' MUHAMMAD SAIR ALI, J- Petitioner's suit for declaration and perpetual injunction allegedly filed on the basis of a registered sale-deed dated 21-8-1983 to seek .Establishment of his title was dismissed by the learned Civil Judge Jaranwala through judgment and decree dated 28-2-1993.
The petitioner's appeal thereagainst was also dismissed by the learned Additional District Judge Faisalabad through judgment and decree dated 3-6-1996. Hence the present civil revision.
2. As per the learned counsel for the petitioner, the petitioner's suit was admittedly based upon a registered sale- deed dated 21-8-1983 showing purchase of the suit-land from Noora (predecessor-in- interest of respondents Nos. 1 to 6) and Akbar (respondent No. 7) at a price of Rs.
11,000. But upon the death of Noora inheritance mutation in favour of respondents Nos.l to 6 was entered on 27-4-1986 in respect of the suit-land. Hence the petitioner had to file his suit Contesting written statement thereto was filed by the Respondents. The learned trial Court framed seven issues. Evidence was recorded. The petitioner's suit as well as appeal were dismissed by the learned courts below where against the learned counsel for the petitioner contends that ingredients of sale were completed .And the learned courts below committed material irregularity by ignoring that the suit comprised of two parts of two Kanals each belonging to different owners out of whom respondent No.7 Akbar was alive but did not appear nor was he produced by respondents Nos.l to 6 to disprove the sale. Further contends that the document (Exh.P.l) was an admitted document and the price mentioned therein was also admitted by the respondents but their actual dispute .Was that the suit-land was mortgaged at mortgage price of Rs.l 1,000 and was not sold.
3. The learned counsel for the petitioner was heard and record examined.
4. Despite service, none of the respondents appeared. They were therefore proceeded against ex parte through order dated 22-12-2006.
5. The petitioner's suit was structured and purported right was developed on the basis of registered sale-deed dated 21-8-1983 (Exh.P-1) incorporating purchase of suit-land from Noora and Akbar at a price of Rs.l 1,000. Issue No.l thereto was framed by the learned trial Court placing its onus upon the petitioner plaintiff. The issue reads as under:- "Whether registered Deed No. 1442 dated 21-8-1983 was validly executed in favour of the plaintiff?
O.P.P."
6. As the respondents claimed the suit-land to have been mortgaged and not sold by Noora and Akbar wherefor Issue No.6 on the basis of pleadings of the respondents was framed by the learned trial court reading that as to whether suit-land vvas mortgaged to the plaintiff by the defendants and he fraudulently executed the registered sale-deed in his favour instead of the mortgage deed.
Onus thereto was on the defendants. The parties led their evidence. The learned courts below concurrently concluded this question of fact against the petitioner. The learned courts below analyzed the evidence and held that the petitioner had failed to prove the sale of the suit-land incorporated in registered Sale-deed No.1442 dated 21-8-1983 in his favour and also failed to prove the payment of the sale price of Rs.l 1,000. Contrarily the learned courts below held that the respondents had proved their version that the suit-land was mortgaged for the mortgage price of Rs.l 1,000 which was fraudulently claimed by the petitioner plaintiff to have been sold by the respondent defendants. The reasoning concurrently weighing with the learned courts below was that the important witnesses of the sale-deed were not shown or confronted with the sale-deed (Exh.P-1) to prove its writing by the petition writer Iqbal Hussain (P.W.l) and to have been attested through signatures/thumb- impressions by the marginal witnesses (P.W-3 and P.W-4).
