P L D 1976 S C 767 (PLP)

MUHAMMAD GUL, J.-This appeal by special leave from the judgment of the High Court dated the 17th June 1970 in P. F. A. No. 22 of 1963 raises a question concerning the paternity of Nawab Khan respondent. The following pedigree will help in understanding the facts bearing on the case: -- S. 50-Opinion as to relationship-Person claiming to be son of a particular person not claiming succession to estate of such person after his death for a long term of years and even not appearing as witness in declaratory suit filed to claim paternity of such deceased person but appointing his son as special attorney for making statement in Court on his behalf-Such conduct, held, highly significant conduct under section 50, Evidence Act, 1872 and militated against claim to alleged paternity.-[Muhamanadan Law]. Maulvi Sirajul Haq, Advocate Supreme Court insturcted by Ghulam Vujtaba Advocate-on-Record for Appellants. Ghazanfar Ali Gondal, Advocate Supreme Court instructed by Masud Ahhtar, Advocat -on-Record for Respondent. Dates of hearing : 4th, 7th and 8th June 1976. JUDGMENT MUHAMMAD GUL, J.-This appeal by special leave from tue judgment of the High Court dated the 17th June 1970 in P. F. A. No. 22 of 1963 raises a question concerning the paternity of Nawab Khan respondent. The -following pedigree will help in understanding the facts bearing on the case:- Budhe Khan (D. 1910) (Mu, Fazal Bibi-Pir Mohammed-hlst. Taleh Bibi (predeceased his father) Disputed Nawab Khan (Defdt-Resp.) Hayat Mohammad Sardar Khan Mohammad Khan (D. 1942) (D. 1944) (D. issueless in 192.') (Shah Nawaz M. Nawaa (pltff-appt) (pltff-appt) Nawab Khan claims to be posthumous son of Pir Muhammad born of Ust. Fazal Bibi about two or three months after death of his purported father. This status is disputed by the two appellants and with that is linked Nawab Khan's right of succession to Budhe Khan as one of his grandsons, Pir Muhammad having predeceased his father by about 10 years or so. Budhe Khan owned 700 acres of land in mauza Garhi Gulla and 1739 kana(s 1 marla in the adjoining village Ramkey alias Lundpur in Tehsil Wazira bad. District Gujaranwala. Both these villages are in the same Patwar Circle. Budhe Khan died in 1910 and by mutation No. 18 (Exh. P. 1) attested on 29-9-1910, his entire estate devolved upon his three grandsons Hayat Muhammad, Sardar Khan and Muhammad Khan in equal share as sons of his predeceased son Pir Muhammad. Muhammad Khan also died apparently unmarried in 1920 and his one-third share in the estate of his grand father was mutated equally in favour of his two brothers, Hayat Muhammad and Sardar Khan. Thus the respondent was twice excluded from inheritance firstly to Budhe Khan, secondly to Muhammad Khan and he took no steps -to assert his right of succession on both these occasions. Nawab Khan claims to be posthumous son of Pir Muhammad born of Mst. Fazal Bibi about two or three months after death of his purported father. This status is disputed by the two appellants and with that is linked Nawab Khan's right of succession to Budhe Khan as one of his grandsons, Pir Muhammad having predeceased his father by about 10 years or so. Budhe Khan owned 700 acres of land in mauza Garhi Gulla and 1739 kanals 1 marla in the adjoining village Ramkey alias Lundpur in Tehsil Wazira bad, District Gujaranwala. Both these villages are in the same Patwar Circle. Budhe Khan died in 1910 and by mutation No. 18 (Exh. P. 1) attested on 29-9-1910, his entire estate devolved upon his three grandsons Hayat Muhammad, Sardar Khan and Muhammad Khan in equal share as sons of his predeceased son Pir Muhammad. Muhammad Khan also died apparently unmarried in 1920 and his one-third share in the estate of his grand father was mutated equally in favour of his two brothers, Hayat Muhammad and Sardar Khan. Thus the respondent was twice excluded from inheritance firstly to Budhe Khan, secondly to Muhammad Khan and he took no steps to assert his right of succession on both these occasions. On 29-2-1944, however, a report purporting to be by Sardar Khan was entered a few days before his death by the village Patwari at serial No. 188 in Roznamcha Waqlati stating that the name of Nawab Khan be inserted in the revenue record as also among the surviving heirs of Budhe Khan as his grandson, On the basis of this report two mutations, viz. No. 71/73 relating to land in mauza Garhi Gulla and No. 59 relating to land in mauza Ramkey alias Lundpur were entered on 3-11-1944 and attested on 21-2-1945. Copy of the letter is Exh. P.

