2003 PLP 587 (YLR)

(4) Whether the suit is bad for misjoinder and non joinder of the necessary parties? OPD (5) Whether the plaintiff is legitimate daughter of the defendant as asserted in the' plaint and is entitled for the decree prayed for? OPP (6) Whether the relations of the plaintiff with the defendant is of an adopted child and her birth is not out of the wedlock i.e. defendant and his wife Mst. Rashida Khatoon? OPD (6‑A) Whether the letter dated 14‑12‑1965, reported to be issued by the Additional District Magistrate, Karachi is genuine or not? OPP (7) Relief.

2. Oral and documentary evidence was produced by both the parties. Learned Civil Judge did not rely‑ on the documents Exhs.P.2. to P.10 as well as on the context of Muhammad Younas Qureshi with Mst. Asma Naz as her child. On the contrary relying on the Letter No.CM/J5626, dated 14‑12‑1965 of A. D. M., Karachi Exh.D.12 which showed that custody was taken by Muhammad Younas from Syed Wasi Ahmad Rizvi as her daughter owned by Mst. Razi Banoo wife of Syed Wasi Ahmad Rizvi Mark "A" and also on, the application Exh.D.1 signed by Mst. Asma Naz herself submitted to the S.S.P. in which she disclosed that Muhammad Younas Qureshi is not her father proceeded to record a finding on Issue No.5 against the petitioner and dismissed the suit vide judgment and decree dated 25‑10‑2000. Feeling aggrieved the petitioner filed appeal that too was dismissed by the learned Additional District Judge on 25‑6‑2001 by endorsing the finding on Issue No.5 recorded by the Additional District Judge.

3. Learned counsel for the petitioner raised following points:‑‑ (i) That this fact was disclosed by Muhammad Younas Qureshi that the petitioner is not his daughter, therefore, erroneously she made an application Exh.D.1 to the S.S.P. for registration of the case and this erroneous admission would have not been relied by the Courts below to non‑suit the petitioner. Reliance has been placed as Barkhurdar v. Muhammad Razzaq PLD 1989 SC 749 and Ahmad Khan v. Rasool Shah PLD 1979 SC 311 (sic). (ii) That evidence on the record has been general and particular the documentary evidence Exhs.P.1 to P.10 School Certificate, Nikah Nama, B‑Form and I.D. Card have been misread by the Court. (iii) That the Court has wrongly relied on the documents Exhs.P.1 to P.10. (iv) Further contends that Letter No.CM/1326 dated 14‑12‑1965 allegedly issued by the A.D. M., Karachi has been erroneously relied by Courts below. According to the learned counsel for the petitioner this letter has not proved in accordance with law that the same is forged document. That the respondent Muhammad Younas Qureshi could have not denied the relationship of the father with her Mst. Asma Naz after about 25 years.

4. Conversely learned counsel for the respondent contends that petitioner herself stated in her application Exh.D.I submitted to the S. S. P. that Muhammad Younas Qureshi is not the father of the petitioner Mst. Asma Naz. Learned Civil Judge rightly relied on the order of the Magistrate Karachi Exh.D.12. The Courts below having the jurisdiction has weighed the evidence Exhs.P.1 to P.10 the school certificates of Mst. Asma Naz and those were not maintained by statutory functionary, therefore, no presumption of truth was attached with them. Learned counsel for the petitioner elaborates his arguments that no certificate of Union Council or Committee has been produced nor there is any documentary evidence to show that the petitioner was the daughter of Muhammad Younas Qureshi. Learned counsel for the petitioner further contended that the petitioner was under obligation to prove the relationship by producing the legitimate relationship of Muhammad Younas Qureshi with that of Mst. Asma Naz under Article 64 of the Qanun‑e- Shahadat which has not been done in this case. Therefore, the petitioner failed to discharge burden of proving, burden placed upon her. Further contends that there is concurrent finding of fact, recorded by two Courts of competent jurisdiction, on the basis of evidence, which cannot be interfered with in exercise of revisional jurisdiction of this Court under section 115, Cr.P.C.

5. No doubt that the petitioner's name that as the daughter of Muhammad Younas Qureshi is reflected in the Exhs.P.1 to P.10 in her Matric Higher Secondary School Certificate, Nikahnama, Invitation Card, Form B, I.D. Card Examination form Exhs.P.l to P.10. The Board of Intermediate Certificate Exhs.P.1. P.2, can be relied as the same have not been issued by the statutory authorities. But she herself destroyed her case when she submitted an application signed by her to the S. S. P. Exh.D.I in which she stated that Muhammad Younas Qureshi with ulterior motive and to defraud the petitioner for his own personal benefit incorporated his name as the father in the school certificates, registration form, and Nikahnama and she is not real daughter of Muhammad Younas. Learned counsel for the petitioner states that under Article 31 of the Qanun‑e‑Shahadat Order (10 of 1984) admission, which was wrong on the point of fact and is made in ignorance, of the legal rights has no binding effect on the person making it.

