SHAHID BILAL HASSAN J. Precisely , petitioners instituted a suit for declaration against the respondent s maintaining therein that predecessor in interest of the petitioners was Sher Khan son of Alam Khan, resident of Tarri Khel, Tehsil & District Mianwali, who had contracted marriage with Mst. Fatima daughter of Muhammad Khan (petitioner No.1) and out of this wedlock two daughters i.e. petitioners No.2 & 3 were born; said Sher Khan had migrated to Karachi, who settled down over there, got issued his I.D. Card; alleged he was follower of Fiqah-e- Jafria, he was a religious person and obtained the membership of a proscribed organization, he left his native abode and resided in Karachi at various places with various names. It was further averred that Sher Khan got issued an I.D. Card in the name of Saif Ullah son of Noor Ullah Khan, who died on 02.10.2003 in a road accident and was buried in Karachi. After his death mutation No.1638 dated 12.08.2005 had been sanctioned in favour of the petitioners being legal heirs of deceased Sher Khan alias Saif Ullah Khan son of Alam Khan. It was asserted that respondents (paternal nephews of deceased) started objecting to the legacy of deceased and claimed themselves as heirs of deceased and to obtain share in the property; hence, the suit.
The respondents contested the suit by submitting written statement and controve rted the averments of plaint by maintaining that inheritance mutation No.1638 dated 12.08.2005 was fake and illegal document, it was attested against law and facts, it was result of fraud and connivance, as a matter of fact, Sher Khan son of Alam Khan original owner was issueless, plaintif fs are not legal heirs of deceased Sher Khan; they are successors of Saif Ullah Khan son of Noor Ullah Khan and had no concern whatsoever with the disputed property . Sher Khan was not follower of Shia Fiqah, he was a Sunni by faith, Mst. Fatima (petitioner No.1) was got married with Sher Khan son of Alam Khan, at the first instance, couple remained issueless. Then petitioner No.1 married to Saif Ullah Khan son of Noor Ullah Khan. However , they admitted that Sher Khan was a member of proscribed organization and prayed for dismissal of the suit.
Out of the divergent pleadings of the parties, the learned trial Court framed issues and evidence of the parties was recorded. The learned trial Court vide impugned judgment and decree dated 19.04.2017 dismissed suit of the petitioners, against which they preferred an appeal, but the same was also dismissed vide impugned judgment and decree dated 02.05.2018; hence, the instant civil revision.
2. Learned counsel for the petitioners has argued that the impugned judgments and decrees are against law and facts of the case; that the same suffer from misreading and non-reading of evidenc e on record; that the petitioners have successfully proved their case by leading confidence inspiring evidence but the same has been ignored altogether by the learned Courts below . Moreover , the respondent No.1 while appearing before the learned appellate Court on 18.11.2017 recorded his statement with regards to no objection on acceptance of appeal of the petitioners and decreeing the suit, but the same fact has totally been ignored by the learned appellate Court as the same has not been discussed in the impugned judgment and decree dated 02.05.2018. Solitary statement of the respondent No.2 has been given undue weight by the learned Courts below . It is not proved on record that Mst.
Fatima (petitioner No.1) firstly married to Sher Khan son of Alam Khan and then with Saif Ullah son of Noor Ullah Khan, rather factum of her marriage with Sher Khan son of Alam Khan is an admitted one, but the learned Courts below have non-suited the petitioners mere on the basis of surmises and conjectures by relying on photocopies Marked on record by the respondents, which otherwise cannot be relied upon as the same have not been proved by them as per law. As such, material illegalities and irregularities have been committed by the learned Courts below , which has resulted in miscarriage of justice. Thus, by allowing the civil revision in hand, the impugned judgments and decrees may be set aside and suit instituted by the petitioners may be decreed as prayed for .
3. On the contrary , learned counsel for the respondents has supported the impugned judgments and decrees and has prayed for dismissal of the civil revision in hand.
4. Heard.
5. In the present case, no document has been exhibited rather the same have been "marked", meaning thereby the same have no legal value and sanctity in the eye of law, because Rule 4 of Order XIII of the Code of Civil Procedure, 1908 provides:- '4. Endorsements on document admitted in evidence.--(1) Subject to the provis ions of next following sub-rule, there shall be endorsed on every document which has been admitted in evidence in the suit the following particulars, namely:-
(a) the number and title of the suit,
(b) the name of the person producing the document,
(c) the date on which it was produced, and
(d) a statement of its having been so admitted: and the endorsement shall be signed or initialed by the Judge.
