' MIAN SAQIB NISAR, J.--Bakhsha and Meera are the real brothers, whereas according to the counsel for the plaintiff, Sardar is their step-brother. The present petitioners, are the legal heirs of Sardar.
Bakhsha died issueless, and his estate devolved upon Qaiser Abbas, the son of Meera, and a Mutation No.320, dated 10-2-1992 was sanctioned. The petitioners, on 28-3-1992, brought a suit for declaration, challenging the mutation and claiming the inheritance, being the legal heirs of Sardar and also pleading that Qaiser Abbas, is not the son of Meera. It may be pertinent to state here, that when the suit was brought, Qaiser Abbas, was the minor and was sued through his next friend.
However, the matter was contested, issues were framed, parties were put to trial and the suit has been dismissed, finding that Qaiser Abbas, is the son of Meera and had the preferential right of inheritance qua the plaintiffs over the estate of his real uncle. Appeal filed by the petitioners has also failed on 8-9-1997.
2. Learned counsel for the petitioners by relying upon Exh.P.5, the divorce deed, allegedly executed by Meera, to divorce his wife Mst. Rajan, admittedly, the mother of Qaiser Abbas, states that in the deed it is specifically mentioned that Qaiser Abbas, is not the son of Meera, rather when he got married with Mst. Rajan, he was there born out of earlier wedlock of the lady with one Fazil. Both the Courts below, have not relied upon this document for the reason, that it has not been proved in accordance with law. Learned counsel contends, that the divorce deed i.e. Exh.P.5, is the part of another judicial proceedings, and the petitioners, had obtained the certified copy from the said recor& and tendered it into the evidence in this case, therefore, the question of proof does not arise in the matter. It is also argued, that besides the above, there is ample oral evidence to prove that Qaiser Abbas is not the son of Meera. As against the above, the Courts below, have relied the school certificate of Qaiser Abbas, in which he has been shown to be the son of Meera, but this certificate has no evidentiary value as it is not proved as to who got recorded the parentage of Qaiser Abbas in the school record.
3. Heard. I do not find force in the argument of the learned counsel for the petitioners, that Exh.P.5 is the conclusive proof of the lack of relationship and stood proved when it was admitted in evidence.
Suffice it to say, that this document is witnessed by two persons namely Zulfiqar and Ghulam Baqar but they have not been examined and there is no cogent reason for such an omission.
Therefore, the presumption of withholding the best and direct evidence can be validly drawn against the petitioners. Merely, the said document was on the file of some judicial proceedings, and after obtaining the copy therefrom, when it is not established that it was ever proved in those proceedings in accordance with law, it cannot be said to have been proved in the present case.
Notwithstanding the above, if a document is admitted in evidence, it would mean that at the time of the decision, such document shall be considered and read by the Court. However, by any stretch of imagination or application of law, it can be held that the document has conclusively proved the fact only on account of its being accepted. The Court despite the above, is bound to adjudge the evidentiary value of such a document, and if on account of lack of the examination of the witnesses of the document, who have tested the document, with the object to prove it; if some question about its execution and authenticity, has been raised, or not so examined, the admission of the document in evidence by itself, would have no legal significance. It may be reiterated, that where the question of legitimacy of a minor is involved, strict onus of proof is on the shoulder of the person, who denies the relationship, which otherwise prima facie is established, but in the instant case, the strict and positive evidence needed in this behalf, is absent. There is concurrent finding of fact recorded by the two Courts below, holding that Qaiser Abbas is the son of the late Meera, and I do not find any misreading and non-reading calling for interference in the revisional jurisdiction.
Dismissed.