1983S88 (PLP)

MUHAMMAD AFZAL ZULLAH, J.-This order will dispose of two connected Civil Petitions Nos 91-P/81 and 92-P/81, Learned counsel for the petitioner has in this case of pre-emption, while challenging the findings of fact against the petitioner/plaintiff/pre-emptor that his two suits were in reality against "exchanges" and not "sale", contended that the refusal of the High Court to interfere in its revisional jurisdiction was unjustified. According to him the burden on the pro-emptor/petitioner to prove that in reality the transaction in question was a sale, was not so heavy as to expect from him, direct evidence, regarding money being in reality the consideration, as observed by the High Court. According to him, it was not necessary for the petitioner to have adduced direct evidence of payment of money as consideration. It was enough for him if he had created probability as is required by the definition of "proved" in the Evidence Act. And that although the direct evidence was not available, he had placed "matters" as are mentioned in that definition, before the trial Court in the form of an unattested/rejected mutation of sale prior to the entries and attestations of the mutations of exchange. It has been further argued that it was enough to make a "supposition", on the basis of a "probability" under the definition of "proved" and that being so, the suit should have been decreed in favour of the petitioner. It is true that the learned Judge in the High Court observed that there was no "cogent" evidence on the record to come to the conclusion that money had passed as consideration in this case. But the tenor of the judgment of the High Court does not show that in such like cases the learned Judge declared it as a law, that it would be only direct evidence of payment of money on the basis of which a transaction could be held to be sale. Regarding second argument, we agree with the learned counsel that a civil suit can also he decided on the basis of the material mentioned in the definition of "proved". It is, however; not necessary to go deeper into theta question as it has been recently held by this Court in connection with proo If and reconstruction of records in a criminal case Bukhtiar Khan v. The State (Criminal Appeals Nos. K-3 & K-4/82, decided on 26-1-1983); that the "matters" in the definition of "proved" even if not falling under the definition of "evidence" can be considered. But in this case the main question is that the learned Courts below in the circumstances having taken note of the entire material "matters" placed before the learned trial Court came to the conclusion that the petitioner bad failed to "prove" that the transactions in question were in reality sale. It is not the complaint of the learned counsel that the mutation of sale which was entered and rejected prior to the mutation of the exchange was not noticed by the learned Courts concerned with the question of fact. The inferences drawn from the matters placed before the Court could b drawn by a "prudent man" so as to hold that the transactions in question were in reality exchanges even if the Court was to give a decision on '~ "probabilities", as contended; because, according to the definition of "proved" a fact is said to be proved "when after considering the matter before it the Court either believes it to exist or considers its existence so probable that a prudent man ought under the circumstances of the particular case, to act upon the supposition that it exists." That being so, the learned Courts below did not commit any illegality in so far as the questions of appreciation of evidence and definition of "proved" are concerned, There is no force in this petition and the same is accordingly dismissed. fit, Z. M, Petition dismissed,