' MUNIB AKHTAR, J.---The present Revision arises out of civil suit No 86 of 1986 ("Suit") filed at Sukkur by the present respondent No,1 (who, for convenience, I shall refer to as "the plaintiff Hussain Bux") against the present applicants and/or their predecessors-in-interest (who, for convenience, I shall refer as "the defendants"). Although a number of issues arose in the Suit as a result of the pleadings filed by the parties, only one point was argued before me and it will therefore be sufficient to narrate the facts only insofar as they relate to, or are necessary for a determination of that point.
2. The plaintiff Hussain Bux is the son of one Abdul Rehman whose father was one Yar Muhammad.
Yar Muhammad had six sons and one daughter and the defendants are the other children of Yar Muhammad and/or their successors-in-interest. The admitted position is that Yar Muhammad died in 1952, The plaintiff Hussain Bux, who is the only child of his father Abdul Rehman, claimed a share in the estate of the deceased Yar Muhammad through his father who, according to him. Died on 15.4.1973 i,e, many years after the death of his paternal grand father Yar Muhammad. The defendants, on the other hand claim that Abdul Rehman died in 1933 when the plaintiff Hussain Bux was a six month old baby, and thus according to them. Abdul Rehman predeceased his father Yar Muhammad by several years. The law of inheritance as it stood in 1952 did not provide for the children of a predeceased son to take the place of their father in the inheritance of the grand father. Thus, if the plaintiff Hussain Bux is correct and his father died after Yar Muhammad then he is entitled to share in his grandfather's estate through his father. This was the claim made by the plaintiff Hussain Bux in the suit. On the other hand, if the defendants are correct, then since Abdul Rehman predeceased Yar Muhammad, the plaintiff Hussain Bux did not inherit anything from his grandfather and had no share in his estate. This was the defence that they took in the suit. The sole point argued before me was as to whether Abdul Rehman had predeceased his father, or died after Yar Muhammad had passed away.
3. As is obvious, this was the one of the crucial (if not the most crucial) issues in the suit, and the first issue that was framed by the learned trial Court related to this point. The plaintiff Hussain Bux, in support of his contention that his father had died on 15-4-1973, produced a document referred to a death certificate and exhibited at Exh.72 in his evidence (hereinafter referred to as "Exhibit 72").
According to him, this document established that his father had died after his grandfather had passed away. The defendants, on the other hand, primarily relied on the oral testimony of Rasool Bux, one of the sons of Yar' Muhammad (and thus Abdul Rehman's brother), and one of the defendants in the suit. The learned trial Court, after considering the evidence of the parties on the point, concluded that the onus of establishing the factum of the date of his father lay on the plaintiff Hussain Bux, but that he had failed to discharge this burden and had not succeeded in establishing that his father had died after 1952, and more precisely on 15-4-1973. Since this issue (along with other issues) were decided against the plaintiff Hussain Bux, the learned trial Court dismissed the suit by means of its judgment dated 16-2-1989. Being aggrieved by this dismissal, the plaintiff Hussain Bux filed an appeal (being Appeal No,17 of 1989) which was heard by, the learned 3rd Additional District Judge. Sukkur. The learned appellate Court, by means of its judgment dated 2-1-1990, reversed the learned trial Court, and decided the issue of the date of Abdul Rehman's death in favour of the plaintiff Hussain Bux and against the defendants. The learned appellate Court concluded that the death certificate of Abdul Rehman (i,e,, Exhibit 72) had been produced and admitted to evidence and that in the presence of this document, no oral evidence could be accepted. Being aggrieved by the decision of the learned appellate Court, the defendants filed the instant Revision in this Court.
4. Learned counsel for the applicants/defendants submitted that the learned appellate Court had materially erred in its conclusions with regard to Exhibit 72. He submitted that this document was without any credibility since it was admittedly obtained in 1987, i,e, many years after the death of the plaintiff Hussain Bux's father even as per the latter's own case. According to learned counsel, it was a managed document on which no reliance could be placed.
5. On the other hand learned counsel for the respondent No,1/plaintiff Hussain Bux submitted that in view of the documentary evidence presented in the matter, i,e, the aforesaid Exhibit 72, no oral evidence could be adduced to contradict the same and that the learned appellate Court had rightly concluded that the plaintiff Hussain Bux had been able to establish that his father had died after his grandfather Yar Muhammad. Accordingly, he Prayed that the Revision be dismissed.
Certain case law was also referred to by learned counsel for the parties.
