1. ' CH. RAHIM DAD KHAN, C. J.-This is an appeal by leave of this Court from the judgment of the Azad Kashmir High Court dated 30th May, 1976.
2. ' The facts of the case briefly stated are that one Sultan, resident of village Khumb Tehsil Bhimber, District Mirpur, died in the year 1971.
3. ' He owned land measuring 41 kanals and 17 marlas in village Khumb and one kanal and 5 marlas in the adjoining village Seerla Tehsil Bhimber. Mst. Fazal Bibi claims to be the daughter of Sultan from Mst. Hayatan, admittedly the wedded wife of the said Sultan. She (plaintiff) asserts that she was born during the existence of the state of a valid marriage. The appellant (defendant) admitted the marriage of Mst. Hayatan, mother of Mst. Fazal Bibi with Sultan, their father, but they deny her paternity on the plea that state of marriage had come to an end by divorce prior to her birth. There is evidence of several witnesses to show that Mst. Fazal Bibi was born to Mst. Hayatan after the valid marriage with Sultan 2/3 years prior to dissolution of the said marriage. Almost all the plaintiff's witnesses hail from the neighbourhood and some of them are closely related to the parties. Mir Hussain and Mohammad Alam are cousin brothers of Sultan deceased father of defendant appellant and would in the normal course of events be expected to know her parentage. Nothing substantial was brought out in cross-examination to doubt the correctness of their statements.
4. However, there is on record evidence- of Mohammad Ellahi plaintiff's witness No, 3, which is at reverse of page 17 of the trial Court file, who in his short statement, of one sentence has deposed that the name of the father of the plaintiff was Muhammad Din. No question was put to him in cross-examination either by the party producing him or the opposite party. He was not relied upon by any one of the three Courts below, for the reason that he could not have the knowledge about the paternity in view of the fact that there is not much difference of age between him and that of the plaintiff. Consequently, relying on other evidence, produced by the plaintiff to prove her paternity, her suit was decreed.
5. ' The learned Advocate for the appellant contends that since Mohammad Ellahi gave evidence against the party calling him ; such party cannot avoid the affect of his evidence except by shaking the credit of such witness by cross-examination, with the permission of the Court and in the absence of any fact elicited in cross-examination, according to him, the party producing him shall be assumed to have accepted the statement made by such witness.
6. ' Before assessing the value of such evidence the question of relevancy and admissibility of the deposition made by Mohammad Ellahi witness requires determination in the first instance and for that it is necessary to examine whether his evidence is ,admissible at all under the provisions of section 50 or 32 (5), (6) of the Evidence Act which reads as under :- "50. When the Court has to form an opinion as to the relationship of one person to another, the opinion, expressed by conduct, as to the existence of such relationship, of any person who, as a member of the family or otherwise, has special means of knowledge on the subject, is, a relevant fact : ' Provided that such opinion shall not be sufficient to prove a marriage in proceedings under the Divorce Act, or in prosecutions under section 494, 495, 497 or 498 of the Pakistan Penal Code.
7. ' Illustration
(a) The question is, whether A and B were married.
8. ' The fact that they were usually received and treated by their friends as husband and wife, is relevant.
(b) The question is, whether A was the legitimate son of B. The fact that A was always treated as such by members of the family, is relevant.
9. ' Section 32 reads : "32. (I) ......................................................................... ..
(2) .............................................................................................................................................
(3) ..........
(4) ...................................................
(5) When the statement relates to the existence of any relationship by blood, marriage or adoption between persons as to whose relationship by blood, marriage or adoption the person making the statement had special means of knowledge, and when the statement was made before the question in dispute was raised.
(6) ......................................................................................................
(7) ............................
(8) ...............
