IRFAN SAADAT KHAN, J.--- This High Court appeal has been filed against the judgment of learned Single Judge passed in Suit No.510 of 1977 dated 5.6.1983, whereby the Suit filed by the respondents for declaration, injunction accounts; etc. was allowed and thereafter decree in favour of the plaintiffs (present Respondents Nos.1 to 4) was issued. A further decree was also made for possession and handing over documents and to execute all deeds and documents for ensuring that the title of the Khurshid Salt Works (hereinafter referred as "KSW") be made in the name of Alvia Tabligh Trust.
2. Briefly stated, the facts of the case are that late Dr. Habibur Rehman Elahi Alvi (hereinafter referred as "Dr. Alvi") created a trust with the name "Alvia Tabligh Trust" (ATT) through a Registered Trust Deed No.562 of 1958 and got the same registered under Registration Deed No.527 of 1967.
Among various immovable properties held by ATT it was also the owner of "Sindh Salt Works"
(hereinafter referred as "SSW"). It is averred that some time in 1976 another salt works, namely, KSW was offered for sale by its owner respondent No.6 and Dr. Alvi became interested in purchasing the same. Since the KSW was owned by a Parsi gentleman i.e. Respondent No.6 -- Russi M. Dinshaw, it was apprehended that he might not agree to sell KSW to ATT, being a Muslim Trust. Thereafter Dr. Alvi assigned the duty to the appellant No.1 to negotiate the matter with Mr. Dinshaw. Conversely as per Appellant No.1 he, Appellants Nos.3, 4 and late Israrul Haque entered into a partnership on 19th August, 1976 and formed a partnership under the name and style of "Habib Ocean Industries"
(hereinafter referred as "HOI"). It was averred on behalf of the appellants that the HOI executed a special power of attorney in favour of late Israrul Haque authorizing him to negotiate with the owner of KSW for purchase of the same. It was the claim of Dr. Alvi that the said KSW was purchased out of the funds of ATT, whereas it was the claim of the appellants that KSW was purchased out of the funds available with them and was not the property of ATT. As per the contention of Dr. Alvi when he realized that the appellants have fraudulently become the owner of KSW, he filed a Suit bearing No.510 of 1977 for.declaration, injunction and accounts, which was decreed in favour of the present respondents. Being aggrieved with the judgment and decree the appellants have filed the present High Court Appeal.
3. It is seen from the record that the matter proceeded before the learned Single Judge, who on the basis of averments made in the suit and on the pleadings of the respective parties framed the following issues:- "1. Whether the suit is misconceived and not maintainable as framed?
2. Whether the suit has been filed in accordance with section 92, C.P.C.? If not, what is effect?
3. Whether the defendant No.2 has purchased the Salt Work on its own behalf or on behalf of the Trust?
4. What should the decree be?"
4. The Issue No.2 was not pressed at the time of arguments. The learned Single Judge while passing the impugned judgment observed that the Issue No.3 involved the following additional questions:- "(i) Whether in fact defendant No.) was instructed by plaintiff No.2 to negotiate for the purchase of the Salt works for the Trust and in fact concluded the above negotiation on behalf of the Trust?
(ii) Who provided the consideration?
(iii) What was the conduct of the parties after the purchase?"
5. The learned Single Judge thereafter through his exhaustive judgment, comprising of forty-four
(44) pages, decreed the suit by observing that ATT was the owner of the KSW and not the appellants.
6. Mr. Qadir Hussain Khan Advocate has appeared on behalf of Appellants Nos.1, 2 and 4 to 12 and submitted that the judgment and decree passed by the learned Single Judge is not in accordance with law as the learned Single Judge has not considered various evidences and documents produced before him and by misconstruing and taking into consideration some alleged admissions, which were never made, passed the impugned judgment against the appellants. He stated that the judgment passed by the learned Single Judge was the result of misreading and non-reading of the evidences and also mis-application of the applicable laws and rules. While elaborating his view point, the learned counsel submitted that the resolution passed for bringing the suit in the name of ATT was signed by four trustees only whereas the coram should be that of five members hence on this legal issue the suit was not maintainable, which aspect has been ignored by the learned Single Judge. He further submitted that even the suit was not signed by the plaintiffs, which had rendered the suit to be not maintainable, which aspect also has been ignored by the learned Single Judge. He submitted that no amended plaint even was filed by the respondents, thus, the locus standi of the persons bringing in the suit had always remained doubtful, which has not been considered by the learned Single Judge.
7. The learned counsel further submitted that the learned Single Judge has not considered that the funds from which KSW was purchased were not provided by ATT or Dr. Alvi rather the same were arranged by the partners of HOI, which aspect also has been ignored though various documents were produced during the course of the hearing before the learned Single Judge. He further submitted that ATT was already having a salt business and had no intention to purchase another business of the same nature and it was the appellants who thought of purchasing KSW from their available resources and thereafter purchased the same, which is evident from the fact that the agreement for sale was made between KSW and HOI, which aspect also has been ignored by the learned Single Judge. The learned counsel further stated that the learned Single Judge has also ignored the deposition of Appellant No.1 wherein he has categorically stated in his cross- examination that the documents produced by the Respondent No.1 bear his fake and forged signatures. The learned counsel submitted that the learned Single Judge has further incorrectly observed that HOI was a fake and bogus firm. The learned counsel then read out several paragraphs of the impugned judgment to support his view point.