3. By these mutations Nawab Khan was described as the third surviving grandson of Budhe Khan and therefore entitled to 1/3rd share in his estate. But Sardar Khan died in the meantime and the two mutations were attested after his death. There is nothing to show whether the two appellants were present or any other person represented them before the Mutation Officer. Copy of the mutation No. 59 Exh. P. 3 does not record the presence of any person. Aggrieved by mutations Nos. 71/73 and 59, an appeal was filed by one Sultan Ali on behalf of the two appellants who were then minors, before the Collector. The appeal as respects mutation No. 71/73 relating to village Garhi Gulla was accepted on 18-6-46 and the mutation was cancelled. An appeal filed by Nawab Khan against the order of the Collector was dis missed by the Commissioner on 17-5-1948. There is nothing to show that Nawab Khan pursued the matter any further and as respect the land in village Garhi Gulla the matter rested at that. The appellants basing themselves on the decision in mutation No. 71/73 agitated for the cancellation of mutation No. 59 (Exh. P. 3) relating to the land in village Ramkey .as well. A mutation was accordingly entered at No. 64, which however was rejected on 7-4-1952 because nobody attended the mutation proceedings on that date and even on a number of previous occasions. Later however, by means of Fard Badar Exh. P. 6 the revenue authorities as follow up of the order in mutation No. 71/73 deleted the name of Nawab Khan from the Jamabandi of 1955-56 relating to the village Ramkey alias Lundpur. Nawab Khan went in appeal to the Collector against the expunction of his name from the Jamabandi and vide order dated 3-2-1959' (Exh. P. 5) the Collector accepted the appeal and set aside the Fard Badar. However, he directed the Tehsildar at the same time to review mutation No. 64 after notice to the parties concerned. Pursuant to the Collector's direction the Tehsildar proceeded to review mutation No. 64 but declined to interfere. Against this order the appellants filed appeal before the Collector who vide order dated 21-6-1961 accepted the same and mutation No. 59 in favour of Nawab Khan was cancelled. A revision by the respon dent Nawab Khan, taken against the Collector's order was accepted by the Commissioner vide order dated 18-10-1961 on the ground that no appeal lay to the Collector against an order passed on review by the Assistant Collector. The result was that the mutation No. 59 relating to the village Ramkey alias Lundpur allowing one-third share in the estate of Budhe Khan to Nawab Khan respondent on the premise that he was former's grandson, was restored. Aggrieved by the Commissioner's order dated 18-10-1961 the two appellants instituted a suit on 20-11-1961 for a declaration that Nawab Khan respondent was not the grandson and as such an heir to the estate of Budhe Khan in village Ramkey alias Lundpur. Relief for perpetual injunction was also claimed against the respondent. The respondent contested the suit on the ground that he was son of Pir Mohammad and a number of other pleas. On the pleadings of the parties a number of issues including; the following which is material to this appeal, were framed: (4) Is the defendant (respondent herein) a grandson of Budhe Khan ? In support of this issue the respondent examined six witnesses who stated that Pir Mohammad married Mst. Fazal Bibi sometimes before his death. After Pir Mohammad's death, she went to village Kathur in Tehsil T. T. Singh, District Lyallpur and took up residence in the house of Piran Ditta alias Fir Bakhsh to whom Mst. Begum Bibi, a cousin of Fazal Bibi was already married. Two or three months after her arrival in the house of Piranditta, Mst. Fazal Bibi gave birth to Nawab respondent. Later she also married Piranditta, because by his first wife, he had no male issue. However, the oral evidence is all hearsay and it remains to be seen how much of this evidence is admissible and in conjunction with other circumst ances appearing in the case satisfactorily proves the above issue. The respondent himself surprisingly enough did not appear in support of his case. Instead his son Mohammad Aslam appeared as his special attorney. In rebuttal the appellant examined five witnesses to show that though Nawab Khan was born of Mst. Fazal Bibi but he was not conceived from the loin of Pir Muhammad nor she was even married to Pir Muhammad. The trial Court accepted the oral evidence produced on behalf of the respondent and declared him to be grandson of Budhe Khan. In reaching that conclusion, it was greatly influenced by two mutations Nos. 146 (Exh. D-2) and 156 (Exh. D-3). By the former Piran Ditta alias