6. In my view, the learned appellate Court clearly fell in legal error in concluding that Exhibit 72 was a document of such a nature that no oral evidence could be produced to contradict or dispute its contents. In effect, the learned appellate Court (although did not expressly so state) concluded that the document came within the purview of Articles A 102 and 103 of the Qanun-e-Shahadat Order, 1984 ("QSO"). However, in my view, this was an erroneous conclusion arrived at by the learned appellate Court. Exhibit 72 did not in my view, come within the purview of Articles 102 and 103 of the QSO. As is clear from a perusal of the said Articles, they apply when the terms of a contract, grant or other disposition of property have been reduced to writing, or when any matter required by law to be reduced to the form of a document. Indeed, the case law referred to by learned counsel for the plaintiff Hussain Bux (Muhammad Buksh v Province of Punjab 1994 SCM R 1836 and Syed Amjad Ali v Kaneez Fatima PLD 2006 Kar 576) related to this point. However, Exhibit 72 is obviously not a contract, grant or other disposition of property nor does it contain any matter required by law to be reduced to the form of a document. It did not therefore come within the scope of Articles 102 and 103 of the QSO. Since oral evidence is excluded only in respect of documents which come within the scope of the aforesaid Articles, it follows that in my view, the oral evidence of the defendants did not stand excluded in the present case. Even if Exhibit 72 could be regarded as a public document, that would not affect the foregoing position. A public document is a document which may be proved by means of a certified copy in accordance with the applicable Articles of the QSO. That does not, however, necessarily mean that the contents of every such document cannot be challenged or contradicted by other, including oral, evidence.
7. A bare perusal of Exhibit 72 shows that this document was not even a death certificate properly so called. i,e, it was not a confirmation regarding the death of Abdul Rehman certified by an independent authority or third person such as a medical doctor or a hospital or other such functionary. The document itself is titled "Copy of death report for the year --- within the limit of Sukkur Municipality". All it states is that on 9-2-1987, the plaintiff Hussain Bux reported to the Municipality that his father Abdul Rehman had died on 15-4-1973 as a result of "T.B." i,e,,, tuberculosis. Therefore, all that Exhibit 72 confirms is that on the date aforesaid, the informant, i,e,, the plaintiff Hussain Bux had reported that many years prior thereto, i,e,, in 1973 a death had occurred, namely that of his father Abdul Rehman. The first point to note is that on the face of it, no contemporaneous report was made of Abdul Rehman's death i,e,, no information was supplied to the relevant department of Sukkur Municipality in 1973 or thereabouts that Abdul Rehman had passed away. It was only after 14 years that this information was conveyed to the Municipality. The informant was none other than the plaintiff Hussain Bux, who was of course involved in litigation in which one of the issues was the date on which Abdul Rehman had died. This document in my view, therefore did not advance the plaintiff Hussain Bux's case in any manner, since it was in fact nothing more than a statement made by the plaintiff Hussain Bux himself that his father had died in 1973. Since this was the very fact that had to be established by proper evidence, the plaintiff Hussain Bux's own statement even if made to and recorded by Sukkur Municipality, can hardly be regarded as definitive proof of the date on which Abdul Rehman had died.
8. The exact date, 9-2-1989, on which the plaintiff Hussain Bux reported his father's death to the Municipality, is also significant. By that date of course, the plaintiff Hussain Bux had already filed the suit. The order sheet of the learned trial Court for 2-2-1987 reads as follows:-- "Case called. Counsel for plaintiff and plaintiff present and filed proposed issues. Issues framed.
Now for F.H. Documents and list of witnesses be filed within 15 days. Status-quo continued till decision of injunction application. Hearing on 9-3-1987".
9. In other words, on 2-2-1987, issues were framed and the matter adjourned for the plaintiff's evidence. A few days thereafter, the plaintiff Hussain Bux proceeded to the Municipality, purported to inform the latter that his father had passed away 14 years ago on 15-4-1973, and obtained a document (Exhibit 72) showing that he had made such a report; and thereafter tendered it in evidence when he deposed before the trial Court. It needs hardly to be stated that in these circumstances, the credibility of Exhibit 72 is seriously questionable.
10. The cross-examination of the plaintiff Hussain Bux also established certain important points with regard to Exhibit 72. In his cross-exaimation, the following is to be found:-- "I do not remember the date when my father died. He might [have] died in the year 1970 or 1971. My father died of sudden death. He was not ill".
