MIRZA VIQAS RAUF, J. The instant petition is directed against the judgment and decree dated 9th of January, 2006, passed by the learned Additional District Judge, Mianwali, whereby appeal filed by the petitioner against the judgment and decree dated 18th of February, 2003 passed by the learned Civil Judge, Mianwali, was dismissed.
2. Precisely the facts necessary for adjudication of instant petition are that Major (Retired), Muzaffar Khan Malik, Mst. Rashida Begum and Mst. Zainab Khatoon, the predecessorin-interest of the present respondents, filed a suit for joint possession with regard to suit properties (described in the plaint) against the petitioner and others (the transferees from the petitioner). It was averred in the plaint that Bashir Khan Malik brother of Muzaffar Khan Malik and Mst. Rashida Begum and son of Mst. Zainab Khatoon, was a British national whose whereabouts are not known since 30th of June, 1963, thus on account of lapse of seven years time, he shall be presumed to have died in terms of Sections 107 and 108 of The Evidence Act, 1872 (now Articles 124 and 125 of The Qanune-Shahadat Order 1984) (hereinafter referred as "The Order"). It was further asserted in the plaint that certain transactions of sale allegedly made by Bashir Khan Malik through sale mutations Nos.5430 dated 15th of June, 1963 and 5808 dated 26th of June, 1963 of the suit land in favour of the petitioner/defendant No.1, are based upon fraud and misrepresentation, thus be annulled. Besides this, the respondents also challenged the general power of attorney allegedly executed by Bashir Khan Malik, in favour of Muhammad Aslam, who ultimately on the basis of this instrument got the disputed sale mutations sanctioned in favour of the petitioner/defendant No.1, on the primary ground that Bashir Khan Malik, was unable to read or right Urdu. The petitioner, being the defendant contested the suit and filed a written statement whereby the assertions contained in the plaint were controverted. She defended the sale mutations as well as the deed of attorney on the ground that all were executed competently and validly. From the divergent pleadings of the parties the learned Trial Court framed the following issues:- ISSUES
1. Whether the rights of defendants No.2 to 10 are protected under section 41 T.P. Act? OPD
2. Whether Bashir Ahmad Malik has not been heard of for the last seven years and should legally be presumed as dead? OPP
3. If issue No.2 answered in negative, then whether the plaintiffs have got a locus standi to bring the suit? OPP
4. Whether the plaintiffs are estopped by their own words and conduct to file the present suit? OPD
5. Whether the suit is time barred? OPD
6. Whether the sale in dispute by Bashir Malik in favour of Akhtar Sultana defendant No.1 was for consideration? OPD
7. Whether the sale in dispute in favour of defendant No.1 is result of fraud, and had for the reasons mentioned in para-11 and grounds a to h of the plaint? OPP
8. Whether the suit land has not been correctly described in the plaint. If so, what is its effect? OPD
9. Whether the suit is bad and liable to be dismissed for non-joinder of necessary parties? OPD 9.A Whether the suit is not maintainable in its present form? OPD (added vide order dated 01.02.2003).
10. Relief.
3. The parties were put to trial. The respondent/plaintiff examined Major (Retired) Muzaffar Khan as PW-1, Asif Masood Malik as PW-2 (he is the real maternal nephew of Bashir Khan Malik); PW-3 Faiz Ameer is servant of the plaintiffs; PW-4 Zafar Hussain Qureshi is a family friend and PW-5 Muhammad Ahmad Khan is the son of Major (Retired) Muzaffar Khan (plaintiff No.1) and he appeared in rebuttal. Asad Raza was examined on commission, but has not been given any PW number. The following documentary evidence was adduced by the plaintiffs:- Exhibit-P1 is Jamanbandi for the village Chakrala, Exhibit-P2 is Jamabandi for the village Kund (both are under challenged), Exhibit-P3 is Jamanbandi for village Bhanberanwali (not under challenge), Exhibit-P4 is the copy of PTI regarding the house in the name of Akhtar Sultana situated in Mauza Watta Khel. It may be noted that some documents, which were earlier exhibited as Exhibit-P6 to Exhibit-P8, were de-exhibited by the court vide order dated 17.01.981.
4. The defendants examined Khan Zaman as DW-1 who is cultivator; DW-2 is Wali Muhammad Khan (Wasil Baqi Navees); DW-3 is Muhammad Husnain (Registry Clerk), who has appeared to prove the alleged power of attorney given by Bashir Khan Malik in favour of Muhammad Aslam; DW-4 Mehr Khan is the Moharrar record, office of Saddar Mianwali; DW-5 is Muhammad Amin, Patwari who had entered the mutations; DW-6 is Ghulam Yaqoob, Girdawar (this witness before promotion was Patwari of village Kund and entered the mutation in question; DW-7 is Muhammad Aslam (the attorney), who finally got the mutations sanctioned on behalf of Bashir Khan malik in favour of Mst. Akhtar Sultana; DW-8 is Muhammad Husnain, Moharrar Registry of the same power of attorney (Exhibit-D6); DW-9 Gulab is the witness of Exhibit-D5; DW-10 Allah Yar is the witness of Exhibit-D4; DW-11 Muhammad Farooq is a teacher of Government High School No.1, Sargodha who has been examined to prove that Bashir Khan Malik could read and write Urdu. The defendant No.1 (Akhtar Sultana) was examined on commission, however, no DW number has assigned to her.
