Ali Akbar Qureshi, J:- This civil revision is directed against the judgment and decree dated 12.10.1994 and 26.11.1990 whereby suit for declaration alongwith possession and permanent injunction filed by respondent No.1/plaintiff was decreed.
2. Shortly the facts as revealed from the record, that respondent No.1/plaintiff filed a suit for declaration alongwith possession and permanent injunction against the predecessor of petitioners/defendants and respondents No.2 & 3, alleging therein, that the shop No.1259/1459 situated in Khewat No.467 of Chicha Watni, District Sahiwal is owned by respondent No.1/plaintiff and respondents No.2 and 3 in equal share; respondent No.1/plaintiff is employee of Pakistan Railways and serving in Karachi, the defendant No.1/respondent No.2 and respondent No.3 stated to be son and father, prepared a forged power of attorney dated 10.11.1980 on behalf of respondent No.1/plaintiff whereby the whole disputed shop was transferred to one Muhammad Ibrahim vide registered sale deed dated 12.03.1981 who is predecessor of the petitioners/defendants; during the proceedings, Muhammad Ibrahim to whom the shop was transferred, was impleaded as defendant No.3 who died subsequently, and his legal heirs were impleaded in the array of the defendants; a criminal case was also lodged by the respondent No.1/plaintiff against the petitioners on the allegation of fraud and lastly prayed, that the power of attorney and the sale deed executed in favour of Muhammad Ibrahim, petitioners herein, be cancelled to the extent of 1/2-Share of the suit property.
3. The petitioners/defendants contested the suit through a written statement, controverting the contents of the plaint.
Learned trial Court out of the pleadings, framed necessary issues, recorded evidence of the respective parties and finally decreed the suit.
4. Being aggrieved thereof, the legal heirs of Muhammad Ibrahim (deceased) filed an appeal which was dismissed, hence, this civil revision.
5. Learned counsel for the petitioners argued the case mainly on the point, that the respondent No.1/plaintiff has challenged the validity of the power of attorney and sale deed mainly on the ground, that the respondent No.1/plaintiff being an employee of Pakistan Railways, was serving in Karachi and particularly to show his absence on the relevant day, a duty Roaster issued by the Railway Department has been placed on record. Learned counsel further submitted, that this document whereupon both the learned Courts below have relied while passing the judgment and decree impugned herein, has neither been produced in the statement of PW-1/plaintiff nor in the statement of learned counsel for the respondent No.1/plaintiff, therefore, this document (Exh.P5) is, on the face of it, forged and cannot be relied upon.
6. Learned counsel, during the course of arguments, also referred another document which is Jamabandi for the year 1977 78 and this document has also been numbered by learned trial Court as Exh.P5.
7. The record of the case was scanned carefully with the assistance of learned counsel for the parties from where it is revealed, that the respondent No.1/plaintiff appeared as PW-1 but did not produce any document. On 07.09.1981, learned counsel for the respondent No.1/plaintiff in his statement, produced the following documents. The statement of learned counsel and the list of the documents which was got exhibited are as under: {{ URDU TEXT }}
8. Astonishingly, as reveals from the record, that learned counsel for the respondent No.1/plaintiff again produced another document which is duty Roaster of the Railway staff, on 31.01.1989 in his statement and completed his evidence. Learned trial Court received the document and numbered the same as Exh.P5.
9. It is very strange, as evident from the record, that firstly, learned counsel for respondent No.1/plaintiff in his own statement before learned trial Court, produced Jamabandi for the year 1977 78 (Exh.P5) and thereafter, again in his own statement, succeeded to get exhibited another document as Exh.P5 which is duty Roaster of the Pakistan Railway staff. Although the duty Roaster placed on record by the respondent No.1/plaintiff is not a public document and even otherwise, it has not been produced/adduced by the scribe or signatory of the document or the official of Pakistan Railways, therefore, such type of the document can hardly be relied upon by the Courts unless the same is proved according to law. When it was confronted to learned counsel for the respondents, although learned counsel tried to explain from the record but could not succeed to satisfy the Court. So much so, as depicts from the record, both the learned Courts below have mainly relied upon the duty Roaster which has been numbered as Exh.P5 to show, that when the power of attorney was executed, the respondent No.1/plaintiff was in Karachi and not present in Chicha Watni or in Sahiwal.
10. Learned counsel for the petitioners while concluding his arguments, has relied upon the latest esteemed judgment of the Hon'ble Supreme Court of Pakistan cited as MUHAMMAD NAWAZ alias NAWAZA and others v. MEMBER JUDICIAL BOARD OF REVENUE and others (2014 SCMR 914), wherein the Hon'ble Supreme Court of Pakistan has laid down the principle to interfere in the concurrent findings of facts recorded by the forums below. The relevant para (at Page No.920) is reproduced as under: "The argument that when all the fora functioning in the revenue hierarchy concurrently held that the appellants were occupying the land in dispute in their capacity as tenants, such finding being one of fact could not have been interfered with by the High Court under Article 199 of the Constitution of Islamic Republic of Pakistan, has not impressed us as a finding does not become sacrosanct because it is concurrent. It becomes sacrosanct only if it is based on proper appraisal of evidence. The finding of the fora functioning in the revenue hierarchy despite being concurrent was not based on proper appraisal of evidence and due application of law, therefore, the High Court was well within its jurisdiction to interfere therewith. For the very condition for conferment of jurisdiction on a Court of law is to render a finding on proper appraisal of evidence and due application of law. If and when it would do otherwise, it would go outside its jurisdiction. Such order can well be quashed in exercise of Constitutional jurisdiction of the High Court. An order thus passed cannot be protected because the repository of such jurisdiction has the jurisdiction to pass it. Lord Denning in his well known book "the Discipline of law", while commenting on orders of this nature at page 74, observed as under:-- "This brings me to the latest case. In it I ventured to suggest that whenever a tribunal goes wrong in law, it goes outside the jurisdiction conferred on it and its decision is void, because Parliament only conferred jurisdiction on the tribunal on condition that it decided in accordance with law.