6. Article 64 which is relevant to decide the controversy between the parties reads as under:‑‑ "Opinion on relationship when relevant. ‑‑‑When the Court has to form an opinion, as to the relationship of the 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, 1869 (IV of 1869) or in prosecution under section 494 or 495 of Pakistan Penal Code (Act XLV of 1860). " To discharge the onus the petitioner Mst. Asma Naz appeared herself as P.W.1 whereas produced Dr. Muhammad Tufail Ahmad Khan her father‑in‑law as D.W.2. Dr. Tufail Ahmad Khan is not the member of the family and has no special means of knowledge on the subject. In this view of the matter the statement of Dr. Tufail Ahmed who cannot be taken as relevant fact to the opinion to the relationship between the father' and daughter.

7. No doubt the petitioner has been mentioned as the daughter of Muhammad Younas Qureshi in the certificate Exh. P.1 and P.2 but the same were on the basis of forms of examination submitted by Mst. Asma Naz. The Nikah Nama Exh.P.3 and B‑Form, Identification Card and Nomination Form‑ Exhs.P.1 to P.8 are the documents from the record maintained by the public authority presumption of truth is attached but the same is rebuttable. When the petitioner herself submitted an application Exh. D.1 in which she stated that the documents were forged and fictitious and the petitioner is not the daughter of Muhammad Younas. The documents Exhs.P.3 to P.7, P.10 lost their importance. Both the Courts have already not relied on these documents and excluded them from consideration. The case of the learned counsel that it was erroneous admission and therefore, could have been ignored on the basis of the cases reported as Ahmad Khan v. Rasool Shah PLD 1975 SC 311 and Barkhurdar v. Muhammad Razzaq PLD 19891 SC 749 at p.755. The contention is not well founded. Under the law admission of facts are only relevant and are not conclusive and therefore, may be shown to be wrong. Both the parties stated wrong facts before the j Courts. The respondent Muhammad Younas Qureshi before the Nikah Registrar and while filing the Form B admitted Mst. Asma Naz as her daughter whereas Mst. Asma Naz submitted the application before the police that she is not the daughter of Muhammad Younas Qureshi and the documents are forged. Therefore, admission on both the parties which is wrong in point of fact or is made in ignorance of fact, legal right has not binding effect on the person making it. Learned Courts below relied on the letter dated 14‑12‑1965 by observing that it is a genuine document and infant child at the relevant time was handed over to one Syed Wasi Ahmad Rizvi who further handed over her custody to defendant/respondent Muhammad Younas Qureshi and the picture on the letter Exh.D.12 is the same of the petitioner/plaintiff. Apart from the document Exh.D.12 letter dated 14‑12‑1965 document Exhs.D.1 to D.8 which are the letter. written by Muhammad Tufail P.W.2 in his own writing and not denied is conclusive proof of the fact that Mst. Asma Naz is not the daughter of the respondent. The case reported as Mst. Hamdia Begum v. Mst. Murad Begum and others PLD 1975 SC 624 and Barkhurdar v. Muhammad Razzaq PLD 1989 SC 749 at p.755 are not applicable to the case of the petitioner. In the case of Mst. Hameeda Begum the provisions of section 112, Evidence Act (I of 1872) was interpreted and it was ruled: "That rules of Muslim Personal Law applied the Muslim after the repeal of the section 2 of the Act in the matter of legitimacy etc." In case of Muhammad Sadiq reported as PLD 1989 SC 749 a2 p.755 erroneous admission on the part of the possession of the suit‑land in the year 1979 was considered as admission and their Lordships of the Supreme Court ruled:‑‑ "That in view of the overwhelming evidence brought on the record to the contrary we are clear in our mind that this admission which is wrong on the point of fact and made in ignorance of legal right as no binding effect on the person making it." On the touchstone of the above‑stated two judgments Ahmad Khan v. Rasool Shah PLD 1975 SC 311 and of Barkhurdar v. Muhammad Razzaq PLD 1989 SC 749 at p.755 the ratio has been laid down by the Supreme Court that erroneous admission, which is wrong on the point of fact are made in ignorance of legal rights has no binding effect on the person making it, therefore, the admission made by the Muhammad Younas Qureshi in the Nikah Nama and the Form‑B, Identification Card and the Nomination Form are not binding. But on the contrary the admission made by Mst. Asma Naz by submitting an application before the police is of binding nature from which she cannot wriggle out.

8. There is concurrent finding on facts against the petitioner by two competent Courts of jurisdiction on the basis of evidence which cannot be interfered with in exercise of revisional jurisdiction of this Court as held in case reported as 2001 SCMR 1147, Resultantly, this revision petition fails and is dismissed. Revision dismissed Q.M.H./M.A.K./A‑659/L