2016 PLP 119 (CLCN)

SALAHUDDIN PANHWAR, J.

Through instant Civil Revision, applicant has assailed the judgment and decree dated 27th August 2010 and 06th September 2010 respectively passed by learned VIth Additional District Judge, Hyderabad whereby dismissing the Civil Appeal No.131/2007 "Re-Mst. Almas Mughal v. Abdul Sattar and others" and in consequence whereof maintaining the judgment and decree of learned VIth Joint Extra Civil Judge, Hyderabad dated 30.7.2007 through which the suit of the applicant/plaintiff, being Suit No.31/2002 was dismissed.

2. Succinctly, but relevant facts are that applicant/plaintiff filed Suit No.31/2002 wherein pleading that she was married with Afzal Advocate son of Haji Sikander Khan on 16.01.2000; Afzal Advocate expired at Hyderabad in a road accident who left the surviving the plaintiff and defendants/respondents as legal heirs. She claimed that she observed Iddat Period at her parent's house and during her Iddat period it came in her knowledge that defendant mala fide made a false divorce deed on 29.3.2002 so as to usurp the rights and claims of plaintiff/applicant. It was also claimed by plaintiff/applicant that deceased Afzal was not at good terms with defendant/respondent No.2 so he had filed a Suit No.09/2002 before Senior Civil Judge, Hyderabad wherein had claimed the plaintiff/applicant as her only legal heir. Having pleaded such facts, she prayed for following relief(s):- a. To declare the Divorce deed dated 29.3.2002 as Annex-F null and avoid (void), and so also cancelled the same; b. To declare that the defendant No.4 attested the Divorce Deed in pre-date or in absence of the deceased Afzal Khan/executed without fullfil lthe requirement of law; c. To restrain the defendants Nos.1 to 3 from not producing the Dvorce Deed dated 29.3.2002 before any office authority or any person etc. d. Cost of the suit also awarded to the plaintiff; e. Any any other relief(s) which this Honourable Court deed (deem) fit and proper under the circumstances of the case be also granted.

3. Respondents/Defendants contested the matter. Respondent/ defendant No.1, as attorney of respondents/defendants Nos.2 and 3 filed written statement wherein pleading that plaintiff/applicant is not widow of deceased Afzal Khan. It was also denied that applicant/plaintiff observed Iddat period. It was claimed that she was residing at her parent's house in life time and after death of deceased. Divorce deed filed by plaintiff/applicant was claimed to be tampered by plaintiff/applicant, however, defendants produced divorce deed as Annexure D-1 while claiming the same to be genuine. Deceased, per claim of defendants/respondents, had divorced and divorce deed was prepared by deceased himself, being an advocate. In additional pleas, it was claimed that no cause of action accrued to plaintiff/applicant and her suit was liable to dismissal.

4. Learned trial court, out of pleadings of parties, framed the following Issues:- (i) Whether Afzal Khan, deceased had not divorced the plaintiff and divorce deed produced by defendant is false and fabricated? (ii) Whether the plaintiff is widow of deceased Afzal Khan? (iii) What should the decree be?

5. In order to prove, the plaintiff/applicant examined herself and produced copy of Talaqnama and copy of list of legal heirs as Ex.27/A and 27/B respectively. She also examined Abdul Rauf at Ex.28 and Muhammad Ayoub at Ex 29 and then side closed.

6. On other hand the defendants/respondents examined Abdul Sattar so also DWs Mubeen Ahmed and Abdul Hameed and then side was closed.

7. On culmination of trial, the learned trial court dismissed the suit and against such judgment applicant/plaintiff filed appeal. The appellate court maintained the judgment and dismissed the appeal vide judgment dated 25.9.2004 so she filed Civil Revision before this Court which was disposed of with direction to trial court to: "refer the signature of late Afzal Khan on admitted and disputed documents to examiner of questioned documents and get such opinion whereafter the matter be reheard and decided."

8. The learned trial court, in compliance of such directions, directed the parties to supply signature of late Afzal Khan and disputed documents for sending the same to handwriting expert for getting such opinion. Photo copies of questions documents i.e Nikahnama, Relinquish deed and agreement to sell were provided by counsel for applicant/plaintiff which the learned trial court sent for expert examination and opinion but handwriting expert returned the same with demand to send good Nos. of authentic routine full signature/initial of late Afzal Khan. Advocate for plaintiff submitted photo copies of requisite documents which were again sent but returned with request to supply original documents which the parties failed.

9. Thereafter, learned trial court, having heard the arguments, and dismissed the suit of applicant/plaintiff. Such judgment and decree of trial court were assailed before appellate court vide Civil Appeal No.131/2007 which was also dismissed by learned VIth Addl. District judge, Hyderabad vide judgment and decree, impugned.

