2010 SCMR 52 (PLP)

IJAZ-UL-HASSAN KHAN, J.

This petition for leave to appeal under Article 185(3) of the Constitution of the Islamic Republic of Pakistan, 1973 has been filed on behalf of Abdul Qadoos (since dead and represented by his legal heirs) against a judgment of Peshawar High Court, Peshawar dated 24-6-2003 whereby Civil Revision No.489 of 1994 was dismissed.

2. Facts of the case need not be reiterated as the same have been mentioned in detail in the impugned judgment as well as in memo. of petition.

3. Barrister Masood Kausar, Senior Counsel Supreme Court, appearing for the petitioners contended that impugned judgment suffers from the vice of misreading and non-reading of evidence on record; that petitioner Abdul Qadoos was owner in possession of 30 Kanals, 9 Marlas out of total land i.e. 139 Kanals, 5 Marlas bearing Khasra Nos.981, 982, 393 and 988 situate in the Revenue Estate of Behram Killi, Nowshera and had not sold any such area and consent decree in Suit No.17/1 passed on 11-2-1964 was based on fraud and misrepresentation and that he never executed any power of attorney in favour of Haji Nabi Amin and if any, power of attorney relied upon, same was based on fraud and collusion.

4. A perusal of the record would reveal that Abdul Qadoos appeared as his own witness during the trial. He did not produce any witness to substantiate his stance. As against that, Shafiullah, Advocate was examined from the other side to prove that the power of attorney (Exh.R.D.W.1/1) was scribed by his father. He was counsel for Haji Fazal Karim and Habib-ur-Rehman in Suit No.17/1 and Nabi Amin had produced power of attorney and had given consent for grant of decree. Mirza Abdul Hafiz, Advocate appeared as D.W.3 and stated that he knew Haji Nabi Amin personally, who had signed the power of attorney as an attorney of Abdul Qadoos. He had produced the compromise on behalf of Abdul Qadoos and had signed the same. Haji Nabi Amin had also signed the compromise in his presence. Muhammad Ali Khan, Nambardar of the village confirmed the general power of attorney (Exh.R.D.W.1/1). The general power of attorney dated 7-5-1962 was therefore, approved having been executed by Abdul Qadoos in favour of Haji Nabi Amin. The mere assertion of learned counsel for the petitioners that Abdul Qadoos had not produced any power of attorney, without a positive attempt on his part to substantiate the same is of no consequence. The contention of learned counsel that Haji Nabi Amin was attorney to deal with the property comprising Khasra Nos.981, 982 and 392 situated at Behram Killi, Nowshera and the said attorney had no power to give consent about Khasra No.988. This argument is tenable. The perusal of general power of attorney would show that Haji Nabi Amin, was authorised to deal with Khasra Nos.981, 982 and

392. So far as land comprising Khasra No.988 is concerned, he had no authority to deal with said land, but the fact remains that there-is no occasion for Haji Nabi Amin to give consent for land comprising Khasra No.988 because and situated in Khasra No.988 had already been sold by Abdul Qadoos in favour of Haji Fazal Karim and Habib-ur-Rehman on the basis o mutations (Exh.R. P.W.3/1) and (Exh.R.P.W.3/2).

5. In civil petitions for leave to appeal the burden lies heavily on the petitioner to show that the concurrent findings of facts recorded by Courts below, are not sustainable. This Court does not interfere with the findings of fact recorded by primary Courts or High Court when it is satisfied that the findings of the Courts below are on the whole, reasonable and are not arrived at by disregarding any provision of law or any accepted principle concerning appreciation of evidence. It was held by this Court on a number of occasions that this Court does not, normally, go behind the concurrent findings of fact recorded by the Courts below unless it can be shown that 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 principle relating to appreciation of evidence, or finally, if the finding could be demonstrated to be physically impossible. Reliance in this regard can be placed on Sh. Fateh Muhammad v. Muhammad Adil and others PLD 2007 SC 460, Alamgir Khan through L.Rs. and others v. Haji Abdul Sittar Khan and others 2009 SCMR 54 see Muhammad Feroz's case 2006 SCMR 1340, and Aurangzeb's case 2007 SCMR 236.

6. It was also observed by this Court in Balochistan Employees' Social Security Institution through Commissioner and others v. Gatron Industries Limited 2007 SCMR 929:

"It is well-settled by now that ordinarily the Supreme Court would refuse to reappraise evidence, because the Court does not undertake this task, unless a substantial departure from some rule or principle relating to the appreciation of evidence has occurred. When the Court of first instance and the Court of Appeal arrives at concurrent findings of fact after believing the evidence of a witness, the Supreme Court as the final Court does not disturb such findings save in most exceptional cases. In the absence of a statutory bar, this practice could have been and was occasionally relaxed or deviated from in special cases' which were found to have been of a very unusual nature and of public and general importance, but never, unless justice was found to have been miscarried as a result of either there not being a proper trial at all or on account of admission or reception of evidence, which was not legally admissible or for something so shocking..."

7. In view of the above, we have found no illegality or infirmity in the impugned judgment. The Courts below have 'thoroughly appraised whole evidence of the parties and thereafter reached at the conclusion concerning controversy involved. Neither any misreading or non-reading of evidence on record nor any infirmity legal or factual, has been pointed out in the judgment under challenge. Even otherwise, no substantial question of law of public importance is involved in the present case, requiring determination. Finding no merit in this petition, we dismissed the, same and refuse to grant leave. M.H./A-50/SC Petition dismissed.