Besides the oral, large number of documentary evidence has been produced by the petitioner/defendant comprises of Exhibit-D1 to Exhibit-D43. However, during the course of arguments, the learned counsel for the petitioner has mainly relied upon Ex.D18 to Ex.D26. It was also specifically pointed out that contention of plaintiff in order to create a ground for denial for execution of power of attorney was that Bashir Khan could not write or read Urdu. This contention of the plaintiffs is fully rebutted by authentic documents like Exhibit-D7, Exhibit-D14, Exhibit-D15 and Exhibit-D16.
5. In the earlier round of litigation, the suit of the respondents was decreed on 03.05.1983; the petitioner preferred an appeal, which was accepted on 16.07.1984; the respondents filed a revision petition (C.R. No.1526/1984) before this Court, which was allowed and the case was remanded to the trial court with permission to the petitioner to produce the additional evidence and the respondents having the right of rebuttal. It may not be out of place to mention here that the documents Exhibit-D18 to Exhibit-D20, which according to Ch. Khurshid Ahmad, learned Advocate for the petitioner are significant, are those, which have been adduced as the additional evidence.
After the remand, the learned Trial Court has decreed the suit on 18.02.2003 and the appeal of the petitioner has failed on 09.01.2006, hence, this revision petition.
6. Learned counsel for the petitioner at the start of his arguments submitted that his contentions are already available on the file as those were duly got recorded at the time of previous hearing of the case and he will reiterate the said contentions. This being so, as the same are available on the record so, those are reproduced below as per verbatim:- "The learned counsel for the petitioner contends that both the courts below have misread the evidence on the record and also have misconceived, misconstrued and misapplied the relevant law; in this regard, it is submitted that the following propositions arise for the determination by this Court:- i) That in the case where a suit is based on the assumption of seven years of a person being unheard of and the plaintiff seeks some benefit on account of that, then the plaintiff is required to prove the exact date of death; in this behalf, reliance has been placed upon "Sakhi Muhammad and another vs. Mst. Allah Bi and others" (PLJ 1988 S.C 522) "Khudadad vs. Mst. Resham Jan and others (PLD 1968 Peshawar 172), and "Ram Kali and others vs. Narain Singh (AIR 1934 Oudh 298) (at page 299); ii) That in a suit, as is the present one, which is based on assumption of seven years of a person being unheard, if it is not proved by positive evidence the exact date of death, the plaintiff shall be deemed to have lost the cause of action on which the suit is based and the court may: a) Dismiss the suit for lack of cause of action on which the suit is based. (According to the learned counsel for the petitioner as per definition of the cause of action as recognized by judicial pronouncements in the sum total of the facts which the plaintiff must prove to get the relief prayed for); b) The second alternative is that if the defendants admit the date of death as proved on record apply for the amendment of the suit and show as to how the plaintiff is entitled to the reliefs prayed for and to show that the suit already filed is within time. c) It may also be shown by the plaintiff that if the actions of the defendants had not been challenged during his lifetime in spite of knowledge, the reversions have might to challenge the same and in such a case the concept of maturity of cause of action cannot be imported.