8. The learned counsel further submitted that the learned Single Judge has further erred in observing that HOI had no funds to purchase KSW; whereas according to him from the record it was established that funds were provided by the partners of HOI. He further submitted that the learned Single Judge has not considered that the entire negotiations regarding the purchase of KSW was made by the appellants and has wrongly termed that they had acted as agents of ATT.
He further submitted that the learned Single Judge has also not considered that there was no formal resolution of the trust with regard to the purchase of KSW and has incorrectly observed that non-availability of the resolution would not invalidate the transaction. He submitted that the part payment of the amount for purchase of KSW was arranged out of the amounts sent by Atta-ur- Rehman, brother of appellant No.1, from Nigeria. The learned counsel further submitted that no doubt part bank guarantee was arranged by Dr. Alvi but that would not mean that by simply arranging part bank guarantee by Dr. Alvi or ATT they would become the owners of KSW. The learned counsel further submitted that the learned Single Judge was not justified in relying upon a rough personal note of Dr. Alvi by ignoring the evidences and documents produced by the appellants. He, therefore, in the end submitted that the judgment passed by the learned Single Judge may be set aside. In support of his above contentions the learned counsel has relied upon the following decisions:--
(1) Sardar Muhammad v. Pakistan (PLD 1961 Karachi 232)
(2) Mst. Kulsoom Bibi and another v. Muhammad Arif and others (2005 SCMR 135)
(3) Anwar Ahmad v. Mst. Nafis Bano (2005 SCMR 152) ,
(4) Syed Arif Shah v. Abdul Hakeem Qureshi (PLD 1991 SC 905)
(5 )Iftikhar v. The State (PLD 1983 SC 334)
(6)Mst. Sughran and another v. Rehmat Ali (PLD 1965 Lahore 580)
9. Mr. Azmat Rehan, Appellant No.3, is present in person and has adopted the arguments of Mr. Qadir Hussain Khan Advocate and submitted that the learned Single Judge has relied upon some fake and forged documents for which he has also filed miscellaneous application and stated that appropriate legal action may be taken against the respondents for misguiding the Court by producing those documents. He further submitted that when KSW was offered for sale the appellant informed Mr. Ata-ur-Rehman about the same who at time was in Nigeria and who immediately sent an amount of Rs.1,50,000/- to the Appellant No.1 from which advance payment of earnest money was made to the owner of KSW, which aspect was ignored by the learned Single Judge. He further submitted that the learned Single Judge has also not considered that it was not out of the funds of ATT that KSW was purchased rather it was from the funds remitted in Pakistan by Ata-ur-Rehman or arranged by the appellants from their own resources through which KSW was purchased. He further submitted that HOI was formed by the appellant No.1 in which the appellant No.1, his son, late Israr-ul-Haque and he were partners having equal shares. He further stated that the learned Single Judge while passing the judgment has not considered various clauses of the Instrument of Trust, Articles 29 and 66 of Qanun-e-Shahadat Order, 1984 and Section 12 of the Trusts Act. He also stated that in view of the above submissions the judgment and decree passed by the learned Single Judge may be set aside. In support of his above contentions he has relied upon the following judgments:
(1) Hakim Ali v. Muhammad Salim and another (1992 SCMR 46)
(2) Yousaf Ali v. Muhammad Aslam Zia and others (PLD 1958 SC 104)
(3) Syed Wajihul Hassan Zaidi v. Government of Punjab and others (PLD 2004 SC 801)
(4 )Asif Ali Zardari and another v. The State (PLD 2001 SC 568)
10. Mr. Saadat Yar Khan Advocate has appeared on behalf of Respondents Nos.1 to 4 and has vehemently refuted the arguments advanced' by the appellants and submitted that the appellants have approached the Court with unclean hands. He stated that it is evident from the facts obtaining in the instant case that since Dr. Alvi apprehended that the Parsi owner of KSW would not sale his property to a Muslim Trust hence he instructed the Appellant No.1 to enter into negotiation with him for purchase of the KSW for ATT and all the funds in this regard were provided either by him or through ATT. He submitted that the appellants with mala fide intention created a fake partnership under the name and style of HOI and thereafter illegally claimed themselves to be the owners of KSW whereas, in fact, it was the ATT, which was the owner of KSW. He stated that the learned Single Judge while passing the impugned judgment and decree has examined a number of witnesses and except the defence witness and appellant No.1 the other witnesses have supported the version of the respondents. He submitted that complete account details, bank guarantee, security furnished for the bank guarantee and other documents were examined by the learned Single Judge from where it was proved that ATT was the owner of KSW. The learned counsel then read out various paragraphs of the impugned judgment and invited our attention to various depositions and exhibits. The learned counsel stated that from all these documents, it would become evident that ATT was the owner of KSW and the appellants by playing fraud claimed that HOI was the owner of KSW.
