' ROOH-UL-AMIN KHAN, J---This revision petition is directed against the judgment and decree dated 10-7-2004, passed by the learned District Judge Karak vide which the judgment and decree dated 20-2-2002, passed by the learned Civil Judge Banda Daud Shah Camp Court Takht-e- Nasrati District Karak was set aside, and consequently, the petitioners' suit was dismissed.
2. Facts in brief forming the background of the instant revision petition are that to settle a land dispute inter se the plaintiffs (petitioners herein) and defendants Nos.5 to 7, defendants Nos.1 to 4 (respondents herein) were appointed as Jirga members/arbitrators and 30 tolas gold ornaments and Rs,6000 in cash, were allegedly kept with them by the petitioner as security "Bolga". The arbitrators tried to resolve the controversy by delivering its verdict but the same allegedly being unilateral, was not acceptable to the petitioners, hence, the petitioners by filing the instant suit sought return of the alleged "Bolga" from the respondents as well as produce of the land in question from defendants Nos.5 to 7. The suit was contested by the defendants by filing written statements, raising therein verity of objections legal as well as factual. The controversial pleadings of the parties were formulated into issues, on which the parties led their respective evidence and on conclusion of trial, the suit of the petitioners was decreed in their favour by the trial court, against which, the respondents preferred an appeal, which was allowed, the judgment and decree of the trial Court was set aside and consequently, the suit was dismissed, hence, this revision petition.
3. Learned counsel for the petitioners argued that the impugned judgment of the learned Appellate Court is against the law, facts and suffering from inherent infirmities hence is not tenable in the eyes of law; that the learned appellate Court has failed to appreciate the evidence in its true perspective; that petitioner has taken oath in accordance with Article 163 of the Qanun-e- Shahadat Order, 1984 in respect of payment of "Bolga", that Zafar Aazam, one of the Jirga members has returned the Bolga to the extent of his share which proves that the Bolga was actually paid to the arbitrators, thus, on the rule of consistency, the other respondents/Jirga members are also liable to pay the remaining "Bolga" to the extent of their shares but the learned appellate Court has not adhered, to this aspect of the case and haphazardly dismissed the suit of the petitioners.
Hence, by accepting instant revision petition, the impugned judgment and decree of the appellate Court be set-aside and that of the learned trial Court be restored.
4. As against that, the learned counsel for the respondents contended that impugned judgment of the learned appellate Court is based on proper appraisal of evidence and is well reasoned; that an oath of a party without following the mechanism provided under Article 163 of the Qanun-e- Shahadat Order, 1984, cannot be termed an oath under the Article ibid because proposal and acceptance are sine qua non to fulfil the requirements of the Article ibid, but in the case no such offer was made on behalf of the respondents. The learned counsel further argued that as per the judgment of the trial Court, the oath was taken by the petitioner during the course of arguments, and that too, of his own without any offer or proposal, hence, the same cannot be termed as legal under Article 163 of the Qanun-e-Shahadat Order, 1984. He sought dismissal of the instant revision petition..
5. I have heard the exhaustive arguments of the learned counsel for the parties and have gone through the record with their valuable assistance.
6. It appears from the written statement of the respondents that constitution of a Jirga and their appointment as its Jirga member/Arbitrators to resolve a land dispute inter-se the petitioners and defendants Nos.5 to 7 have not been denied, however, they all have categorically denied receipt/payment of "Bolga" by the petitioners. In case of denial of the respondents, the burden was on the shoulders of the petitioners to prove that the delivery of "Bolga" to the respondents. To prove their claim, Mir Sahib Khan petitioner appeared as P.W.1 while one Raqib Khan was examined as P.W.2. Both have furnished the detail account of the events of payment of "Bolga" to the respondents, but both are inconsistent on material facts. Rather, their testimonies are suffering from material contradictions regarding the same question of facts. In cross examination Mir Sahib Khan stated that he placed the Bolga in "Charpai" on which all the Jirga members were sitting and give Rs,6000 to defendant No,2 with the permission of rest of the Jirga members. He at first instance stated that the Bolga was in shape of 30 tolas gold but again stated that it was in the shape of gold ornaments. He deposed that he had not weighed the "Bolga" gold in front of the arbitrators/ respondents nor the arbitrators told him about its weight. He categorically stated that he does not know that who, out of the four Jirga members, pick the gold/Bolga from the Charpai. He further deposed that the gold ornaments were given in an envelope. Contrary to that Raqib Khan who poses himself to be the witness of delivery of Bolga, deposed that the gold ornaments were kept in a brief case which was placed in the mid of Jirga members, out of whom 3 Jirga members were sitting on one Charpai while one on another. The gold was placed in the mid of three Jirga members and the same was also weighed at the spot through scale. He showed his ignorance about payment of Rs,6000 by Mir Sahib Khan to any Jirga member. The above statements of the two witnesses by no stretch of imagination prove that he has brought and kept "Bolga" (security) with Jirga members, rather it creates doubt about the claim of the petitioners. Moreso, there is nothing in the black and white to prove the payment/delivery of "Bolga". Similarly, the petitioners have also not brought on record any receipt of the Jeweler regarding purchase of the 30 tolas gold ornaments nor any Jeweler has been examined in support of his claim. Not a single chit signed by the Jirga members, has been exhibited to prove the receipt of Bolga by the respondents. 30 tolas gold ornaments is not a meager amount that one will hand over the same to the Jirga members without taking any proof in black and white. Thus, the claim of the petitioners does not appeal to reason.
