2.1992 qua making talb-i-muwathibat and talb-
i-ishhad, which shortcomings cannot be lightly brushed 
aside, particularly in a case of pre-emption where strict 
adherence to the requirements of law for making talb-i-
muwathibat and talb-i-ishhad is necessary.  
C.A. No.503 of 2006 
15 
11. 
Apart from it, when we look at the pleadings 
of the respondents in their suit, we find that undoubtedly it 
lacked material particulars, which were required to be 
disclosed/unfolded in the plaint to give a fair chance to the 
appellant to put up his defence. For ease of reference 
paragraph No.3, which is the only paragraph of the plaint 
relating to making of talbs by the respondents is reproduced 
as under:- 
 
12. 
Indeed, the provisions of Order VI, CPC are to 
be kept in mind for the purpose of drafting a plaint, Rule-2, 
whereof provides that pleading shall contain, and contain 
only a statement in a concise form of the material facts on 
which the party pleading relies for his claim or defence, as the 
case may be, but not the evidence by which they are to be 
proved, and shall, when necessary, be divided into 
paragraphs, numbered consecutively. Dates, sums and 
numbers shall be expressed in figures. But, this rule, 
providing some guidelines regarding the contents of a plaint, 
cannot be read in isolation to, inter alia, Rule-4, which 
provides that in all cases in which the party pleading relies 
C.A. No.503 of 2006 
16 
on any misrepresentation, fraud, breach of trust, default, or 
undue influence, and in all other cases in which particulars 
may be necessary beyond such as are exemplified in the 
forms aforesaid, particulars (with dates and items necessary) 
shall be stated in the pleading. 
13. 
By now, much case law regulating the 
principles of pleadings in a suit for pre-emption has 
developed, which provide necessary guidelines for this 
purpose. Here a reference to the case of Muhammad Ali v. 
Mst. Humera Fatima and two others (2013 SCMR 178) will 
be useful, wherein after making reference to plethora of 
other case law on the subject of pleadings in a suit for pre-
emption, this Court observed as under:- 
“7. 
With regards to the necessity of pleading the 
requisite details of Talb-i-Muwathibat, the matter recently 
yet again came up before this Court. After noting and 
quoting the previous judgments of this Court on the point 
including, Pir Muhammad v. Faqir Muhammad (PLD 2007 
SC 302), Bashiran Begum v. Nazar Hussain (PLD 2008 SC 
559), Haq Nawaz v. Muhammad Kabir (2009 SCMR 630) 
and Ghafoor Khan v. Israr Ahmed  (2011  SCMR  1545),  
this  Court  in  its  judgment, reported as Muhammad 
Ismail v. Muhammad Yousaf (2012 SCMR 911), held as 
follows:-- 
 