10. Learned counsel for applicant has, inter alia, argued that since requirement of mandatory provision of section 7 of the Muslim Family Laws Ordinance was never satisfied therefore, both the learned lower courts committed illegality in holding the applicant/plaintiff as divorcee; learned Courts below failed to appreciate the evidence produced by applicant hence impugned judgments passed by both Courts are against the settled norms of Civil Administration of Justice. In support of his contentions, learned counsel has relied upon the cases reported as 1995 SCMR 1237, 1970 SCMR 845, 1999 YLR 2436, 1987 SCMR 518 and 1994 SCMR 1720.

11. On the other hand, the learned counsel for the respondents has argued that there are concurrent findings of two courts below and since scope of revisional jurisdiction is limited hence judgment and decree(s) of two courts below are liable to be stamped; marginal witnesses of the divorce deed were examined to prove divorce hence both courts below committed no illegality in responding to the material issue. He, has relied upon the case laws, reported as 2007 SCMR 236, 2008 SCMR 452, 1996 CLC 79, PLD 1995 SC 381, 1998 CLC 900, PLD 2011 SC 296 and PLD 2004 SC 682.

12. At the very outset, I would like to respond to the question of 'revisional scope'. I am quite conscious of the legal position that revisional jurisdiction is not equated to that of appellate jurisdiction because the former is meant only to correct an illegality/irregularity (in result of misreading or non-reading of evidence), question of jurisdiction or excess of jurisdiction is involved while in the later case whole case becomes open. However, regardless of limited scope of jurisdiction it can never be presumed that such jurisdiction is without purpose and object rather the provision of section 115, C.P.C. vests authority to ensure no 'injustice' or 'serious prejudice' with parties because the Court(s) are ultimate custodian of the 'rights of parties'. To examine: i) illegalities/irregularities; ii) excess of jurisdiction; iii) non-exercise of jurisdiction are such question(s) which cannot be properly addressed without going through all the available material hence one would not be justified in demanding a stamp conformity by revisional court merely by saying that there are concurrent findings. At this juncture, it would be conducive to refer the ratio of decidendi in series of decisions by apex Court which has earned the status of stare decises: In the case of Muhammad Idrees and others v. Muhammad Pervaiz and others (2010 SCMR 5), it is held that:- It is settled principle of law that this Court seldom interferes in the concurrent conclusions arrived at by the Courts below while exercising power under Article 185(3) of the construction unless and until the finding is on the face of it against the evidence or so patently improbable or perverse that to accept it could amount to perpetuating a grave miscarriage of justice or if there has been any misapplication of a principle relating to appreciation of evidence, or, finally, if the finding could be demonstrated to be phyusically impossible. This being the practice and the rule of this Court in civil petitions, the burden lies rather heavily on the petitioner to show that the concurrent findings recorded by the High Court are not sustainable on the record and should be interfered with by us. In the case of Noor Muhammad and others v. Mst. Azmat-e-Bibi (2012 SCMR 1373), it is held that:- Jurisdiction of High Court under section 115, C.P.C. was narrower and concurrent findings of fact could not be disturbed in revisional jurisdiction unless courts below while recording findings of fact had either, misread the evidence or had ignored any material piece of evidence or those were perverse and reflected some jurisdictional error. In the case of Administrator, Thal Development through EACO Bhakkar and others v. Ali Muhammad (2012 SCMR 730), it is held as under:- Concurrent findings of facts of courts below, if based on proper appreciation of evidence, could not be interfered in such jurisdiction because such jurisdiction was meant for correction of jurisdiction defect/error or material illegalities/ irregularities resulting in miscarriage of justice to a party. In the case of Sultan Muhammad and another v. Muhammad Qasim and others (2010 SCMR 1630) it is held that: Indeed, the concurrent findings of three courts below on question of fact, if not based on misreading or non-reading of evidence and not suffering from any illegality or material irregularity effecting the merits of the case, are not open to question at the revisional stage, but where on record the position is contrary to it, then the revisional court in exercise of its jurisdiction under section 115, C.P.C. or this Court, in, exercise of jurisdiction under Article 185(3), of the Constitution, are not denuded of their respective powers to interfere and upset such findings.