11. While elaborating his view point, the learned counsel submitted that even from the deposition of Appellant No.1 it is evident that there had been inconsistencies and contradictions, as at one place he stated that the documents relied upon by the respondents were fake and forged whereas on the other hand admitted that the signatures made on other documents appear to be the same as available on Exhibits Nos.15/1 and 15/2, which the Appellant No.1 had termed to be fake and forged.
He further submitted that the learned Single Judge has discussed the oral and documentary evidences produced before him and in the judgment has even reproduced some portions of the deposition of various witnesses to clarify the issue before him. He stated that it was the ATT which purchased KSW from its resources but the appellants with mala fide intention became interested in its illegal acquisition. He stated that the main purpose of forming HOI was to usurp KSW from ATT.
He further stated that Appellant No.1 was in the habit of committing crimes and invited our attention to various newspaper cuttings of 1980 wherein a fine of Rs.9.0 million was imposed on Appellant No.1 under MLO 59 read with Sections 116 and 418 of Pakistan Penal Code. He submitted that perusal of Trust Deed would reveal that the Trust comprised of people like M/s. Ibrahim Ahmed Bawani, Akhtar Hussain, I.U. Khan, Inamullah Khan and Dr. Fazlur Rehman as its trustees. He further submitted that the witnesses who have recorded their statements were men of high integrity and honour as Witness No.1 was Syed Abdul Wadood was an Officer of National Bank of Pakistan, Witness No.3 Akhtar Hussain was a retired Civil Servant who had earned Hilal-ePakistan and had also served as Governor of West Pakistan, Witness No.4 Pir Mahfooz Ali was a renowned businessm an, Witness No.5 Aftab Ahmed Khan was a retired Managing Director of National Bank of Pakistan. According to him all these witnesses were men of reputation, integrity and honour who had given their statements in favour of ATT and all these aspects have elaborately and exhaustively being discussed by the learned Single Judge in his judgment. He further submitted that the decisions relied upon by the counsel for the Appellants and the Appellant No.3 are, firstly, distinguishable and, secondly, have no relevancy with the facts obtaining in this instant case. He. therefore, submitted that this High Court Appeal being bereft of any merit is liable to be dismissed with heavy cost.
12. Mr. Qadir Hussain Khan Advocate in his rebuttal reiterated his arguments advanced earlier and stated that the Appellant No.1 was acquitted by the Hon'ble Supreme Court of Pakistan in Civil Appeal No.396-K of 1990 through judgment dated 16.2.1992 hence no adverse inference in this regard could be drawn.
13. We have heard both the learned counsel for the parties and Appellant No.3 at considerable length and have perused the record and the decisions relied upon.
14. The only issue involved in this High Court Appeal is "Whether it is the ATT who is the owner of KSW or it was owned by HOI". It is noted from the facts that the Trust was registered in the 3ear 1967 and Dr. Alvi was its author, founder and principal donor of all the assets and properties including SSW.
The appellant No.1 was a Trustee of ATT. The appellant No.1 was also a partner of HOI, which was alleged to be jointly owned by appellant No.1, appellant No.3 Azmat Rehan son of late Israrul Haque, late Israrul Haque (brother-in-law of the appellant No.1) and Asif son of appellant No.1. HOI was duly registered with the Registrar of Firms on 05.09.1977. Perusal of the record reveals that HOI was formed through a Deed of Partnership dated 19.08.1976 and comprised of the above named four persons as equal shareholders, with the main object among others to carry on business of fish farming and salt manufacturing etc. It was alleged that late Israrul Haque was given a special power of attorney by HOI dated 25.08.1976 to enter into negotiation with respondent No.6 with regard to sale of KSW. Sale agreement dated 28.08.1976 was entered between KSW and HOI wherein the appellants agreed to purchase KSW for a total consideration of Rs.7,50,000/-. It was agreed between the parties that a sum of Rs.1,50,000/- would be paid as earnest money, whereas the balance amount of Rs.6,00,000/- would be paid in 12 equal monthly installments of Rs.50,000/- each, commencing after six months from the date of execution of the agreement. It was also agreed that purchaser will furnish an irrevocable bank guarantee of any scheduled bank as a surety for the regular payment of monthly installments. Late Dr. Alvi however came to know that inspite of his instructions to the appellant No.1 to purchase KSW for ATT, the appellants by playing fraud have registered KSW in the name of HOI. Dr. Alvi then through his counsel served a legal notice dated 27.07.1977 on the respondent No.6 mentioning therein that it was the ATT which had agreed to purchase KSW through the appellant No.1, who is his son and who has setup a bogus firm HOI and through an unconcerned person have entered into an agreement with him for purchase of KSW. It was also brought to the knowledge of the respondent No.6 that all the payments were made to him through appellant No.1 on behalf of ATT. In the said legal notice Dr. Alvi categorically mentioned that the appellant No.1 is now trying to obtain a sale deed in his own name rather than in the name of ATT. The respondent No.6 was also advised to remain cautioned from the appellants. Dr. Alvi also published a public notice in daily DAWN of 25.07.1977 in this regard. The respondent No.6 then vide letter dated 13.08.1977 duly informed the counsel of Dr. Alvi to give him proper documents in this behalf.