11. It is strange that the plaintiff Hussain Bux in cross-examination appeared to have difficulty in remembering the year in which his father had died, although the death of a parent is usually something that every person remembers. In any case, in his examination-in-chief the plaintiff Hussain Bux had produced Exhibit 72, in which he had made a categorical statement on 9-2-1987 that his father had died on 15-4-1973. It appears that the evidence of the plaintiff Hussain Bux was recorded on 19-8-1987, i,e,, just a few months after he had reported the matter to the Municipality.
Yet, even within this short span of time, he seemed to have had such a sudden and inexplicable lapse of memory that he could not even remember the proper year in which his father had died.
Furthermore, in his cross- examination, he stated that his father had died suddenly and was not ill prior to his death. However. Exhibit 72 shows that according to the information provided by the plaintiff Hussain Bux to Sukkur Municipality on 9-2-1987, his father had died as a result of tuberculosis In other words, his father had been ill before his death. Tuberculosis is a disease that hardly ever causes a person to die suddenly; the afflicted person invariably remains ill for sometime before the occurrence of death. Thus, the plaintiff Hussain Bux's own evidence was at variance with Exhibit 72 in many material respects.
12. As the foregoing review of Exhibit 72 indicates, there was hardly any credibility that attached to this document. In my view therefore, the learned appellate Court made two fundamental errors.
Firstly, it wrongly came to the conclusion in law that the nature of Exhibit 72 was such that it excluded any oral evidence produced by the defendants to contradict the same. Secondly, even as to Exhibit 72 itself the learned appellate Court did not examine the record properly, and therefore completely misread the evidence and misjudged the credibility that attached, and ought to have been attached, to this document.
13. The evidence of the defendants on this point, as noted above, is mainly the testimony of Rasool Bux, paternal uncle of the plaintiff Hussain Bux and one of the defendants in the suit. Rasool Bux testified that Abdul Rehman died sometime in 1932 or 1933, i,e,, many years prior to his father Yar Muhammad's death, when the plaintiff Hussain Bux was but a six months' old baby. He further testified that Abdul Rehman's wife, i,e,, the plaintiff Hussain Bux's mother, Mst. Nooran, was then married to one of the other brothers, namely Muhammad Siddique. Rasool Bux testified as to the date on which his father had died i,e,1952 and categorically stated that thereafter the latter's property was distributed according to the muslim of inheritance as then applicable in Pakistan.
This testimony in my view was not shaken by the plaintiff Hussain Bux in his cross-examination. It may be noted that the many years after Yar Mohammad's death, the plaintiff Hussain Bux had, in 1980, moved an application seeking changes in the record-of-rights relating to the property that had formed part of estate of his grandfather. This application had been allowed and the defendants had filed an appeal against such mutation, which was allowed by the Additional Commissioner. Sukkur by means of an order dated 21.9.1984. Against this order the plaintiff Hussain Bux had filed a revision before the Member, Board of Revenue which was dismissed by order dated 2-4-1985. F.C. Suit 46 of 1986 (i,e,, the Suit) had been filed by the plaintiff Hussain Bux to challenge these, orders, which of course had restored the position with regard to Yar Muhammad's estate to what it had been prior to 1980 (i,e,, excluding Hussain Bux). Rasool Bux testimony also related to this aspect of the matter and even here the plaintiff Hussain Bux's counsel was not able to shake the same. In my view, it is not necessary to examine this aspect of the matter, since as noted above, the plaintiff Hussain Bux's case hinged on Exhibit 72, which was, in view of what has been stated hereinabove a document without any credibility.
14. At the time of the hearing of this Revision certain miscellaneous applications were also pending, of which notice need be taken of only one application being CMA 92-2003 filed by the defendants under O.XLI, Rule 27, C.P.C. In terms of this application, the defendants sought permission to produce certain documents as appended to that application before this Court. These documents purported, inter alia to show the plaintiff Hussain Bux was indeed, the son of Mst. Nooran, who had been Abdur Rehman.'s wife, and was married to Muhammad Siddique when Abdur Rehman 'died in 1933. It is well settled that an application under this provision is not allowed unless the court is satisfied that there are strong and weighty reasons for allowing additional evidence to be produced at such a late stage. In any case, the plaintiff Hussain Bux had filed a counter-affidavit to this application categorically denying the contents of the same and to which no affidavit-in- rejoinder had been filed by the defendants. Accordingly, this application is dismissed. The remaining applications were not pressed by the parties moving the same, and are therefore disposed of as infructuous.
15. In view of what has been stated above, I have come to the conclusion that the learned appellate Court made material errors in applying the law and committed material illegalities in its consideration of the evidence that was before it. Accordingly, this revision is allowed. The impugned judgment of the learned appellate Court is set aside and the decree of the learned trial Court is restored.