1. FAISAL ARAB, J.--- Plaintiff's case as disclosed in the plaint is that in September, 1995 he purchased from defendant No,2 through his son-in-law Irfan Alam two Foreign Currency Bearer Certificates worth US $ 10,000 each bearing numbers DE005143 and DE005144 for a sum of Rs,6,50,000 and on 15-7-1996 one of the two certificates was forcibly snatched from him by defendant No,1 a money changer who also got him unlawfully arrested. The plaintiff also claims that defendant No,1 forced him to draw a cheque for Rs,3,68,550 and got it encashed. He, therefore, seeks relief that he be declared owner of the certificates and be awarded compensation for the cheque and damages to the tune of Rs,25,00,000 against defendant No,
1. On the other hand the defendant No,2 with his written statement has filed his counter-claim stating that he is the real owner of the above-referred two certificates which were clandestinely removed from his locker with U.B.L. F.B. Area Branch where son-in-law of the plaintiff Irfan Alam was Assistant Manager as well as Locker Incharge. Defendant No,2 further claims that Irfan Alam then gave these certificates to the plaintiff. The defendant No,2 therefore, seeks declaration of ownership to the two disputed certificates and award of damages to the tune of Rs,60,00,000 against the plaintiff. The defendants Nos, 1 and 3 also filed their respective written statements and have simply denied plaintiff's claim.
2. Vide order, dated 19-10-1998 following issues proposed by defendant No,1 were adopted by this Court.
(1) Whether the suit is not maintainable in its present form?
(2) Whether the plaintiff is "stopped by his own conduct to bring the present suit?
(3) Whether the claim of damages and the allegations of the plaintiff in the plaint are illegal and invalid in view of the defendant's reply dated 4th September, 1996 to the plaintiff's legal notice?
(4) Whether the plaintiff has concealed the facts?
(5) Whether the plaintiff is entitled to recover the suit amount as damages from the defendant?
(6) Whether any cause of action accrued to the plaintiff?
(7) What should the decree be?
3. Then vide order, dated 10-5-1999 out of six additional issues proposed by defendant No,2 following four additional issues were also adopted.
(1) Whether the plaintiff has purchased two five years U.S. Dollars Bearer Certificates (FCBC/DBC) of US $ 10,000 each bearing Nos,DE/005143 and DE005149 from the defendant No,2 in the month of September, 1995?
(2) Whether the defendant No,2 who is employed in Islamic Development Bank in Jeddah and the defendant No,2 and his family members were present in Karachi in the month of September, 1995?
(3) Whether the plaintiff is liable to pay Rs,50,000 compensation for damages caused to the defendant No,2?
(4) Whether the defendant No,2 is entitled to the decree as claimed in the counter-claim?
4. At the trial, the plaintiff and defendant No,2 examined themselves in support of their respective claims and were cross-examined. The defendants Nos,1 and 3 did not adduce any evidence. At the time of arguments the plaintiff and defendant No,2 confined their arguments to their conflicting claims to the two Foreign Currency Bearer Certificates and did not press other issues. As a rule, a counsel is competent to abandon an issue during the conduct of a suit if he in his discretion bonafidely thinks appropriate but there are exceptions to such rule. A Where the concession amounts to erroneously giving up an issue on a question of law or such concession cannot be justified for proper conduct of a case, then the Court would still give its finding on such issue. This principle with regard to abandoning of an issue is discussed in the case of Ali Bahadur Khan v.
5. Hussain Khan reported in PLD 1979 SC (AJ&K)
47. In the present case prima facie none of the above exceptions apply. I, therefore, confine this decision only to four additional issues framed on 10-5- 1999, which only are now relevant for resolving the controversy in the present case.
