Ihsan Ullah Vs Jehangir Khan etc

PESHAWAR HIGH COURT, PESHAWAR

(JUDICIAL DEPARTMENT)

Civil Revision No. 476-P/2025

Ihsan Ullah etc.

......Petitioner(s).

Versus Jahangir Khan etc.

..........Respondents.

For the Petitioners: Mr. Abdul Hafeez, Advocate

For the Respondents: Nemo (Motion).

Date of Hearing: 10.2.2026

JUDGMENT

WIQAR AHMAD, J.- The petitioners have approached this Court through present civil revision petition under section 115 of the Code of Civil Procedure, 1908, calling in question the legality, propriety and correctness of the concurrent judgments and decrees dated 29.11.2023 passed by the learned Civil Judge-VIII, Peshawar, and as well as judgment dated 29.01.2025 passed by learned Additional District Judge-XII, Peshawar, whereby the suit for pre- emption instituted by petitioners was dismissed and said dismissal was maintained in appeal. The petitioners seek setting aside of impugned judgments and decree and grant of a decree in their favour. Since all three revision petitions

arise out of same suit, relate to the similar transactions, involve common questions of law and fact, and challenge identical judgments of the courts below, they are being decided through this single consolidated judgment.

2.Brief facts of Civil Revision No. 476-P/2025, are that petitioners instituted a civil suit for pre-emption on 02.04.2012 in respect of suit house situated in revenue estate of Sheikh Muhammadi, Tehsil Pishtakhara, District Peshawar, bearing Khasra numbers

5024/3914,3912,3253,3179, 4955/3178, 4909. It was asserted that respondent had sold 13 marlas out of total 16 marlas through mutation No. 12335 attested on 22.12.2011.

Petitioners further asserted that being contiguous owner they had got superior right of pre-emption under the Khyber Pakhtunkhwa Pre-emption Act, 1987. The claim was founded upon the assertion that the petitioners had duly performed Talb-i-Muwathibath, immediately on acquiring knowledge of the impugned sale and thereafter performed Talb-i-Ishhad in accordance with law.

3.Brief facts of Civil Revision No. 477-P/2025, are that petitioners instituted a civil suit for pre-emption on 02.04.2012 in respect of suit house situated in revenue estate of Sheikh Muhammadi, Tehsil Pishtakhara, District Peshawar, bearing Khasra number 4433, 2782, 5139/2781.

It was asserted that respondent had sold 04 marlas out of total 19 kanal 4 marlas through mutation No. 12338 attested

on 22.12.2011. Petitioners further asserted that being contiguous owner they had got superior right of pre- emption under the Khyber Pakhtunkhwa Pre-emption Act, 1987. The petitioners had also claimed to have performed Talb-i-Muwathibat immediately on acquiring knowledge of the impugned sale and thereafter performed Talb-i-Ishhad in accordance with law.

4.Brief facts of Civil Revision No. 478-P/2025, are that petitioners instituted a civil suit for pre-emption on 02.04.2012 in respect of the house situated in revenue estate of Sheikh Muhammadi, Tehsil Pishtakhara, District Peshawar, bearing Khasta Nos. 1298/2777/ 2769 to 2775, 1291 to 1296, 2826/1962-1961, 1298/2777. That respondent had sold 07 marlas out of total 01 kanals 16 marlas through mutation No. 12336 attested on 22.12.2011. Being contiguous owner the petitioners claimed to have got a superior right of pre-emption under the Khyber Pakhtunkhwa Pre-emption Act, 1987. The claim was founded upon the assertion that the petitioners had performed Talb-i-Muwathibat immediately on acquiring knowledge of the impugned sale and thereafter performed Talb-i-Ishhad in accordance with law.

5.The respondents contested all the three suits by filing separate written statements, categorically denying the petitioners’ right of pre-emption. It was pleaded that the petitioners neither possessed a valid right nor had they

performed the mandatory Talabs in the manner required by law. Objections regarding limitation, maintainability, credibility of the claim and estoppel were also raised in all the three cases. On the basis of the pleadings, learned trial Court framed necessary issues covering the entire controversy. Evidence was also separately recorded in three suits but in same manner. The petitioners, examined PW-1 to PW-7 and produced similar documentary evidence in all the suits, whereas defendants produced and examined three witnesses i.e. Rahim Khan, DW-1, Qazi Fazal Subhan, DW-2 and Jahangir recorded his statement as DW-3. After close of evidence of the parties, learned civil Court heard arguments of counsel for the parties and vide impugned judgment and decree dated 20.11.2023 dismissed all the three suits. Feeling aggrieved, petitioners filed appeals but same were also dismissed by learned Additional District Judge-XII, Peshawar vide judgment and decree dated 29.1.2025. Feeling further aggrieved, petitioners have filed instant civil revision.