15. The deposition of Syed Abdul Wadood (witness No.1), an officer of NBP, clearly reveals that he was Manager of Liaquat Bazar Branch and account No.8075 was maintained in the name of HOI. In the said Branch account No.7767 was also maintained in the name of SSW operated by ATT. He has affirmed that cheque No.E-2219157, dated 27.11.1975, for Rs.50,000/- was drawn through cash and the payment of the said cheque was made to the appellant No.l. Mr. Wadood in his statement has given a series of cheque numbers wherein different amounts were withdrawn from time to time by the appellant No.1 from the account of SSW.
16. The deposition of Dr. Alvi, witness No.2, reveals that he founded the Trust in 1958 and the entire assets of the Trust were contributed by him. He stated that in 1975 he came to know that KSW was for sale, which was owned by Dinshaws, and thereafter convened a meeting of the Trustees wherein it was decided that efforts should be made to purchase KSW. Since it was apprehended that ATT was a Tableeghi Trust which main object was to propagate Islam in Pakistan etc., the Parsi owner of KSW might not agree to sell it to ATT being a Muslim Trust, hence he entrusted the appellant No.1 with the duty to enter into negotiations with the said Parsi gentlemen. He has stated that all the negotiations in this regard were made by the appellant No.1 on behalf of ATT who in November 1975 informed him that he had been successful in negotiating with Dinshaws for purchase of KSW at a consideration of Rs.7,50,000/-. The appellant No.1 also informed Dr. Alvi that a sum of Rs.1,50,000/- was to be paid as earnest money, whereas the balance amount of Rs.6,00,000/- would be paid in 12 monthly installments of Rs.50,000/- each and a bank guarantee in this regard also has to be furnished. Dr. Alvi categorically stated that it was he and not the appellants who had arranged the bank guarantee as well as the earnest money. It is an admitted position that in arranging the bank guarantee the properties owned by Mst. Iffat-un-Nisa (wife of Dr. Alvi) were kept as security with Muslim Commercial Bank (MCB). According to Dr. Alvi all the amounts paid for the purchase of KSW were arranged and given by him or ATT from time to time to the appellant No. 1 . He further stated that appellant No.1 do not have sufficient funds of his own rather he was given salary as Manager of SSW hence there could be no question of payment of any amount either by the appellant No.1 or by other appellants. It has further been mentioned that by purchasing KSW for ATT the objectives of the Trust will be advanced. He further stated that Mr. Pir Mehfooz, who was his friend, helped him in obtaining bank guarantee from MCB. In the said deposition he has categorically stated that after issuance of the bank guarantee in favour of KSW, Dinshaws delivered the possession to ATT. It was also stated that not only the amount pertaining to the purchase of KSW but also with regard to certain repair works in KSW was paid by him to the appellant No.1 for the said purpose. He has categorically stated that when he saw agreement of sale between HOI and KSW he asked the appellant No.I that how Israrul Hague has become a partner in HOI and the appellant No.1 informed him that it is a bogus partnership firm upon which he became annoyed and asked the appellant to bring all the documents in this regard and thereafter all the documents were handed over to him by the appellant No.1. He has further stated that all the work of KSW was supervised by him and it was he who instructed the appellant No.1 to dissolve HOI. In support of his averments Dr. Alvi during his examination produced a number of documents before the learned Single Judge. He further stated that thereafter on his instructions HOI was dissolved and all the appellants withdrew themselves from the said partnership firm. He has also stated that the documents for dissolution of HOI were prepared by Mr. Chandio Advocate.
He stated that when he called the appellants and other persons to come to his house to sign the documents of dissolution however they avoided to come. He has also stated that since he lost confidence in the appellant No.1, he directed his eldest son Anisur Rehman to start supervising the affairs of SSW who found that appellant No.1 acting as Manager of SSW has made some bogus entries in the accounts of SSW. It is seen that Dr. Alvi was examined at length and he produced a number of documents to prove that the amounts paid for purchase of KSW were through ATT. It is also noted that Dr. Alvi was thoroughly cross examined by different counsel appearing for the defendants (present appellants). Though the appellants have alleged that Trust was bogus and sham and has not donated a single rupee for the cause it was formed but in the deposition of Dr. Alvi has stated that he has donated substantial amount for the purposes of the Trust. Dr. Alvi has also admitted that after the entire amount was paid for the purchase of KSW, his wife got back all the title documents of the properties from the MCB deposited as security for obtaining the Bank guarantee and it was the appellant No.1 who brought all these documents from the bank to him.
Perusal of Exhibit 15/1, which is a letter dated 05.11.1976 written by the appellant No.1 to Dr. Alvi clearly endorses purchasing KSW for ATT and also mentions that sale deed of KSW will be executed in favour of ATT for which funds were arranged by ATT, however, the signature on this document has been denied by the appellant No. 1. Exhibit 15/2 is also a letter of the same date wherein a breakup of the finances arranged for the purchases of KSW was given. The appellant No.1 has denied signing this document also.
