P L D 1965 (W (PLP)

Civil Procedure Code (V of 1908), S. 100‑Second appeal Finding of fact‑Lower appellate Court failing to apply its mind to material piece of evidence‑Oversight or mis‑statement of evidence Question whether conclusion arrived at, in circumstance, correct Mixed question of law and fact‑High Court competent to examine soundness of conclusion‑Lower appellate Court completely ignoring statement of appellant on question of her age while drawing inferences from conjectural statement of appellant regarding age of her elder sister‑Finding, held, vitiated‑Dissolution of Muslim Marriages Act (VIII of 1939), S. 2 (vii). Abdul Majid v. Khalil Ahmad P L D 1955 F C. 38 and Karamat Ali v. Muhammad Yunas P L D 1963 S C 191 ref. Federation of Pakistan v. Hasham Ali Shah P L D 1954 Lah. 70 rel. JUDGMENT This is a second appeal by Mst. Sarwari Begum whose suit, for a declaration that no marriage between her and the respondent Jabbar alias Lolia had taken place and in the alternative that the alleged marriage, if proved, had been repudiated by her in exercise of her option of puberty, was decreed by .the first Court but dismissed in appeal by the learned Additional District Judge, Multan. The parties went on trial on the following issues:‑ (1) Whether this Court has jurisdiction to try the suit 7 (2) Whether any valid Nikah between the parties took place and if so, when? . (3) What was the plaintiff's age at the time of the Nikah? (4) How old was the plaintiff at the time of the suit? (5) Whether the plaintiff repudiated the m4rriage and if so, when? (6) Whether the marriage between the parties was consum mated ? (7) Relief? The learned Additional District Judge has differed from the trial Court on issue No. 4 agreeing with it on all the remaining issues which were found in the plaintiff's favour. The difference on issue No. 4 arose on the point of age of the appellant at the time when the marriage was repudiated by her. The first Court held that she was below eighteen, while the appellate Court found that she was above that age. The point was considered under section 2 (vii) of the Dissolution of Muslim Marriages Act, 1939, which allows a ground for dissolution of marriage of a woman married under the Muslim Law, who was given in marriage by her father or any other guardian before she had attained the age of 16 years, in case she repudiates such marriage before attaining the age of 18 years provided that the marriage had not been consummated. The respondent did not plead that the marriage had been consummated nor that she was married to him while she was less than 16 ycars. The first Court found that the repudiation took place in December 1956. The learned lower appellate Court has not reversed this finding and the only point on which they differed, as already stated, was regarding her age at the time of repudiation. The first Court in finding that she was below 18 has relied on the plaintiff's evidence supported by that of her brother, Muhammad Yunas P. W: 3 and the evidence of the medical witness P. W. 1, Dr. Rehmat Ullah Ch., Medical Superintendent, District Quarter Hospital, Muzaffargarh. In her statement the plaintiff alleged that she was a virgin aged 16 years. Her brother P. W. 3 stated the same and P. W. 1 Dr. Rehmat Ullah who examined the appellant on 13‑5‑58 deposed that at that time she was a virgin aged between 16/17 years. He gave.. reasons for that view in his certificate copy Exh. P.‑

1. The learned lower appellate Court has held that the medical opinion is not conclusive which is quite correct. But in reaching the conclusion that the appellant was above 18 years of age when she had repudiated her marriage. I feel that the learned lower appellate Court has allowed itself to be influenced beyond measure by an unwary statement elicited from the appellant in her cross‑examination that her senior sister Akbari who was older to her by one year, had been married 16 or 17 years back when she herself was aged 8 years and that Akbari was then 28 years of age (i.e. on the date when the appellant made her statement in Court on 23‑5‑59). From this statement alone the learned lower appellate Court drew the conclusion that the appellant was 22 or 23 years old when she instituted the suit on 21‑6‑58, and she was 21 or 22, at the time wh6n she had repudiated her marriage. This appears to me to be a mis‑construction of her statement in the sense that ignoring the other part of her statement in which she had categorically stated her age to be 16/17 years the finding has been made to rest on an isolated bit of the same statement in cross‑examination, which related to the age of her senior sister and about which she could have only indulged in conjectures. What is surprising however, is, that while the learned appellate Court has chosen to decide the question of the appellant's age on a part of her statement using it as admission against her, it has completely ignored the fact that the respondent had, in his own statement, completely given away his case on this point. He had stated, in the course of his cross‑examination on 15‑12‑59 that the appellant was married to him 9 years ago when she was aged 9/10 years. Calculating her age from this statement there was no doubt that on the 15th of December 1959, the appellant was aged 18 years at the maximum, obviously less than 18 years when she instituted her suit, and far less so in December 1956 when she had repudiated the marriage.

3. The learned counsel for the respondent has argued that the finding of fact reached by the lower appellate Court on the point of the age of the appellant being a finding of fact should not be disturbed in second appeal even it be found to be a erroneous, whatever the grossness of the error committed in arriving at that finding. He has referred me to certain authorities in support of this contention, in particular to the case of Abdul Majid v. Khalil Ahmad (P L D 1955 F C 38) and Karamat Ali v. Muhammad Yunas (P L D 1963 S C 191). There can be no dispute with the proposition that a finding of fact reached by the lower appellate Court on a appraisal of the evidence by it, is not to be disturbed even though the finding be fallacious unless the fallacy involves an error of law or of procedure. But in a case where the lower appellate Court has not applied its mind at all to a material piece of evidence, oral or documentary, and where the finding of fact is based on an over‑sight or mis‑statement of that evidence, the High Court in second appeal would be hesitant to accept that finding as conclusive, and it will then be open to the High Court to review the evidence itself to give effect to correct conclusions; deducible from that evidence and in consonance with the correct weight of that evidence. In Federation of Pakistan v. Hasham Ali Shah (P L D 1954 Lah. 769), Rehman and Ortcheson, JJ. laid down as follows:‑ "In Second Appeal the High Court is entitled to examine the soundness of conclusions drawn from the evidence adduced and the question of whether such conclusions are correct is either a question of law or a mixed question of law and fact." I respectfully agree with this observation and would venture to add that amongst the grounds on which the soundness of the conclusions drawn from the evidence is to be tested, one major ground would be whether by some mistake or an over‑sight some material evidence has not been over‑looked or misconstrued. In the present case, as already stated the finding of the learned lower appellate Court stands vitiated on the ground that it ha completely ignored the statement of the defendant‑respondent on the question of the age of the appellant while it has made capital of an inference on that point drawn from the conjuctural statement of the appellant regarding the age of her elder sister.

4. In these circumstances I am constrained to accept this appeal and set aside the judgment of the learned lower appellate Court restoring that of the trial Court with no order as to costs. K. B. A. Appeal accepted.