6.Arguments heard and record perused.

7.Perusal of record revealed that similar judgments have been passed in the three cases and controversy is also similar in nature. There were substantial doubts regarding the performance of Talab-i-Muwatibath at the time, place, mode and manner as stated in the plaints by the petitioners.

In the plaints, similar assertions had been made that the plaintiff/pre-emptors had come to know about the transactions of sale on 19.03.2012 at 5.30 pm, at the house of Shams Ur Rehman. However, the venue of performance of Talab-i-Muwatibath was clearly doubted by the plaintiff’s witness, namely Masood Shah (examined as APW-7). During cross-examination, he stated that the plaintiff had performed Talab-i-Muwatibath at his (the witness’s) house in his presence. This contradiction regarding the venue of performance of Talab-i-Muwatibath was material in nature because once the venue became doubtful, the other essential elements of Talab-i- Muwatibath also became doubtful. Besides, the evidence of the witnesses were recorded twice in all the suits i.e., before and after remand of the cases by this Court. Upon comparison of the two sets of statements, the learned appellate court found that the witnesses had materially contradicted themselves regarding the performance of Talab-i-Muwatibath in their statements recorded before and after the remand order. At the pre-remand stage, the informer, namely Qazi Asif Ullah (APW-6), had stated that about 8/10 days after the attestation of the mutations, the plaintiffs had attempted to amicably settle the dispute by sending a Jirga, but the defendants had refused to settle the matter. In his cross-examination, he had further stated that after 20/25 days of the Jirga proceedings between the

parties, the plaintiffs had declared his intention to pre-empt the sale transaction. As per this statement, Talab-i- Muwatibath had not been performed at the first instance by the plaintiffs. The remand by this Court was solely on account of non-framing of issues by the civil court, prior to recording evidence. The earlier statements had remained on the record. When the witnesses appeared again (after remand) he had been confronted with their earlier statements.

8.The learned counsel for the petitioners contended that the earlier statements had lost their validity and existence due to a previous remand order of this Court and, therefore, same could not have been considered. However, this Court finds said argument to be entirely untenable and based on a misunderstanding of established evidentiary principles and procedural law. The scope of Article 140 of the Qanun-e- Shahadat Order, 1984 (QSO), is unequivocally broad, allowing for a witness to be cross-examined concerning any “previous statement made by him in writing or reduced into writing”. This crucial phrase encompasses any prior declaration, whether formally recorded as evidence in earlier judicial proceedings, made in a police statement, or contained within any document authored or attested by the witness, provided its authenticity and attribution to the witness are duly established. The primary objective of such cross-examination is to test the veracity of the witness,

challenge the consistency of their testimony, and ultimately impeach their credibility. Reference may be made to Farooq Ahmad Khan Laghari v. Nawaz Sharif (1996 PLD Lahore 512). This fundamental principle of evidentiary law, expressly recognized by Article 140 of the QSO, ensures that a witness’s prior assertions, if contradictory to his subsequent testimony, can be legitimately used to expose inconsistencies, thus aiding the court in its fair and accurate assessment of the reliability of the evidence presented. Reference in this regard may be appropriately made to the principles enunciated in Abdul Majeed v.

Abdul Rasheed (PLD 2016 383 Lahore) and Dilawar Khan v. Mst. Badshah Zadi (PLD 2011 208 Peshawar).

As the former statements of the witnesses in the instant case were admittedly recorded before a competent court and were relevant to the facts in issue, their valid use to confront the witnesses was in complete conformity with the law.

