1990 PLP 274 (CLC)

(iii) Thirdly it was suggested that the evidence of the respondents/defendants was either irrelevant or inadmissible within the frame‑work of section 50 ibid. D.W.3 Ghulam Haider, D.W.4 Ghafoor Khan, D.W.5 Sher Afsar had no means of special knowledge, therefore, they were incompetent witnesses to depose in respect of relationship of the parties. D.W. 2 and D.W.5 also showed the lack of special means of knowledge. As far as Mst. Karam Jan was concerned, she was a partisan witness as she lived with the respondents. On the strength of this argument it was argued that the rule of preponderance of evidence weighed in favour of acceptance of the version of the plaintiffs/appellants. (iv) It was lastly contended that the Revenue Authorities undertook the inquiry a number of times and came to the conclusion that Sher Dil and Vial were the real brothers. Such a finding reflected in Mutation must have to be given due eight.

6. Learned counsel for the respondents/defendants in the beginning of the arguments raised the preliminary objections to the effect that the question raised by the learned counsel related to a finding of fact which was not open to interference in Section 100 of the Code of Civil Procedure. It was next contended that the findings of the first Court of appeal were correct, eminently just and recorded after the consideration of oral as well as documentary evidence produced by both the parties. 7.. I have heard the arguments of the parties and perused the record with their assistance. The only question calling fur examination is whether the findings of the first Court of appeal on the issue of relationship as to whether Sher Dil and Mir Afzal were the real brothers or consanguine brothers. Both the learned counsel addressed the Court on this vital question and took the Court to the evidence on record in this regard only. I will herein now proceed to determine the respective contentions of the parties.

8. The contentions of the parties arise from the objection of both the parties that evidence on record is not admissible within the framework of section 50 of the Evidence Act (Presently Article 64 of the Qanun‑e-Shahadat), which is as under:‑‑ "Opinion on relationship when relevant. When the Court has to form an opinion as to the relationship of one person to another, the opinion, expressed by conduct, as to the existence of such relationship of any person who, as a member of the family or otherwise, has special means of knowledge op the subject, is a relevant fact: Provided that such opinion shall not be sufficient to prove a marriage in proceedings under the Divorce Act, 1809 (IV of 1869) or in prosecution under Section 494 or 495 of Pakistan Penal Code (Act XLV of 1960). (a) The question, is, whether A and B were married. The fact that they were usually received and treated by their friends as husband and wife, is relevant. (b) The question is, whether A was the legitimate son of.8. The fact that A was always treated as such by members of the family, is relevant:"

9. This section/article deals with the admission of class of circumstantial evidence when the Court has to form an opinion as to relationship of one person to another. For the purpose of receiving evidence of circumstantial nature of this type the two sections of Evidence Act are relevant i.e. Section 32 and Section 50: The point of difference between the two sections is that under Section 32 (5), statements of the deceased person are admissible whereas under this section the relevant fact is the opinion of a person alive or, deceased expressed by conduct the qualification of special means of ‑knowledge being common to both the provisions, Secondly, the statement under Section, 46 must have been made before the question in dispute was raised but under this section it is immaterial where opinion was expressed before or after the controversy arose:

10. A plain reference to Section 50 ibid shows that the person Whose opinion, is made evidence by this section must be shown to have special ‑means oft knowledge on the. subject. In order to lay foundation for the reception of evidence under this Section, the following requirements are to be fulfilled: (i) The person. whose opinion is sought to be 'given in evidence must be proved to have special means of knowledge on the subject.. (ii) The opinion alone is evidence; (iii) The opinion as expressed by conduct only is evidence or in other words the conduct only can be given in evidence. (iv) That a member of family is presumed to possess special means of knowledge to give evidence in respect of relationship under this section.

11. The evidence of a member of family was examined under .Section SO of the Evidence Actin Sitaji v. Bijcndra Narain (A I R 1954 SC 601), his Lordship Bose, J. who delivered the judgment said as follows: "A member of the family can speak in the witness box of what he has been told, and what he has learned about his .own ancestors, provided what he says is an expression of his own independent opinion (even though ‑it is based on hearsay derived from decased, not living, persons) and is not merely repetition of the hearsay opinion of others, and provided the opinion is expressed by conduct his sources of information and the time at which he acquired the knowledge (for example, whether before the dispute or not) would affect its' weight, but not its admissibility." In the above‑noted case their Lordships were considering, (be evidence of one of the plaintiffs of that suit, who proved the entire genealogy although he had "no personal knowledge of every step in. the sense that be did not‑ know each of the persons named". Their Lordships, therefore, held that personal knowledge was not necessary in such cases. What is true about a member of a family is also true of a person, who although not a member of the family has special means of knowledge about the relationship of the parties.

