1. ' Only point in the revision petition is whether respondent Mst. Zarina was daughter of Karam Khan and entitled to a 1/5th share of the land left by him at the time of his decease as found by the learned Judge below. Facts are:- Karam Khan owned 11 Kanals, 5 marlas of land at Mauza Vardag Dakhli Nartopa of Tehsil and District Attock. He died on 18-8-1972. By Mutation No,2687, sanctioned on his death on 24-3-1973, Revenue Officer distributed the land by allocating 4/5 share to his two sons Taus Khan and Rawat Khan in equal halves, and, gave the remainder 1/5th to Mst. Zarina as his real daughter. The inheritance mutation is marked Exht.P2.
2. ' On 9-4-1972, Taus Khan and Rawat Khan instituted a suit in the Civil Court at Attock to have it found that they were exclusive owners in possession of the land left by their father and Mst. Zarina being not the daughter of Karam Khan was not entitled to share his inheritance with them and that inheritance mutation was erroneously sanctioned in her favour. Upon being served in the suit, Mst.
3. Zarina joined issues with her brothers and submitted that she was daughter of Karam Khan and rightly given her share in his land. On 29-5-1974, the trial Court settled a solitary issue on her relationship and put its burden of proof on the plaintiffs. On 6-1-1975, above issue was amended to its existing form. It runs:- "Whether defendant Mst. Zarina is daughter of late Karam Khan? OPP.
4. ' The defendant opened her case first. Her husband Asif Khan appeared for her as DW.1. He deposed that Mst. Zarina was daughter of Karam Khan and was wedded to him as his wife. In cross- examination, he deposed that Mst. Zarina was born in village Nartopa. She was of 42/43 years, and married to him 26 years ago. Mst. Zarina herself did not appear in the witness-box. In support of oral evidence led on her behalf, certified copy of written statement filed by Karam Khan in an earlier civil suit marked Exht.D-1 was tendered in evidence and the defence evidence closed.
5. Plaintiffs gave evidence of Nawaz Khan PW.1. He stated that Mst. Zarina was not daughter of Karam Khan, who had informed him that she was found by him from a maize field. In cross-examination, he admitted that he was not related to Karam Khan. He also admitted that Mst. Zarina was got married to Asif Khan by Karam Khan. Also stated that Karam Khan informed him about 4/5 years earlier that he had found Mst. Zarina lying in a field. Taus Khan (plaintiff) as PW.2 deposed that Mst.
6. Zarina was not his sister, nor daughter of Karam Khan. She was found from a maize field and brought up by his father. In cross-examination, he admitted that Rawat Khan was his consanguine brother and Mst.Zarina was younger to him by 10/15 years. He admitted that Mst. Zarina was brought up by his father and married to Asif Khan. Also stated that Mst. Zarina was of a month only when she was found by his father. He conceded that this matter was not reported to the police. He denied the suggestion that he had admitted before the Revenue Officer in course of mutation proceedings about Mst. Zarina to be his sister. Further admitted that a civil suit brought by Mst.
7. Zarina was defended by him and his father Karim Khan and that Sheikh Karim Bakhsh acted as their counsel in that suit. He denied the suggestion that in that suit, Karam Khan had admitted Mst.
8. Zarina to be his daughter. Plaintiffs produced copy of Jamabandi for the year 1971-72 Exht.P.1, copy of Mutation No,2687 Exht.P.2, and an extract from Register Khasra girdawari Exht.P.3 and closed their evidence. Upon review of the material brought on record, the trial Court held that Mst. Zarina was not daughter of Karam Khan, and, thus decreed the suit to the plaintiffs, on 24-4-1975. She filed an appeal. It was allowed on 10-7-1975 by learned Additional District Judge and suit was remanded for deciding of it afresh after taking additional evidence on the issue of relationship between the parties. Para 8 of the judgment in appeal is relevant to the present discussion. It reads:- "During the course of the arguments, it has been brought to my notice that the maternal-uncles of the respondents who are also alleged by the appellant as her maternal-uncles are alive. I think that their statements may be of great help in order to settle the controversial issue. I find that the evidence produced on the record is quite insufficient to determine the contentious issue between the parties. In the interest of justice I feel that both the parties should be given an opportunity to produce additional evidence. The trial Court should also summon the maternal-uncles after getting their particulars from the parties."
9. ' In the preceding paragraph of the judgment, the learned Judge adverted to the contradictory version of Karam Khan, which to his mind created a doubt on the veracity of his statement. Against remand order, plaintiff preferred an appeal (FAO 140/75) to the High Court. It was dismissed on 2- 2-1985 by my learned brother Akhtar Hassan, J., on the ground that since a revision lay against the remand order, appeal was incompetent. Merits of the remand order were not looked into. In post remand, Hakim Khan and Ghulam Rasul maternal-uncles of Rawat Khan (plaintiff) and Mst. Zarina (defendant No,1) as DWs. 1 and 2, stated that Mst. Sajida Bibi was their sister. She was married to Karam Khan. She had a son Rawat Khan and a daughter Mst. Zarina born to her from this marriage.