"4. Having heard learned counsel for the 
petitioner at some length, we find that a bare 
reading of para 2 of the plaint in the suit filed by the 
petitioners/pre-emptor indicates that petitioner did 
C.A. No.503 of 2006 
17 
mention that he came to know about the impugned 
sale on 5-3-1996 and immediately declared that he 
would preempt but neither mentioned the place 
where he acquired knowledge of the sale nor the 
time or the witnesses in whose presence he 
performed Talb-i-Muwathibat." 
8. 
We have examined the plaint in the instant case in 
the light of the requirement of pleading Talb-i-Muwathibat 
with the necessary details and particulars and find that 
the same does not fulfill the criterion laid down by this 
Court quoted above. The absence of the necessary details 
with regard to time, date and place and the witnesses in 
whose presence Talb-i-Muwathibat was made was fatal to 
the suit, as was correctly held by the trial Court and the 
First Appellate Court. 
 9. 
Furthermore, not only Talb-i-Muwathibat has to be 
pleaded in the plaint with the requisite details and 
particulars, but also has to be proved through cogent 
evidence. After appraisal of the evidence of the record, the 
trial Court returned a finding that the Talb-i-Muwathibat 
has not been proved. The said finding was affirmed by the 
First Appellate Court. This concurrent finding of fact has 
been upset in the limited jurisdiction of a Second Appeal 
without any legal or factual basis. In the impugned 
judgment no misreading or non-reading of evidence or 
misapplication of law, pertaining to evidence has been 
mentioned. Consequently, there was no occasion to set 
aside the concurrent findings of fact.” 
14. 
Besides, following further discussion in the 
above judgment is equally apt for amplifying the legal 
position about the application of principles of Muhammadan 
Law regarding exercise of right of pre-emption and making 
talb-i-muwathibat and talb-i-ishhad at the relevant time 
C.A. No.503 of 2006 
18 
when no statutory law pertaining to pre-emption existed in 
Swat (PATA):- 
“5. 
On  the  date  of  the  filing  of  the  suit  in  the  
instant  case i.e. 17-12-1989, no statutory law pertaining 
to pre-emption existed in the Province of the Punjab and 
the suit was to be filed and maintained in accordance with 
the Classical Islamic Law of Pre-emption wherein Talb-i-
Muwathibat is a sine qua non for exercising a right of pre--
emption. During the pendency of the suit before the trial 
Court, the Act of 1991, was promulgated. Section 35, refers 
to Talb-i-Ishhad, while dispensing with notice thereof. The 
various provisions of the Act of 1991 (including, section 35 
thereof), were challenged on the ground of being repugnant 
to the Injunctions of the Islam. The matter was adjudicated 
upon by the Shariat Appellate Bench of this Court in its 
judgment, reported as Haji Rana Muhammad Shabbir 
Ahmad Khan v. Government of Punjab Province, Lahore 
(PLD 1994 SC 1). In the said judgment, with reference to 
section 35, it was held as follows:-- 
  "57. It is, therefore, held that section 35(2) of the Act 1991 
is repugnant to the Injunctions of Islam in so far as it 
exempts the cases pending or instituted during the period 
from Ist of August, 1986 to 28th of March, 1990 from the 
requirements of Talb-i-Muwathibat, and extends the right 
of limitation for them up to one year. However, the 
provision 
of 
sending 
a 
notice 
to 
the 
vendee, 
as 
contemplated in section 13 of the Act 1991, can be 
dispensed with in relation to these suits, because as 
mentioned earlier, sending of notice is not a substantive 
requirement in the Shari'ah to affect the Talb-i-Ishhad. On 
the contrary, it is procedural provision enacted by the 
legislature on the basis of expediency. Therefore, it is open 
for the legislature to dispense with this requirement 
altogether or with respect to certain cases." 
C.A. No.503 of 2006 
19 
6. 
The aforesaid judgment took effect on 31-12-1993, 
while the suit in the instant case was still pending before 
the trial Court. Thus, in the instant matter however, which 
way the lis is examined, there can be no escape from the 
fact that the Talb-i-Muwathibat was required to be pleaded 
and proved in order to obtain a decree of pre-emption, both 
in terms of Classical Islamic Law and the Act of 1991.” 
15. 
 To gain further support to the principles of 
pleadings to be adhered to by a pre-emptor in his pleadings, 
reference to the case of Mian Pir Muhammad v. Faqir 
Muhammad (PLD 2007 SC 302), will also be useful, which 
had approved earlier view in the case of Haji Muhammad 
Saleem v. Khuda Bakhsh (PLD 2003 SC 315) and Fazal 
Subhan v. Mst. Sahib Jamala (PLD 2005 SC 977), that 
furnishing the date, time and place in the plaint is necessary 
to establish performance of talb-i-muwathibat and talb-i-
ishhad. 
16. 
In our opinion, principles of Muhammadan 
Law of pre-emption, which is the original source of statutory 
law on this subject, set out equally high standard for 
making talb-i-muwathibat and talb-i-ishhad, as prescribed 
under the statutory law, except that written notice of talb-i-
ishhad is not required for this purpose. Therefore, mere bald 
assertion by the respondents in their pleadings coupled with 
sketchy evidence adduced by them is of no help to their 
C.A. No.503 of 2006 
20 
case. As a matter of fact, unless the names of the two 
witnesses of talb-i-ishhad and informer of pre-empted sale 
were disclosed by the pre-emptors in their pleadings, how 
the vendee of the pre-empted sale could be in a position to 
assess the veracity of their claim or credibility of such 
witnesses, if they were for the first time introduced to him in 
the witness box. In the present case, apart from non-
disclosure of the time, date and place of making talb-i-
muwathibat and talb-ishhad, the names of the two witnesses 
of talb-i-ishhad were also not disclosed by the respondents 
in their pleadings. Even the witnesses cited in the first list of 
witnesses filed in Court on 09.6.1994, did not contain their 