12. In Ghulam Muhammad and. another v. Allah Yar and others.(P; D 1965 Lahore f32), examining the evidential value of the; opinions of friends and the members of the family who have a, special mean, of knowledge, it, was, observed: , "In these cases tire opinion of the friends and the members of the family who have the special means of knowledge is relevant because it is based on the conduct and treatment of the person concerned. The opinion as expressed by conduct is evidence or in other words evidence of the conduct can be given in evidence and form that conduct liven in evidence, the Court is to: judge the result. Generally speaking the, opinion cannot be a substitute for evidence of facts in issue and is irrelevant. But this' section is one of the 'few exceptions to the ‑general rule. It. is, therefore, all the mote necessary that in order to lay‑ the foundation for the admission of evidence of this Section must he brought out positively. Mere rumour or gossip that A is related to unaccompanied by conduct on their part or on the part of their friends and relations is a mere hearsay and hence inadmissible as a piece of evidence to prove the issue. Section 50 enacts a rule different from the law in England where the evidence of general reputation is admissible to establish the fact of the parties being married. In this country the evidence is, limited to the opinion as expressed by conduct and there is no other section in the Evidence Act under which the evidence of general reputation can be received in proof of relationship.

13. Dealing with the evidence of a member of family his Lordship Mr. Justice A.S. Faruqui in Haji Ilah Bakhsh arid others v: Mst Nawah Bibi and others P L D 1966 Lah. hfrl held as under:‑ ' "With regard to most of the observations made by my learned brother with reference to section 50 1 am in respectful agreement but the point where 1 have found difficulty in accepting his view, and 1 say so with great respect, is with regard to the general proposition that the evidence of relationship would lie inadmissible unless foundation for the admission of such evidence is laid by the party who seeks its admission. That in many cases such a requirement would be necessary is true but this cannot be laid down as a general proposition. For instance, if a brother of the deceased was to depose that was the son of the deceased or was his wife, I do not think it would be necessary to ask questions of such a witness in the first instance regarding the means of his special knowledge. Such a means would be presumed in such a case. In my opinion, therefore, when a witness is shown either to be a relation or a friend of the family and he deposes to a fact of relationship there would be a presumption that he had the special knowledge of such relationship. It would not in such a case be necessary to preface his evidence or relationship with questions which must first lay down the foundation based on‑ conduct with regard to such evidence. Munir in his Commentary on the Law of Evidence on section 50 of the Evidence Acthas thus observed:‑ "Members and friends of the family will be presumed to have special knowledge of the relationship their conduct will not only be relevant under this Section but Courts should attach considerable importance to it in determining the question of relationship." The learned author has in support of this view relied upon Muttuswamy v. Vankataswara 12 MIA 203, Khajah Hidayat v. Rai Jan 3 1 A 295 and Fazilatunnisa v. gibi Oamarustnisa 9 CWN 352."

14. The ratio emerging from the aforesaid authorities is that when a wiliness is shown either to be a relation or a friend of the family and deposes as to the fact of relationship there would be presumption that he had a special means of knowledge of such a relationship and it would be immaterial in such case to preface his evidence of relationship.

15. Applying these principles to the facts of the case, it is quite clear that neither Maulvi Muhammad Ayyub nor Hafiz Hair Khan were the members of the family of the parties to this suit. Maulvi Muhammad Ayyub stated that he has formed his opinion on account of the fact that Sher Dil, Mir Afzal and Sher Bahadur lived in the same house and were being treated as real brothers. He did not show any other means of knowledge by which he could form his opinion in respect of exact relationship of the parties: Shcr Dil, Mir Afral and Sher Baha.dur had the same father and, therefore, very apparently must have lived like real brothers. The statement of Muhammad Ayyub is of no help to the resolution of the controversy. Similarly, Hafiz Hazir Khan is Imam Masjid, he is not a member of the family. He did not indicate his source of knowledge.

16. As against it, Mst. Karam Jan, the widow of Mir Afzal and the mother of Khan Bahadur whose left estate is the subject‑matter of dispute, clearly stated that Sher Dil was the consanguine brother of Mir Afzal, and she was of subjected to cross‑examination. It is a settled principle of law that if the fact given in examination‑in‑chief is not subjected to cross‑examination, it seemed to have been admitted. According to me, the learned first Court of appeal was justified in placing, reliance upon the evidence of Mst: Karam Jan, Mst. Karam Jan was the widow of Mir Afzal therefore, she had direct means of knowledge about the ' exact relationship between the parties.

17. There is yet another aspect of the case that Mst. Durani, the widow of Sher Dil was alive but she was also not, produced before the trial Court. Withholding of this material evidence leads to presumption that if .she had appeared before the Court she would have not supported the case of the appellants/plaintiffs.

18. For whatever has been stated above, I do not find any infirmity in the judgment of the learned Additional District Judge. Accordingly this appeal fails and is dismissed with costs throughout. I‑I:B.T./A‑839/L Appeal dismissed.