(2) Where a document so admitted is an entry in a book, account or record, and a copy thereof has been substituted for the original under the next following rule, the particulars aforesaid shall be endorsed on the copy and the endorsement thereon shall be signed or initialed by the Judge.'
The above provision of law makes it vivid that when a document is not brought on record through witness(s) and duly exhibited, the same cannot be taken into consideration by the Court. When such a matter came up before the Apex Court of country , it was held in reported judgment Federation of Pakistan through Secretary Ministry of Defence and another v . Jaffar Khan and others (PLD 2010 Supreme Court 604):- 'The document which has not been brought on record through witnesses and has not duly exhibited, cannot be taken into consideration by the Court.'
The same was followed in Abdullah v. Provincial Government through Secretary Board of Revenue and 3 others (2014 CLC 285 Balochistan) and similar view was adopted in Inspector General of Police, Balochista n, Quetta and 4 others v. Ghulam Rasool (2012 CLC 1645 -Balochistan) . Even prior to it, the Hon'ble Supreme Court in a case reported as State Life Insurance Corporation of Pakistan and another v. Javaid Iqbal (2011 SCMR 1013 ) held:- 'We are not convicted that, such document, which has not been produced and proved in evidence but only "marked" can be taken into account by the Courts as a legal evidence of a fact.'
The ratio of said judgment was followed and relied upon alongwith Anwar Ahmad v. Mst. Nafiz Bano through Legal Heirs (2005 SCMR 152), in Syed Abdul Manan and others v. Malik Asmatullah and others (2019 CLC 1096 Balochistan).
6. Mere marking of a document as an exhibit would not dispense with requirement of proving the same and the same cannot be exhibited unless it is proved. In the present case the situation remained the same, but the learned Courts below have not considered and dilated upon the requirement of law because admitting photocopy of a document in evidence and reading the same in evidence without observing legal requirements of Article 76 of the Qanun-e-Shahadat Order , 1984 would be illegal. Reliance is placed on Feroz Din and others v. Nawab Khan and others (AIR 1928 Lahore 432) and Fazal Muhammad v. Mst. Chohara and others (1992 SCMR 2182 ). Neither authors of the documents nor the witnesses nor such documents in original have been produced in Court for inspection purposes. Thus, such documents, without formal proof, cannot be relied upon; reliance is placed on Khan Muhammad Yousaf Khan Khattak v. S.M. ayub and 2 others (PLD 1973 SC 160), but as against this, the learned Courts below placing reliance on such documents have proceeded to pass the impugned judgments and decrees, which cannot be allowed to hold field, because in case of inability of either of the party to produce the Assistant Commissioner , Mianwali who allegedly conducted inquiry (Mark-DG), the learned trial Court ought to have summoned him as Court witness so as to unearth the truth and reach to a just conclusion of the case by determining rights of the parties, because the basic purpose is to administer justice to the parties rather to knock them out on the basis of technicalities. Moreover , no official from the NADRA was associated with the proceedings, rather the documents, which otherwise could not be considered being made way on the record in an improper manner and without adopting due process of law as has been hinted above, have been given undue weight.
7. Apart from this, the respondent No.1, while appearing before the learned appellate Court on 18.11.2017 recorded his statement having no objection acceptance of appeal and passing of decree in favour of the petitioners, but the said factum was also not considered and discussed by the learned appellate Court while passing the impugned judgment and decree dated 02.05.2018, which otherwise ought to have adjudged in accordance with and ef fect of the said statement should have been discussed and determined.
8. Pursuant to the above discussion, the learned Courts below while passing the impugned judgments and decrees have failed to exercise vested jurisdiction as per mandate of law and have committed material illegalities and irregularities. Thus, the civil revision in hand is allowed, impugned judgments and decrees are set aside and the matter is remanded to the learned trial Court with a direction to decide the same afresh after recording evidence of the Assistant Commissioner , Mianwali who conducted the inquiry Mark-DG as well as evidence of official from the NADRA, as Court witness, keeping in view the ratio of judgments referred hereinbefore. No order as to the costs.