17. In the deposition of Witness No.3 Akhtar Hussain he has stated that in a meeting he was informed by Dr. Alvi that KSW was on sale and that he wanted to purchase it. He also stated that in the said meeting the Appellant No.1 was also present when Dr. Alvi issued instructions to him, in his presence, to negotiate with the Parsi gentleman for the purchase of KSW. He further deposed that he was again called by Dr. Alvi after some time and informed him that successful negotiations for purchase of KSW have been made and asked him to arrange bank guarantee so that transaction could be completed. He further deposed that though he helped Dr. Alvi in obtaining the bank guarantee but it could not be arranged and thereafter Dr. Alvi through Pir Mahfooz obtained the bank guarantee from MCB. He further stated that in one meeting Dr. Alvi informed him that the Appellant No.1 has done something wrong and has managed to transfer KSW in his name. He further stated that thereafter a meeting of the trustees was called by Dr. Alvi and the Appellant No.1 was removed from the trusteeship of ATT. He further stated that in the said meeting it was also decided to initiate legal proceedings against Appellant No.1 so that KSW could be transferred in the name of ATT. He also stated that he was fully conversant about the state of affairs of ATT and was always apprised about the same by Dr. Alvi. He stated that in the meeting in which the Appellant No.1 was removed minutes were duly recorded (available in the record as Annexure "A"). He further stated that though there was no formal meeting with regard to the purchase of KSW but in a meeting, in which two sons of Dr. Alvi were also present it was decided that KSW be purchased from the Parsi gentleman who was the owner of KSW. He has also admitted that no instructions in writing were issued to the appellant No.1 to negotiate with the Parsi gentlemen with regard to purchase of KSW. He also stated that so far as his knowledge is concerned the amount for purchase of KSW was paid by Dr. Alvi or ATT.
18. The deposition of Witness No.4 Pir Mahfooz reveals that Mr. Garda, the then President of MCB, he helped Dr. Alvi in obtaining bank guarantee from MCB. He has also admitted that Dr. Alvi wanted to purchase KSW for ATT and discussed with him in this regard in his clinic where he visited him while going from his office to home and at that time the Appellant No.1 and Dr. Arif Alvi were also present.
19. In the deposition of Witness No.5 Aftab Ahmed Khan, Retired M.D. of National Bank of Pakistan, who was a friend of Dr. Alvi, he stated that Dr. Alvi came to his house somewhere in 1975 or 1976 alongwith the Appellant No.1 and informed him that since he was purchasing KSW for ATT he asked him to help him in obtaining bank guarantee. Dr.Alvi also informed him that Appellant No.1 would now remain in contact with him with regard to the progress in the matter and thereafter the Appellant No.1 came to his house two or three times and he helped Dr. Alvi in obtaining the bank guarantee, which was finally arranged by Pir Mehfooz.
20. The deposition of Ataur Rehman Alvi son of Dr. Alvi, defence witness, reveals that he was also one of the trustees of ATT. He stated that he left Pakistan for Nigeria in 1964. He stated that he has neither attended any meeting nor was aware about the minutes of the meeting wherein Dr. Alvi had instructed the Appellant No.1 to negotiate with the Parsi gentleman for the purchase of KSW. He stated that he came back to Pakistan in 1977. He further stated that it was in his knowledge that the Appellant No.1 had established a firm under the name of HOI. He also stated that he had informed his father that he will not become a party in the scuffle between him and his brother Muje.ebur Rehman. He stated that he had sent substantial amount from time to time to Pakistan either to ATT, his father or to the Appellant No. 1. He has admitted that he received a request from Appellant No.1 that he required some amount for purchase of KSW, which according to him was in the knowledge of his father. He futther stated that as per his information KSW was the property of HOI and not that of ATT. He has also stated that SSW was managed by Appellant No.1 since his father was a practicing dental surgeon. He further stated that he was not satisfied with the amount of salary paid by his father to the Appellant No.1 and he used to send amounts to him for his financial help.
He also stated that he tried his level best to reconcile the differences between his father, other brothers and appellant No.1 but could not succeed.
21. As per the deposition of Appellant No.1 he formed HOI in 1976, which was a sole proprietorship and it was in the knowledge of his father. He has admitted that the bank account in the name of HOI was opened with the National Bank of Pakistan with Rs.5,000/-, which was provided to him by his father. He also admitted that from time to time he used to take amounts from his father or from SSW, where he was Manager. He also admitted that Ataur Rehman, his brother, used to financially help him by remitting amounts from Nigeria. He further stated that in August 1976, HOI was converted into a partnership firm by inducting his son Asif, his brother-in-law Israrul Haque and Appellant No.3 as partners and thereafter applied for its registration. He stated that due to the efforts of Israrul Haque, HOI managed to purchase KSW for Rs.7,50,000/-. He stated that all funds in this regard were provided by the partners of HOI. He admitted that bank guarantee was arranged by Dr. Alvi to financially help him as a father who subsequently became greedy and claimed ownership of KSW. He stated that his father was in the knowledge that he had meager earning as Manager of SSW and that is why helped him in purchasing KSW, but later on due to the instigation of other family members claimed ownership of KSW and when he raised objection not only expelled him from ATT but also from SSW and initiated legal action against him. He also stated that the documents produced by Dr. Alvi were fake and forged and do not bear his signatures. He has also admitted that prior to this incident his relations with his father were cordial who had always helped him and that he had served SSW as Manager for almost twenty two years. He stated that all the affairs of SSW were run by him since his father was engaged in his dental practice. He stated that it was he who informed his father about the sale of KSW who asked him to purchase the same.