9.Furthermore, the contention that evidence recorded prior to a remand order loses its validity and existence is fundamentally flawed and contrary to the spirit of procedural justice. A remand under Order XLI Rule 23 of the Code of Civil Procedure, 1908 (CPC), while necessitating further proceedings, does not envisage the wholesale discarding or annihilation of evidence already recorded. As authoritatively held by the superior courts in Shahid Hussain Vs Abdul Jabbar Tassaduq (PLD 2026

Lahore 75) and Noor and others vs. Mst. Sattan (PLD 2013 Lahore 30), a remand order effectively revives the suit in its entirety, placing it back on the file as if it had never been finally disposed of. Consequently, any evidence previously recorded remains an integral part of the judicial record and is subject to all just exceptions. Such evidence is not rendered res nullius merely by virtue of the remand;

rather, it retains its evidentiary status, to be considered and weighed by the Court, unless specifically deemed inadmissible or irrelevant by a fresh, reasoned order. The intent of a remand is to cure defects or allow for further inquiry, not to erase judicial proceedings already competently undertaken. A similar question was considered by the Supreme Court of India in United Bank of India, Calcutta versus Abhijit Tea Co. Pvt. Ltd. and others (AIR 2000 Supreme Court 2957). In paragraph No. 16 of the judgment it was observed that;

16.But, it is now well settled that an order of remand by the appellate Court to the trial Court which had disposed of the suit revives the suit in full except as to matters, if any decided finally by the appellate Court. Once the suit is revived, it must, in the eye of the law, be deemed to be pending from the beginning when it was instituted. The judgment disposing of the suit passed by the single Judge which is set aside gets effaced altogether and the continuity of the suit in the trial Court is restored, as a matter of law. The suit cannot be treated as one freshly instituted on the date of the remand order. Otherwise serious questions as to limitation would arise. In fact, if any

evidence was recorded before its earlier disposal, it would be evidence in the remanded suit and if any interlocutory orders were passed earlier, they would revive. In the case of a remand, it is as if the suit was never disposed of (subject to any adjudication which has become final, in the appellate judgment). The position could have been different if the appeal was disposed of once and for all and the suit was not remanded.” ‘emphasis supplied’

Similarly, in the case of Shahid Hussain (supra), the worthy Lahore High Court held that:

10.Perusal of Order XLI Rule 23 of the Code does not reflect if the legislature has envisaged to discard the pre-remand evidence altogether. It says the evidence recorded during the trial shall be the evidence after remand, which is subject to all just exceptions. The case has to be re-admitted by the learned trial Court on the number allocated to it originally in the register. ‘emphasis supplied’

10.In the present case, the appellate court rightly took into consideration those portions of the cross-examination of APW-4, APW-5, APW-6, and APW-7 where they were confronted with their previously recorded statements. These significant contradictions, brought to light through the legitimate application of Article 140 QSO, severely undermined and effectively destroyed the evidentiary value of their testimony regarding the performance of Talab-i- Muwatibath and were more than sufficient to impeach their credibility. It is a settled principle of law that witnesses who proffer one version of events and subsequently alter their statements during the same trial or in related proceedings

cease to be reliable, and their testimony, particularly concerning crucial aspects like the timely and proper performance of Talab-i-Muwatibath, cannot safely be relied upon by any court. Their inconsistent evidence was, therefore, correctly disregarded by the learned appellate court.

11.Furthermore, the learned civil court had pertinently noted the pre-emptor’s failure to produce the crucial individual from whom the informer purportedly acquired knowledge of the pre-emption transaction. Such an omission, particularly when the informer’s evidence is pivotal to establishing the fulfillment of pre-emption formalities, weighs heavily against the pre-emptor. This principle is squarely laid down by the Hon’ble Supreme Court of Pakistan in Farid Ullah Khan v. Irfan Ullah Khan (2022 SCMR 1231), which mandates proper substantiation of such claims. Beyond this, the learned appellate court correctly drew a compelling inference that the plaintiff harbored prior knowledge of the sale transaction, a conclusion strongly bolstered by the history of earlier criminal enmity and the subsequent compromise between the parties. This inference was further solidified by the informer’s own express statement, recorded previously, explicitly indicating that the petitioners/plaintiffs were fully aware of the sale much before the purported date on which Talab-i-Muwatibath was allegedly performed. In light of

these detailed considerations, encompassing both procedural law and substantive evidentiary assessment. The appellate court has judiciously and appropriately rectified the errors and omissions observed in the judgment rendered by the civil Court, and same ground is not available to petitioner in the instant revision petitions.

12.While seized of the instant civil revision, this Court is not required to reappraise the evidence. Learned counsel for the petitioner was heard at length but failed to make out a case for interference with the well-reasoned judgment of the learned Appellate Court. The instant civil revision is found to be devoid of substance and is accordingly dismissed.

Announced on;

10th of February, 2026 *Zarshad*

JUDGE

(SB)Hon’ble Mr. Justice Wiqar Ahmad WP No. 476-P/2025