2010 SCMR 1351

2010 SCMR 1351

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Ch. Ijaz Ahmed and Ghulam
Rabbani, JJ

KHAN MUHAMMAD---Appellant

Versus

MUHAMMAD DIN through LRs---Respondents

Civil Appeal No. 1278 of 2006, decided on 9th March, 2010.

(On appeal from the judgment dated 31-5-2004, passed by the High Court of Sindh, Bench at
Sukkur in Civil Revision No. 21 of 1991).

(a) Maxim---

----Secundum allegata et probata---Meaning---Who lodges a fact must prove it---

Applicability.

(b) Qanun-e-Shahadat (10 of 1984)---

----Arts. 117 & 120---Fraudulent document---Onus to prove---Shifting of onus, principle of---

Applicability---Duty and obligation of beneficiary of document to prove the same in
accordance with the provisions of Qanun-e-Shahadat, 1984---Initial burden to prove
execution of document is on the party which is relying on the document---Once such onus is
discharged, burden to prove factum of fraud or undue influence or genuineness of
documents shifts to party which alleges fraud.

Akhtar Ali v. University of the Punjab 1979 SCMR 549 and Haji Muhammad Khan and
others v. Islamic Republic of Pakistan 1992 SCMR 2439 rel.

(c) Constitution of Pakistan (1973)---

----Art. 185---Specific Relief Act (I of 1877), Ss.42, 39 & 54---Declaration of title---

Concurrent findings of fact by two Courts below---Appellate jurisdiction of Supreme Court---
Scope---Findings of fact---Miscarriage of justice---Onus to prove---Scope---Suit filed by
plaintiff was decreed in his favour but Lower Appellate Court allowed the appeal and
dismissed the suit---High Court in exercise of revisional jurisdiction restored judgment and
decree passed by Trial Court---Validity---Supreme Court normally could not go behind
finding of fact by High Court, unless it was shown that the findings on the face of it
amounted to perpetuating a grave miscarriage of justice or if there had been misapplication
of principle relating to appreciation of evidence, or, finally, if the finding could be
demonstrated to be physically impossible---Such being the practice and rule of Supreme
Court in civil appeals, burden lay heavily on appellant to show that findings recorded by
High Court were not sustainable on record and should be interfered with by Supreme
Court---Defendant failed to bring the case within the parameters prescribed by Supreme
Court in various pronouncements---Supreme Court declined to interfere in concurrent
conclusions arrived at by the courts below, Trial Court as well as High Court, while
exercising power under Art.185 of the Constitution---Appeal was dismissed.

Muhammad Shafi and others v. Allah Dad Khan PLD 1986 SC 519; Mst. Sughra Bibi v.
Khushi Muhammad 1989 CLC 2465; Arshad Amin v. Messer Swiss Bakery and others 1993
SCMR 216 and Abdul Qadir and others v. Settlement Commissioner and others PLD 1991 SC
1029 ref.

Shah Nawaz and another v. Nawab Khan PLD 1976 SC 767; Muhammad Sharif and another
v. Muhammad Afzal Sohail and PLD 1981 SC 246; Abdul Rehman Bajwa v. Sultan and 9
others PLD 1981 SC 522 and Khuda Bakhsh v. Muhammad Sharif and another 1974 SCMR
279 rel.

(d) Constitution of Pakistan (1973)---

----Arts. 184 & 185---Constitutional jurisdiction of Supreme Court is discretionary in

character.

Rana Muhammad Arshad's case 1998 SCMR 1462; Nawabzada Raunak Ali's case PLD 1973
SC 236 and Haji Saif Ullah's case PLD 1989 SC 166 rel.

Ghulam Qadir Jatoi, Advocate-on-Record/Advocate Supreme Court for Appellant.

Manzoor Hussain Basra, Advocate Supreme Court and K.A. Wahab, Advocate-on-Record for
Respondents.

Date of hearing: 9th March, 2010.

JUDGMENT

CH. IJAZ AHMED, J.---The necessary facts out of which the present appeal arises are that
dispute between the parties relates to certain land purchased by respondent Muhammad Din
in open auction from Gudu Barrage authorities at the rate of Rs.850 per acre in the year
1967. The respondent filed a suit for declaration, cancellation and permanent injunction
against the appellant in the Court of Senior Civil Judge, Ghotki. The contents of the plaint
revealed that the sale deed dated 13-9-1978 in respect of the suit land in favour of appellant/
defendant was forged and not genuine. Therefore, he prayed for cancellation of the rights,
sale deed as well as permanent injunction against the appellant/defendant restraining him
from claiming or asserting any right, title or interest in the land in question, on the basis of
the said sale deed. The appellant/defendant filed written statement controverted the
allegations levelled in the plaint. Out of the pleading of the parties the trial Court framed five
issues and after completing legal formalities, such as recording of evidence of the parties and
hearing of the arguments decreed the suit vide judgment and decree dated 18-10-1990. The
appellant/defendant being aggrieved filed an appeal in the Court of Additional District
Judge, Sukkur, who accepted the same vide judgment and decree dated 21-3-1991 and
judgment of the trial Court was set aside. The respondent/plaintiff being aggrieved filed
revision petition under section 115, C.P.C. in the High Court of Sindh, Bench at Sukkur,
which was accepted vide the impugned judgment dated 31-5-1994. The appellant being
aggrieved filed Civil Petition No.571-K/2004, before this Court, which was fixed on
20-7-2006 and leave was granted in the following terms:--