He further stated that it was he who approached his father for arranging the bank guarantee who through his contacts arranged the same. He stated that his drawing amounts from SSW and ATT was a daily routine which does not mean that he has misappropriated the amounts or applied the same in purchasing KSW. He stated that KSW was purthased out of the funds of HOI or the amounts borrowed by him from his father from time to time which according to him would not mean that ATT or his father would become the owner of the KSW. He, however, admitted that on the specific instructions of his father he dissolved HOI.
22. Perusal of the record shows that letters were written by the appellants with regard to their retirement from the firm HOI and had even issued a public notice in this regard. A Deed of Dissolution of the Firm HOI is also available on the record. The record also shows complete description of the amounts advanced to Appellant No.1 by ATT. A letter of ATT is also available on record wherein the misappropriations made by the appellant No.1 in the accounts of SSW have been discussed wherein he was also directed to immediately hand over the accounts to Anis-ur- Rehman.
23. The learned Single Judge after examining the deposition made by Ataur Rehman has reached to the conclusion that it does not inspire confidence as at the relevant time when the deal of purchase of KSW was in progress, he was in Nigeria. The learned Judge also observed that Mr. Ata- ur-Rehman though has stated that he sent remittances to help his brother but it was not clear that whether these remitted amounts were for the purchase of KSW or for the financial help of the Appellant No.1. It was also noted that since Dr. Alvi was most of the time in his dental clinic and the appellant No.1 was having the experience of managing SSW, Dr. Alvi directed the appellant No.1 to negotiate 'with the Parsi gentleman for the purchase Of KSW. The appellant No.1 has stated that there was neither any resolution nor written instructions issued to him for the purchase of KSW, however he has not denied the deposition made by the witness Akhtar Hussain who has stated that in his presence Dr. Alvi has instructed him to negotiate with the Parsi gentleman with regard to purchase of KSW. The appellant No.1 has also not said a single word about the deposition of Mr. Aftab Ahmed Khan wherein he has stated that Dr. Alvi instructed the appellant No.1 to enter into negotiation for purchase of KSW with the Dinshaw and that Dr. Alvi and the appellant No.1 came to his house for seeking his assistance in obtaining bank guarantee to be furnished for the said purchase deal. It is observed that in view of the categoric deposition made by the above named witnesses the assertion made by the appellant No.1 that it was he who along with other appellants and from their own funds purchased KSW had remained unproved whereas the depositions made by witnesses Nos.1 to 5 had mostly remained unshaken. It is further noted that if the appellants were having substantial funds of their own why they sought financial assistance from Dr. Alvi for furnishing bank guarantee; whereas it is seen that appellant No.1 was not even having sufficient funds to open the bank account of HOI, which amount of Rs.5000/- admittedly was provided to him by Dr. Alvi.
24. The issue raised by the appellant No.1 that the suit was wrongly instituted since no resolution was passed for bringing the suit in the name of trust and that me suit was not signed by the plaintiffs has already been taken care of by the learned Single Judge while deciding the suit.
Moreover it is further seen from the record that a resolution Annexure 'B', Ex: No.5/36 of the meeting dated 07.08.1977 is available on the record which shows that the meeting was attended by 6 trustees wherein it was resolved that since appellant No.1 was doing something prejudicial to the interest of ATT hence proper and immediate legal action if not taken against him the trust will sustain a very heavy loss. Hence the assertion of the counsel for the appellant No.1 that there was neither any resolution nor authority with the plaintiffs (present respondents) to file suit against them is contrary to the records. Moreover, the Deed of the Trust was amended a number of times and the appellant No.1 has failed to bring on record the material as to who were the trustees at the relevant time who according to him have not signed the plaint of the suit. It is further seen that the reason for not purchasing KSW in the name of ATT was duly mentioned that since Dr. Alvi apprehended that the Parsi gentleman might not agree in selling KSW to a Muslim trust therefore he directed the appellant No.1, being Manager of SSW and having substantial knowledge to run salt work, to negotiate with the parsi gentleman which would not ipso facto mean that the appellant No.1 had obtained the license to purchase KSW in the name of HOI, which action is in our view was rightly termed by the learned Single Judge to be mala fide. It is also seen that the appellant No.1 has failed to bring on record that HOI had carried out any business activity to justify that it was not a fake and bogus partnership. If the statement of the appellant No.1 that HOI was the owner of KSW is considered to be true then why the possession of KSW was handed over to ATT, is not understandable.
