MUHAMMAD MUSHTAQ vs MALIK MUMTAZ — 2026 SCMR 54 SUPREME-COURT

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MUHAMMAD MUSHTAQ VS MALIK MUMTAZ. Ss. 5 & 13---Pre-emption, right of---Essence, significance and effect---Burden of proof upon pre-emptor---Transaction to be proved as sale transaction. The right of pre-emption serves as a significant constraint on an owner's ability to transfer his property to whomever he likes. This right acts as a clog on the owner's freedom to alienate his property and therefore has to be strictly construed. In a pre-emption suit, the plaintiff must not only establish that he has a preferential or superior right over the buyer (vendee) involved in the transaction, but he also bears the burden of proof to demonstrate clearly and convincingly that the transaction he seeks to pre-empt is indeed a sale and that he has made the necessary demands for pre-emption according to law. The essence of the right of pre-emption is dependent upon the existence of a valid sale transaction. Where the nature of transaction itself is doubtful, the right of pre-emption cannot be exercised. Held: If there exists any ambiguity surrounding the nature of the transaction in question casting doubt on whether it constitutes a sale, the plaintiff must fail. In the same vein, if the circumstances lend themselves to multiple interpretations, the Courts should be disinclined to favour a reading that does not classify the transaction as a sale. The Supreme Court held that the right of pre-emption being a restrictive right against the freedom of an owner to transfer his property must be strictly interpreted and the pre-emptor has the initial burden to prove that the transaction sought to be pre-empted is in fact a sale transaction. Where the plaintiff fails to establish the essential ingredient of a sale, no decree for pre-emption can be granted in his favour.

MUHAMMAD MUSHTAQ vs MALIK MUMTAZ — 2026 SCMR 54 SUPREME-COURT

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