Preference

High Court while exercising revisional jurisdiction is supposed to make comparative analysis of both the judgments of Courts below in order to determine their validity on the touchstones of S.115 of the C.P.C

It is cardinal principle of law that in the matter of giving preference to the judgments of lower courts, while analyzing the same in exercise of revisional jurisdiction, the preference and regard is always given to the findings of the appellate court, unless those are suffering with any legal infirmity or material irregularity.

In the event of conflict of judgments, findings of appellate court are to be preferred and respected, unless it is shown from the record that such findings are not supported by evidence.

Trial court on the ground of second marriage of wife and mothering of another female child from second husband granted custody of minor to her first husband/petitioner

Appellate Court granted custody to mother/respondent on the ground of Hizanat

Validity

Right of Hizanat with respect to male child goes to the mother until minor becomes independent and capable of understanding things, that is to say, he becomes capable of easy walking, eating, drinking and performing other natural functions without assistance

Hizanat with respect to a boy ceases at the end of seven years of age

Although Muhammadan Law delineates that the mother loses her right to the custody of minor if she re-marries, however, this is not an absolute rule and may be departed from in exceptional circumstances to justify such departure, and even in a situation of a second marriage if the welfare of the minor lies with the mother then she should be awarded custody

Guardianship Courts while dealing with matters relating to custody of minor children exercise parental jurisdiction

Custody of a minor can be delivered by the Court only in the interest and welfare of the minor and not as right of one parent or another

Muslim father is the lawful guardian of his minor child and is ordinarily entitled to his custody provided if it is for the welfare of the minor

Similarly the right of the mother to claim the custody of a minor son aged below 7 years is not absolute, in that, the mother may disentitle herself to custody on account of her conduct in the light of the facts and circumstances

Respondent/mother neglected the child since the separation of the spouses and did not make arrangements for his schooling and opted for second marriage and mothered a baby girl leaving the minor exposed to the onslaught of step-motherly and step-fatherly treatment

All the factors disentitled respondent from custody of minor, yet in view of tender age of minor, he could not be deprived of the care of mother

High Court keeping the custody of the minor with respondent enhanced the visitation right of the petitioner from 03 hours in a week to 03 days in a week with liberty to initiate proper proceedings for permanent custody of minor after attaining the age of 07 years

Constitutional petition was disposed of accordingly.

It is a cardinal principle of taxing statutes that if more than one reasonable interpretation is possible of the charging, or taxing, provision, then the one more favorable to the putative taxpayer is to be adopted, i.e., the one that either takes him out of the charge altogether or (if such be the case) results in a reduced or lessened burden.

Suit filed by respondent/plaintiff was decreed in his favour by Trial Court but Lower Appellate Court allowed appeal of petitioners/defendants and dismissed the suit

High Court while disposing of Second Appeal, decreed the suit in favour of respondent/plaintiff

Validity

If findings of facts reached by Lower Appellate Court are at variance with those of Trial Court, the former are to ordinarily prevail although it would not possess the same value or sanctity as that of a concurrent finding

Such findings by Lower Appellate Court are immune from interference in Second Appeal provided they have passed the test prescribed under section 100, C.P.C.

Findings of two Courts cannot be subjected to a Second Appeal, even if erroneous

In the present case judgment passed in Second Appeal was nothing but a replacement by High Court of its own view in an attempt to do equity which was not permissible under section 100, C.P.C.

Second Appeal could not operate as a regular First Appeal under section 96 C.P.C.

Supreme Court set aside judgment and decree passed by High Court in exercise of Second Appeal and restored that of Lower Appellate Court, as it was an interference and was neither justified nor required

Specific performance was only a discretionary relief and such discretion was lawfully exercised by Lower Appellate Court

Appeal was allowed.

Ocular account alone is sufficient to sustain conviction of an accused.

In the event of conflict of judgments, findings of appellate court are to be preferred and respected, unless it is shown from the record that such findings are not supported by evidence.

In the matter of giving preference to the judgments of lower courts while analyzing the same in exercise of revisional jurisdiction, preference and regard is always given to the findings of the appellate court, unless they suffer from any legal infirmity or material irregularity.

