IN THE SUPREME COURT OF PAKISTAN 
(Appellate Jurisdiction) 
 
Present:  
MR. JUSTICE MAZHAR ALAM KHAN MIANKHEL  
MR. JUSTICE QAZI MUHAMMAD AMIN AHMED 
 
Civil Petition No.223-P/2012 
(Against the judgment dated 06.03.2012 
passed by the Peshawar High Court, Bannu 
Bench in C.R. No.325-B/11) 
 
Sakhi Jan & another  
 
 
…Petitioners  
Versus 
Qamar Ali Khan 
..Respondent  
 
For the petitioners: 
Mr. Muhammad Javed Yousafzai, ASC  
 
For the respondent: 
Mr. Zafar Iqbal, ASC 
 
Date of hearing: 
 
28.7.2021 
 
ORDER  
MAZHAR ALAM KHAN MIANKHEL, J.- The respondent (plaintiff of 
the suit) had exercised his right of pre-emption by filing a suit for 
pre-emption against a sale mutation No.3486 dated 28th July, 2008 
for an area of 20 kanals of land purchased by the petitioners 
(defendants) comprising of four khasra numbers in four different 
khatas as reflected in the plaint. After a hot contest between the 
parties, suit of the respondent was partially decreed by the Civil 
Judge, Lakki Marwat vide his judgment and decree dated 24th March, 
2010. The petitioners feeling aggrieved, questioned the same by way 
of appeal but the appeal was dismissed by the District Judge, Lakki 
Marwat vide his judgment and decree dated 29th September, 2011 
and same was the fate of civil revision of the petitioners before the 
Peshawar High Court, Bench at Bannu vide judgment dated 6th 
March, 2012. The petitioners still not satisfied with the findings of 
the three Courts below, have sought leave to appeal against the 
impugned judgment through instant petition.  
 C.P.223-P/12 
2
2. 
We have heard the learned counsel for the parties and have 
gone through the available record. It is evident from the record that 
respondent was a co-sharer in suit khata No.967/4 khasra No.248. 
So, the area transferred from the said khasra number in favour of 
petitioners vide impugned mutation measuring 05 kanals 09 marlas 
was decreed in his favour. Similarly the petitioners were recorded co-
sharers in khasra No.2478 of khata No.205, area measuring 01 kanal 
and 06 marlas and the respondent having no such right, his suit to 
that extent was dismissed.  
3. 
It is also an admitted position that both the parties were the 
contiguous owners to the remaining two khasra numbers i.e. khasra 
No.2479 of khata No.204 and khasra No.2482 of khata No.966/1 and 
the trial Court after considering this evidence on the record, divided 
the suit property of these two khasra numbers in two equal shares 
under Section 20 of the Khyber Pakhtunkhwa Pre-emption Act, 1987 
(the ‘Act of 1987’) and the said findings were upheld by the appellate 
Court in appeal as well as the High Court in revision.  
4. 
The only question which required our consideration was the 
distribution of the property under Section 20 of the Act of 1987 
between the parties having equal status and right of pre-emption on 
the basis of contiguity. The pre-emptor/respondent is single and has 
not joined with him any other co-emptor whereas vendees are two in 
number and all the three having similar status and right of pre-
emption, whether the property has to be divided in two equal shares 
between the pre-emptor and the two vendees or it has to be divided in 
three equal shares on per capita basis. The learned counsel for the 
parties placed reliance on two conflicting views of this Court of two 
Member Benches one favouring the petitioners and the other the 
respondent; Khan Gul Khan and others Vs. Daraz Khan (2010 SCMR 
 C.P.223-P/12 
3
539) relied upon by the petitioners while Muhammad Tariq and 4 
others Vs. Asif Javed and another (2009 SCMR 240) relied upon by 
the respondent. Both the learned counsel argued that except these 
two conflicting views, there is no other judgment of this Court 
interpreting and clarifying the provisions of Section 20 of the Act of 
1987. In the given situation, initially we were of the view that the 
matter be placed before Hon’ble the Chief Justice for constitution of a 
Larger Bench on the above said conflicting views but Mian Hikmat 
Ullah, learned ASC, present in Court in some other case, with 
permission of the Court, submitted that the issue in hand has 
already been settled by a three Member Bench of this Court and 
sought some time to produce the said case law. The learned ASC, on 
the next day, produced almost all the judgments of this Court in 
which question of Section 20 of the Act of 1987 was dealt with. 
Relevant in this regard is the case of Faizullah Khan and others Vs. 
Haji Abdul Hakeem Khan (2011 SCMR 1802). It has also affirmed 
the two Member Bench judgment in the case of Khan Gul Khan 
(supra). The crux of the findings is that in such like situations, the 
property has to be distributed as per capita. Further simplifying the 
matter, we may add that the number of pre-emptors and the vendees, 
having the same status and pre-emption right, will get the property 
under pre-emption in equal shares. The relevant para of the said 
judgment is reproduced herein below:- 
 