Pir Bakhsh gifted land measuring 190 kanals 12 marals in Chak No. 307/JB in favour of respondent describing him as his "Pichhlag son". The other mutation Exh. D-3 merely showed that on the death of Piran Ditta alias Fir Bakhsh,, his remainder estate develoved on his two sons Muhammad Hayat and Mian Khan born of the womb of Mst. Fazal Bibi. On this evidence, the trial Court found the issue proved and therefore dismissed the appellant's suit. On appeal by the appellant herein, a D. B. of the High Court upheld the finding of the trial Court describing the evidence produced by the appellants as merely "negative" in character and therefore of no significance, whatever. It would be advantageous to clarify at this stage an obvious factual' error which has crept in the judgments of the trial Court and the High Court. In paragraph 6 of the judgment of the trial Court there appears the following recital;- "The defendant claims to have been born 3 or 4 months after his mother, namely Mst. Fazal Bibi's remarriage to Fir Bakhsh alias Piran Ditta." This was plainly a wrong statement of fact. What the respondent had averred in his written statement was that he was born three or four months after the death of his father (Pit Muhammad). The same error was repeated in paragraph 10 of the judgment of the High Court wherein it was stated: "In fact Nawab Khan was born after the death of Fir Mohammad on whose death she migrated to village Kathore in Tebsil Toba Tek Singh and contracted a marriage with Pir Bakhsh alias Piran Ditta Cheema. The defendant (respondent herein) was born after about three months, after Mst. Fazal Bibi's marriage." Because of the above erroneous recitals in the judgments of the trial Court and the High Court, leave was granted because having regard to the provisions of section 112, Evidence Act, 1872, Nawab Khan respondent being born during the wedlock between his mother and Piran Ditta alias Pir Bakhsh must be presumed to be his son and therefore the judgments of the High Court and the trial Court stood vitiated. Maulvi Sirajul Haq, learned Advocate for the appellants however frankly conceded that the above recital in the judgments of the trial Court and High Court proceeded on an erroneous assumption of fact and therefore he would not support the appeal on that ground. He however, in his closely reasoned argument submitted that the trial Court and the High Court took, what was according to him manifestly erroneous view of the evidence both oral and documentary and further that both Courts were wrong to treat mutations Exh. D-2 and Exh. D-3 as furnishing strong corroborative evidence of the respondent's paternity. These mutations, according to learned .counsel were not relevent to the case. He was also critical of the Courts for their failure to raise a presumption of law under section 114 of the Evidence Act against Nawab Khan respondent in that be kept away from the witness-box and therefore did not offer himself for cross-examination on matters which were peculiarly within his knowledge. Learned counsel for the respondent Mr. Ghazanfar Ali Gondal on the other hand urged that the leave was granted on the specific point namely the failure of the Courts to consider the effect of section 112 of the Evidence Act on the case, and that point not being "available" to the appellants, they cannot be permitted to press the appeal on any other ground. It is, in my opinion, not right to suggest that leave was granted only on the limited point mentioned above. A perusal of the petition for leave to appeal would show at once that the appellant's grievance was against the whole gamut of decision by the High Court and the reasons upon which it was based. Therefore, it would be wrong to read the leave granting order as refusing the leave to appeal except on the limited point concerning the effect of section

112. Evidence Act on the case. It was pointed out by this Court in Hamid Ullah v. Khurshid Ahmad Khan (P L D 1958 S C (Pak.) 516) that leave is granted by this Court ex debito justitice and is not hedged by any consideration of technical nature. It was also recently observed in Noora v. The State (P L D 1973 S C 469) that once leave is granted by this Court there is no reason why an appeal by special leave of this Court, should be treated differently to an appeal as of right. Both the appeals stand on the same footing and should be determined on the same principles of justice. In my humble view in the absence of any limiting words in the leave granting order the entire case is reopened for the examina tion of this Court and a fortiori, it would be perfectly legitimate to review the evidence. If the intention had been to refuse leave on other