7. The contention of the learned counsel for the petitioner thereagainst is that mere production of the sale-deed as Exh.P-1 was adequate and the petition writer did state that he had written the sale- deed in favour of the petitioner. And that the marginti witnesses (P.W-3 and P.W-4) also stated that they signed as marginal witnesses on the sale-deed. It is an admitted fact that'Exh.P-1 (the purported sale-deed) was not shown to the petition writer Iqbal Hussain (P.W-1) to prove that this document was written by him incorporating the purported sale-deed. The learned courts below were thus justified in holding that Iqbal Hussain's evidence being in vacuum was of no help to the petitioner. Similarly the purported witnesses (P.W-3 and P.W-4) were also not confronted with their signatures/thumb impressions on the alleged sale-deed to prove that it was on this document that they had attested their signatures wherefor the value of their evidence was also lost. The emphasis of the learned counsel for the petitioner was that the sale-deed was made by two persons; Noora and Akbar. And that Noora died and his legal heirs (respondents Nos.l to 6) were impleaded as defendants while the second owner Akbar (respondent No.7) was still alive but had not been produced by the defendants to deny the sale and sale- deed. As the onus to prove the sale and the sale-deed was on the petitioner plaintiff, it was his duty to produce one of the purported vendors i.e. Akbar (respondent No.7) to admit or . Deny his thumb impressions/signatures upon the sale-deed and receipt of consideration thereof. Bare reading of issue No.l also shows that it was the duty of the petitioner plaintiff to prove execution, registration and making of the sale-deed in his favour by Noora (predecessor-in-interest of respondents Nos.l to 6) and Akbar (respondent No.7) and he was also bodnd to prove the receipt of sale price. The main litigated question was whether the sale was made by the owners in favour of the petitioner or not. The claim of the respondents was that it was mortgage against mortgage money of Rs. 11,000 of the suit-land and not the sale. Issue No.6 was thus framed by the learned trial court. This issue was of shoot of Issue No.l; the proof or disproof of which hinged upon the entire adjudication of the matter. It has not been shown that the learned courts below misread or overlooked the evidence. It has also' not been shown that the learned courts below committed material irregularity, excess of authority or mis-exercise of authority. The petitioner as per concurrent findings of fact based upon evidence was unable to prove Exh.P-1 in his favour. This Court therefore does not find any legal infirmity in the impugned judgments and decrees to revisionally interfere therein. As such, this civil revision is dismissed.
9. As the respondents were proceeded against ex-parte, there is no justification to impose the costs upon the petitioner.
Petition dismissed.
2007 YLR 2811 [Lahore] Wore M.A. Shahid Siddiqui, J Malik TANVEER AHMAD BHUTTA--- Petitioner versus THE STATE and another---Respondents Writ Petitions Nos.1690 and 1755 of 2006, decided on 30th October, 2006.
Penal Code (XLV of 1860)--- ----S. 324---Criminal Procedure Code (V of 1898), Ss.4(1) & 173---Constitution of Pakistan (1973), Art.199-Constitutional petition---Appreciation of evidence--Investigation---Opinion of Investigating Officer, could not be treated as legal evidence in any case-Police Officers, under the scheme of law, were not even required to give finding of guilt or innocence of accused- Determination of guilt or innocence of accused was solely the function of the court---Police Officers were simply required to collect evidence as contemplated under S.4(1), Cr.P.C.--- Report under S.
173. Cr. P.C. Having been submitted, the police had become functus officio---Objection regarding maintainability of constitutional petition being without any lawful basis, was of no cosequence- Trial Court while proceeding further with the case; would take into consideration the entire incriminating legal evidence against accused regardless to the irregularities committed by the police during the investigation of the case---Trial Court would not be influenced by unfounded opinions of Investigating Officers. 2813] A Syed Muhammad Ahmad v. The State and others PLD 2006 SC 316 rel. Ch. Saghir Ahmad and Ch. Faqir Muhammad for Petitioner.
Mian Abdul Ghaffar for Respondent/Complainant.
Mubashar Latif Gill, A.A.-G. For the State and Muhammad Idrees, S.-L ORDER ' M.A. SHAHID SIDDIQUI, J.---This single order will dispose of Writ Petitions Nos.1690 of 2006 and 1755 of 2006, as both the petitions are the outcome of the same F.I.R.
2. This matter pertains to case F.I.R. No.63 of 2005 registered at Police Station Seetal Mari District Multan on 2-4-2005.