13. Now, I would like to revert to the merits of the case. The perusal of the judgment(s) of both the courts below show that while responding to the Issues Nos.1 and 2 the burden was presumed to be upon the plaintiff/Applicant. However, the position was that beneficiary of the document (divorce deed) was not the plaintiff/applicant but it were the defendants/respondents, therefore, the burden should not have been believed to be upon the plaintiff/applicant unless successfully shifted by the beneficiary i.e defendants/respondents. I am guided in such view with the case law, reported as 2010 SCMR 1351 wherein honourable Supreme Court held that" "it is also settled principle of law that appellant is a beneficiary of the aforesaid document therefore it is the duty and obligation of the appellant to prove the documents as pointed out by the learned counsel in accordance with the provisions of Qanun-e-Shahadat Order 1984. See (1979 SCMR 549) Akhter Ali v. University of the Punjab), 1992 SCMR 2439 (Haji Muhammad Khan etc. v. Islamic Republic of Pakistan). It is well settled principle of law that initial burden to prove execution of document is on party which is relying on documents. Once this onus is discharged burden to prove factum of fraud or undue influence or genuineness of documents shifts to party which alleges fraud. In the instant case, the plaintiff/applicant was neither the executant of the document (divorce deed) nor she was the beneficiary of the same and even the validity of the document (divorce deed) was claimed by the defendants/respondents, therefore, in such an eventuality both the learned lower courts were not legally correct to ask the plaintiff/applicant to prove the document.

14. Let's proceed further, the core issue in the instant matter was to prove a document which was said to have been executed by a dead person in presence of witnesses on a stamp paper, delivery thereof with Union Council so also to the plaintiff/applicant. Since alleged executant of the document was dead, therefore, factum of divorce deed could have been produced by establishing all the facts i.e. starting from purchasing stamp and delivery of divorce deed.

15. Let's see what evidence the defendants/respondents produced to prove the divorce deed. While examining the evidence it should have always been in mind that deceased in the instant case was an 'Advocate of High Court'. Worth to add here that pronouncement of talak even not required necessarily to be in writing or to be witnessed if properly pronounced by one and communicated to wife but such divorce could only be.proved or disproved by the one, pronouncing the same. The defendants/respondents themselves, admittedly, were neither witnesses of the divorce deed nor claimed so. The attesting witnesses of divorce deed namely Mubeen Ahmed and Abdul Hamid were examined. Let's have a comparative look at examination of these witnesses. DW Mubeen Ahmed I am witness No.1 in Exh.32/B. I see Exh.32/B it bears my signature, Signature of late Afzal Khan and that of witness No.02 Abdul Hamid. The document was signed by deceased Afzal Khan in my presence and in the presence of another witness Abdul Hamid. The document was got attested in our presence. Then the photo copy of the original deed was got. Thereafter I and deceased Afzal Khan went to the City Municipality. Then Afzal Khan asked me to deliver the original deed to Mst. Almas. The deceased Afzal Khan after sending me to the plaintiff went to his Ice factory. DW Abdul Hamid I see Exh.32/B divorce deed. I am witness No.02. It also bears the signature of late Afzal Khan, and witness Mubeen Ahmed. The divorce deed was signed by Afzal Khan in my presence and it was got attested in my presence. This document was first signed by Afzal Khan then by witness No.01 namely Mubeen and thereafter I signed and thereafter the document was attested. Deceased Afzal Khan had divorced his wife Mst. Almas in his life time. Both witnesses have claimed execution of documents in their presence; attestation thereof but in their examination-in-chief none of the witnesses have stated or claimed that 'deceased pronounced divorce before them' and even they do not claim to have heard the deceased 'pronouncing three talak' within their own hearing. Since under the Muslim Law the term 'pronouncement' is used and putting signature because the Law even recognizes an 'oral talak' subject to pronouncement of Talak, as required by the law and effectiveness of an Oral Talak cannot be denied even, if proved. In the instant matter both the witnesses do not claim to have heard the 'pronouncement of Talak' by deceased Afzal Khan. In absence of pronouncement there can be no valid and legal divorce, if the one is capable of making pronouncement.

16. Be as it may, let's proceed further. One cannot deny that matter of 'divorce' is always a personal matter which one would always like to share with his close blood relation or to friends but in the instant matter it is quite surprising that both the witnesses are neither have blood-relation with deceased nor have claimed to be friend of the deceased rather DW Mubeen Ahmed admitted in his cross -examination that "I am a mechanic and I prepared the machinery in the Ice factory. I would prepare the machinery in the Ice Factory of deceased Afzal Khan'. Calling a servant to witness divorce deed who, otherwise, was supposed to be at his duties at Ice Factory, is against human behaviour particularly when per DW Abdul Hamid the document (divorce deed) was prepared and executed at court where the deceased (a senior Advocate of High Court) should be believed to be having abundance of colleagues, friends, associates and even his own staff to act as witness of divorce deed.