10. ' The District Judge who heard the 1st appeal rejected the evidence of Mohammad Ellahi on the ground that the foundation for admission of his evidence had not been laid down by party, which according to him, was necessary. As Mohammad Ellahi had not disclosed his special means of knowledge on the subject, so his evidence was not admissible. We do not agree with him on this point because it is not correct to say that the evidence of relationship would be inadmissible unless foundation for admission of such evidence is laid by the pasty who seeks its admission, particularly when it is shown that a witness is either a relation or friend of the family and he deposes to a fact of relationship, there would be a presumption that he had a special knowledge of such relation. It is admitted by Msi. Fazal Bibi herself that Mohammad Ellahi is distantly related to her. Consequently, it was not necessary to preface his evidence of relationship for laying down the foundation. In Haji Ilahi Bakhsh and others v. Mst. Nawab Bibi and others (1), Mr. Justice A. S. Faruqui, J. Observed as under "It would not be correct to say that the evidence of relationship would be inadmissible unless foundation for the admission of such evidence is laid by the party who seeks its admission. That in many cases such a requirement would be necessary is true, but this cannot be laid down as a general proposition. For instance, if a brother of the deceased was to depose that A was the son of the deceased or B was his Wife, it would not be necessary to ask questions of such a witness in the- first instance regarding the means of his special knowledge. Such a means would be presumed in such a case. When a witness is shown either to be a relation or a friend of the family and he deposes to a fact of relationship there would be a presumption that he had the special knowledge of such relationship. It would not in such a case be necessary to preface his evidence of relationship with questions which must first lay down the foundation based on conduct with regard to such evidence."
(1) PLD 1966 Lah, 664 In the instant case, when it is admitted that Mohammad Ellahi is related to the family, his evidence could not therefore, be rejected if otherwise relevant, merely because the witness did not state in the first instance, as regard to the means of special knowledge necessary for rendering the statement of such a witness admissible, for the simple reason that in view of relationship it would be assumed that the witness did possess the special means of knowledge on the question involved. Nevertheless the statement of a witness having special means of knowledge about relationship would not become admissible so long the source of information about relationship is not disclosed. In other words, the relative is a competent witness but for rendering his evidence admissible, the witness has to reveal the source of such opinion that is to say such facts on the basis of which an inference for such opinion has been drawn.
11. ' In fact. According to section 50, Evidence Act, the Court has to forth an opinion as to the relationship of one person to another. What is relevant is the opinion expressed by conduct, as existence of such relationship, of any person who as a member of the family or otherwise had the special means of knowledge on the subject.
12. ' The evidence of Mohammad Ellahi, in the instant case, when critically examined is the opinion which is not based on the conduct of any person and which is not even direct, therefore not admissible. A similar question came up for determination before Mr. Justice Muhammad Akram, Judge of the Lahore High Court (as he then' wag) in a case, entitled Ghulam Muhammad and another v. Allah Yar and others (1). At page 485 of the-report the learned Judge observed as follows :- "As to the oral evidence of the five witnesses for the defendants, it has been argued that none of them is a competent witness to depose about the relationship between the parties as required by section 50 of the Evidence Act, 1872. According to this section, when the Court has to form an opinion as to the relationship of one person to another, the opinion, expressed by conduct, as to the existence of such relationship, of any person who, as a member of family or otherwise, has special means of knowledge on the subject, is a relevant fact. It is the opinion, expressed by conduct, of any person who has special means of knowledge about the relationship, which is relevant. The opinion of a competent witness must be 'expressed by conduct' and in case it is not so relevant based on conduct it would be irrelevant. The two illustrations to this section fully bring out the import of these significant words in the section. According to illustration (a), the fact that A and B were usually received and treated by their friends as husband and wife, is relevant. Similarly in illustration (b), the fact that A was always treated as the legitimate son of by the members of the family, is relevant.. In these cases the opinion of the friends and the members of the family who have the special means of knowledge is relevant because it is based on the conduct and treatment of the persons concerned. The _ opinion as expressed by conduct is evidence or in other words evidence of the conduct can be given in evidence and from that conduct given in evidence, the Court is to judge the result. Generally speaking the opinion cannot be a substitute for evidence of facts in issue and is irrelevant. But this (1) PLD 1965 Lah. 482 section is one of the few exceptions to the general rule. It is, therefore, all the more necessary that in order to lay the foundation. For admission of evidence of this kind all the necessary ingredients of this section must be brought out positively. Mere rumor or gossip that A is related to unaccompanied by conduct on their part or on the part of their friends and relations is a mere hearsay and hew inadmissible as a piece of evidence to prove the issue. Section 50 enacts a rule different from the law in England where the evidence of general reputation is admissible to establish the fact of the parties being married. In this country the evidence is limited to the opinion as expressed by conduct and there is no other section in the Evidence Act under which the evidence of general reputation can be received in proof of relationship."
