This application under section 476, Cr. P. C. Has been pending since 18th March, 1969 and has a long factual background which is recapitulated hereunder.
2. That the plaintiff/decree-holder, Mst. Kalsoom (hereafter referred to as the decree holder) had initially filed an application under Order XXXIII, C. P. C. For leave to file suit for recovery of a sum of Rs. 54,200 which was granted and her suit, being No. 87 of 1957, was registered on 23rd August, 1957 and was decreed against the judgment-debtor Jalil Ahmed Khan and Aslam Mutual Insurance Co.
Ltd., on 25th October, 1963. The case of the decree-holder in her suit was that she was the widow of Abdullah who was killed in an accident with the bus belonging to the defendant No. 1. In the plaint it was shown that the deceased had, besides the decree-holder, left the following persons as his heirs:- (i)Ghulam MohammadFather (ii)Gulshan Mother (iii)Ashraf Minor son aged 3 years.
(iv)Akhtar Begum Minor daughter aged about 2 years.
' In the said suit, which was decreed by a learned Single Judge sitting on the original side of this Court, one of the issues framed was as under:-- "25. Whether the plaintiff and the persons on whose behalf the suit has been filed are related to the deceased in the manner stated in paragraph 2 of the amended application for suing in forma pauperis."
3. At the trial, the above issue was not pressed and dropped by the learned counsel for the defendants. The defendant Jalil Ahmad' filed a Letters Patent Appeal against the judgment and decree passed in the suit which was dismissed by a learned Division Bench .On 2nd June, 1967.
Further appeal of Jalil Ahmad to the Supreme Court was also dismissed on 4May, 1971.
Contemporaneously with the above proceedings, the decree holder had applied for the execution of the decree, as per Execution Application No. I of 1968, on 8November, 1967. The said execution proceedings were resisted/sought to be stayed by Jalil Ahmad by means of an application dated 9August, 1972 made under section 47, C. P. C, on the ground that the decree-holder had obtained the decree by fraud and misrepresentation. As to the particulars of the fraud it was stated that she had wrongly stated in the plaint and in her statement that she was the widow of Abdullah, deceased, who was the son of Ghulam Mohammad, although the later in fact, was her father and not the father in-law and that both of them had no connection with the deceased Abdullah.
Reliance was placed on three of the documents filed in support of the present application under consideration namely, a certificate dated 12th December, 1958 issued by the Chairman, Napier Barracks Union Committee, (2) Certified copy of a Nikahnama dated 24November. 1962 regarding the marriage of the decree-holder with one Sikandar All Khan and (3) Photostat copy of a certificate dated 31st May, 1965 granting permission to Ghulam Rasool son of late Ghulam Mohammad for the performance of second marriage under Muslim Family Laws Ordinance. 1961.
The said application was dismissed by Dorab Patel, J. As he then was. Although the learned Judge avoided to make any comments on the merits of the present application of the judgment-debtor Jalil Ahmad, nonetheless it was said in the order that it had been admitted before him that the facts alleged by Jalil Ahmad were known to him during the pendency of his petition in the Supreme Court and be had not raised any question of fraued or misrepresentation before their Lordships, Instead on 13th March, 1969, he had filed this application for the prosecu--tion of decree-holder for perjury under section 476, P. P. C. The applica--tion so filed was kept pending during the pendency of Jalil Ahmad's appeal in Supreme Court and although that appeal was dismissed in 1971, the application for perjury was still not decided. It was further observed by Dorab Patel, J. That strangely enough this application had been filed only against the widow and not against the deceased father or any other witnesses, still were relevant observations, contained in the said order, reads as under:- "Merely because he claims to have discovered evidence in 1968, which should have been available to him when evidence in the suit was recorded, would be no ground for reopening the evidence."