points arising in the case, then leave granting order should have expressly stated so and should not have allowed the matter to rest in mere implication. I am perfectly conscious that as ultimate court in the land, the Supreme Court, as a rule, should give due weight and consideration to the opinion of the Courts below and in particular to the opinion of the Court of first instance which bad the advantage of hearing the parties' witnesses, and watching their demeanour. Normally, the Supreme Court does not interfere with the findings of fact reached by the primary Courts or a High Court when it is satisfied that the findings of the Courts below are on the who reasonable and are not arrived at by disregarding any provision of law of any accepted principle concerning the appreciation of evidence. This would be notwithstanding that a different view might also be possible. In the instant case, however, it is difficult to avoid the impression that the conclusions reached by the High Court and the trial Court suffer from serious errors of law and fact, which unless set right are likely to result in miscarriage of justice. I have already referred to misreading of the averment in respondent's written statement as to the timing of his birth via-a-viz his ,mother's marriage with Piran Ditta alias Pir Bakhsh in village Kathore. This in my opinion has seriously affected the proper appreciation of oral ..evidence produced by the parties in that it proceeded on the erroneous assumption that Mst. Fazal Bibi gave birth to the respondent within two or three months of her marriage with Piran Ditta alias Pir Bakhsh. There, fore, in the two judgments the whole endeavour has been to show that FPtran Datta alias Pir Bakhsh was not the father of Nawab Khan respondent. It was because of this misconception that the trial Court and the High Court also attached undue importance to the mutations Exhs. D-2 and D-3 ,to demonstrate that Nawab Khan was throughout treated as Pichhlag son of Piran Ditta and not his natural son though born and brought up under his roof. This in my opinion furnishes ample ground for a fresh appraisal of the evidence produced during the trial of the suit. It is common ground that the respondent was born of the womb of Mst. Fazal Bibi and therefore the limited question to determine is, whether Pir Mohammad son of Budhe Khan was responsible to the respondent's conception during wedlock with the latter's mother. Various systems of -law have their own rules to determine the paternity of a person. Under Muslim Law, paternity of a child is attributed to the person who is actually responsible for its conception after his marriage with the child's mother. Under the Muslim Law, the stress therefore is on the "time of conception" of the child and it is essential condition that it should be conceived by the purported father after his marriage with the child's mother. This is not so under the English Law. Under that law a child shall be deemed to be the lawful issue of the person who marries the child's mother before its birth regardless of the fact as to whether or not he is actually responsible for the Conception of the child and whether the conception occurred before or after the marriage. Therefore, under that system all that is necessary is that child must have been born after the man's marriage with the child's mother, however, short the time between the marriage and child's birth may be. Section 112, Evidence Act, 1872, virtually gives effect to that principle of English Law. There is yet another system under which a person is deemed to be father of a child who marries its mother even after its birth. This system does not take any notice of the fact as to who was actually responsible for the conception of the child nor the time of its birth. Paternity under this system may be the result of artificial relationship created by law. In the instant case, the paternity of Nawab Khan is to be determined under Muslim Law. Recently it was observed by this Court in Hamida Begum v. Murad Begum (P L D 1975 S C 624) that as in all systems of law, and so also under Muslim Law, the presumption of paternity from marriage follows the bed, that is to say the paternity of a child born in lawful wedlock is presumed to be the husband of its mother, if certain conditions are satisfied. Therefore ordinarily, proof of marriage between the parents of a child is very cogent evidence t establish his paternity. It may be that conditions attached to legitimacy are more strict under Muslim Law than under other systems but the muslin jurist-consults as also the Courts have generally been very reluctant to stigmatize a child as illegitimate and therefore as far as possible