13. ' After examining the various judgments and the case law on the point the learned Judge came to the conclusion that "there is little doubt that the last mentioned four witnesses would be having special means of knowledge about the relationship of the parties but it is equally clear that they have given no evidence the conduct on which their opinion about the relationship is based. In the light of the law discussed above, their opinion about the relationship of the parties is legally irrelevant and inadmissible in evidence." He therefore, rule out of his consideration such evidence.
14. ' In Shah Nawaz and another v. Nawab Khan (1) Mr. Justice Muhammad Gut, who wrote the judgment (Mr. Justice Muhammad Akram was also a member of the Bench), after examining the provisions of sections 32 and 50 of the Evidence Act observed at pages 777 and 778 of the report as follows : "Subsection (5) of section 32 is, widely worded and makes relevant statements by all persons having special means of knowing the relationship between two persons. Therefore, these statements need not be confined to persons connected by blood with the person whose pedigree is in question. However, it is essential for the admissibility of the statement that it should have been made 'before the question in dispute was raised' that is to say it must be ante litem motam. The object is to avoid biased statements and this is highly probable if the dispute or controversy is in progress even though it may not have reached the stage of legal proceedings. Therefore, the statement should not merely be before the commencement of the legal proceedings but before even the existence of any actual controversy concerning the subject-matter of the statement.
15. From the statement of the case in the beginning of the judgment, it is clear that the controversy between the parties started with the entry No, 188 in the daily diary of the Patwari in 1944. The oral statements of all the witnesses were made during litigation between the parties and do not refer to any prior declaration made by any of them ante litem motam. Therefore these oral statements are not covered by section 32 (5) of the Evidence Act and are hit by the rule against the hearsay evidence.
16. ' Under section 50 on the other hand, what is made admissible is 'the opinion expressed by conduct' as to the existence of a particular relationship and not merely a statement as to that relationship.
(1) PLD 1976 S c 767 ' In other words according to section 50 when the Court has to form an opinion as to the relationship of one person to another, it is the opinion expressed 'by conduct' as to the existence of that relationship of any person whether member of family or otherwise who has special means of knowledge on the subject, is a relevant fact. The intention underlying the section is clarified by two illustrations to section 50 according to which the opinion of friends and members of the family who have special means of knowledge is relevant because it is based on the conduct and treatment of the persons concerned. Generally speaking an opinion cannot be a substitute for evidence of facts in issue and is inadmissible under the Evidence Act as hearsay. Section 50 however, is one of the exceptions to the general rule against hearsay. It is therefore, essential that in order to lay the foundation for the admission of evidence under this section its ingredients must be brought out positively. As observed in Ghulam Muhammad v. Allah Yar (PLD 1965 Lab. 482) mere rumour or gossip that A is related to B, unaccompanied by conduct on their part and on the part of their friends and relations is a mere hearsay and therefore inadmissible to prove the relationship.
17. Whether the statement by a person has any basis which could give it the value of admissibility, the witness must first disclose his source of information about relationship sought to be proved. Where therefore, the witness gives no evidence of the conduct on which his information about the relationship is based, the opinion of the witness about the relationship would be irrelevant and inadmissible in evidence."