11. In another esteemed judgment cited as Khan Muhammad Yusuf Khan Khattak v. S. M. Ayub and 2 others (PLD 1973 Supreme Court 160), the Hon'ble Supreme Court of Pakistan, has observed as under: "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 handwriting". 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:- "Documents 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."
12. In another judgment cited as GHULAM MUHAMMAD and 3 others v. GHULAM ALI (2004 SCMR 1001), the Hon'ble Supreme Court of Pakistan, has observed that no sanctity can be attached to the concurrent finding if the same is suffering from defect, misreading or non-reading of evidence, and High Court is competent to correct such error or irregularity in exercise of the revisional jurisdiction.
As regards the status of the public document under Article 85, 87 and 88 of the Qanun-e- Shahadat Order, 1984, it has been ruled by this Court in a judgment cited as Mst. RASHIDA BEGUM v.
MUHAMMAD AMEEN and 4 others (2001 MLD 725). The relevant para (at Page No. 728) is reproduced as under: "However, it is not so in the case of the latter for the reason that a document which is inadmissible in evidence even if exhibited without any objection cannot be legally read into evidence. Reference be made to the case of Khan Muhammad Yusuf Khan Khattak v. S. M. Ayub and 2 others (PLD 1973 SC 160). Certified copies of only such documents are admissible in evidence as are public documents as defined in Article 85 of the Qanun-e-Shahadat Order, 1984. Under clause (5) of Article 85 only such registered documents are public documents, execution whereof is not disputed. In the present case what to speak of a dispute as to execution, the case set up was that the executant is dead in law."
13. In another judgment cited as Malik MUHAMMAD AKRAM v. KHUDA BAKHSH (2000 CLC 759), this Court has observed as under: "So far as, the argument of the learned counsel for the respondent that the document admitted without objection could not be challenged is concerned, it is suffice to observe, that a document which is inadmissible and not a valid document even if admitted and exhibited would not be looked into to establish the case on such document."
14. In response of the argument advanced by learned counsel for the petitioners, learned counsel for the respondents has relied upon the esteemed judgments cited as HAKIM ALI v. MUHAMMAD SALIM and another (1992 SCMR 46), Mrs. TAHIRA DILAWAR and 6 others v. GHULAM SAMDANI and 4 others (1995 SCMR 246), SUBEDAR FAZAL HUSSAIN v. QAZI MOHAMMAD BASHIR And Others (1982 PSC 1239), ALLAH BAKHSH v. Mst. SHER KHANUM BIBI and 3 others (1994 MLD 1059), ANWAAR ALI v. Mst.RIAZ ANWAR and another (1997 MLD 1788), MUHAMMAD SARWAR AND ANOTHER v. FAZAL REHMAN (1982 CLC 1286) [SC (A J & K)], GOVERNMENT OF PAKISTAN v. Maulvi AHMAD SAEED (1983 CLC 414), JUMMA KHAN AND OTHERS v. SETTLEMENT AND REHABILITATION COMMISSIONER AND OTHERS (1983 CLC 566), NISAR HUSSAIN v. Mst. SUFAIDAN (1988 CLC 109), ABDUL AZIZ v. MUHAMMAD ASHIQ and others (1991 CLC 820), Mst. SAHIB BIBI and others v. LAL (1992 CLC 807), CHILYA CORRUGATED BOARD MILLS LIMITED v. M.ISMAIL anothers (1992 CLC 2524), MUHAMMAD SHER AND 2 OTHERS v. MUHAMMAD AZIM AND ANOTHER (PLD 1977 Lahore 729), Sheikh MUHAMMAD SHAFIQUE v. NATIONAL BANK OF PAKISTAN (PLD 1992 Lahore 60).
15. From the facts, record and the findings recorded by learned Courts below, it is found, that learned Courts below relied upon a document (Exh.P5) i.e. Duty Roaster of Railway staff which was neither produced by the respondent No.1/plaintiff appearing as PW-1 before learned trial Court nor the scribe or signatory of the said document appeared in the Court. In fact, the aforesaid document was produced in the statement of learned counsel for the respondent No.1/plaintiff before learned trial Court and learned trial Court received two documents, both in the statement of learned counsel for respondent No.1/plaintiff i.e. Firstly Exh.P5 which is copy of Jamabandi for the year 1977-78 and subsequently, duty Roaster of Railway staff to show, that respondent No.1/plaintiff was on duty in Karachi and the said document was also numbered by learned trial Court as Exh.P5.
16. In these circumstances, it is appropriate to remand the matter to learned trial Court to re- decide the case afresh after providing fair opportunity of hearing and defending, to the parties to the suit strictly in accordance with law. Learned trial Court will also take into consideration the two documents exhibited against one number i.e. Exh.P5, while re-writing the judgment.
17. Resultantly, this petition is allowed, the judgment and decree dated 12.10.1994 and 26.11.1990 passed by learned Courts below, are set aside and the case is remanded to learned trial Court to re-decide the same afresh in accordance with law.
Since it is an old matter, therefore, learned trial Court will decide the same positively within a period of sixty days. Parties to the case shall appear before learned trial Court on 25.05.2015.