(iii) The evidence led by the plaintiffs/respondents regarding the aspect that Bashir Khan Malik has not been heard for 7 years is general in nature and thus, cannot be relied upon, whereas the petitioner has given the positive evidence that gentleman was alive till 1997 and had died on 03.04.1997, which has the preference; in this behalf, the learned counsel states that the relevant documents are Ex.D.18 to Ex.D.26;
(iv) The documents produced by the petitioner are foreign/public 5 of the Qanun-e-Shahadat Order, 1984, thus are duly proved under the law, and against the above the respondents have led no evidence in rebuttal;
(v) In case the date of death of Bashir Khan Malik is proved to be 03.04.1997, the issues/questions as to whether the suit is within time or not and whether the plaintiffs have any locus standi to file the suit, would become relevant, in the eventuality, it is established by the petitioner that he had the knowledge of disputed transactions and never himself challenged those during his lifetime; whether in the circumstances, the same can be challenged by the respondents; reliance in this behalf is placed on "Abdul Haq and another vs. Mst. Surrya Begum and others" (2002 SCMR 1330), "Gopal Bhimjo Advte vs. Manaji Ganuji Padwal and others" ( AIR 1923 Bombay 163 and 168), "Lal Chand Marwari vs. Mahant Ramrup Gir and another" (AIR 1926 Privy Council 9), " Ram Kali and others vs. Narain Singh" (AIR 1934 Oudh 298) and "Fateh Ali and others vs. Ahmad Din" (AIR 1927 Lahore 284);
(vi) Though issues No.6 and 7 are important, but issue No.5 in view of the fact that Bashir Khan Malik had the knowledge of the transactions but never challenged those within time, these will recede to the background and the issue of limitation shall attain prime importance;
(vii) In the mutation it is recorded that Bashir Khan Malik himself appeared and got recorded the mutation and, therefore, a fact recorded in the mutation shall be presumed to be correct until it is rebutted; reliance is placed upon "Mian Zafar Iqbal and others vs. Bashir Ahmad and others (PLD 1989 Lahore 152); but no rebuttal has been given by the respondents;
(viii) Article 89 (5) of the Order has certain ingredients which are spelt out in Noor Din and 2 others vs. Saleem Ahmed and 6 others (PLJ 2003 Lahore 1190) and the documents adduced by the petitioner in the instant case to prove the death of Bashir Khan Malik such as Ex.D.18 to Ex.D.26 fulfill the criteria of law referred to above.
Further submissions are: ( a ) The stand of the respondents that Bashir Khan Malik's whereabouts are not known since the last seven years, the learned counsel has made reference to the evidence of PW-1 who in the statement has stated that I do not know the address of my brother in U.K and has not mentioned about his personal knowledge of the search made by himself rather it is alleged to be through certain friends etc, who have not been produced; it is also in his cross-examination that though Bashir Khan Malik was working in General Electric Company but he has made no inquiry from the said company to ascertain if he was alive or dead;
(b) Ex.D.18 is the document of marriage entry dated 30.07.1976 of Bashir Khan Malik with one Mst.
Shamim; Ex.D.19 is certificate of divorce; Ex.D.20 is his pension documents; Ex.D.21 is certificate of National Health Service; Ex.D.23 is the death certificate of Bashir Khan Malik (though initially he was shown to be the resident of Bangladesh but subsequently through a corrigendum this was corrected and he was held to be Pakistani); Ex.D.26 is a certificate of tax department. All these documents are public documents of foreign origin and have been issued by the competent authorities bearing the seal and attested by Pakistani High Commissioner in U.K. These documents have been illegally discarded by the courts;
(c) Though the appellants court has relied upon Ex.D.18, Ex.D.19 and Ex.D.22 in paragraph No.22 of the impugned judgment, but has discarded the same for no valid reasons; that the objections to the admissibility and proof of the documents have been raised by the respondents in an illusionary manner i.e. The documents are {{ URDU TEXT }} ;as this by itself is no objection when the document is of foreign nature duly comply with the provisions of Article 89; moreover, no evidence in rebuttal has been produced by the respondents;
(d) In the earlier round, the trial court vide order dated 26.10.2002 had refused the petitioner certain additional evidence, however, upon revision, which was accepted by the learned Additional District Judge vide order dated 02.12.2002 it was held " documents are relevant to the proof of the date of death"; the respondents challenged this order before this Court in W.P No.26 of 2000, and on 16.01.2003 at pre-admission stage, the following order was passed:- "Though the question of validity of impugned order shall be considered at the main hearing, however, in order to regulate the proceedings before the learned trial court, the court below is directed to conclude the additional evidence permitted by the ADJ to the respondents."
In the meantime, as the learned trial court after concluding the additional evidence passed the final judgment and decree, therefore, the respondents withdrew this petition; however, in appeal filed by the petitioner against the above, they moved an application with the caption of 'Cross Objections' before the Additional District Judge simply reiterating there objection to the proof/admissibility of the documents a {{ URDU TEXT }}. But no challenge has been thrown to the proof/admissibility of the documents by the respondents in these proceedings in any form;
(e) DW-7 in his cross-examination has stated that he had received a letter from Bashir Khan Malik; the petitioner in order to seek permission of the court to produce such letter in evidence moved an application which was refused by the learned Civil Judge vide order dated 08.0-9.1976; this order was challenged by the petitioner through a revision petition which was disposed of on 11.03.1980 wherein it is held that it is for the respondents/plaintiffs to adduce such evidence and the petitioner should not bother; the respondents, however, never moved any application for the purpose of the producing the letter, and no question was asked to DW-7 if he was able to produce the same;
(f) The petitioner has proved in unequivocal terms the actual date of death of Bashir Khan Malik through the positive evidence referred to above, thus the presumption of Article 124 of the Order stands dispelled, and the date of death for all intents and purposes shall be 03.04.1997, with the legal effect that in any case he was alive till that date and the law declared in PLJ 1988 SC 522 and PLD 1968 Peshawar 172 shall be squarely applicable;
(g) When the date of death is proved as 03.04.1997, no cause of action is left for the respondents to pursue the present suit;
(h) The other important question would arise, whether it is the case where cause of action has accrued during the pendency of the suit and if the respondents choose to pursue it without the amendment of the plaint, which is the remedy available to them, if Bashir Khan Malik was aware of the transactions; the question of limitation for the plaintiffs to pursue the case; their cause of action especially would be the relevant issues, which have been answered in the negative by the two courts below against the petitioner.