6. Additional issue No,1 The controversy in the present suit relates to plaintiffs and defendant No,2's conflicting claims to two Foreign Currency Bearer Certificates worth US $ 10,000 each, having numbers DE0055143 and DE005144. These certificates were undisputedly purchased by defendant No,2 in April, 1992 from Citibank, Karachi. The plaintiff claims that in the third week of August, 1995 he purchased these Foreign Currency Bearer Certificates from defendant No,2 for a sum of Rs,6,50,000 through plaintiff's son-in-law Irfan Alam Farooqui, who at that time was Assistant Manager of United Bank Limited, F.B. Area Branch where defendant No,2 had his account and a locker.
7. The case of defendant No,2 on the other hand is that on 21-8-1995 he kept both these bearer certificates in his locker with UBL F.B. Area Branch where plaintiff's son-in-law Irfan Alam worked as Assistant Manger/Locker Incharge. The defendant No,2 then left for Jeddah, Saudi Arabia where he was working with Islamic Development Bank. Defendant No,2 further claims that after his return from Saudi Arabia on 27-6-1996 he on 7-7-1996 went to the bank to open his locker and found both the bearer certificates missing. Upon this, defendant No,2 reported the theft to the Manager of the branch as well as to Irfan Alam, the Assistant Manager/Locker Incharge. Both Manager and Irfan Alam promised inquiry into the incident. On the next day i,e, 8-7-1996 the defendant No,2 also reported the incident of theft to Citibank from where he had purchased two disputed certificates in April, 1992.
8. On 15-7-1996 one of the two certificates bearing No,DE005143 was presented for encashment at the Citibank. The bank refused encashment as defendant No,2's had already lodged report of theft with them. The bank then referred the matter to F.I.A. for investigation. As the certificate was presented for encashment on behalf of the plaintiff, he was arrested by F.I.A. the same day. The plaintiff turned out to be father-in-law of Irfan Alam.
9. In such circumstances, the defendant No,2 was of firm belief that Irfan Alam stole his certificates from his locker. Based on defendant No,2's suspicion the investigation authorities submitted challan in the criminal Court both against the plaintiff and his son-in-law Irfan Alam. In the plaint, the plaintiff has tried to explain the entire episode of his arrest and involvement in criminal case differently by stating that on 15-7-1996 two persons claiming to be C.I.A. personnel followed him upto his house, forcibly took him to the office of defendant No,1, a Money Changer, and after searching his person snatched the bearer certificate bearing No,DE005143 from him. It was this certificate which was presented at Citibank on 15-7-1996 for encashment and was denied encashment on account of defendant No,2's complaint of theft with Citibank.
10. After plaintiff's arrest on 15-7-1996, he remained in F.I.A.'s custody uptil 24-7-1996 and his custody was then given to the police. The police recorded plaintiff's statement under section 161, Cr.P.C. in the said statement he stated that the certificate was given to him by his son-in-law Irfan Alam, which statement he later denied. The plaintiff after remaining in jail for about one month got himself released on bail.
11. Mr. M. Akram Siddiqui, the learned counsel for the plaintiff confined his arguments to the controversy between the plaintiff and defendant No,2 in relation to their conflicting claims to the bearer certificates and did not touch upon plaintiff's claims for compensation and damages against defendant No,
1. I, therefore, confine this decision to the controversy between the plaintiff and defendant No,2. Mr. M. Akram Siddiqui firstly argued that the plaintiff purchased the disputed certificates from defendant No,2 through Irfan Alam for a sum of Rs,6,50,000 and upon such payment Irfan Alam handed over the two disputed certificates to the plaintiff. He has further argued that the very fact that these were bearer certificates, it implies that whosoever is found in custody of such certificates, is to be regarded as its lawful owner. He submitted that mere fact that certificates are bearer certificates no receipt is required to be obtained from seller to establish ownership thereto and ownership gets conferred as is the case with the purchase of prize bonds.