4. Not contented with the above order made on application under section 47, C. P. C. The judgment-debtor Jalil Ahmad, made yet another application in the execution proceedings on 9th August, 1972 captioned, "objections to the execution application and application under section 47, C. P. C. Read with section 151, C. P. C." This application was also dismiss--ed by I. Mahmood, J. On 12September, 1972. Since then the subject property in the execution application has been sold and its sale confirmed on 27September, 1978. In this manner curtain was dropped and the execution proceedings stood finalised.
5. It was admitted by Akhtar Mahmood Khan, learned counsel for Jalil Ahmad, that the. Documents, referred to hereinabove, had in fact been filed In the Supreme Court, in connection with the appeal against the judgment of a learned Division Bench of this Court but it was not explained as to why the same were not brought to the notice of the Supreme Court Jalil Ahmad had also filed a suit on the original side of this Court, being Suit No. 363/72, for setting aside the judgment and decree passed in the suit. The plaint in that suit was, however, rejected by my learned brother Fakhruddin G. Ebrahim, J. On 21st August, 1973 on the ground that the suit was barred under Article 96 of the Limitation Act as there was no dispute that the fraud was admitted to have been dis--covered by Jalil Ahmad prior to three years from the date of the filing, of the suit. An appeal fled by Jalil Ahmadth th th th th th against the rejection of his plaint, being H. C. No. 420/73, was also dismissed on 16th March, 1977. It was stated-at the bar by Mr. Akhtar Mahmood Khan that Jalil Ahmad bad filed a petition for leave to appeal against the decision on his said appeal which is still pending before the Supreme Court for admission.
6. The case of the judgment-debtor, Jalil Ahmad, in this application in short is, that the decree- holder had made false statement in her suit that she was married to Abdullah, Abdullah's father was Ghulam Mohammad alias Madar Bakhsh and that she bad a son and a daughter born out of her wedlock with the deceased Abdullah. It is further alleged that Ghulam Mohammad alias Madar Bakhsh, since deceased, had also falsely stated that Abdullah was his son and the decree-holder was his daughter and the said allegations now sought to be supported on the basis of the following documents:-
(i) "Living Certificate" dated 12th December, 1963 is sued by the Chairman, Union Committee No. 97, Karachi certifying that "Mst. Kalsoom, daughter of Mr. Muhammad Ramzan and Mr. Ghulam Rasool son of late Mr. Ghulam Mohammad are living in Golf Ground, Area of Haji Abdul Majeed, Member of B. D. Unit No. 1338, Karachi.
(ii) Certified copy of Nikahnama of the third marriage of Mst. Kalsoom dated 24th November, 1963 in which in Column No. 4 the entry with regard to the name of the bride and her father is given in Urdu as under:- "Kalsoom, daughter of Madar Bux alias Ghulam Mohammad, resident of Golf Ground, Quarter No. 130, Karachi."
(i.e) Photostat copy of a permission certificate -for performance of second marriage.
(iv) Photo copy of a Vekalatnama given by Kalsoom Begum to late Mr. S. M. Hanif, Advocate-on- Record, Supreme Court dated 11April, 1970 in which it was shown that Kalsoom Begum was the daughter of Madar Bux alias Ghulam Mohammad were of Sikandar of Quarter No 180, Golf Ground, Karachi.
(v) Affidavit of one Haji Abdul Majeed son of Haji Abdullah which mentions that Mst. Kalsoom had two brothers, namely, Muhammad Ramzan and Ghulam Rasool and that Ghulam Mohammad alias Madar Bux was the father of Mst. Kalsoom, Muhammad Ramzan and Ghulam Rasool.