"We have heard Mr. Fatah Malik, learned counsel for the petitioner and gone through the
record. It is inter alia contended that learned Judge in Chambers of the High Court has
misread the evidence by observing that it was an uncontroverted fact that defendant had
been paying batai share in respect of the suit and to the respondent till Kharif crop before
filing of the suit which was filed on 14th February 1979. Learned counsel has also criticized
the observations of the High Court that the petitioner ought to have examined Zafar Din son
and attorney of respondent, who had allegedly made a favourable statement before
Mukhtiarkar Pano Akil. Learned counsel has heavily relied upon the production of original
sale deed, sanction of electric connection in his favour, land revenue receipts in respect of
the suit land and his name in the water rotation list prepared by Irrigation Department.

After hearing learned counsel we are tentatively of the view that the High Court has not
properly appreciated the facts in their proper perspective, therefore, a fit case for the grant of
leave is made out. Leave to appeal is accordingly allowed to inter alia consider the aforesaid
questions of law."

2. The learned counsel for the appellant submits that learned High Court had erred in law to
set aside the findings recorded by the First Appellate Court, after appreciating documentary
evidence. The learned First Appellate Court had considered following documents after
application of mind and thereafter reversed the judgment of the trial Court: -

S.No. Detail of Document Ex.Number Page No.

1 Statement of Syed Ali Mardan Ex.40 87-88
2 Statement of Zafar Din Ex.41 89-90
3 Deh Form VII Ex.42 91-92
4 Sale Deed Ex.43 95-101
5 Original receipt Ex.44 103
6 Original receipt Ex.45/1-10 105-124
7 Receipts of Tractor Ex.46/1-6 125-132
8 Receipt of National Bank Ex.47 133
9 Demand Notice of WAPDA Ex.48 135
10 Receipt for payment Ex.49 137
11 Receipt for payment Ex.50 139
12 Electricity Bills Ex.51/1-3 141-146
13 Certificate Ex.52 147
14 Receipt of electricity meter Ex.53 149
15 Chit of Abdar Ex.54 151
16 Sanction of Tube Well Ex.55 153
17 Chit of Abdar Ex.56 155
18 Receipt of purchase of Motor Ex.57 157

3. The learned High Court had not considered the aforesaid document while accepting the
revision petition filed by the respondent. The impugned judgment is result of misreading or
non-reading of the record by the learned High Court. Even otherwise the learned High Court
had erred in law to reappraisal of the evidence on record while exercising power under
section 115, C.P.C. The learned High Court had to remand the case to the First Appellate
Court while pointing out illegality or irregularity committed by the First Appellate Court
while deciding the appeal:--

The learned counsel of the respondent has supported the impugned judgment. He further
urges that documents mentioned by the learned counsel of the appellant could be examined
by this Court in the interest of justice and fair-play to shorten the agony and endless
litigation between the parties.

4. We have given our anxious consideration to the contentions of the learned counsel of the
parties and perused the record. It would be appropriate to reproduce the operative para of
the impugned judgment to resolve the controversy between the parties:--

"Absolutely no proof of any of the alleged payments has been produced by the respondent/
defendant. None of his witnesses have been stated that any of the above payments were
made by the respondent/defendant in their presence. Admittedly there was no written
agreement between the parties to the effect that land in dispute shall be purchased by the
applicant/plaintiff as an ostensible owner and for the benefit of the defendant. The Hand
Writing Expert Report was prepared by a Board consisting of, Abdul Rauf, Deputy
Superintendent of Finger Print Bureau who is a qualified Finger Print Expert and Sub-
Inspector, who also is a qualified Finger Print Expert.

In view of the foregoing and on the preponderance of evidence I allow the above revision, set
aside the judgment and decree dated 10-10-1990 passed by the Senior Civil Judge, Ghotki, in
favour of the applicant/plaintiff and the impugned judgment of the learned appellate Court."