18. ' We respectfully agreeing with the authority, are of the opinion that the law has been correctly laid down in these authorities and hold that in the instant case the oral evidence of Mohammad Ellahi plaintiff's witness being only opinion cannot be substituted for evidence of facts in issue and, therefore, his evidence about the paternity of the parties is inadmissible. The evidence of Mohammad Ellahi, of which the learned Advocate for the appellant wanted to make such capital, is not at all relevant and admissible because he does not state at all the grounds on which he has formed the opinion that Mst. Fazal Bibi is the daughter of Mohammad Din. He himself was only 5 years old when Mst. Fazal Bibi was born. Even otherwise if the statement of Mohammad Ellahi had been relevant, in that case too, cross-examination could not be the only way to get rid of the effect of the statement, as the party producing such witness could avoid the adverse effect by other methods, such as ;
(a) by producing evidence in rebuttal of his statement ; and
(b) by taking steps under the provisions of section 155, Evidence Act, 1. e. Impeaching the credit of witness.
19. ' The real controversy that requires determination in the instant case is whether the evidence of Mohammad Ellahi can be avoided by the party calling him when he gave evidence about the relationship contrary to the stand taken by the plaintiff. The submission of the learned counsel for the defendant-appellant is that in view of the fact that the statement of Mohammad Ellahi was allowed to go unchallenged by the party calling him it should be assumed that his statement was accepted by the party and in spite of other ...Evidence the Court should accept that statement in truthful. He, in support of his contention, relied on P D 1967 Lab.
20. ' 1138. PLD 1967 Azad J & K 26, PLD 1963 Kar. 465 and PLD 1969 Pesh.
118. All these authorities are to the effect the failure to cross-examine a witness amounts to accepting the evidence of such witness. In peculiar circumstances of those cases the inference drawn therein, cannot be controverted but it would be going too far to say that the statement of a witness of the party should not be disputed at all or should be taken as an admission against the party who produced him, if the part having opportunity failed to test the veracity of such witness by cross examination even though overwhelming evidence is adduced by the party thereafter to dispel the effect of such an adverse statement. The judicial decision primarily applies to facts on which it is given. Such observation generally is made on consideration of the peculiar facts of a particular case. If they are applied indiscriminately to other case it is likely that it may result in miscarriage of justice. A case, in fact, I an authority for what it actually decides. So awry authority must be read as applicable to the facts assumed as basis for the inference in a particular case and not for any general proposition that may seem t follow logically from it. Obviously it would not be safe to rely upon finding of facts in any individual case to form foundation for general principle because the observation in a judgment separated from the context would not support the isolated data in another case. In would consequently be misleading to apply the inference drawn from certain facts and circumstances to other case based on different facts and circumstances.
21. ' In `Prakash Chandra Pathak v. State of Utter Pradesh (1) at pages 197 and 198 it is observed :- "It is enough to say that decisions even of the highest Court on questions which are essentially questions of fact, cannot be cited as precedents governing the decision of their cases which must rest in the ultimate analysis upon their own particular facts. The general principles governing appreciation of circumstantial evidence are well-established and beyond doubt or controversy.
22. The more difficult question is one of applying those principles to the facts and circumstances of a particular case coming before the Court. That question has to be determined by the Court as and when it arises with reference to the particular facts and circumstances of that individual case. It is no use, therefore, appealing to precedents in such matters. No case on facts can be on all fours with those of another."
23. ' It becomes thus quite clear that the inference drawn from these authorities is entirely subject to the facts and circumstances peculiar to those cases, as such it would be more safe for the dispensation of justice not to apply that generalization to the facts and circumstances of the case before us.