every presumption is made in favour of its legitimacy. Courts therefore, have been reluctant to declare a child bastard and have generally refused to admit illegitimacy when legitimacy can be inferred from the surrounding circumstances. In the instant case, unfortunately, there is no direct evidence of marriage between the respondent's mother Mst. Fazal Hibi and of Pir Muhammad when Nawab Khan was conceived by her. No entry from the marriage register or birth register has been produced. However, no adverse presumption can possibly be drawn against the respondent on that account. He was born about the year 1900 and it is too much to assume marriage or birth and death entries were then made with the same care and regularity as today. So the matter rests in oral evidence only. But the oral evidence is either vague or biased. It does not disclose the place where Mst. Fazal Bibi was given in the marriage and by whom. These are no doubt remote facts and therefore want of direct evidence perfectly understandable. In such circumstance, Muslim Law presumes in favour of marriage, when there is evidence to show that a man and a woman lived together "for a long time" as man and wife. In this case however, there is complete want of evidence that Fazal Bibi and Pir Mohammad lived together as man and wife for any length of time or were treated as such by the members of the brotherhood. Pir Mohammad having died two or three months before the birth of Nawab Khan there could possibly be no evidence as to his conduct towards Nawab Khan so as to furnish a basis for any inference in favour of his alleged paternity. There is no evidence of acknowledgment either. On the other hand there are a number of cogent circumstance, which in my opinion clearly militate against the purported paternity of the respon dent. The first concerns the alleged marriage between the respondent' mother and Pir Mohammad. If it were a fact that Mst. Fazal Bibi was in lawful wedlock of Pir Mohammad or had been living and cohabiting with him as his wife, then it is not easily understandable why she should leave her matrimonial home immediately on the death of Pir Mohammad more so, when she carried a baby from him in her womb. Assuming (although there is no evidence to that effect) that there was no love lost between her and her step-sons and their mother, even then it would have more consistent with the normal human conduct in that situation that she should return to her parents' home in Kalra Diwan in Disst. Gujrat and not gone over to live in the house of Piran Ditta alias Pir Bakhsh with whom she had no relation other than this that her cousin sister was his first wife. Then it is not seriously controverted, that about the time when Budhe Khan died in 1910. the respondent was about 10 years of age and when Mohammad Khan died in 1920, the respondent was about 20 years of age. No attempt, whatever, was made by him or on his behalf to assert his right of succession to Budhe Khan or to Mohammad Khan, which should have been normal conduct if he were a grandson of Budhe Khan. The fact that from 1910 until 1944, when the dubious entry was made in the Patwari's daily diary, the respondent did not assert his right as son of Pir Mohammad speaks volumes against purported paternity. These facts are highly relevant under sections 11 and 13 of the Evidence Act. The two mutations Exhs. D-2 and D-3 relied upon by the trial Court as also the High Court as presumptive proof of the paternity of respondent Nawab Khan, in my humble view, are hardly of any significance. Mutation Exh. D-2 was entered on the basis of an oral gift of land 190 kanals 9 mauls made on 17-1-1920 in favour of Nawab Khan son of Pir Bakhsh Jat Chatha, described as the donor's "pichhlag" (step-son) born of his second wife Mst. Fazal Bibi. It was attested on 17-1-1932 in the presence of Hasan Muhammad one of donor's sons who assented to the gift. It is difficult to imagine how this mutation could be relied upon as presumptive proof of H, the respondent's paternity or his mother's marriage with Pir Muhammad. All that this mutation shows is that donor treated donee as his pichhlag son and therefore made gift in his favour. The oral gift by the respondent' step-father is not relevant as evidence of conduct contemplated by section 50 of the Evidence Act, 1872. The conduct to be relevant must be of some member belonging to the family of the respondent's purported father. There is no evidence whatsoever to indicate that Piran Ditta himself was on visiting terms to the family of Budhe Khan in village Garhi. Gulla and had special means of knowledge on the subject. Similarly, mutation Exh. D-3 regarding the devolution of estate of Piran