Clear the demand of Talb-i-Ishhad is to be expressly made in presence of two witnesses and for its prove, it is mandatory that both be examined and face the test of cross-examination to determine their truthfulness.

 Reliance in this regard is placed on Akbar Ali v. Muhammad Abdullah (2007 SCMR 1233) and Mst. Rooh Afza v. Aurangzeb and others (2015 SCMR 92). In the former judgment, it has been observed as under:- 

“On perusal of above provisions Mahomedan Law as well as of Punjab Pre-emption Act it is clear the demand of Talb-i-Ishhad is to be expressly made in presence of two witnesses and for its prove, it is mandatory that both be examined and face the test of cross-examination to determine their truthfulness.” 

However, in the latter referred case-law, it has been held that, 

“Besides, in our opinion, non-appearance of the other attesting witness of “Talb-i-Ishhad” regarding the exercise of right of pre-emption, by the appellant is also fatal to her case. Moreso, as even if at the relevant time he was in Dubai, he could have come to Pakistan to appear in the witness box in support of his mother’s claim. The submission of Mr. Kiyani in this regard with reference to Article 17 of the Qanun-e-Shahadat Order, 1984 has also no relevance, as the said Article of Qanun- e-Shahadat Order, 1984 has not diluted the affect of Article 79 of the said Order, particularly in a suit for preemption, which as per legal requirement of section 13 of the Khyber Pakhtunkhwa Pre-emption Act, required attestation of the notice of Talb-i-Ishhad by two truthful witnesses, who could depose as to the same before the Court. The ratio of the case of Abdul Khan (supra) and the case of Muhammad Mal Khan (supra) cited by the learned Advocate Supreme Court for the respondents fully endorses this view.”

 Part of Judgment 

 IN THE LAHORE HIGH COURT,LAHORE JUDICIAL DEPARTMENT

Civil Revision-Civil Revision(Against Decree)-Suit for Possession
2599-10

2017 LHC 5087