5. The learned High Court after examining all the material evidence on record and thereafter
the learned High Court had given finding of fact against the appellant reproduced
hereinabove. The documents relied upon by the First Appellate Court were not proved by the
appellant in accordance with law as the said documents were simply produced without
producing any witness to prove the said documents, even otherwise the learned trial Court
after examining the said documents along with the other evidence on record had given
finding of fact against the appellant which could be reversed when the trial Court had arrived
at by disregarding any provision of law or any accepted principle concerning the
appreciation of evidence. This principle was not kept in mind by the First Appellate Court.
However, in the interest of justice and fair-play we had re-examined the documents in
question even then appellant could not take benefit of any type to dislodge the finding
recorded by the High Court against him in the impugned judgment. The said documents did
not advance the case of the appellant/defendant. The appellant/defendant had failed to
bring on record any document relating to title of the land in question in his favour, therefore,
these documents, as mentioned above, could not advance/support the case of the appellant/
defendant. It is admitted fact that the judgments of both the Courts below i.e. trial Court and
First Appellate Court are at variance, therefore, learned High Court was justified to re-
evaluate the evidence on record. The finding of trial Court had High Court are in consonance
with the law laid down by this Court whereas finding recorded by the First Appellate Court is
otherwise. See PLD 1986 SC 519' (Muhammad Shafi and others v. Allah Dad Khan).
Therefore, if suggestion of the learned counsel of the appellant is accepted and the case is
remanded to the learned High Court for fresh adjudication of the revision petition, it will
serve no useful purpose and would prove an exercise in futility. See Mst. Sughra Bibi v.
Khushi Muhammad 1989 CLC 2465, Arshad Amin v. Messer Swiss Bakery and others 1993
SCMR 216 and Abdul Qadir and others v. Settlement Commissioner and others PLD 1991 SC
1029, we are not inclined to remand the case to the learned High Court for fresh decision as
the law laid down by this Court in Abdul Qadir's case supra. It is settled principle of law that
who lodges a fact must prove it on the well known maxim of Secundum allegata et probata. It
is also I settled principle of law that the appellant is a beneficiary of the aforesaid documents,
therefore, it is the duty and obligation of the appellant to prove the documents as pointed out
by the learned counsel in accordance with the provisions of Qanoon-e-Shahadat Order, 1984.
See 1979 SCMR 549 (Akhter Ali v. University of the Punjab), 1992 SCMR 2439 (Haji
Muhammad Khan etc. v. Islamic Republic of Pakistan). It is well settled principle of law that
initial burden to prove execution of documents is on party which is relying on documents.
Once this onus is discharged, burden to prove factum of fraud or undue influence or
genuineness of documents shifts to party which alleges fraud. The appellant, as mentioned
above, had failed to discharge its initial onus to prove the documents mentioned hereinabove
by the appellant. The learned counsel for the appellant has failed to point out any infirmity
or illegality in the impugned judgment: Even otherwise the appellant's counsel has failed to
raise any substantial question of law. It is settled principle of law that this Court would not
normally go behind the finding of fact recorded by the learned High Court unless it can be
shown that the findings 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 misapplication of a principle relating to appreciation of evidence, or, finally, if
the finding could be demonstrated to be physically impossible. This being the practice and
the rule of the Court in civil appeals, the burden lies rather heavily on the appellant to show
that the findings recorded by the High Court are not sustainable on the record and should be
interfered with by us. The learned counsel of the appellant has failed to bring the case within
the parameters prescribed by this Court in various pronouncement. See PLD 1976 SC 767
(Shah Nawaz and another v. Nawab Khan). He also failed to point out any infirmity or
illegality in the impugned- judgment. It is well-settled principle of law that this Court cannot
interfere in the concurrent conclusions arrived at by the Courts below, trial Court as well as
learned High Court while exercising power under Article 185(3) of the Constitution of
Islamic Republic of Pakistan, 1973, as the law laid down by this Court in various
pronouncements. See PLD 1981 SC 246 (Muhammad Sharif and another v. Muhammad
Afzal Sohail etc.), PLD 1981 SC 522 (Abdul Rehman Bajwa v. Sultan and 9 others) and 1974
SCMR 279 (Khuda Bakhsh v. Muhammad Sharif and another). It is also settled principle of
law that constitutional jurisdiction is discretionary in character. Keeping in view the peculiar
circumstances of the case in hand, we are not inclined to exercise our discretion in favour of
the appellant as law laid down by this Court in various pronouncements. See 1998 SCMR
1462 (Rana Muhammad Arshad's case) PLD 1973 SC 236 (Nawabzada Raunak Ali's case)
PLD 1989 SC 166 (Haji Saif Ullah's case).

6. In view of what has been discussed above, this appeal has no merit and is dismissed with
no order as to costs.

M.H./K-6/SC Appeal dismissed.