 “17. It is to be mentioned here that this Court has taken 
conflicting views in two recent judgments in the cases of 
Muhammad Tariq (supra) and Khan Gul Khan (supra). In 
Muhammad Tariq’s case a two member Bench of this Court 
has held that the Legislature has divided the preemptor and 
the vendee into two distinct classes, and if the pre-emptor 
and the vendee have equal right of pre-emption the property 
would be shared by them equally notwithstanding the 
 C.P.223-P/12 
4
number of pre-emptors or the vendees; if the other version 
of per capita basis is to be accepted then the whole sense of 
the section would altogether be damaged, all the rulings of 
this Court are in favour of the division of the property in 
equal shares i.e. 50/50 or ½ each because the contesting 
parties are two different classes. Whereas, in Khan Gul 
Khan’s case another two member Bench of this Court after 
thorough examination of the case-law on the subject, while 
taking a different view has held that the conclusion drawn 
in Muhammad Tariq’s case  that legislature has divided the 
pre-emptor and the vendee into two distinct classes i.e. the 
pre-emptor and the vendee, is not in consonance with the 
provisions of section 20; it is the qualification of the vendee 
which qualified him to share the property in terms of 
section 20; the law laid down in Amir Hasan’s case and 
other cited judgments, mentioned therein, is the correct 
law; therefore, the parties were declared to be entitled to 
share the property on the principle of per capita”. 
 
This judgment was again relied upon by yet another three Member 
Bench of this Court in the case of Rustam Vs. Aurangzeb and others 
(2014 SCMR 146). We may add that for the purpose of distribution 
of property under Section 20 of the Act of 1987, analogy can also be 
derived from the provisions of Section 9 of the Act of 1987 which 
reads as under:- 
 
“9. 
Method of distribution of the property 
where more than one person equally entitled.- 
Where more than one person are found by the Court 
to be equally entitled to the right of pre-emption the 
property shall be distributed amongst them in equal 
shares.” 
 
 
5. 
We appreciate the fair and valuable assistance rendered by 
Mian Hikmat Ullah, learned ASC, and feel sorry and not happy with 
the level of assistance rendered by the learned counsel for the 
parties. Had they been fully prepared and equipped with the latest 
 C.P.223-P/12 
5
view of this Court, then the matter would have been decided there 
and then.  
6. 
In view of the above discussion, we while maintaining the 
findings of Courts below, modify the judgment of the trial Court dated 
24th March, 2010 on issue No.6 and that of the Appellate Court and 
the High Court and hold that the share and area transferred by way 
of impugned mutation in khasras No.2479  and 2481 be distributed 
between the two petitioners/vendees and pre-emptor/respondent in 
three equal shares on the principle of per capita. Pre-emption 
amount, if already deposited by the pre-emptor/respondent is in 
excess, can be withdrawn by the pre-emptor. Needless to say, if pre-
emption amount has not been deposited as per decree of the trial 
Court, the pre-emptor has to face the consequences as per law.  
7. 
This petition is converted into appeal and allowed. Rest of the 
findings of the Courts below are maintained. Costs should follow the 
event.  
 
 
Judge  
 
 
 
Judge  
Peshawar,  
28th July, 2021 
APPROVED FOR REPORTING 
Nasir Khan /-  