(I) In C.R No.1526 of 1984 vide judgment dated 05.12.2001, the parties were permitted to adduce additional evidence; relevant paragraph of the judgment is reproduced below: " Learned counsel for the parties have no objection if by setting aside the impugned judgment and decree, the matter is remanded to the learned trial court for decision afresh, where the parties may also be given the opportunity of producing the additional evidence on the issues involved but through proper application in this behalf; the application, which the respondents moved before the first appellate court for additional evidence, can be repeated before the learned trial court."
Though the petitioner on account of the above availed the opportunity and brought on record material evidence, but no evidence in rebuttal thereof has been adduced by the respondents, therefore, presumption for such lapse be drawn against them."
7. Conversely, learned counsel for the respondents submitted that there are concurrent findings of facts recorded by both the Courts below which are based on proper appraisal of evidence and the petitioner has failed to point out any misreading or non-reading of evidence. He maintained that reappraisal of evidence is not permissible in exercise of revisional jurisdiction. Learned counsel added that there is no dispute with regard to the pedigree table of the legal heirs of Malik Ahmad Khan. Learned counsel contended that the documents Exhibit-D8 to Exhibit-D43 were tendered in the statement of learned counsel for the petitioner which were duly objected before the learned trial court, thus the same are inadmissible. To further supplement his contentions, learned counsel submitted that the said documents are not the public documents and Article 89(5) of "The Order" is not applicable. Learned counsel next contended that the validity and execution of said documents is also under serious assailance. In support of his contentions learned counsel referred Sections 29 and 34 of The Birth and Deaths Registration Act, 1953. In this regard, he has also drawn the attention of this Court to the relevant provision of The Corners Act, 1958. Learned counsel argued that the proof of death is not necessary in terms of Article 124 "The Order" as in case of a missing person succession open on the date on which he is presumed to be dead. In support of his arguments, he relied upon Rule 216 of The Muhammadan Law. Learned counsel has also placed reliance on "Arjun v. Jug Lal" (A.I.R. 1923 Lahore 422), "LAL HUSSAIN versus Mst. SADIQ and another" (2001 SCMR 1036) and "MUHAMMAD SARWAR AND ANOTHER versus FAZAL AHMAD AND ANOTHER" (PLD 1987 Supreme Court 1). Learned counsel while emphasizing on the issue of presumption in terms of Article 124 of "The Order" submitted that ample evidence was led by the respondents to prove the said fact and the said evidence is not rebutted by the petitioner. Reliance in this respect was placed on "PAKISTAN CYCLE INDUSTRIAL versus M/s MUHAMMAD YOUSAF, PROPRIETOR ALPHA SUPPLY" (PLJ 2003 Lahore 1100), "Khan MUHAMMAD YUSUF KHAN KHATTAK versus S. M. AYUB AND 2 OTHERS" (PLD 1973 Supreme Court 160) and "Civil Petition K-138 of 1974 LAL MUHAMMAD versus MUHAMMAD USMAN AND OTHERS Civil Petition K-143 of 1974 MUHAMMAD USMAN versus LAL MUHAMMAD AND OTHERS" (1975 SCMR 409).
8. I have heard the learned counsel for the parties at considerable length and also perused the record with their able assistance.
9. From the perusal of pleadings of the parties, it is evident that there is a serious dispute with regard to the factum of missing of Bashir Khan Malik, and his date of death. As per stance of the respondents, Bashir Khan Malik, came to Pakistan in the year 1962 on the death of his father Malik Ahmad Khan. After his return to the homeland he stayed in Pakistan for few months and during this period, he contracted marriage with the petitioner. Though in the plaint, there is no mention about the exact date of the marriage and divorce but later on, it has come on the record that the marriage took place on 27th of February, 1963 which ended in divorce on 29th of June, 1963. The respondents alleged that Bashir Ahmed Khan Malik, left the country on 30th June, 1963, and since then, his whereabouts are not known. The suit was filed on 3rd of October, 1970. On the other hand, the petitioner asserted that Bashir Ahmad Khan Malik, remained alive even on the date of filing of the suit. In order to prove the factum of missing of Bashir Ahmad Khan Malik, the respondents examined five witnesses in toto, who were all closely related to the said person. The examination of the statements of the witnesses reflects that they all deposed in line with each other. The respondent No.1 himself appeared as PW-1. As per his statement Bashir Ahmed Khan Malik was his real brother who came to Pakistan towards the end of 1962 and while staying for some months he left on 30th of June 1963 whereafter inspite of their efforts, they were unable to trace his whereabouts. Asif Masood Malik, nephew of Bashir Ahmed Khan Malik appeared as PW-2. During his cross-examination, a request was made on behalf of the petitioner for adjournment of the proceeding on the ground that a letter is received on behalf of Bashir Ahmed Khan Malik, duly attested by the notary public and identified by Third Secretary, Pakistan High Commissioner in U.K, which is in possession of Malik Muhammad Akram, who at present is posted in PAF at Karachi. As he has not come today, so he is not in a position to show the letter to the witness so as to seek his opinion about the handwriting of executant and signatures affixed on it. On this request, the proceedings were adjourned however, no such letter was ever confronted to the said witness later on.