In the event of conflict of judgments, findings of Appellate Court are to be preferred, unless it is proved from the record that such findings are not supported by evidence.

Appellate court had refused to grant specific performance or to cancel the sale deed in favour of respondent for the reason that the agreement in his favour was prior to the one in favour of the revision-petitioner

Sale deed in favour of the respondent was admittedly registered and there was no denial on the part of the seller vis-à-vis agreement and the sale deed

Civil revision was dismissed.

Petitioners / plaintiffs claimed to be the legal heirs of deceased owner of suit property who had registered sale deed in favour of their predecessor-in-interest

Validity

Pleadings can neither be treated as evidence nor documentary evidence can be brushed aside on account of weak oral testimony of plaintiffs, more particularly when the case is that of inheritance and based on a registered document, which is more than 58 years old and holding the field

Disconnect in the pleadings of petitioners / plaintiffs and also oral evidence was not convincing for High Court to non-suit them when clearly registered document in favour of the predecessor-in-interest of petitioners / plaintiffs was available on record

Document in favour of respondents / defendants was a sale deed dated 29-03-2003 that acknowledged the fact that the suit property was ancestral and was not self-acquired property of predecessor-in-interest of respondents / defendants under prior unregistered document

High Court set aside concurrent findings of facts by two Courts below as both the Courts below erred in appreciating legal question involved and also could not appreciate the material documentary evidence on record

Suit filed by petitioners / plaintiffs was decreed in their favour

Revision was allowed, in circumstances.

In the matter of giving preference to the judgments of lower courts while analyzing the same in exercise of revisional jurisdiction, preference and regard is always given to the findings of the appellate court, unless they suffer from any legal infirmity or material irregularity.

In the matter of giving preference to the judgments of lower courts while analyzing the same in exercise of revisional jurisdiction, preference and regard is always given to the findings of the appellate court, unless they suffer from any legal infirmity or material irregularity.

In case of inconsistency between the findings of the Trial Court and the Appellate Court, the findings of the latter must be given preference in the absence of any cogent reason to the contrary.

In case of inconsistency between the findings of the Trial Court and the Appellate Court, the findings of the latter must be given preference in the absence of any cogent reason to the contrary.

In the event of conflict of judgments, findings of Appellate Court are to be preferred and respected, unless it is shown from the record that such findings are not supported by evidence.

Once a document has been proved in accordance with law, the genuineness of its contents could be presumed and the rule that the "document speaks for itself' (acta probant sese ipsa) could be deployed

Rationale behind the presumptions attached to written documents stem out of both principles as well as policy

Presumptions are a matter of principle because written documents are, by their very nature, to be accorded a higher degree of credibility as opposed to oral evidence; otherwise, it would bring uncertainty and chaos if written documents (and valuable rights, if any, attached to them) are allowed to be set aside on the basis of oral evidence.

In case of conflicting decisions, the Appellate Court's findings should be given weight and respect unless it is clear from the record that such findings are not evidence-based and are materially illegal.

According to the principle of harmonious interpretation, special law would take precedence over the general law.

If two sensible and judicious conclusions can be drawn keeping in mind the substance of the evidence, then the view which espouses and provides backing towards acquittal must be subscribed and assented to.

Section 3A of Service Tribunals Act, 1973 ('the Act') states that whenever there is a difference of opinion on any point the same shall be decided according to the opinion of the majority

However, when members are equally divided weightage is given to the opinion of the Chairman, if he was a member of the Tribunal which had heard the matter

However, in the present case the appeals were heard by an acting Chairman, and not by the Chairman

Since the legislature in its wisdom did not mention an acting Chairman in section 3A(2)(c) of the Act the Court cannot insert such words therein or imply that a Chairman would also include an acting Chairman

Moreover, the general rule, and one of logic too, is that when there is a difference of opinion amongst adjudicators the matter is referred to a third adjudicator

However, the legislature created an exception to such a general rule, and having created the exception it must be construed strictly

By applying this rule of interpretation the weightage given to the opinion of the Chairman in clause (c) of section 3A(2) of the Act cannot be extended to include an acting Chairman.

According to the principle of harmonious interpretation, special law would take precedence over the general law.

According to the principle of harmonious interpretation, special law would take precedence over the general law.