25. Moreover for arguments sake if it is assumed that Dr. Alvi by coercion and exerting pressure usurped KSW from the appellants why they kept mum; whereas in the letter addressed by appellant No.1 to Dr. Alvi he has dearly stated that he will initiate legal action. It is also a matter of record that the amount of Rs.6,00,000/- paid for purchase of KSW was from the account of SSW as bank statement, debit vouchers and other necessary documents were furnished at the time of hearing before the learned Single Judge, which were duly examined. The appellant No.1 has also admitted that the signatures appearing on these debit vouchers of SSW were that of his. He has also admitted withdrawal of substantial amounts from SSW and depositing of the same in the account of HOL The learned Single Judge has also examined the vouchers prepared in his own hand writing by Dr. Alvi and even reproduced some of the vouchers in his judgment. It is noted that if KSW was the property of HOI, as claimed by the appellant, why it was managed through SSW, which had remained an unanswered question. Even the salary of staff of KSW was paid through SSW.
26. The reliance of the appellant No.3 on Articles 29 and 66 of Qanun-e-Shahadat, Order, 1984 is also misplaced as these Articles deal with "Existence of course-, of business when relevant" and "In civil cases character to prove conduct imputed irrelevant" which hardly have any bearing on the appeal in hand. Moreover Article 12 of the Trusts Act, 1882 deals with "Trustees to inform himself_of State of trust property" which has no concern, with the present appeal.
27. We will now discuss the various decisions relied upon by the appellants. The case of Sardar Muhammad (Supra) talks about grant of declaratory relief and has no bearing with the issue in hand. In the case of Mst. Kalsoom Bibi (Supra) the Hon'ble Supreme Court has dealt with Article 79 of Qanun-e-Shahadat and Section 12 of Trust Act, which decision is distinguishable. The case of Anwar Ahmed (Supra) is distinguishable as in this case the Hon'ble Supreme Court has dealt with re-examination of witnesses and Articles 72, 117, 120 and 161 of the Qanun-e-Shahadat Order, 1984, which is not the subject matter of this appeal. The case of Syed Arif Shah (Supra) is also distinguishable as in that judgment the Hon'ble Supreme Court of Pakistan has dealt with Section 22 of the Specific Relief Act, which is not the issue involved in the instant appeal. The case of Iftikhar (Supra) is also distinguishable as in that judgment Section 342, Cr.P.C. has been discussed. The case of Mst. Sughran (Supra) is also distinguishable as in that judgment matter regarding rehabilitation has been discussed. The decision of Hakim All (Supra) is with regard to Sindh Rented Restrictions Laws, hence distinguishable. The case of Yousuf All (Supra) talks about Evacuee Lease and rehabilitation, which is not the subject matter of the instant appeal. In the case of Syed Wajihul Hassan Zaidi (Supra) Evacuee property has been discussed, hence is distinguishable. In the decision given in the case of Asif All Zardari (Supra) Ehtasab Act and Section 342, Cr.P.C. have been discussed, which is also distinguishable.
28. It is evident from the deposition of above witnesses that it was the Appellant No.1 who took Rs.5,000/- from Dr. Alv,i to open a bank account under the name of HOI, which clearly shows that at that point of time he was not having sufficient funds of his own. It is also noted that originally HOI was a sole proprietorship which subsequently was transformed into a partnership firm comprising of the Appellant No.1, Appellant No.3, Appellant No.4 and father of Appellant No.3. It is also an admitted position that subsequently the said firm was dissolved on the instructions of Dr. Alvi. It is also noted that the Appellant No.1 was not having sufficient funds to purchase KSW, though it was stated that earnest money of Rs.1,50,000/- was paid from the amounts received from Ata-ur- Rehman from Nigeria, however a link between the amounts received from Nigeria and the payments made for the purchase of KSW was not established through documentary evidence. It is also an admitted position that Appellant No.1 was not having substantial security to obtain bank guarantee, which was obtained by Dr. Alvi through his sources by furnishing security in the shape of property documents of Mst. Iffat-un-Nisa, which aspect had not been denied by the Appellant No.1.
Hence, the question with regard to purchase of KSW front the funds arranged by him when there was a clear admission that he was working as a Manager in SSW had remained unproved. On the other hand, from the various documents furnished by Dr. Alvi with regard to time to time withdrawal of amounts either from his own funds or the funds of ATT or SSW by the Appellant No.1 a link has been established that the funds for purchase of KSW were from these two units and when Dr. Alvi came to know about the situation that the appellants have managed to transfer KSW in the name of HOI he became annoyed and thereafter not only HOI was dissolved on his instructions but possession of KSW was also handed over to ATT. Now if the appellants were claiming the ownership of KSW what prompted them in, firstly, dissolving HOI and, secondly, handing over possession of KSW to ATT? This had remained an unanswered question on the part of the appellants.
