2001 SCMR 1488 (PLP)

Faqir Muhammad v. Pir Muhammad 1997 SCMR 1811 distinguished. (c) Contract Act (IX of 1872)‑‑‑ ‑‑‑‑S.202‑‑‑Civil Procedure Code (V of 1908), S.115‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Revision‑‑‑Concurrent findings of fact by two Courts below‑‑‑Irrevocable power of attorney‑‑‑Attorney having interest in the property‑‑‑General Power of Attorney was executed in lieu of consideration‑‑‑Sale‑deed was executed by the Attorney without consulting. the principal and the sale‑deed was assailed by the principal in civil suit which was decreed by the Trial Court‑‑‑Appellate Court reversed the judgment of the Trial Court and the suit was dismissed‑‑‑High Court, in exercise of revisional jurisdiction, declined to interfere with the findings of Appellate Court‑‑‑Validity‑‑‑Where the principal had received certain payment and executed the Power of Attorney, such Power of Attorney was irrevocable‑‑‑Supreme Court declined to interfere with the concurrent findings of two immediate Courts below on the pure question of fact as the same did not suffer from any misreading or non‑reading of any material piece of evidence‑‑‑Leave to appeal was refused. Shumal Begum v. Gulzar Begum 1994 SCMR 818 and Faqir Muhammad v. Pir Muhammad 1997. SCMR 1811 distinguished. M. Shamshir Iqbal Chughtai, Advocate Supreme Court for Petitioner. Ch. Attaullah, Advocate Supreme Court for Respondents Nos. l ‑to

6. Date of hearing: 6th November, 2000. . MUNIR A. SHEIKH, J.‑‑‑This petition for Leave to Appeal is directed against the judgment of the Lahore High Court, Multan Bench, Multan dated 20‑3‑2000 through which Civil Revision No.436‑D of 1986 filed by the petitioner has been dismissed.

2. The suit filed by the petitioner challenging the validity of the power of attorney executed by him in favour of Mukhtar Ahmad respondent No. 1 and. also the sale executed by Respondent No.1 in pursuance thereof in favour of respondents Nos. .2 to 6, was decreed through judgment dated 31‑3‑1982 by the trial Court. In appeal filed by the respondents, the findings recorded by the trial Court, on reappraisal of evidence, were reversed by the First Appellate Court through judgment dated 6‑5‑1986 and it was held that irrevocable general power of attorney was given by the petitioner to respondent No.l in lieu of consideration of Rs.20,

000. The petitioner filed Civil Revision No.436‑D of 1986 before the Lahore High Court, Multan Bench, Multan, which has been dismissed through impugned judgment dated 20‑3‑2000, against which leave to appeal has been sought.

3. The respondent in order to discharge onus to prove the power of attorney has not only produced the receipt and its marginal witness but has also examined expert witness who reported that the disputed thumb? impressions on the receipt and the power of attorney tally with his specimen thumb‑impressions obtained by the Court. The evidence of expert witness is corroborated by Mukhtar Ahmad respondent.

4. Learned counsel for the petitioner submits that Faiz Ali D.W.2 is close relative of Mukhtar Ahmad respondent, therefore, his evidence could not be relied upon. Learned counsel relied upon Shumal Begum v. Gulzar Begum 1994 SCMR 818 and Faqir Muhammad v. Pir Muhammad 1997 SCMR 1811.

5. We are afraid, the argument of the learned counsel has no merit as the evidence of a witness cannot be brushed aside only because of his relationship if otherwise it is disinterested and credible. In the first quoted judgment, it was held that in case of gift, it was necessary that the decision should be made by the principal as to in whose favour the same was to be made and the attorney could not exercise power in favour of person of his own choice. The principle laid down in this judgment does not apply to the facts and circumstances of the case in hand as the attorney did not execute any gift without the decision of the principal in this case. The second judgment is on the question that in case the attorney wants to sell the land to any person closely related to him, he shall have to consult the principal. This principle, in our view, would also not be applied where the power of attorney was executed in lieu of consideration with a clear understanding that the land had been sold to the attorney. The sale‑deeds executed by the attorney to the two vendees are for a consideration of Rs.33,000 and as there is no substantial difference between the consideration of the power of attorney that of the sale‑deeds, for, it appears that the petitioner must be in the need of money and had received the payment from the attorney, as such, the power of attorney in the present case was irrevocable having been executed after receipt of Rs.20,000 as consideration, therefore, the judgments referred by the learned counsel are not applicable to the facts and circumstances of the instant case.

6. For the foregoing reasons, the concurrent findings of two immediate Courts below on a pure question of fact have not been shown to have suffered from misreading or non‑reading of any material piece of evidence. This petition, therefore, has no merit, which is dismissed and leave refused. Q.M.H./M.A.K./A‑141/S??????????????????????????????????????????????????????????????????? Petition dismissed