Section 3A of Service Tribunals Act, 1973 ('the Act') states that whenever there is a difference of opinion on any point the same shall be decided according to the opinion of the majority

However, when members are equally divided weightage is given to the opinion of the Chairman, if he was a member of the Tribunal which had heard the matter

However, in the present case the appeals were heard by an acting Chairman, and not by the Chairman

Since the legislature in its wisdom did not mention an acting Chairman in section 3A(2)(c) of the Act the Court cannot insert such words therein or imply that a Chairman would also include an acting Chairman

Moreover, the general rule, and one of logic too, is that when there is a difference of opinion amongst adjudicators the matter is referred to a third adjudicator

However, the legislature created an exception to such a general rule, and having created the exception it must be construed strictly

By applying this rule of interpretation the weightage given to the opinion of the Chairman in clause (c) of section 3A(2) of the Act cannot be extended to include an acting Chairman.

In case of conflict between the remarks of the Reporting Officer and the Countersigning Officer, the remarks given by the Countersigning Officer, shall be given weight.

If two interpretations of same fact are possible, the one which favours the accused is to be adopted.

In case of inconsistency between the findings of the Trial Court and the Appellate Court, the findings of the latter must be given preference in the absence of any cogent reason to the contrary.

In case of conflict inter se the judgments of the Trial Court and the lower Appellate Court, the findings of the latter, in the absence of any cogent reason to the contrary, must be given preference.

Litmus test to evaluate the veracity of the prosecution witnesses of ocular account depends on them being independent, reliable, trustworthy and confidence inspiring

Evidence of the expert is only confirmative in nature

If there is contradiction between the ocular account and medical evidence qua the number of injuries, the rule of thumb is that the preference would be given to the ocular account as the statement of prosecution witnesses of ocular account is always placed at a higher pedestal as compared to the medical evidence

Rationale behind such strict construction of the rule of thumb is that firstly, expert evidence is confirmatory in nature based upon opinion of an expert which can be influenced by many factors like, (i) lack of expertise (ii) lack of knowledge (iii) defective technique (iv) variation in observation (v) lack of coordination with subordinate staff and possibility of extending concession in favour of either of the parties due to extraneous considerations.

Statement of prosecution witnesses of the ocular account contradictory to the site plan qua the inter-se distance between the accused and the victim

Preference

Statements of prosecution witnesses would have precedence over the site plan in such circumstances

Even otherwise, site plan is not a substantive piece of evidence having no legal sanctity

Purpose behind the preparation of site plan is to explain or give a glimpse of the occurrence in black and white enabling the concerned to appreciate the facts of the case in a more rational way.

Where ocular evidence is found trustworthy and confidence inspiring, the same is given preference over medical evidence and the same alone is sufficient to sustain conviction of an accused.

Where ocular evidence is found trustworthy and confidence inspiring, the same is given preference over medical evidence and the same alone is sufficient to sustain conviction of an accused.

Where ocular evidence is found trustworthy and confidence inspiring, the same is given preference over medical evidence and the same alone is sufficient to sustain conviction of an accused.

Where ocular evidence is found trustworthy and confidence inspiring, the same is given preference over medical evidence and the same alone is sufficient to sustain conviction of an accused

Value and status of medical evidence and recovery is always corroborative in its nature, which alone is not sufficient to sustain conviction.

Where ocular evidence is found trustworthy and confidence inspiring, the same is given preference over medical evidence.

Where ocular evidence is found trustworthy and confidence inspiring, the same is given preference over medical evidence.

Where ocular evidence is found trustworthy and confidence inspiring, the same is given preference over medical evidence and the same alone is sufficient to sustain conviction of an accused.

Where ocular evidence is found trustworthy and confidence inspiring, the same is given preference over medical evidence.