Ditta upon his two sons, if at all, of any significance in the instant case is that the respondent was not a natural son of Piran Ditta and therefore was excluded from inheritance to him. It does not offer a presumptive proof of the respondent's paternity. As against this, both the trial Court and the High Court failed to attach due weight to the respondent's failure to press his claim to his share in the inheritance to Budhe Khan in 1910 and again his claim to inheritance to Muhammad Khan in 1920. It is well established that distribution and devolution of family property is a very valuable evidence of family conduct to prove the relationship of one person to the other under section 50 of the Evidence Act. And such expression of opinion by conduct can be a strong piece of evidence against the person claiming to be a lenial descendant of a deceased person. As to the oral evidence examined by the respondent in proof of his paternity, much of it is hearsay which is not covered either by subsection (5) of section 32 or section 50 of the Evidence Act. These reads;- "Section 32.-Statements, written or verbal, or relevant facts made by a person who is dead, or who cannot be found,

are themselves relevant facts in the following cases:- . (5) When the statement relates to the existence of any relationship by blood, marriage or adoption between persons as to whose relationship by blood, marriage or adoption the person making the statement had special means of knowledge, and when the statement was made before the question in dispute was raised. Section 50.

When the Court has to form an opinion as to the relation ship 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 on the subject, is a relevant fact: Provided that such opinion shall not be sufficient to prove a marriage in proceedings under the Divorce Act, or in prosecutions under section 494, 495, 497 or 498 of the Pakistan Penal Code." Subsection (5) of section 32 is, widely worded and makes relevant statements by all persons having special means of knowing the relationship between two persons. Therefore, these statements need not be confined to persons connected by blood with the person whose pedigree is in question. However, it is essential for the admissibility of the statement that it should have been made "before the question in dispute was raised" that is to say it must be ante litem motam. The object is to avoid biased statements and this is highly g probable if the dispute or controversy is in progress even though it may not have reached the stage of legal proceedings. Therefore, the statement should mot merely be before the commencement of the legal proceedings but before even the existence of any actual controversy concerning the subject-matte' of the statement. From the statement of the case in the beginning of this[ judgment, it is clear that the controversy between the parties started with the entry No. 188 in the daily diary of the Patwari in 1944. The oral statements of all the witnesses were made during litigation between the parties and do not refer to any prior declaration made by any of them ante litem motam. Therefore, these oral statement are not covered by section 32 (5 of the Evidence Act and are hit by the rule against the hearsay evidence. Under section 50 on the other hand, what is made admissible is "the opinion expressed by conduct" as to the existence of a particular relationship and not merely a statement as to that relationship. In other words according to section 50 when the Court has to form an opinion as to the relationship of one person to another, it is the opinion expressed "by conduct" as to the existence of that relationship of any person whether member of family or otherwise who has special means of knowledge on the subject, is a relevant fact. The intention underlying the section is clarified by two illustrations to section 50 according to which the opinion of friends and members of the family who have special means of knowledge is relevant because it is based on the conduct and treatment of the persons concerned. Generally speaking an opinion cannot be a substitute for evidence of facts in issue and is inadmissible under the Evidence Act as hearsay. Section 50 however, is one of the exceptions to the general rule against hearsay. It is therefore, essential that in order to lay the foundation for the admission of evidence under this section its ingredients must be brought out positively. As observed in Ghulam Muhammad v. Allah Yar (P L D 1965 Lab. 482) mere rumour or gossip that A is related to B, unaccompanied by conduct on their part and on the part of their friends and relations is a mere hearsay and therefore inadmissible to prove the