29. It is further noted that the relation between Dr. Alvi and the Appellant No.1 got worse when the Appellant No.1 refused to act as per the instructions of Dr. Alvi and thereafter legal proceedings were initiated by Dr. Alvi against him after removing him as a trustee of ATT as well as Manager of SSW. It is further seen that even late Israrul Hague, father of Appellant No.3 and son-in-law of Dr. Alvi, was an employee of ATT, as evident from the record. It is also noted that Appellant No.1 on one hand has stated that Exhibit Nos.15/1 and 15/2 were fake and forged documents, however on the other hand has admitted that the signatures on these documents are similar as that available on the other documents produced by Dr. Alvi before the learned Single Judge, which belies his own assertion and creates heavy doubt on the statement made by him in this regard. Even if, these two exhibits are ignored the other documents exhibited by the respondents had mostly remained uncontroverted, which support the version of the respondents. Hence the applications filed with regard to furnishing false and forged documents had remained unproved on the part of the appellants. It is also noted at one place the Appellant No.1. has stated that a sum of Rs.5,000/- was given to him in January 1976 by his father for opening a bank account in the name of HOI whereas in the affidavit-inrejoinder he has denied receiving of any amount for the said purpose. The appellant No.1 has admitted in his deposition that bank guarantee for purchase of KSW was arranged through the efforts of Dr. Alvi whereas in his affidavit-in-rejoinder has stated that the bank guarantee was arranged due to his own efforts. Appellant No.1 has also accepted in his deposition that HOI was dissolved at the insistence of Dr. Alvi whereas on the other hand stated that Dr. Alvi contrived to deprive him from the salt work. The Appellant No.1 has even stated that the trust was sham and bogus and had never undertaken any charitable work.
30. It is also seen from the record that strong evidences were led before the learned Single Judge which prompted him to pass the judgment and decree in favour of the respondents as the deposition of the witnesses had mostly remained unshaken. It is seen that the learned Single Judge has quite rightly correlated the various amounts advanced by Dr. Alvi or ATT or SSW to the Appellant No.1 which have proved that these amounts were given for the purchase of KSW otherwise there was no occasion to give these amounts to him since admittedly he was an employee of SSW and was getting salary from it. It is also seen that on the back side of the cheques issued by ATT or SSW signatures of Appellant No.1 were present and even the debit vouchers of SSW clearly show payments to the Appellant No.1 by marking "on account of purchase of Khursheed Salt Works" which bear undisputed signatures of the Appellant No. 1. It is also beyond comprehension that why the Appellant No.1, who was Manager in SSW, would start a business in competition with his own father and against the trust in which he was a trustee.
31. Record further reveals that through Annexure "A" a complete breakup of the payments made through Dr. Alvi for purchase of KSW have been shown. It is also noted that in the meeting of the Board of Trustees convened on 07.08.1977 the activities of appellant No.1 were discussed and thereafter it was noted that since those activities were prejudicial to the interest of the Trust, therefore the matter requires urgent consideration and thereafter it was resolved that in the interest of ATT to initiate proper legal action against him and other persons and if the same is not taken a heavy loss would be sustained by ATT. In the said meeting it was also resolved to give Dr. Alvi full authority to take proper action and to file a suit or start legal proceedings in the competent Court to safeguard the interest of ATT. It is also noted that the said meeting was attended by as many as 6 trustees. It is also noted that in the affidavit furnished by Dr. Alvi detailed description of the misappropriation made in the accounts of SSW have been highlighted. It is also a matter of record that Mr. Akhtar Hussain through his affidavit has categorically mentioned that Dr. Alvi was anxious to purchase KSW. He also mentioned in his affidavit that he tried to help Dr. Alvi in obtaining bank guarantee, which however could not culminate and thereafter Dr. Alvi succeeded in arranging bank guarantee from MCB through Pir Mehfooz. Pir Mehfooz who was the Managing Director of Sima Laboratory and the Deputy Chairman of PICIC has also affirmed that Dr.Alvi has approached him for arranging bank guarantee and he helped him in this regard and he was successful in getting the bank guarantee in this behalf. It is also noted that when Dr. Alvi noticed that appellant No.1 has misappropriated the accounts of SSW, he immediately asked his eldest son Anis-ur-Rehman to take hold of SSW and its accounts who subsequently informed Dr. Alvi about a number of misappropriations made by the appellant No.1. It is noted that in the proceedings before the Single Judge a Commissioner was appointed on 05.10.1997 to apprise the Court about the affairs of SSW and to furnish his report who after inspection on the site on 13.01.1978, pointed out a number of anomalies and misappropriations made by the appellant No.l. It is also noted that even Nazir was appointed in the suit vide order dated 14.09.1977 to visit SSW and to prepare inventory on the spot and in the report of Nazir also a number of misappropriations were pointed out.
32. So far as the contention raised by the learned counsel for the respondents that Appellant No.1 had been found guilty in some criminal cases, we agree with the contention raised by Mr. Qadir Hussain Khan that since Appellant No.1 was acquitted by the Hon'ble Supreme Court of Pakistan in Civil Appeal No.396-K of 1990 hence no adverse inference could be drawn in this behalf.
33. We, therefore, in view of the facts and circumstances do not find any legal infirmity in the judgment passed by the learned Single Judge and dismiss the appeal filed by the appellants.
Listed applications also stand disposed of.