10. Since, the petitioner have taken a specific plea that Bashir Ahmad Khan Malik remained alive after 30th of June 1963 and he was never missing, so in terms of Article 118 of "The Order", the onus to prove this fact heavily shifted upon her. The petitioner recorded her statement in the form of sealed question. Her answer to some of the relevant questions are as under :- {{ URDU TEXT }}
11. It is evident from the above that even the petitioner by her own statement lastly met Bashir Ahmed Khan Malik, in the last week of June 1963, and it is also admitted position that she was divorced on 29th of June, 1963. She even failed to give the country name where Bashir Ahmed Khan Malik was residing in those days. The main stay of petitioner claim with regard to the status of Bashir Ahmed Khan Malik, remained on the documents Exhibit-D20, Exhibit-D24, Exhibit-25 and Exhibit-D26. As already observed in the earlier part of the judgment that the documents Exhibit-D8 to Exhibit-D43 were tendered in the evidence through the statement of learned counsel for the petitioner, which were duly objected by the respondents. The respondents also produced Muhammad Ahmad Khan as PW-5 to rebut these documents. The learned courts below have duly pondered upon the validity of these documents and discarded the same after assigning valid reasons. The main argument of the learned counsel for the petitioner is that the said documents, being foreign documents are parse admissible in evidence in terms of Article 89(5) of "The Order".
In the light of contentions raised by learned counsel for the petitioner, I have also examined the admissibility of the documents on this perspective. For the purpose of convenience and ready reference Article 89 of "The order" is re-produced below:- "89. Proof of other public documents: The following public documents may be proved as follows: -
(1) Acts orders or notifications of the Federal Government in any of its departments, or of any Provincial Government or any department of any Provincial Government-by the records of the departments, certified by the heads of those departments respectively, or by any document purporting to be printed by order of any such Government;
(2) The proceedings of the Legislatures,-by the Journal of those bodies respectively, or by published Acts or abstracts, by copies purporting to be printed by order of the Government concerned ;
(3) The Acts of the Executive or the proceedings of the Legislature of a foreign country, by journals published by their authority, or commonly received in that country as such or by a copy certified under the seal of the country or sovereign or by a recognition thereof in some Federal Act;
(4) The proceedings of a municipal body in Pakistan, by a copy of such proceedings, certified by the legal keeper thereof, or by a printed book purporting to be published by the authority of such body ;
(5) Public documents of any other class in a foreign country, by the original, or by a copy certified by the legal keeper thereof, with a certificate under the seal of a notary public, or of a Pakistan Consul or diplomatic agent, that the copy is duly certified by the officer having the legal custody of the original, and upon proof of the character of the document according to the law of foreign country."
It is manifest from the above quoted provision of law that in order to make such documents admissible the same has to qualify the pre-conditions laid down in sub Article 5 of Article 89 of The Order". The public documents are defined in Article 85 of "The Order", which reads as under :- "85. Public documents: The following documents are public documents:
(1) documents forming the acts or records of the acts :
(i) of the sovereign authority ;
(ii) of official bodies and tribunals, and
(iii) of public officers, legislative, Judicial and executive of any part of Pakistan or of a foreign country.
(2) public records kept in Pakistan of private documents.
(3) documents forming part of the records of judicial proceedings ;
(4) documents required to be maintained by a public servant under any law ; and
(5) registered documents the execution whereof is not disputed.
(6) Certificates deposited in a repository pursuant to the provisions of the Electronic Transactions Ordinance, 2002."
It is evident that all the documents which were tendered in the statement of learned counsel for the petitioner are the photocopies of the documents which apparently does not fulfill the requirements of sub Article 5 of Article 89 of "The Order". The same were even objected at the time of their placement on the record by the respondents. In terms of Article 75 of "The Order" documents are required to be proved by leading primary evidence and the primary evidence is defined in Article 73 of "The Order" which says that primary evidence means the document itself, which is to be produced for the inspection of the Court. Document can be proved either by primary evidence or by leading secondary evidence. Article 76 of "The Order" provides the mode for leading secondary evidence which is an exception to Article 75. The petitioners have not resorted to the provisions of Article 76 of "The order" in order to prove the said documents. Both the Courts below have duly taken into consideration the admissibility of all these documents and after analyzing the same, discarded their evidentiary value.