relationship. Whether the statement by a person has any basis which could give it the value of admissibility, the witness must first disclose his source of information about relationship sought to be proved: Where therefore, the witness gives no evidence of the conduct on which his information about the relationship is based, the opinion of the witness about the relationship would be irrelevant and inadmissible in evidence. In the instant case, the oral statements of the seven witnesses including that of the special attorney of the respondent, in my opinion, fall far short of satisfying the requirement of the statute explained above. Of them only Mahmood Khan U. W. 1 aged 62, and his son Ahmad Khan DW-2 aged 45 belong to village Ghari Gulls where Budhe Khan was resident. The former also claims that he is related to Budhe Khan as the witness's grandfather, was younger brother of Budhe Khan. Therefore, by virtue of this relationship it may be stated that both these witnesses had special means of knowledge to testify the relationship. Mahmood Khan however, admits in his cross-examination that he alongwith certain others was accused for the murder of the common servant of the appellants' respective fathers Sardar Khan and Hayat Muhammad. The witness further admits that he was, convicted in that case and therefore his relations with the appellants' family remained strained on that account. There were also security proceedings between them for keeping the peace. Mahmood Khan also admitted that the alleged nikah between Mst. Fazal Bibi and Pir Muhammad was performed much before he was born, and he came to know about the nikah from his, father who also told him that Nawab Khan respondent was a son of Pir Muhammad who was born after his death in District Lyallpur. As to what was the occasion for imparting this information to Mahmood Khan, remains unexplained. He himself had not seen Pir Muhammad who had died about the year 1900. Therefore, he cannot be a witness to the conduct of Pir Muhammad towards the respondent. Ahmad Khan's testimony who is aged only 45, stands on a much lower footing. Because of the enmity of both these witnesses with the appellants' family, which the trial Court and the learned Judges in the High Court entirely overlooked, it is not possible to take them at their words. It is also important to observe that their evidence does not go so far as to say that Mst. Fazal Bibi and Pir Muhammad lived and were treated by the members of the family as man and wife. There is no credible evidence either that after his birth, the respondent even visited Ramkey or Garhi Gulla as member of the family of his purported repositor Budhe Khan. Ghulam Rasul son of Bahawal Bakhsh (DW-3) belongs to village Chakrian in District Gujrat. He claims that his sister was married to Hayat Muhammad father of Shah Nawaz appellant but admits that Hayat Muhammad had another wife and Shah Nawaz was born of her. In his cross-examination this witness further admits that his sister survived Hayat Muhammad but was excluded from any share in the inheritance to her deceased husband and after his death returned to her parents, home and maintained by her parents until her death 8 or 9 years after the demise of her husband. Ghulam Rasul son of Maula Dad (D W-4) belongs to village Kalra Dewan where the parents of Mst. Fazal Bibi were resident. He does not claim any relationship with the family of the deceased and makes only a bald statement that Mst. Fazal Bibi was married to Pir Muhammad before he was born. He had not seen Pir Muhammad nor did he know whether Fazal Bibi and Pir Muhammad lived as man and wife. Rehmat Khan (DW-5) also belongs to village Kalra Dewan. He is aged 85 years and claims that Mst. Fazal Bibi belongs to his brotherhood and therefore knew that she was married to Pir Muhammad's posthumous son. In his cross-examination however, he did not know the name of Mst. Fazal Bibi's second husband nor did he know when she died. This witness does not at all inspire confidence. Muhammad Hayat (DW-6) is Lambardar of village Kathur where Mst. Faza1 Bibi contracted marriage with Piran Ditta alias Pir Bakhsh when the witness was aged about

