This revision petition calls in question the judgment and decree of Mr. Muhammad Younas Khan, Additional District Judge-IL Swabi, dated 4.7.2007, whereby accepting the appeal of plaintiff- respondent Sher Ali, he set aside the judgment and decree of the trial Court dated 21.9.2006 and remanded the case back for recording further evidence and comparison of the signatures/thumb impression of the lady-plaintiffs allegedly present on impugned mutation, through experts.
2. Learned counsel for the petitioner agitated that full opportunity was given to plaintiffs- respondents to prove their case. Since they had failed to establish their case in trial, there was no need of providing them another opportunity to lead evidence, and to avail of expert opinions about the signatures and thumb impressions, because the correctness of signatures and thumb impressions of the ladies on the impugned mutation has been proved.
3. Record reveals that in the instant case male plaintiffs coupled with four ladies namely Mst.
Muhsin, Mst. Hameeda, Mst. Saeeda, daughters of Jamroz and Mst. Zuhra widow of Jamroz, have challenged the validity of Mutation No, 949 attested on 29.5.1998 whereby their land measuring six Kanals has been mutated to Darul-Uloom Qasmia defendant petitioner as "Waqaf'.
4. Persual of record reveals that this mutation was attested on the basis of report of commission.
Syed Tahir Shah, Girdawar Circle, was deputed by the Tehsildar as Local Commissioner to get the signatures/thumb impressions of the aforementioned ladies on mutation. The Local Commissioner came in the witness box as DW-5. He unequivocally admitted in the cross-examination that he himself did not record the statement of the ladies named above nor saw them. Their statements were recorded through Muhammad Yousaf, husband of Mst. Muhsina and he did not personally ask the ladies that whether they were intending to transfer the land to Darul-Uloom Qasmia or not. This admission at the part of Girdawar Circle proves that the extremely important task entrusted to him by the Tehsildar was further delegated by him to Muhammad Yousaf, husband of Mst. Muhsina. The commissioner, Tahir Shah (PW-5), not only defeated the trust of Tehsildar posed in him, but acted totally in violation of law while entrusting his duty to some one else, about whom it is not known that whether he was "competent enough" or "trust worthy" to do the job or not. Even if he was having such credentials, still in this regard satisfaction of the Tehsildar was required. The Local Commissioner was not competent to entrust his delicate and sacred duty to others and deprive himself of personal knowledge of relevant facts to depose in Court of law in present like eventuality, when the validity of mutation stood challenged. Such a practice of Local Commissioners is depreciated.
5. The argument that the ladies were Pardanasheen and they were facilitated according to local customs, is forcefully repelled and not approved. Indeed we do respect the Pardanasheen ladies and facilitate them to the maximum. For this reason their examination through Local Commissioners is permissible in law and the facility is liberally utilized, so that the respectable Pardanasheen ladies are not exposed to public, but, at the same time, we must not ignore the hard reality that their valuable rights can not be protected unless they are "personally examined" by the reliable Local Commissioner" duly identified by their kith and kin, having no clash of interest with them. Just like some time a Pardanasheen lady has to expose herself before a Medical doctor or Surgeon for her required treatment, she should allow to be, directly examined by a Local Commissioner at her residence, to protect valuable rights related to properties. Otherwise, the paramount activity to create direct evidence to be use in future disputes would remain in jeopardy.
At this juncture, I would deem it appropriate to guide all relevant forums to utilize the services of trustworthy lady Advocates as Local Commissioners for examination of the ladies who are Parda observing, extravagantly.
6. In this case, in view of the statement of the Local Commissioner, it is truly and seriously needs further enquiry, in the interest of justice, that whether the ladies had consented to attestation of the impugned Waqaf mutation or not. This factual aspect of the cage rightly prompted learned Additional District Judge-II, Swabi, to ask for further evidence and specially to get the thumb impressions/signatures of the ladies comparatively studied by the expert for report.
7. The learned appellate Court has exercised the vested power with reasonable grounds and no illegality or material irregularity could be detected therein. Hence, the revision petition, found devoid of force, is dismissed in limine.