24. ' Examining individually the various cases cited before us on behalf of appellant, it may be pointed out that in Syed Iqbal Hussain v. Mst. Sarwari Begum (2) reliance was placed on AIR 1940 Pat. 683 for the proposition that failure to cross-examine a witness means that his statement is being accepted was not the entire basis for the decision in the case. This was only one of the grounds among many others to arrive at the conclusion therein. Generality of the expression in (1) AIR 1960 SC 1.95 (2) PLD 1967 Lah. 1138 this case was not intended to be an exposition of the whole law but it is governed by particular facts of that case on the basis of which it was assumed that certain facts were not proved as there were inherent improbability in the version of the process-server and the landlady did not avail of the opportunity to cross-examine the witnesses produced in rebuttal of the statement of the process-server. In fact, reliance in this case was placed on `Karnidan Sarda and another v. Sailaja Kanta Mitra (1) wherein it was observed : "It cannot be too strongly emphasized that the system of administration of justice allows of cross- examination of opposite-party's witnesses for the purpose of testing their evidence, and it must be assumed that when the witnesses were not tested in that way, their evidence is to be accepted unless of course there are any inherent improbabilities."
25. ' It would be clear that the state of law on which reliance was placed was qualified one and there was a rider to the effect that the evidence of such witness is to be relied only if there are no inherent improbability. Same is the case with PLD 1969 Pesh. 118 in which reliance was placed on PLD 1967 Lah. 1138 as well as AIR 1937 All.
26. 754.
27. ' Mr. Justice Munir (Retd. Chief Justice of Pakistan) in his book 'Law pf Evidence' at page 1556 has dealt with the question, now we are faced with, in the light of various provisions of the Evidence Act and observed as under :- "It sometimes happens that witness who is called by a party in the expectation, or on the understanding, that he would give evidence as to the existence of a particular fact, either does not give the evidence which was expected of him, or gives contrary evidence. In such a case, the party calling the witness often wishes to get rid of the evidence of the witness. To a party thus circumstanced, the following three courses are open, all or any of which may be adopted by him :-
(1) If the fact the witness was expected to prove is a fact in issue or a relevant fact, the party calling the witness, may, as of right, call other witnesses to depose to that fact and thus destroy the adverse effect of the witness' evidence. A witness, whether of the opposite party of one's own, may always be contradicted on relevant facts without the permission of the Court. It would be in the highest degree. Unjust and absurd if parties were bound by the unfavourable statements of witnesses with whom they have no privity, and who are frequently called by them from pure necessity.
(ii) The party calling the witness may, with the permission of the Court impeach the credit of the witness by evidence of the kind mentioned in section 155.
(iii) The party calling the witness may, with the permission of the Court, cross-examine him in the manner described in sections 145 and 146."
28. ' The learned author while commenting on section 153 of the Evidence Act under the heading. 'The evidence of a witness as to facts in issue or (I) AIR 1940 Pat. 6$3 relevant facts may be contradicted', has observed at pages 1552 and 1553 :- " In England a witness may always be contradicted by contrary proof on matters which are relevant. The Act does not formally state this rule anywhere, but the rule is implied in the provisions of section 5 and 153. If the plaintiff is entitled to give evidence as to the existence of a fact in issue or a relevant fact, the defendant is also entitled, under section 5, to give evidence as to the nonexistence of that fact ; and, of course, the effect of giving such evidence by the defendant would be to contradict the evidence given by the plaintiff's witness. Thus, the rule in Pakistan may be stated to be that that part of the evidence of a witness which relates to facts in issue or to facts which are declared relevant by the second Chapter of the Evidence Act may always be contradicted by contrary proof."
29. ' Section 5 of the Evidence Act reads as follows :- "Evidence may be given in any suit or proceeding of the existence or non-existence of every fact in issue and of such other facts as are hereinafter declared to be relevant, and of no others."
30. ' Section 5, Evidence Act, deals with giving evidence regarding the existence or non-existence of facts in issue or relevant facts in a proceeding which evidence can be given. Obviously evidence about non-existence of facts would imply evidence in rebuttal.