12. He, therefore, argued that on such reasoning, the plaintiff be declared owner of the disputed certificates and his suit in relation to the disputed certificates be decreed in his favour. This argument of plaintiff's counsel is misconceived. Admittedly, defendant No,2 purchased the disputed certificates from Citibank in April, 1992 and plaintiff claims that he purchased these certificates from defendant No,2 in September, 1995 through Irfan Alam. In this background mere custody of disputed certificates with the plaintiff does not confer lawful title until he establishes through cogent evidence that he did purchase the disputed certificates from defendant No,2.
13. Thus, for the plaintiff to succeed it was imperative that he should have established that he had purchased the disputed certificates as claimed by him. It is an admitted position that plaintiff and defendant No,2 were completely strangers to each other and the plaintiff purchased the certificates through his son-in-law Irfan Alam who was Assistant Manager in UBL where defendant No,2 had his account and locker. To establish such a plea, the plaintiff ought to have produced his son-in-law Irfan Alam as his witness in support of his case. It's quite strange that Irfan Alam was not produced as a witness who is said to have brought about the sale transaction between the plaintiff and defendant No,2. Such an omission is fatal to plaintiff's case as it amounts to withholding of evidence of vital importance. An adverse inference as envisaged in the illustration
(g) to Article 129 of Qanun-e-Shahadat Order, 1984 is to be drawn against the plaintiff for such an omission. It was only Irfan Alam who could have established in evidence that disputed certificates were purchased by his father-in-law through him by stepping into the witness-box and withstanding the test of cross-examination. The principle of adverse inference as envisaged by Article 129(g) of Qanun-e-Shahadat is well-discussed in Sughran Bibi v. Aziz Begum reported in 1996 SCM R 137 wherein it was held that where a party withholds evidence of vital importance such an act is fatal to his case. The principle laid down in the Supreme Court judgment is fully attracted to the facts of the plaintiff's case.
14. Another important aspect of the case on the basis on which this Court draws adverse inference against the plaintiff is that when defendant No,2 reported theft of the disputed certificates to Branch Manager as well as to Irfan Alam himself, Irfan Alam ought to have reacted to this by asserting that defendant No,2 has himself sold the disputed certificates to the plaintiff through him.
15. Such a reaction was natural in a situation where defendant No,2 sells the disputed certificates to the plaintiff through Irfan Alam and then, goes on to report the incident of theft to the very same person i,e, Irfan Alam. However, nowhere in the entire pleadings of the plaintiff such a reaction has come out. A Court always draws an adverse inference against a person where he in a given situation is bound to react in a particular manner but fails to do so. Thus, the case of purchase of defendant No,2's certificates by the plaintiff through Irfan Alam is not believable on this score as well.
16. The plaintiff's counsel next argued that in the ultimate outcome of the criminal proceedings both the plaintiff and his son-in-law Irfan Alam were acquitted and, therefore, the allegation of theft of the disputed certificates cannot now be established in the present case. In support of this contention he has placed on record decision dated 28-2-2003 given in the criminal case Na.66 of 1999 wherein the criminal Court found that allegations of cheating and dishonesty against the plaintiff and his son-in-law Irfan Alam have not been proved beyond reasonable doubt. The criminal Court acquitted both of them. This decision of the criminal Court though submitted at the argument stage is taken on record being a judicial pronouncement. Based on the decision of the criminal Court, the plaintiff's counsel contented that plaintiff's version that he purchased the disputed certificates may be believed. There is hardly any force in this argument too. Firstly, the plaintiff and Irfan Alam were acquitted on account of failure of the prosecution to prove its case beyond reasonable doubt. Secondly, findings of a criminal Court are neither binding nor relevant for adjudicating a civil dispute in a civil Court. Civil disputes are decided on the basis of preponderance of probabilities and the test of proof is not the proof of a fact beyond reasonable doubt but is the preponderance of evidence. This principle is discussed in a Supreme Court case Ghulam Rasool v. M. Waris Bismil reported in 1995 SCM R 500 which squarely applies to the present case. The plaintiff therefore, cannot extract any advantage in the present suit on the basis of decision of the criminal Court.