12. In order to prove that Bashir Ahmed Khan Malik died on 3rd of April, 1997, the petitioner produced certified copy of an entry as Exhibit-D23. The perusal of said document reveals that in its column No.5, the name of the country is written as Bangladesh, however, at the bottom of the certificate, a correction was shown to be made on 14th of November, 2001. The same bears no seal or stamp of any authority. The said document was issued in pursuant to the provisions contained in The Births and Deaths Registration Act, 1953. Section 29 of the said Act provides the mechanism for alteration or change to be made in any register of live births, still births, or deaths. Whereas, sub-section 3 of section 29, says that an error of fact or substance in any such register may be corrected by entry in the margin (without any alteration of the original entry) by the Officer, having the custody of the register and upon production to him by that person of a statutory declaration setting forth the nature of the error and true facts of the case made by two qualified informants of the Birth or Death with reference to which the error has been made or in default of two qualified informants then by two credible persons having knowledge of the truth of the case. Exhibit-D24 is the letter dated 12th of October 2001, issued by Paul Anthony Knapman Esq HM Coronor for Inner West London Area, stating that the error occurred in the certificate Exhibit-D23 be corrected on the basis of evidence given upon oath. The documents Exhibit-D25 and Exhibit-D26 were also issued on the same context. It appears that all these documents were issued in oblivion of the provisions of Sections 29 and 34 of The Births and Deaths Registration Act, 1953, as well as Section 11 of The Corners Act, 1988, which reads as under:- "11.-(1) It shall not be obligatory for a coroner holding an inquest into a death to view the body; and the validity of such an inquest shall not be questioned in any court on the ground that the coroner did not view the body.
(2) The coroner shall, at the first sitting of the inquest, examine on oath concerning the death all persons who tender evidence as to the facts of the death and all persons having knowledge of those facts whom he considers it expedient to examine.
(3) In the case of an inquest held with a jury, the jury shall, after hearing the evidence-
(a) give their verdict and certify it by an inquisition; and
(b) inquire of and find the particulars for the time being required by the Births and Deaths Registration Act 1953 (in this Act referred to as "the 1953 Act") to be registered concerning the death.
(4) In the case of an inquest held without a jury, the coroner shall, after hearing the evidence-
(a) give his verdict and certify it by an inquisition; and
(b) inquire of and find the particulars for the time being required by the 1953 Act to be registered concerning the death.
(5) An inquisition-
(a) shall be in writing under the hand of the coroner and, in the case of an inquest held with a jury, under the hands of the jurors who concur in the verdict;
(b) shall set out, so far as such particulars have been proved-
(i) who the deceased was; and
(ii) how, when and where the deceased came by his death; and
(c) shall be in such form as the Lord Chancellor may by rules made by statutory instrument from time to time prescribe.
(6) At a coroner's inquest into the death of a person who came by his death by murder, manslaughter or infanticide, the purpose of the proceedings shall not include the finding of any person guilty of the murder, manslaughter or infanticide; and accordingly a coroner's inquisition shall in no case charge a person with any of those offences.
(7) Where an inquest into a death is held, the coroner shall, within five days after the finding of the inquest is given, send to the registrar of deaths a certificate under his hand-
(a) giving information concerning the death;
(b) specifying the finding with respect to the particulars which under the 1953 Act are required to be registered concerning the death and with respect to the cause of death;
(c) and specifying the time and place at which the inquest was held.
(8) In the case of an inquest into the death of a person who is proved-
(a) to have been killed on a railway; or
(b) to have died in consequence of injuries received on a railway, the coroner shall within seven days after holding the inquest, make a return of the death, including the cause of death, to the Secretary of State in such form as he may require; and in this subsection "railway" has the same meaning as in the Railway Regulation Act 1842."