31. ' In Babu Ram v. Emperor (1) precisely the question involved was about the value of the evidence of a witness of the party whom he . Produces but does not challenge his version when it is against him. It was observed by Allsop, J, at page 755 as follows :- "It do not know upon what section of the Evidence Act or upon what other law the learned Judge bases his general proposition that a party is bound by the evidence of a witness whom he produces. No part of the statement of such a witness amounts as far as I know to an admission on behalf of the party producing him. In some circumstances a Court which is deciding a question of fact may say, that a party produces a witness presumable because he believes that he is a witness of truth and, therefore, if the witness says something contrary to the interest of the party producing him the statement must be regarded as having considerable, weight. I do not think that it is possible to go further than that. Nor do I know of any rule of law that a party is not able to say that a witness produced by him is not speaking the truth upon some particular point unless he makes a written application to say that the witness is hostile."
32. We think that the law has been correctly enunciated in Baba Ram v. Emperor's case. The statement of a witness produced by a +party must be given due weight and should be examined in the light of other evidence on record. It would be wrong to give such a statement the status o an admission by the party. Otherwise it would lead to miscarriage justice.
33. ' Even if the party calling a witness asks the Court to-declare such a witness to be hostile and leave is granted to cross-examine the witness, the evidence of such a witness may not be rejected either in whole (1) AIR 1940 All. 754 or in part. It is to be considered in the light of the circumstances of, each case. Of course certain High Courts were of the view that evidence of such a witness should be rejected as a whole but a Full Bench of the Calcutta High Court in Profulla Kumar Sarkar and others v. Emperor (1) held at page 407 as follows :- "The fact that a witness is dealt with under section 154, Evidence Act, even when under that section he is cross-examined to credit, in no way warrants a direction to the jury that they are bound in Law to place no reliance on his evidence, or that the party who called and cross-examined him can take no advantage from any part of his. Evidence. There is moreover no rule of law that if a jury thinks that a witness has been discredited on one point they may not give credit to him on another.
34. The rule of law is that it is for the jury to say."
35. ' In short, while considering the effect of the statement of such a witness who gives contrary evidence to the interest of the party calling him, other surrounding circumstances and the statements of witnesses produced by the parties must also be taken into account.
36. ' The Supreme Court does not normally undertake re-appraisal of evidence unless substantial departure from some rule or principle of appreciation of evidence takes place. However, for our satisfaction have also examined the evidence in the instant case. The statements of the plaintiff's witnesses have been relied upon by the three Courts below while that of the defendant has been rejected by all the Courts below. In other words there is a concurrent finding of facts. The statements of Reham Dad and Sawar Khan P. Ws. Have been rightly rejected by the Courts below for want of grounds necessary for reception of such statement. A copy of the alleged statement made by one Mohammad Sadiq before the Revenue Assistant at the time of attestation of mutation was placed on record by defendant-appellant. The general rule as enacted in section 60, Evidence Act is that all evidence must be direct. The witness himself must appear and give evidence of facts which he claims to have perfected. Sections 32 (5), (6) and 33 enact exception to the above rule, the previous declaration or deposition become admissible only when it is shown that the witness is dead or cannot be found or is incapable of giving evidence or kept out of the way by the adverse party or he cannot be called as witness. If therefore the witness is alive and available, the previous statement cannot be admitted into evidence. Muhammad Sadiq is alive and it is not shown that he is not incapable of giving evidence therefore his previous statement is not admissible. Moreover. The statement about the relationship in order to be admissible under section 32 (5), (6) should have been made before any controversy arose, as to the relationship sought to be proved while the statement sought to be proved in the instant case admittedly' was made not prior to the controversy but in the mutation proceeding giving 'rise to the controversy involved in the case. This piece of documentary evidence, therefore, is not at all admissible and had been rightly rejected by the trial Court. The oral evidence adduced by the respondent has rightly been ruled out. There being no reason for coming to a different conclusion than the one arrived at by the three Courts below, we maintain their finding and dismiss the appeal with costs.
(1) AIR 1931 Cal. 401