17. Further what the witnesses say about whole chain of circumstances constituting a claimed fact of 'execution of divorce deed'. Both these witnesses specifically admitted that they did not know the date and year of execution of divorce deed although they were to prove all pieces of facts. The DW Mubeen Ahmed stated that "I do not remember the date when the deceased Afzal Khan executed the divorce deed" so also the DW Abdul Hameed stated that "I do not remember the date month and year of execution of divorce deed." The DW Mubeen Ahmed stated in his cross-examination that: "The stamp paper was already with the deceased Afzal Khan and was not purchased in my presence. I am Matriculate. The divorce deed was already signed by deceased-Afzal Khan". This witness did not claim in his examination-in-chief that deceased pronounced Talak within his hearing. If neither he heard pronouncement of Talak nor the executant (deceased Afzal) signed in his (DW Muhammad Mubeen) then how he can be believed as one of the witnesses of 'pronouncement of talak'. The other witness namely Abdul Hameed stated in his cross-examination that: "The divorce deed was reduced in writing in my presence. I do not know who was the writer of divorce deed. This witness claims writing of document in his presence while other witness Muhammad Mubeen specifically stated that not only the document was already purchased but was also written and signed by deceased Afzal. Thus both the witnesses failed in supporting each other on material which they uttered in their examination but this was not appreciated by both the Courts below.

18. There is another material and interesting fact which was entirely ignored by both the Court(s) below while attending the Issues Nos.1 and

2. The defendant/respondent Abdul Sattar Khan stated in his examination that: "Deceased Afzal Khan had divorced his wife Almas about two months prior to his death. I see divorce deed dated 19.3.2002. I produce the same as Exh.32/B. I obtained the copy of divorce deed from Nazim UC-06, Hyderabad City". The attesting witnesses of the divorce deed categorically stated and claimed that whole process i.e from purchasing till delivery of divorce deed, was done on one and same date, as is evident from cross-examination of DW Abdul Hameed that: It took about 30 to 45 minutes in completing the formalities from purchasing and reducing into writing and attesting". The perusal of the divorce deed, however, shows that it was purported to be executed on 29.3.2002 (as is mentioned in deed) but divorce deed shows that it was attested by one Abdul Rehman Jamali Advocate (Notary Public, Hyderabad Sindh) on 04.4.2002 i.e after five days of purchase of stamp paper. This material fact was always sufficient to doubt the claim of the witnesses regarding their witnesses purchase of stamp paper; reducing of divorce deed into writing on same date; attesting thereof; submission of a copy in Municipality and so on but this was never appreciated by both the Court(s) below although it was floating on the surface. Thus, the defendants/respondents never successfully established contents of a divorce deed (a photo copy) the contents whereof were required to be proved as per Articles 79 and 74(5) of Qanun-e-Shahadat Order, 1984.

19. It is settled principle of law that mere admissibility of a document in evidence, by itself, would not prove the contents thereof which, otherwise, are to be proved as per Article 79 of the Qanun-e-Shahadat Order, 1984 (2013 SCMR 1113). The defendants/respondents had claimed that deceased had executed the divorce deed and a copy thereof was submitted with Municipality Office and even the defendant/respondent Abdul Sattar Khan claimed that he obtained the copy of the divorce deed from UC No.6, Hyderabad which means that such copy was available in record of UC No.6, Hyderabad hence to prove the same it was incumbent upon such fact by calling any official from such office as required under Article 74 of Qanun-e-Shahadat Order, 1984 which in its sub-article (5) says that: "oral accounts of the contents of a document given by some person who has himself seen it." The official of the UC-6 Hyderabad, being a recipient of the alleged divorce deed from deceased Afzal on the day of its execution could have been the best witnesses to establish exact date of receipt of document which was material issue but the defendants/respondents by not examining such official have allowed a presumption adverse against their claim within meaning of Article 129(g) of the Qanun-e-Shahadat Order, 1984.

20. Since from above discussion, it becomes quite clear that the defendants/respondents, the beneficiary of the document (divorce deed) never successfully discharged their burden hence lacking, if any, on part of the plaintiff/applicant would not prejudice her cause and claim when she had denied the document. However, it is worth to add here that strain relations between spouse(s) are not sufficient to draw an ultimate conclusion that it should result in divorce, as was wrongly insisted by the learned appellate court while endorsing the judgment of lower court. An effort of intervention by any of the relatives of the bride for settlement of any issue between spouses should not always be taken as a circumstance to stamp a divorce deed which is, otherwise, required to be proved as per law.

21. In view of above discussion, I am of clear view that the conclusions of both the courts below in respect of the Issues Nos.1 and 2 are nothing but a pure case of mis-reading rather non-reading of the available material couple with wrong presumption of burden of proof upon the plaintiff/applicant hence the same cannot be left to continue so. Accordingly, the judgment(s) and decee(s) of both the courts below are hereby set-aside and in consequence thereof the suit of the plaintiff/applicant is hereby decreed.

22. Above are the reasons of my short order dated 27.11.2014 whereby instant revision application was allowed and the judgments passed by both lower Courts were set aside and suit filed by applicant was decreed. ZC/A-166/Sindh Petition allowe