3. According to the F.I.R. Naeem Nawaz complainant, his brother Amin Nawaz and father Sher Nawaz were going in their car on 31-3-2005 at about 8-00 p.m. From General Bus Stand to their house in Gulgashat Colony. When they were near the underpass towards Tughlaq Town two young men aged 25/30 years emerged from the rear on CD-70 motorcycle. They tried to get the car stopped but the complainant who was driving the car apprehending danger did not stop it. Upon which the one who was sitting on the rear seat of the motorcycle fired with a pistol hitting Sher Nawaz on the left side of his chest. Both the perpetrators then disappeared. Sher Nawaz was taken to Nishtar Hospital. His son Naeem Nawaz got the F.I.R. Registered on 2-4-2005 under section 324 read with section 34, P.P.C. Thereafter Sher Nawaz succumbed to the injuries.
4. After the registration of the case the complainant made a supplementary statement in which he implicated Mujahid Hussain, Arshad Mehmood and Khizar Hayat accused. Mujahid Hussain and Khizar Hayat accused were identified as culprits during the identification parade and Arshad Mehmood was declared as innocent and accordingly the challan was submitted. On an application by the complainant to the Additional Inspector-General of Police. Rab Nawaz D.S.P.
Reinvestigated the case and got Arshad Mahmood discharged. Thereafter the complainant moved another application to the Additional Inspector-General who vide order, dated 10-10-2005 directed the District Police Officer, Multan to place the matter before the Board under Art.18(6) of the Police Order, 2002 to consider the change of investigation. The D.P.O. Instead of placing the matter before the Board forwarded the case to the S.P. (Investigation) who deputed two D.S.Ps. Namely Ashfaq Ahmad Barki and Tallat Yaqub to reinvestigate the case. Ashfaq Ahmad Barki, D.S.P. Without associating the petitioner and the co-accused added section 109,- P.P.C. And directed the S.H.O. To submit challan against Tanvir Ahmad petitioner and one Taqi Raza Shah as well. The petitioner feeling aggrieved has challenged the legality and propriety of order, dated 10-10-2005 and the findings recorded by Ashfaq Ahmad Barki, D.S.P.
5. Learned counsel for the petitioner has vehemently argued that the order of the Additional I.-G.
Dated 10-10-2005 was without any lawful justification and that the findings of Ashfaq Ahmad Barki, D.S.P. Regarding the involvement of the petitioner under section 109, P.P.C. Being unfounded is of no legal effect.
6. Learned counsel for the complainant has supported the impugned order as well as the proceedings conducted by Ashfaq Ahmad Barki, DSP. He, at the very outset challenged the maintainability of the petition on the ground that the petitioner who has been arraigned as an accused in the last report submitted by the S.H.O. Under section 173, Cr.P.C. Has neither surrendered before the police nor has he obtained bail order from any Court as such the office should not have entertained this petition which merits dismissal. He further submitted that the irregularities pointed out by the learned counsel for the petitioner have, after the submission of the challan, lost their significance.
7. The learned A.A.-G. After going through the police file frankly conceded that the findings about the involvement of the petitioner and one Taqi Raza Shah in the case in hand under section 109, P.P.C. Are without any evidence.
8. I have heard the learned counsel for the parties and have perused the record. The opinion of the Investigating Officer cannot be treated as legal evidence in any case. Under the scheme of law the Police Officers are not even required to give finding of guilt or innocence of the accused persons.
Determination of guilt or innocence of the accused is solely the function of the Court. They are simply required to collect the evidence as contemplated under section 4(1), Cr.P.C. I seek guidance from the law laid down by the Honourable Supreme Court of Pakistan in the case of Syed Muhammad .Ahmad v. The State and others PLD 2006 SC 316.
9. In view of the above the opinions expressed by the different Police Officers in this case are held to be of no consequence. The report under section 173, Cr.P.C. Has been submitted. The police has now become functus officio. Objection regarding the maintainability of this petition being without any lawful basis is of no consequence. The learned trial Court while proceeding further with the case shall take into consideration the, entire incriminating legal evidence against the accused regardless to the irregularities committed by the police during the investigation of the case. He would not be influenced by the unfounded opinions of the Investigating Officer. These petitions stand disposed of with the above direction. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.