7. In so far as the above documents are concerned suffice to say that the affidavit of Haji Abdul Majeed living certificate issued by the Chair--man of the Napier Barracks Union Committee and the permission certificate granted to Ghulam Rasool for second marriage in themselves do not constitute evidence as the same require proof and cannot be straightaway relied upon. The Vakalatnama executed by the decree-holder in favour of late S. M. Hanif, Advocate-on-Record, Supreme Court, admittedly bears her signature in Urdu and late Mr. S. M. Hanif cannot be now examined to say as to in what circumstances the father's name of the decree-holder was shown as Nadir Bakhsh alias Ghulam Mohammad. It was pointed out by Mr. Z. U. Ahmad, learned counsel for the decree-holder, that the Vakalatnama in question was of little evidentiary value because in para. 1 of the concise statement filed before the Supreme Court, a photostat copy whereof has been brought on record, it was mentioned that the decree-holder "is the widow of deceased Abdullah son of Ghulam Mohammad." Again in para 7 of the same concise statement it was stated that Abdullah's father's name was Ghulam Mohammad, aged 70 years. And the decree-holder was the widow of Abdullah having a minor son and a daunhter aged 3 and 2 years respectively. The distribution of shares in the basis of such relationship was given in para. 10 of the concise statement.
8. Apart from that was mentioned by Dorab Patel, J. In his order referred to above, this is what my learned brother Fakhruddin G. Ebrahim J., had to say, while rejecting the plaint of Jalil Ahmad, in his order dated 21st August, 1973:-th "During the pendency of the appeal before the Supreme Court of Pakistan four documents which are relevant to the present proceed--ings were filed by the plaintiff herein in support of his contention that the said Mst. Kalsoom was not the were of Abdullah or the daughter-in-law of Ghulam Mohammad alias Madar Bux. The learned counsel state that the document remained on the record of the Supreme Court of Pakistan but were not pressed into service by the learned counsel appearing for the appellant in that appeal."
The above paragraph duly supports the statement made at the bar by Mr. Akhter Mahmood Khan that the relevant documents were filed before the Supreme Court but, somehow or the other, were not pressed into service at all, for which no explanation has been offered.
9. This application was admittedly filed after inordinate delay of 5 years and 4 months from the date of the decree dated 25th October, 1963 passed in the suit. The allegation of perjury is still far removed because the statement of Ghulam Mohammad had been recorded in the suit on 9January, 1962 and that of the decree-holder and her witnesses on 11October, 1962. What is more pertinent to be taken note of is that a specific issue with regard to the relationship of the decree-holder with the persons for whose benefit also the suit had been filed had been given up and not pressed on, behalf of the judgment-debtors; namely Jalil Ahmad and the Insurance Co.
Excluding all other documents, for the reasons mentioned hereinabove, the only document of significance if any, remaining in the field is the Nikahnama. It no doubt mentions the name of Madar Bakhsh alias Ghulam Mohammad as the father of the decree-holder but it is significant that throughout in the proceedings the name of the father of Abdullah and the father-in-law of the decree-holder had been shown as Ghulam Mohammad and not Madar Bakhsh, which was referred to as his alias whereas in the Nikahnama the name of the decree-holder's father has been shown as Madar Bakhsh alias Ghulam E Mohammad. Judicial notice can be taken of the fact that the particular for entries in the Nikahnama are given either by the father of the bride or any of her close relations. The mention of the name of Madar Bakhsh alias Ghulam Mohammad, in column 4 of the Nikahnama for showing the name of the father of the bride, would have been of some value if the said person had also signed the said Vakalatnama in any capacity. Although it was alleged that Mohammad Ramzan and Ghulam Rasool were the sons of late Ghulam Mohammad and brothers of the decree---holder, but they were also not witnesses to the Nikah. Instead one Wafati has been shown to have acted as a Vakeel on behalf of the decree---holder and two illiterate persons named Shafiq Ahmad and Jan Sher are shown as witnesses to the appointment of the Vakeel for the bride. Judicial notice can also be taken of the fact that the bride herself plays no part in the filling of the entries in the Nikahnama. In the circumstances, it is not possible to give any credence to the entry of the name of Madar Bakhsh alias Ghulam Mohammad as the father of the decree-holder, apart from the fact that the principal name shown in the relevant column is "Madar Bakhsh" with Ghulam Muhammad as his alias and not the vice versa.
As a result of the above discussion I find no merits in this application, which is vexatious and is dismissed accordingly.