13. It is also strange enough that the statement of PW-2 Asif Masood Malik, was recorded in the year 1980 and when his cross-examination was in process the request was made on behalf of the learned counsel for the petitioner that he wants to produce a letter received on behalf of Bashir Ahmed Khan Malik, duly attested by the notry public and identified by third Secretary Pakistan Embassy, which is in possession of Malik Muhammad Akram, and he wants to seek an opinion of the witness about the handwriting of executant and signatures affixed on it. On his request the case was though adjourned vide order dated 4th of November, 1980, but to dismay of the petitioner that document was never brought on the record thereafter, but instead documents Exhibit-D8 to Exhibit-D43, including the documents Exhibit-D20, Exhibit-D24, Exhibit-D25 & Exhibit-D26, which were purportedly issued in 2001, were placed on record in a manner which was not warranted by law. Reference in this respect can be made to "Khan MUHAMMAD YUSUF KHAN KHATTAK versus S.M.AYUB AND 2 OTHERS" (PLD 1973 SC 160), wherein, it is held that:- "When I say that the document Exh. P.E. Is unproved, I have in mind the mandatory provisions of section 67 of the Evidence Act, which lay down that "if a document is alleged to be signed or written wholly or in part by any person, the signature or the handwriting of so much of the document as is alleged to be in that person's handwriting must be proved to be in his hand-writing". If the case of the respondent was that the appellant had signed the original of Exh. P.E. Or the certificate appended to it, it must have been proved that it was in the appellant's handwriting, for which no effort whatsoever was made. In the case of Bengal Friends & Co. v. Gour Benode Saha & Co., this Court had expressed itself on this point as follows:- "Douments which are not copies of judicial record, should not be received in evidence without proof of signatures and handwriting of persons alleged to have signed or written them".
I am of the view that even if such documents are brought on record and exhibited without objection, they remain on the record as "exhibits" and faithful copies of the contents of the original but they cannot be treated as evidence of the original having been signed and written by the persons who purport to have written or signed them, unless the writing or the signature of that person is proved in terms of the mandatory provisions of section 67 of the Evidence. Act. If instead of the copy Exh. P.E., the original form "E" which formed the primary evidence, had been exhibited on the record without proving as to who was its author can it be argued that by mearly exhibiting it, the document should be taken for granted as bearing the signature of the appellate without proof that in fact it was written and signed by him. The onus obviously lay on the respondent to prove this fact and his failure to prove it did not cast any responsibility on the appellant to negatively disprove it."
Reliance can also be placed on "Civil Petition K-138 of 1974 LAL MUHAMMAD versus MUHAMMAD USMAN AND OTHERS Civil Petition K-143 of 1974 MUHAMMAD USMAN versus LAL MUHAMMAD AND OTHERS" (1975 SCMR 409) . The relevant extract from the same is reproduced below:- "M. Khalid M. Ishaque, learned counsel for Muhammad Usman, petitioner in civil petition for Special Leave to Appeal No.K-143 of 1974 addressed main arguments in support of the submission that Birth Certificate Exh.49 issued by Ajmer Municipality is admissible in evidence by virtue of the provisions contained in section 82 of the Evidence Act. We are not impressed, for, the High Court has already dealt with this aspect of the case at great length, and reached the following conclusion with which no exception can be taken: "20. Upon the basis that this purported certified copy would be receivable in England and, therefore, by reason of section 82, is receivable here, the document would no doubt be admissible. The presumption, however, as to the signature of the person authenticating it or of the official character which he claims can hardly arise in a case, such as the present, where upon the face of it the document does not so much as describe such official character. If under the signature of Ganpat Lal had been given his designation and there was something more written upon Exh. 49 by which it could be said that Ganpat Lal was claiming to hold such an office as would make him the officer having the custody of the original then there might have been something to say in favour of both the admissibility of this document and what could be held as being proved by it in the absence of rebutting evidence. Nothing, however, appears under the signature except the words "Municipal Council, Ajmer", and obviously Ganpat Lal is not the Municipal Council. On the best view of the matter, therefore, I am quite unable to see how section 82 of the Evidence Act can really help the successful candidate in this case.
21. The manner in which the purported certified copy has been brought from India and then produced before the Tribunal is also not such as leads to any satisfaction. The person who obtained it from the Municipal Council is not a witness and we, therefore, do not even have the advantage of some body getting into the witness-box and saying that he himself went to the Municipal Council and there a certified copy was made and given to him. All that we have is the evidence of Abdul Jalil who says that he got it from one Abdul Latif. He could not say how Abdul Latif in turn obtained it and, quite clearly, if he had said so this evidence would have been inadmissible as being hearsay. If in these circumstances we allow section 82 to be used for the purpose of making such a document not merely admissible but also as carrying a presumption virtually, of its genuineness then almost any kind of evidence purporting to be a certified copy of a public document in a foreign country would be receivable, and, for all practical purposes, carry with it an irrebutable presumption. I am, therefore, of the opinion that section 82 does not render this document admissible either."
14. The respondents brought their suit in terms of Article 124 of "The Order" which reads as under:- "124. Burden of proving that person is alive who has not been heard of for seven years. When the question is whether a man is alive or dead, and it is proved that he has not been heard of for seven years by those who would naturally have heard of him if he had been alive, the burden of proving that he is alive is shifted to the person who affirms it."