18. There is nothing to show that he knew Mst. Fazal Bibi before that. Therefore, his evidence is hardly of any value. The last witness examined is the respondent's son Muhammad Aslam whom he appointed as his special attorney for the defence of this case. According to his evidence, Pir Muhammad bad three wives namely Taleh Bibi from whom Pir Muhammad had three sons and another wife whom the witness could not name and his grandmother Mst. Fazal Bibi. According to him he became aware of his relationship with Pir Muhammad from his father Nawab Khan respondent. But Nawab Khan himself is alive but did not venture into the witness-box. This makes the evidence of Muhammad Aslam hearsay and therefore inadmissible, not being covered by section 32 (5) of the Evidence Act. The reasons of the respondent's staying away from the witness-box are not far to seek. As pointed out hitherto he did nothing to assert his right of succession to Budhe Khan or Muhammad Khan in 1910 and again 1920 which he should have done boundly if he were a grandson of Budhe Khan. This omission on the part of Nawab Khan is highly significant conduct under section 50 of the Evidence Act. This awkward fact started him in the case which perhaps deterred him from entering the witness-box. There were some vague statements by Muhammad Aslam that his father bad been off and on to village Garhi Gulla and also remained in cultivating possession of some land once held by Budhe Khan. This however, appears to be a fiction. If I may say so with respect, it is rather surprising that the trial Court and the learned Judges in the High Court did not think it proper to raise presumption against the respondent's cage when there is no explanation whatever, for his failure to enter the witness box in support of his case. The mere fact that the respondent resorted to the device of appointing his son to be his special attorney is no excuse for his own failure to enter witness box. Accordingly, my conclusions on the evidence produced in the case are these:

(i) Of the seven witnesses examined by the respondent only Mahmood Khan (DW-I) and Ghulam Rasul son of Bahawal Bakhsh (DW-3) can possibly qualify to be witnesses of the paternity either under section 32 (5) of the Evidence Act. But their evidence is biased and is not ante litem motam either. It does not refer to any conduct in relation to the respondent which might reasonably sustain an inference as to his paternity under section 50 of the Evidence Act. That being so, the evidence of these two witnesses does not advance the respondent's case. (ii) The evidence of the remaining 5 witnesses examined on behalf of the respondent is out and out hearsay and therefore, inadmissible. (iii) There is no evidence that Pir Muhammad and Mst. Fazal Bibi for "longtime, lived as man and wife. (iv) The High Court and the trial Court were mistaken to rely on mutations Exhs. D-2 and -D3 as evidence of conduct relevant to the paternity of the respondent. All that these two mutations signify is that the res pondent was treated as pichhlag son by Piran Ditta and therefore the made a gift vide Exh. D-2 and vide Exh. D-3 the respondent was excluded from inheritance to Piran Ditta on his death. These mutations are not evidence to sustain an inference about the paternity of the respondent. The inference, if at all would be the other way round that Piran Ditta in whose house the respondent was born and bred finding him rootless made a gift of land in his favour which should have on his death otherwise devolved on his natural sons and left the respondent improvised. (v) The most significant evidence about the respondent's exclusion from inheritance to Budhe Khan in 1910 and to Muhammad Khan in 1920 and his failure to pursue his claim with regard to his 1/3rd share in 700 acres of land situate in village Garhi Gulla after the acceptance of the appellants' appeal by the Commissioner. The fact that no legal proceedings were initiated by the respondent speaks volume against the genuineness of his claims posthumous son of Pir Muhammad. The High Court and the trial Court were in error to ignore this evidence as evidence of "conduct" under section 50 to negative the respondent's claim. (vi) The High Court and the trial Court were wrong, in not attaching any significance to the respondent's failure to appear as a witness in support of his case. Indeed they paid no heed to it. Execution of power of attorney by the respondent did not excuse him from appear ing in a witness-box to depose to facts within his special knowledge. On the above review of the evidence therefore, I have no hesitation to say that the oral evidence examined on behalf of the respondent is wholly unsatisfactory and the circumstances as signifying the relevant conduct instead of supporting the respondent's claim clearly militate against it. As a result of this conclusion the appeal must succeed and the decree of the High Court affirming that of the trial Court be reversed and the plaintiffs/ appellants' suit should be decreed. However, having regard to the circumstances of the case, I would leave the parties to bear their own costs, throughout. MUHAMMAD YAQUB ALI, C. J.--I agree. MUHAMMAD AKRAM, J.-I agree. S. A. H. Appeal allowed.