P L D 2016 Peshawar 160 (PLP)

WAQAR AHMAD SETH, J:- The instant revision petition has been directed against the judgment and decree dated 17/07/2012 passed by the learned Additional District Judge/Izafi Zilla Qazi, Mastuj at Booni whereby he dismissed the appeal of petitioners/defendants against the judgment and decree dated 21/06/2011 of the learned Civil Judge/Allaqa Qazi Mastuj at Booni.

2. Briefly stated the facts of the case are that on 29/09/1994 Hidayatullah father of respondent No.1, Abdullah Jan and others, respondents Nos.1 to 5 herein/plaintiffs (hereinafter to be referred as respondents/plaintiffs) have brought a suit against Zarkhawond, now dead and represented by his legal heirs, defendants/petitioners herein and respondents/defendants Nos. 6 to 15. (hereinafter to be referred as pro forma respondents) for a declaration to the effect that the respondents Nos.1 to 5 / plaintiffs are owners of the land fully detailed in the heading of the plaint and the orders of defendants No.9 to 11(respondents Nos.11 to 13 herein) are illegal, ultra vires and not binding upon the rights of the plaintiffs. A prayer for possession of the land in dispute and permanent injunction was also sought.

3. The suit was contested by the petitioners/defendants, defendants Nos. 2, 3 and 8 (respondents Nos.6, 7 and legal heirs of Muhammad Diyar Khan respondent No.12 herein). Issues were framed and after recording pro and contra evidence of the parties, the learned Civil Judge/Illaqa Qazi Chitral at Booni vide his judgment and decree dated 28/09/2000 dismissed the suit of the respondents Nos.1 to 5/plaintiffs against which an appeal was preferred which too met the same fate vide judgment and decree dated 06/06/2001.

4. Feeling aggrieved the respondents Nos.1 to 5/plaintiffs filed Civil Revision bearing No. 487/2001 before this Court which was disposed of on 05/07/2010 in the following manner:- "Not only the law has been misapplied and non-applied to the established and undeniable facts but also the evidence and other materials available on record have been misconstrued, causing serious miscarriage of justice, therefore, in the circumstances, this petition is allowed. The impugned judgments and decrees of both the Courts below are set aside and the case is remanded to the trial Court to re- decide the same according to the latest Commission report. In case, if any necessity is felt for fresh local commission to identify, demarcate and to ascertain to which party is in possession of excess area, it may appoint the same, however, the entire trial/process should be completed within three (3) months at the most, being a very old matter and in case any one of the parties is found in possession of excess area over and above its entitlement, already determined, that should be retrieved and given back to the other party, who is entitled to it. This petition is allowed in the above terms. Needless to remark that separate `Khasra number' be allotted to the two separate portion of the properties and relevant entries be also made in the "Misl-e-Haqiat" the first "Jamabandi" so that to avoid future litigations".

5. After remand, the learned trial Court appointed one Mr. Ghulam Mustafa Advocate as local Commission who submitted his report on 16/04/2011 and after receiving objections from both the parties, the same was confirmed. This time learned Civil Judge/Illaqa Qazi, Mastuj at Booni vide his judgment and decree dated 21.06.2011 decreed the suit as prayed for in favour of the respondents Nos. 1 to 5/plaintiffs.

6. Dissatisfied with the aforesaid judgment and decree of the trial Court, the petitioners/defendants preferred Civil Appeal No.4/13 of 2011 before the learned Additional District Judge/Izafi Zilla Qazi, Mastuj at Booni which too met the same fate vide judgment and decree dated 17.07.2012. Hence the instant revision petition against the concurrent findings of the two Courts below.

7. I have heard the learned counsel for the parties and have also gone through the record of the case with their able assistance.

8. During the arguments both the learned counsel were directed to interpret the exhibited documents which are in Persian, but none of them was able to interpret / translate a single document upon which both the courts below have given their findings, while passing the impugned judgments and decrees. I am afraid that how and in what circumstances the impugned judgments and decrees were passed by both the courts below, which are not conversant with the Persian language, nor is the subject of LLB courses.

9. Record is suggestive that PW-4 while appearing in the witness box exhibited PW-4/1 to PW-4/28 and then PW-4/42 to PW-4/45. Likewise DW-1 while appearing in the witness box exhibited DW-1/14 to DW-1/19 and DW-4 as DW-4/2 to DW-4/13 and all these documents are in Persian language which were neither translated from any competent authority nor has been discussed/appreciated in the impugned judgments. Original record was requisitioned but nothing is available to this effect. In addition to this there are number of documents which are so dim and non-readable, with naked eyes, one such document is Exh.DW-1/8.

10. The record of appellate court was also requisitioned, which shows that while filing appeal, the appellant had annexed translation of certain documents of his favour in Urdu which were translated by one retired principal education department, which under law could not be relied upon, as according to law of the land, the translation of a document in another language is acceptable of the concerned department of the University recognized under Higher Education Commission. Article 72 of the Qanun-e-Shahadat, 1984, reads as under:- "

72. Proof of contents of documents. The contents of documents may be proved either by primary or by secondary evidence. The word "contents" used in the Article comes from "contain" which means "to hold inside", "to include as a part". At least this court is not in a position to understand the contents, meaning, inside the said exhibit documents which are in Persian, nor both the courts below have appreciated and reflected the meanings of those documents in their impugned judgments.

11. Since none of the document i.e. about forty number of documents exhibited are un-understandable due to Persian language therefore, both the judgments seems to be based on presumption, which could not be allowed to remain in field, unless and until these exhibited documents are translated by any competent forum, as the same cannot be appreciated at any level. The contents of a document could only be appreciated when it is read and understood, language wise.

12. In view of the above, while allowing this civil revision the matter is remanded to the trial Court for decision afresh after sending the said exhibits, which are in Persian language to the Persian Department of recognized University for translation in Urdu or English and then on the available evidence and report of the local commission fresh decision be made after hearing the parties. Parties are directed to appear before the Civil Judge Bone Chitral on 27-4-2015. The trial Court is expected to dispose of the LIS within three months positively as the matter is too old. SL/215/P Case remanded.