In the light of above quoted provision of law, it was obligatory upon the respondents to prove that Bashir Ahmad Khan Malik, has not been heard for seven years by those who would naturally have heard of him if he had been alive. The respondents in this regard produced four witnesses which were closely related to said person who have accordingly deposed about his whereabouts. Since the petitioner has claimed that Bashir Ahmed Khan Malik, remained alive and died on 3rd of April, 1997, so the burden heavily shifted upon her, in terms of Article 123 of "The Order", to prove this fact.
The petitioner to this affect mainly relied upon the documentary evidence, the admissibility and credence of which has already been discussed above and the same has been discarded. The execution of general power of attorney in the name of Mian Muhammad Aslam, who was admittedly Secretary of the father of the petitioner, is highly improbable as the petitioner was admittedly divorced by Bashir Ahmed Khan Malik on 29th of June, 1963. The evidence to this effect has also been rightly appreciated by both the Courts below. The said deed of attorneys even lack the necessary details and descriptions of the properties. The petitioner has badly failed to bring on record any valid reasoning for the execution of deed of attorneys in favour of a person who is directly under the influence of her father, especially in presence of strained matrimonial relations, which ultimately ended in immediate divorce. Even gift deed Exhibit-D27 which was allegedly executed by Muhammad Aslam (DW-7), being attorney of Bashir Ahmad Khan Malik, is without mentioning of description of any property. There can be thus no second opinion that the general Power of Attorney in favour of Muhammad Aslam (DW-7) as well as gift deeds in pursuant thereto are nothing but sham transactions. Reliance in this respect can be placed on "LAL HUSSAIN versus Mst. SADIQ and another" (2001 SCMR 1036), "MUHAMMAD SARWAR AND ANOTHER versus FAZAL AHMAD AND ANOTHER" (PLD 1987 Supreme Court 1) and "AMJAD AKRAM vs. Mst. ASIYA KAUSAR and 2 others (2015 SCMR 1).
15. So far the contention of the learned counsel for the petitioner that the respondents have failed to bring on record the actual date of death of Bashir Ahmad Khan Malik is concerned, it is observed that it is nowhere the requirement of Article 124 of "The Order" to prove such fact specifically. The respondents brought their suit in the year 1970 after the lapse of seven years as mentioned in Article 124 of "The Order", so they have a valid cause of action at the time of filing of the suit. The judgment cited by the learned counsel for the petitioner will only come into play when once the petitioner succeeds to establish that Bashir Ahmad Khan Malik remained alive after seven years of his being unheard of as asserted by the respondents and he died on 3rd of April, 1997. The petitioner since herself asserted that Bashir Ahmed Khan Malik has remained alive after 30th of June 1963 and died on 3rd of April, 1997, so in terms of Articles 117 and 118 of "The Order" the onus was upon her to prove this fact by leading cogent and convincing evidence.
16. Rule 216 of The Principles of Mohammedan Law by Dr.(Mrs) Nishi Purohit Second Edition 1998 provides the eventualities of opening of succession of a person which reads as under :- Rule 216. "Existence of rights of the heirs when succession opens.--- (i) Succession opens on the death of a Mohammedan.
(i) In case of a missing person, succession opens on the date on which he is presumed to be dead.
(ii) Immediately on his death, the rights of his heirs come into existence and the estate of the deceased vests in them.
(iv) The right of inheritance is not lost by the death of any heir before the distribution of the estate."
It is evident from the above that when once it is proved that a person is not heard of for seven years in terms of Article 124 of "The Order", then his succession opens on the date on which he is presumed to be dead. In my humble view, the suit filed by the respondents was rightly decreed and the learned Additional District Judge, while dismissing the appeal filed by the petitioner committed no illegality or material irregularity, warranting interference by this Court in exercise of revisional jurisdiction.
17. There are concurrent findings of facts recorded by both the learned Courts below which are backed by reasoning and based on proper appraisal of evidence thus the same cannot be interfered with in a mechanical manner. The petitioner has to show some gross mis-reading of evidence or material irregularity in the judgments under challenge for invoking the revisional jurisdiction of this Court in terms of Section 115 of The Code of Civil Procedure (V of 1908). The petitioner has failed to point out any such circumstance. The concurrent findings of the Courts below cannot be set at naught in revisional jurisdiction only on the basis that from the reappraisal of evidence available on the record some other view is possible. The revisional jurisdiction is circumscribed to the eventualities mentioned in Section 115 of The Code of Civil Procedure (V of 1908). Reference in this respect can be made to the cases of "NOOR MUHAMMAD and others versus Mst. AZMAT-E-BIBI"(2012 SCMR 1373), "Mst. ZAITOON BEGUM versus NAZAR HUSSAIN and another"(2014 SCMR 1469) and "ADMINISTRATOR, THAL DEVELOPMENT through EACO Bhakhar and others versus ALI MUHAMMAD"(2012 SCMR 730).
For what has been discussed above, the instant petition is devoid of any merits, consequently the same is dismissed with no order as to costs.