names, as the witnesses of talbs-i-ishhad, which, according 
to the respondents own case, were for the first time 
mentioned in the second list of witnesses during the post 
remand proceedings, that too to the extent of only one 
witness. It is pertinent to mention here that even in the 
purported notice of talb-i-ishhad dated 18.2.1992, which 
was otherwise not required under the Muhammadan Law of 
pre-emption, but got issued by the respondents through 
their lawyer, they did not bother to disclose either the time, 
date or place of making the two talbs or the names of two 
witnesses of talb-i-ishhad. All these facts are sufficient to 
conclude that non-disclosure of these material particulars at 
different stages of the proceedings was not mere mistake or 
C.A. No.503 of 2006 
21 
oversight but a deliberate act of the respondents with some 
ulterior motive, which was fatal to their claim of pre-
emption. Some of these aspects seem to have been 
discussed by the Court of Senior Civil Judge in its judgment 
dated 05.11.2003, but the appellate Court in its impugned 
judgment did not care to consider the reasons assigned by 
the trial Court for dismissal of the suit, what to talk of 
discarding them for any cogent reason. 
17. 
Another aspect of the case, which has negative 
impact over the claim of the respondents in exercising their 
right of pre-emption over the suit land in a lawful manner is 
the fact that as per averments made in the plaint and the 
deposition of PW-1 Hidayatullah, only he made the requisite 
talbs alongwith his brother Adalat Khan, who also exercised 
such right on behalf of his other three brothers, Khuda 
Bakshsh, Sardar Ali Khan and Karim Bakhsh, all sons of 
Mustajab Khan on the basis of power of attorney dated 
02.6.1987 in his favour. Admittedly, the said document, 
typed on a twenty-five Rupees stamp paper, is special power 
of attorney, which is to be construed strictly as per its 
contents. The contents of this power of attorney reveal that 
it was executed by Khuda Bakhsh, Karim Bakshsh, Sardar 
Ali and Hidayatullah Khan in favour of Adalat Khan, but it 
contained no specific delegation of power in his favour for 
C.A. No.503 of 2006 
22 
exercising the right of pre-emption over the suit land on 
behalf of its executants. Thus, for all intent and purposes, 
no right of pre-emption was legally exercised on behalf of 
respondents Khuda Bux, Karim Bux and Sardar Ali. 
Moreover, the said attorney, Adalat Khan, also did not 
bother to appear in the witness box to offer himself to the 
test of cross examination as regards his purported authority 
to exercise right of pre-emption on their behalf. Withholding 
of such evidence by the respondents has not been explained 
anywhere, which gives an adverse presumption as regards 
the merits of their claim of making talb-i-muwathibat and 
talb-i-ishhad, strictly as mandated under the provisions of 
Muhammadan Law. 
18. 
Another legal aspect of the case, which needs 
due consideration is the definition of talb-i-muwathibat and 
talb-i-ishhad under the general principles of Muhammadan 
Law qua the statutory law applicable in the province KPK 
and PATA, which are parimateria. Mere comparative reading 
of these two provisions of law on the same subject reveals 
that for making valid demands of talb-i-muwathibat and talb-
i-ishhad 
the 
language 
and 
legal 
requirements 
are 
substantially one and the same, except that under the 
statutory law condition of written notice of talb-i-ishhad, has 
been added, which of course is not the requirement under 
C.A. No.503 of 2006 
23 
the Muhammadan Law of pre-emption. Moreover, use of 
word ‘immediate’ in the context of making talb-i-muwathibat 
and words ‘the least practicable delay’ in making talb-i-
ishhad have their own connotation and significance, which 
has burdened the pre-emptor with some extra liability of 
showing complete promptness in making such demands 
rather than making talb-i-muwathibat in a casual manner 
and talb-i-ishhad in presence of two witnesses simplicitor. 
Keeping in view these aspects, when we revert to the facts of 
the present case, we find that the two talbs were not made 
by the respondents in the required manner of vigilance and 
promptness. 
19. 
 The 
legal 
objections 
as 
regards 
the 
maintainability of the appeal filed by the respondents before 
the Peshawar High Court despite the fact that at the 
relevant time admittedly pecuniary jurisdiction of the 
District Court, Swat was upto Rs.5,00,000/-, has also much 
force, as, for the purpose of ascertaining the pecuniary 
jurisdiction, it will be the valuation shown in the plaint 
which will be material for this purpose. The perusal of copy 
of plaint, available in the Court file, reveals that the suit for 
possession 
through 
pre-emption 
instituted 
by 
the 
respondents 
was 
specifically 
valued 
by 
them 
at 
Rs.1,92,000/-, therefore, the remedy of appeal available to 
C.A. No.503 of 2006 
24 
them on 17.12.2003 was before the concerned District Court 
at Swat and not before the Peshawar High Court. This 
important legal aspect of the case, however, did not receive 
much attention of the Peshawar High Court in its impugned 
judgment and was discarded for flimsy reasons having no 
legal force. 
20. 
We have carefully examined the cases cited at 
the bar by both the learned ASCs. There is no cavil to the 
principles propounded therein, but looking to the facts and 
circumstances of the case in hand, as discussed above, the 
judgment 
cited 
on 
behalf 
of 
the 
respondents 
are 
distinguishable, having no relevancy or applicability to the 
facts of the present case. 
21. 
The upshot of above discussion is that the 
impugned judgment of the High Court is liable to be set 
aside and the suit for pre-emption filed by the respondents 
is also liable to be dismissed. 
22. 
Foregoing are the reasons for our short order 
dated 24.3.2015. 
 
 
 
 
 
 
Islamabad the  
24th March, 2015 
Approved for reporting. 
Riaz 
Judge 
 
 
 
                Judge 
 
       
                 Judge                          
C.A. No.503 of 2006 
25 
 
