2003 PLP 1288 (CLC)

Hafiz Saeed Ahmed Sheikh for Petitioners. Nemo for Respondent. Date of hearing: 31st October, 2002. On 20-4-1986, the respondent filed a suit against the petitioners. In the plaint it was stated that last owner of the suit-land as described in the plaint was Muhammad Aslam Shah who was borne to Alif Shah; as a result of his wedlock to Mst. Chanan Bi. It was further explained that the respondent is son of said Muhammad Aslam Shah from Bibi Ghulam Jannat while the petitioners are his children from Qudrat Bibi. Said Aslam Shah died on 15-9-1982. Inheritance Mutation No.329 was attested on 29-12-1982. It was objected that 1/6th share was mutated in favour of Mst. Sawani Begum showing her to be the mother of Aslam Shah. With these averments a decree for joint possession was prayed for and the gift made by said Mst. Sawani Begum in favour of Bibi Inam Khatoon (petitioner No.6) vide Mutation No.424 attested on 9-5-1984 to be declared to be illegal. The petitioners in their written statement proceeded to assert that Mst. Sawani Begum was the mother of Aslam Shah and said 1/6th share was correctly mutated. It was also objected that the respondent was present at the time of mutation of inheritance and did not object. Issues were framed and evidence of the parties was recorded. Learned trial Court dismissed the suit vide judgment and decree dated 16-1-1990. A first appeal filed by the respondent was heard by a learned Additional District Judge, Rawalpindi who proceeded to allow the same and decreed the suit of respondent on 15-11-1995.

2. Learned counsel for the petitioner contends that the evidence on record has been misread. Further contends that inadmissible evidence has been relied upon by the learned Additional District Judge. Vehemently argues that the previous statement of Ghulam Abbas, petitioner (Exh.P.1) could not be relied upon without confronting him with the same.

3. No one has turned up for the respondent.

4. I have gone through the copies of the records appended with this C.R. with the-assistance of the learned counsel for the petitioner. As would be apparent from the 'perusal of the respective pleadings reproduced by me above, the controversy involved in this case was as to whether Muhammad Aslam Shah was the son of Mst. Sawani Begum, alleged by the petitioners? The respondent appeared as P.W.1 and stated in negative. To similar effect is the statement of Madad Shah, P.W.2. Now the petitioners produced Niaz Muhammad as D. W.1 who proceeded to state in his Examination-in-Chief that he does not know the name of real mother of Aslam Shah. This Witness was not cross-examined for the obvious, reason. Inayat Ali, petitioner No.3 appeared as D. W.2. He did state that Aslam Shah was borne by Mst. Sawani Begum and denied the suggestion to the contrary in cross-examination. However, he admitted that they grandfather Alif Shah had married Mst. Chanan Bi as well. The main reliance was on the factum that the respondent had got entered the mutation of inheritance. Respondent appeared in rebuttal to deny the said facts. Now going by the said evidence on record, to my mind the onus to prove in affirmative that Aslam Shah was the son of Mst. Sawani Begum was upon the petitioners. The witness D.W.1 did not state anything rather expressed, ignorance, while the statement made by D.W.2 stands effectively rebutted by the denial on oath by the two P.Ws. including the respondent.

5. Coming to the said contention of the learned counsel regarding the document Exh.P.1. Now I find that this document was produced by the learned counsel for the respondent on 1-10-1989 without any objection from the other side. Inayat Ali Shah, D.W.2 made statement on 3-12-1989. Now he was duly confronted and he admitted that civil suit "Syed Akram Shah and others v. Chan Shah and others" had been filed and was proceeded with in the Court of a learned Civil Judge and that his brother Ghulam Abbas had appeared as witness and that he had been pursuing the case for all of the petitioners. Now an examination of document Exh.P.1 shows that in a suit with the said title Ghulam Abbas had appeared as D.W.1 and proceeded to state that Chanan Bi was the real mother of his father namely Aslam Shah. Now it is matter of record that the petitioners were fully aware that the said document has been filed by the respondent on record. No explanation is forthcoming as to why Ghulam Abbas, petitioner was not produced in the witness box. Now Article 47 of the Qanun-e-Shahadat Order, 1984 provides that the evidence given by a witness in judicial proceeding is relevant for the purpose of proving in a subsequent judicial proceeding; or in a later stage of the same judicial proceeding, the truth of facts which it states, where the witness, inter alia, is kept out of the way by the adverse party, provided, that the proceeding was between the same parties or their representatives-in-interest, the adverse party in the first proceeding had the right and opportunity to cross-examine and that the question in issue were substantially the same in the first as in the second proceeding.

6. Now I find that all the parties hereto were arrayed as defendants in the said suit. The dispute was regarding the estate of Fazal Shah, the father of Chanan Bi. The plea taken by the parties to this suit was that Chanan Bi daughter of Fazal Shah was the mother of their father Aslam Shah and that Fazal Shah had made a gift in favour of Chanan Bi and she had gifted away the land to her son Aslam Shah, father of the parties. To my mind the statement fully qualifies to be relevant under said Article 47 of the Qanun-e-Shahadat Order, 1984.

7. Having thus examined the records and considered the contentions of the learned counsel I do not see any force in this civil revision which is accordingly dismissed leaving the parties to bear their own costs. S.M.A.H./Q-28/L Petition dismissed.