1. NASIM HASAN SHAH, J. The question involved in this petition for leave to appeal is whether the Court in second appeal could disturb a finding of fact. The question arises in the following circumstance. Mst. Zohra Bibi claiming superior right of pre-emption, being the daughter of Qasim Shah, pre-empted, by a suit, the sale made infavour of Mansoor Hussain petitioner, by Mst.
2. Badshah Begum, the grand-daughter of said Qasim Shah. Mst. Zohra Bibi's claim of superior entitlement was contested on the ground that she was not the daughter of Qasim Shah or otherwise related to the vendor. The issue on this point was decided by the trial Court in her favour and the suit was decreed. But on appeal, the finding was reversed and the decree set aside. This led to the filing of a second appeal by Mst. Zohra Bibi, in which she succeeded and in the result the decree passed in her favour by the trial Court was restored.
3. Mst. Zohra Bibi had besides examining herself, produced Manzoor Shah (P. W. 1) brother of vendor Mst. Badshah Beum and grandson of Qasim Shah, Pir Fazal Hussain Shah (P. W. 2) the- husband of sister of Ch Shah, a former husband of Mst. Zohra Bibi, Najam-ud-Daula (P. W. 3) son-in-law of Mst.
4. Zohra Bibi, and Faiz Rasool (P. W. 4) the husband of the vendor. All these witnesses had fully supported Mst. Zohra Bibi's claim to be the daughter of Qasim Shah. Even D. W. 2 Muhammad Hussain, the deed-writer, produced by the petitioner, had supported her case. Manzoor Hussain, petitioner had no doubt contested her claim but had produced little evidence in rebuttal and had only expressed his ignorance about the relationship between Nlst. Zohra Bibi and the vendor. The learned Judge of the High Court after examining the evidence at some length had found that there was substantial and convincing evidence to support the case of Mst. Zohra Bibi but that the first appellate Court had, for minor discre--pancies and omissions, disbelieved the same. He, therefore, held that the appreciation of evidence recorded by the First Appellate Court was "based upon misreading of evidence which cannot be sustained in law".
5. Sheikh Ataullah Sajjad, learned counsel for the petitioner, relied upon Abdul Majid and others v.
6. Khalil Ahmad (PLD 1955FC38) wherein this Court has observed in relation to the powers of the High Court under section 100, C. P. C. That "the High Court has no jurisdiction to entertain the second appeal on the ground of an erroneous finding of fact, however gross and inexcusable the error may seen to be, unless there is an error in the procedure provided by law, which may possibly have produced an error or defect in the decision of the case on the merits". It was further observed that "a fallacy in appraising the evidence as to a fact, unless it amounts to a material mistaken assumption, is, merely an error in coming to a finding as to that fact, and such error has never been held to be an error of law justifying interference in second appeal". This view has been relied upon by this Court in Sh. Muhammad 1khlas and others v. Muhammad Ismail (PLD 1963SC466), Pathana v Mst. Wasai and another (PLD 1971 SC 730), Sikanlar Hayat and others v. Master Fazal Karim (PLD 1971 SC 730) and Azhar Saleem v. Muhammad Anwar Khan etc. (1974 SCMR 484).
7. Raja Said Akbar, learned counsel for the respondents/caveators, however, pointed out that the above dictum is applicable in the case of a concurrent finding of fact and is not attracted when there is a judgment of variance, namely, where the learned District Judge has upset the findings of the learned trial Court. In such eventuality, the rule laid down by this Court in Madan Gopal and others Maran Bepari and others (PLD 1969 SC 617) is attracted wherein it has been observed: - "If the finding of fact reached by the First Appellate Court is at variance with that of the trial Court, the former will ordinarily prevail, although it would not possess the same value or sanctity as a concurrent finding. Such a finding by the lower appellate Court will be immune from interference in second appeal only if it is found to be substantiated by evidence on the record and is supported by logical reasoning, duly taking note of the reasons adduced by the first Court which have been disfavored in the contrary finding. The finding being at variance with that of the trial Judge, the two will naturally come in for comparison for their comparative merits in the light of the facts of the case and the reasons on which the two different findings have respectively proceeded. If the finding of the first appellate Court cannot be supported on the evidence on the record or if it has failed to take into account a material piece of evidence or if it does not reveal a logical basis for differing from the finding of the trial Court, or is otherwise found to be arbitrary or capricious, it will have to be rejected in second appeal."
8. He submitted that the High Court was justified in interfering with the finding reached by the lower appellate Court in this case because there was substantial evidence produced by Mst. Zohra Bibi which could not have been ignored merely on account of certain discrepancies or omissions made by the witnesses.
9. So far as judgments of variance are concerned, this matter was considered in Mst. Choori v.
10. Ghulam Hussain (1987 SCMR 404) by a Bench of which one of us (Nasim Hasan Shah, J.) was a member and delivered the judgment. In this case, the judgment of the District Judge on appeal reversing the findings of the trial Court and which was not interfered with by the High Court. Was held to be unexceptionable. Again in Hafiz Muhammad Hussain and another v. Abbas Khan and another (981 SCMR 1233), which case again related to a judgment of variance and one of us (Nasim Hasan Shah, J.) delivered the judgment, it was observed that "in other words, the petitioners were criticising the appreciation of evidence made by the learned Additional District Judge. Since, however findings of fact recorded by the First Appellate Court are final and binding and the same cannot be interfered with merely on the basis that the same are based on an incorrect appreciation of evidence, the High Court could not have interfered with the said findings and by the same taken this Court would refrain from going into this aspect of the matter". However, indirect support of the view taken in the case of Madan Gopal is furnished by the observations of this Court in Mir Haji Khan and others v. Mir Aijaz A.I and others (1987 SCMR 404).
11. The question for consideration, therefore, is whether the High Court, in the circumstances of this case and particularly in the case of a judgment of l variance, could reverse the findings of fact in second appeal under section 100, C. P. C. Leave to appeal is, accordingly, granted. Security Rs.
12. 2,000.
13. Interim order to continue meanwhile.