KASHMALI KHAN vs Mst — 2023 SCMR 1176 SUPREME-COURT

Case information

Citation: 2023 SCMR 1176 SUPREME-COURT
Court: Supreme Court of Pakistan
Year: 2023
Reporter: SCMR
Parties: KASHMALI KHAN vs Mst
Subject matter: Criminal
Provisions referred to: Khyber Pakhtunkhwa Pre-emption Act

Fields are extracted from the reported citation and judgment text. Where a detail is not stated in the record, it is not shown.

Judgment text as reported

KASHMALI KHAN VS Mst. MALALA Ss. 13(3) & 14---Suit for possession through pre-emption---Talb-i-Ishhad made through an agent/lawyer---General rule and exceptions---Scope---In the present case the notice of Talb-i-Ishhad did not bear the signature or thumb impression of any of the pre-emptors/plaintiffs, but the signatures of both the witnesses and the counsel for the plaintiffs were there---Talb-i-Ishhad can be done by an agent, as provided in section 14 of the Khyber Pakhtunkhwa Pre-emption Act, 1987, but this is only an exception in the case of person who is unable to make the demand personally--- Such exception cannot supersede the general rule---In the present case the pre-emptors/plaintiffs could not be allowed to avail themselves of this exception as it required them to prove two things: first, what was the disability which prevented them from making the demand themselves?; and second, was the agent specifically authorized to do so in explicit terms before making the demand---Evidence brought on record showed that the pre-emptors/plaintiffs were not suffering from any disability due to which they could not make a demand on their own---On the contrary, the statement of the one of the pre-emptor/plaintiff proved that he himself first made the Talb-i-Muwathibat and later he himself went to the lawyer and got the notice written---Same statement of the plaintiff also unfolded that no express authority was given to the lawyer before making the Talb-i-Ishhad---Such deficiency was sufficient to dismiss the pre-emption suit---Appeal was dismissed.

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