17. Mr. Malik A.R. Arshad learned counsel for defendant No,2's counsel has argued that the plaintiff while in custody had moved bail application but nowhere in the bail application he claimed that he had purchased the disputed certificates from defendant No,2. In support of this contention he drew this Court's attention to Exhibit 14/4, Exhibit 14/7 and Exhibit 14/8 wherein nowhere it is mentioned that the plaintiff purchased the disputed certificates from defendant No,2 and his main thrust was that the certificates being bearer certificates, the Citibank was not justified in refusing encashment and no criminal case on bearer certificates could be made out against the plaintiff or Irfan Alam. A plain reading of the bail application shows that nowhere the plaintiff has mentioned that he purchased the disputed certificates from defendant No,2 through Irfan Alam. Thus, this plea of purchase is nothing but subsequent improvement in the plaintiff case. Thus it is amply established that plaintiff's version of purchasing the disputed certificates from defendant No,2 was an afterthought and cannot be believed.
18. The defendant No,2's counsel further argued that no proof whatsoever of the alleged purchase from defendant No,2 has been produced and even in the plaintiff's rejoinder to defendant No,2's counter-claim the defendant No,2's assertions as to the theft of certificates remained unrebutted.
19. After discussing the merits of the alleged purchase in some detail I do not feel any need to discuss any further on this argument. The additional issue No,1 is answered in the negative.
20. Additional issue No,2 Mr. Malik A.R. Arshad, learned counsel for defendant No,2 argued that the plaintiff in his plaint claimed that he purchased the disputed certificates from defendant No,2 in September, 1995 but when the defendant No,2 annexed copies of his passport with his written statement to establish that in September, 1995 the defendant No,2 was not in Karachi but had already left for Saudi Arabia earlier on 25-8-1995, the plaintiff became wiser and in his affidavit-in-evidence shifted the date of his alleged purchase of certificates to the third week of August, 1995. The shifting of date of purchase by the plaintiff from September, 1995 to August, 1995 cannot be attributed to weakness of human memory in the background when such a change in the plea has been made by the plaintiff only after the defendant No,2 has filed copies of his passport showing the dates of his exist from and entry into Pakistan, which were also duly exhibited in evidence and remained unrebutted. In my opinion the change in the date of purchase has been made by the plaintiff deliberately to support his false case of purchase of disputed certificates from defendant No,2. The additional issue No,2 is also answered in the negative.
21. Additional Issue No,3 The defendant No,2's claim for damages is not sustainable in law for the reason that the defendant No,2's allegation of theft of the disputed certificate from the locker was directed only against Irfan Alam, who has not been impleaded as a party in the present proceedings. Thus, additional issue is answered in the negative.
22. Additional Issue No,4 In the light of the discussion on the foregoing issues, the defendant No,2 has made out a case declaraing that he is lawful owner of the two disputed Foreign Currency Bearer Certificates bearing Nos,DE005143 and DE005144. This issue is therefore, answered in the affirmative.
23. In view of the above discussion it has become quite clear that the plaintiff has failed to establish his case of purchase of disputed certificates from defendant No,2 through Irfan Alam. As to the defendant No,2's counter-claim, it is hereby declared that defendant No,2 is lawful owner of the two disputed certificates bearing Nos,DE005143 and DE005144 and, therefore, is entitled to their possession along with return of profits which the plaintiff collected on such certificates. The plaintiff shall also pay interest/equalizer at the rate of 6% per annum to defendant No,1 in terms of section 34 of Civil Procedure Code on all profits, which he wrongfully collected on the certificates. However, defendant No,2's claim for damages is denied for the reason that the allegation of theft of certificates from the locker was directed only against Irfan Alam, who has not been impleaded as a party in the present proceedings. Resultantly, the suit of the plaintiff is dismissed whereas the counter-claim raised in the defendant No,2's written statement is decreed to the extent stated above. The costs shall follow the event.