Respondents applied for issuance of succession certificate regarding debts and securities (amount of insurance policy) left by deceased claiming that the deceased was their paternal uncle; that the deceased died issueless leaving behind his widow (petitioner); and that respondents were sons of one brother of the deceased ("A") entitled for succession as residuaries

Four petitioners being the widow and daughters of the other brother of the deceased ("M") maintained in their written statement that they were legal hears of the deceased as their father "M" died after the death of the deceased; that petitioners fell under the definition of "distant kindred" of the deceased, so the respondents were not entitled for succession as they were remote in relation

Trial Court accepted the application and granted the petitioners and said four respondents' shares from the insurance policy being legal heirs of the deceased under the definition of residuary

Petitioners' impugned the Trial Court's order but District Court dismissed their appeal

Validity

Deceased left one wife only

"M" being real brother of the deceased died after one month of deceased' death, leaving behind three daughters and a wife

"A" being another real brother of the deceased died 18 years after the death of the deceased

Wife of the deceased will get 1/4th as sharer and rest of the legal heirs of "M" and "A" will get the share from the remaining inheritance of the deceased

Petitioners failed to point any illegality in the judgments of both the Courts below

Revision petition was dismissed accordingly.

Where ocular evidence is found trustworthy and confidence inspiring, the same is given preference over medical evidence.

Casual discrepancies and conflicts appearing in medical evidence and the ocular version are quite possible for variety of reasons

During an incident when live shots are being fired, witnesses in a momentary glance make only tentative assessment of points where such fire shots appear to land and it becomes highly improbable to mention their location with exactitude.

Registered sale deed had always preference over oral evidence.

In event of conflict of judgments, findings of appellate Court were to be preferred and respected, unless it was shown from the record that such findings were not supported by evidence.

Plea raised by petitioner was that due to illegal acts of Karachi Development Authority officials, her plot was renumbered and thereafter allotted to respondents

Contention of authorities was that plot allotted to petitioner was renumbered and allotted to respondents on Minister quota

Validity

Plot numbers allotted to petitioner and respondents were of one and the same plot, belonging to petitioner

Plot in the name of respondents was illegally created by officials of Karachi Development Authority (KDA) by misusing their official power and authority and for apparent "extraneous motives"

Action of Karachi Development Authority officials in rearranging, renumbering the whole lane was illegal

If plot of respondents allotted under Minister quota was encroached upon, there was no justification available with KDA officials to rearrange, re-fix and reallocate, fit in or to devise a method to cause prejudice to petitioner, who was owner of plot in question

Committee headed by high officials of KDA was of the view that such action of allocation and renumbering of plot was illegal and in fact plot allotted to respondents was fitted in plot allotted to petitioner

High Court declined to approve action of Karachi Development Authority officials in rearranging / renumbering plot of petitioner as plot of respondents

High Court directed Karachi Development Authority to allot and handover peaceful, vacant and physical possession of an alternate plot, having same value and utility to petitioner forthwith

High Court also imposed special costs upon Karachi Development Authority as due to acts and abuse of authority by its officials petitioner suffered a lot

Constitutional petition was allowed in circumstances.

Statutory First Charge ('SFC') was created by the operation of a provision in a legislation that granted preference to the holder of the SFC over all other creditors, including secured creditors, holding any form of security

Such SFC's derived their authority through the statute which was the precise reason why the court could not interfere in granting secured creditors rights over parties holding SFC's

Furthermore it was inconsequential if the (statutory) first charge was created prior or subsequent to the mortgage or lien of the secured creditor; it was also immaterial if the nature in the goods were changed

Statutory First Charge persevered as it attached itself onto the goods, travelled with them, and remained enforceable in a preferential manner against other secured creditors irrespective of the manner in which the goods were processed, sold, or pledged

Therefore, the SFC remained unfazed by whatever processing the goods underwent; it took precedence over all contractual liens and mortgages that may be claimed and its creation remained independent from the requirement of registration.

Law carries more weight which prevails, as such, Rules should not be in conflict, in contrast or in contravention of any provision of an Act nor should Rules change its nature

When law prescribes a thing to be done in a particular manner it should be done accordingly.

Where there is conflict of procedural law on same subject, special law has to be applied.

When there is a conflict in an enabling provision of an Act or Ordinance and Schedule thereto, provisions of main Act/Ordinance are to prevail upon provisions of Schedule appended therewith.

When two constructions were reasonably possible, then preference should be given to one which helped to carry out beneficial purpose of the enactment and ensued smooth and harmonious working of the Constitution and eschew the other which would lead to absurdity and make a Fundamental right nugatory.

Judgment delivered by larger Bench was to be given preference.