7. As regards the argument of the learned counsel for the petitioners that payment of Bolga amount by Zafar Aazam, one of the Jirga member, being an MPA and respectable of the locality, is sufficient proof of receipt of the Bolga amount by the respondents, hence, the rest of the Jirga members/respondents are also liable to return the same, has no force in absence of production of said Zafar Aazam in the witness box to substantiate the claim of the petitioners or any witness in whose presence said Zafar Aazam returned the Bolga amount to the extent of his share. Mere statement of the plaintiff is not by itself sufficient to charge the defendants with the liability. Mr. Zafar Aazam, one of the Jirga members, has also been arrayed as defendant No,1 in the plaint. He has filed his written statement separately, wherein he categorically denied the allegation of keeping the "BoIga" with the Jirga members. During trial, plaintiff has not taken a single step to bring an iota of evidence on record, suggesting return of part or portion of the alleged "Bolga" to the plaintiff. During trial, Mr. Zafar Aazam was available in the area and the plaintiff should have produced him as his best witness, but he failed to do so. It is a cardinal rule in the law of evidence that the best available evidence must be brought before the Court in support of a claim, and withholding of such evidence of vital importance would reflect on case of the claimant. It is settled and fundamental principle of law of evidence that whoever alleged existence of a particular fact and seeks judgment of the Court depend upon existence of the facts, then he has to prove those facts. In other words, he who asserts must prove the same. Mere oral assertion of the plaintiff regarding partial return of the "Bolga" from Zafar Aazam, is not sufficient to establish his claim against the respondents-defendants.
8. Similarly, the argument of the learned counsel for the petitioners that under Article 163 of the Qanun-e-Shahadat Order, 1984, the petitioner has taken oath in respect of the "Bo lga" which is sufficient for proving his stance, is misconceived, because the oath allegedly taken by the petitioner before the trial Court was during the course of arguments without any proposal on the part of the respondents, as such, cannot be termed an oath under Article 163 of the Qanun-e- Shahadat Order, 1984. Article ibid provides a proper procedure and mechanism for taking and administering oath to plaintiff and defendant. No doubt, oath envisaged by article ibid, is entailed by the initiative taken by the plaintiff, who takes an oath in support of his claim, but thereafter he is required to submit an application, and on his application, the Court may call upon the defendant to deny the claim on oath, and even then, in any event the Court is not precluded to decide the case on merits. In the instant case, plaintiff has been provided ample opportunity by the Court to produce evidence. Similarly, defendants-respondents have also denied the claim of plaintiff vehemently through adducing plethora of evidence. The apex Court, while interpreting the provision of Article 163 of the Qanun-eShahadat Order, 1984, has laid down the principle that when both the parties have led evidence, the provision of this Article shall not be applied. Any initiative taken by the plaintiff, contrary to the provision of Article 163 of the Qanun-e-Shahadat Order, 1984, shall not burdened the defendants/respondents and no adverse inference could be drawn against them when the necessary conditions of the oath, as enumerated in Article ibid, are missing. In this regard, reference may be made to the judgment of the august Supreme Court of Pakistan in case titled, "Bashir Ahmad v. Muhammad Luqman" (1999 SCM R 378). Similar, view has also been expressed in case titled, "Muhammad Sharif v. Bashir Ahmad (1987 CLC 2006) by the Lahore High Court. In another case titled, "Qazi Muhammad Saqib Khan v. Ghulam Abbas and 2 others" (2003 M LD 131), same view has been reiterated. As observed above, and evident from the judgment of the trial Court, the petitioner has only taken oath during the course of arguments, without any offer to defendant to deny it. The unilateral oath, taken by the plaintiff in his favour, would not be treated as a conclusive piece of evidence as to be given preference over evidence produced by the parties. A deposition of party on oath in his favour nevertheless remains evidence. In support of the above, reliance may be placed on the celebrated judgment of the Hon'ble Supreme Court in case titled, "Mirza Khan and others v. Muhammad Ilyas" (PLD 1991 Supreme Court 383). The above aspect of the case had not been properly appreciated and attended to by the trial Court, thus has landed in the field of illegalities. The findings of the learned appellate Court are thus based on proper appraisal of evidence available on the record. There is no illegality or material irregularity in the impugned judgment of the learned Appellate Court which may call for interference by this Court.
9. Moreover, when there are conflicting judgments of the two Courts below, then the findings of the Appellate Court are to be preferred and respected, unless it is shown to be against the record or it suffers from any misreading or non-reading of evidence or reasons for acceptance of appeal are arbitrary, fanciful or perverse. In the instant case, no such infirmity could be pointed out by the learned counsel for petitioners, which may warrant interference of this Court, in exercise of revisional jurisdiction.
10. Finding no merits, this petition is dismissed with no order as to costs.