10. As far Taus Khan, it was stated that he was born from another wife of Karam Khan. They stated that Mst. Sajida Bibi was taken in marriage by Karam Khan after the death of his first wife. The trial Court also recorded the statements of Mst. Bibi Ran and Mst. Aisha Bibi. Mst, Bibi Ran was of 66 years of age and Mst. Aisha Bibi of 80 years. Both were maternal-aunts of Rawat Khan, and Mst. Zarina. They deposed that Mst. Sajida Bibi was their sister. She was married to Karam Khan. Rawat Khan and Mst. Zarina were her son and daughter from this marriage. In rebuttal, plaintiffs gave statement of Sajawal Khan PW.3. He deposed that Mst. Zarina was not real sister of Taus Khan. Plaintiff's father informed him that he had found her in a `Jawar' field. He stated that Mst. Zarina was able to walk, when she was found by Karam Khan. He is a close relation of Taus Khan. His sister was married to him. Obviously, he is interested in him. Rawat Khan (plaintiff) who had not appeared in pre-remand proceedings to make his own statement, now stepped into the witness-box as PW.4. He deposed that Mst. Zarina was not related to him. She was a discovery of his father from a `Jawar' field and was brought up by his father and later got married. He admitted that he was consanguine brother of Taus Khan. They were from different mothers but a common father. In cross-examination, he conceded that Mst. Zarina was hardly of few days when she was found by his father. He admitted that at the time when Mst. Zarina was found by his father, mother of Taus Khan had already expired. In cross-examination he admitted that their father had sold some land to them in the past and a suit was brought by Mst. Zarina to challenge the sale in their favour. In the suit, Karam Khan himself as the alienor and the vendees namely Taus Khan and Rawat Khan were impleaded as defendants. Sheikh Karim Bakhsh, Advocate was their counsel in the suit. He admitted that Karam Khan had made a statement in Court but what his statement was he did not recollect. He denied the suggestion put to him that Karam Khan had admitted that Mst. Zarina was his daughter.
11. Certified copy of the written statement Exht.D.1 revealed that some land was sold by Karam Khan in favour of his two sons. Mst. Zarina as daughter of Karam Khan brought a usual civil suit under Customary Law on 31-7-1967 for challenging the sale on the grounds that it suffered from want of consideration and, lacked legal necessity. Copy of the plaint in the suit was not in evidence. In Para 1 of the written statement Exht.D.1, it was admitted that Mst. Zarina was daughter of Karam Khan and sister of other two defendants. In Para 3 of the written statement Exht.D.1, it was stated that as daughter, the plaintiff was incompetent to challenge alienation of ancestral land by her father.
12. Written statement Exht.D.1 is dated 5-10-1967. It appears to be signed/thumb marked by the defendants. Its contents were also verified by them. Though the relationship asserted in the plaint was admitted in the written statement Exht.D.1, yet at some later stage, Karam Khan in his statement recorded by the trial Court denied that the plaintiff (Mst. Zarina) was his daughter and that she was found in a `Jawar' field after few days of her birth. In final judgment of the Court dated 23-11-1967, issue of relationship was not finally resolved and the suit was dismissed on the short ground that the plaintiff had no locus standi to challenge alienation of ancestral land. There are indications in the judgment of the trial Court dated 23-11-1967, that it took plaintiff as daughter of Karam Khan. It may be noticed that the copy of the judgment in the suit filed by Mst. Zarina was not part of the record. It was shown to the Court by the learned counsel for the respondents in order to satisfy it that there was no adverse finding on issue of relationship between the parties. Let me say at once, that I do not propose to take judgment in the earlier suit in consideration for relying on it for purposes of deciding the present controversy. After survey of the evidence led by the parties, it now becomes necessary to examine the contentions on merits. It is submitted that the learned Judge below did not correctly read the record and failed to notice an important omission about the respondent's personal nonappearance in Court to make statement in support of her case and draw an adverse inference against her on that score. It was forcefully argued that her nonappearance to give evidence on facts within her knowledge was a weighty factor and was fatal to the truth of her case.
13. ' As said above, in the opening paragraph of my judgment, only material point requiring decision in the revision petition is about the truth of the relationship of Mst. Zarina to Karam Khan. The trial Court found against her and held that she was not daughter of Karam Khan. Judgment in appeal favoured her stance. Upon careful consideration and critical analysis of the material on record, in my view, it is sufficiently established beyond doubts that Mst. Zarina was daughter of Karam Khan and the story that she was found in a maize field was neither true nor convincing. This conclusion I hold, despite her omission to step in the witness-box for making a statement in support of her version. In the inquiry on the inheritance mutation at a public gathering, Mutation Officer found that Mst. Zarina was daughter of Karam Khan and gave her share in the land left by her father. In 1967, Karam Khan sold some land to his two sons. Mst. Zarina then asserted that she was daughter of Karam Khan and challenged the sale in favour of her brothers. Karam Khan and his two sons were defendants in the suit. Unequivocally, the defendants admitted that she was daughter of Karam Khan and sister of the other defendants. It is true that in his statement recorded later, Karam Khan denied that she was his daughter and was found from a field but that appeared to be a clear shift to suit the requirements of the occasion. Probably, the old father intended to save the property in the hands of his sons and for that purpose cooked up an unplausible story. It did not ring true to satisfy a judicial mind for placing reliance upon it. Obviously, that which was stated first in the written statement was true and must be taken as correct on relationship of Mst. Zarina Bibi to late Karam Khan. The trial Court did not consider it necessary to decide on inter se relationship and dismissed the suit for want of competence of the plaintiff to challenge the alienation of ancestral land by her father. It is common ground that Mst. Sajida was married to Karam Khan. There is no dispute that Rawat Khan was born to her from this marriage. Two maternal-uncles and two maternal-aunts deposed unanimously that Mst. Zarina was born to Sajida Bibi from the loins of Karam Khan. Plantiffs failed to disclose paternity of Mst. Zarina. All that was said was that she was found by Karam Khan in a field. Some witnesses deposed that she was of few days when she was found by Karam Khan. Others said that she was able to walk. Strangely, none knew of her parents.
14. At least, none was produced by the plaintiffs to disclose her origin, whether she was a legitimate child of some parents or begotten illegitimately. To me, it looked to be an extremely unlikely event in a village life, wherein it is difficult, if not impossible to conceal the truth from a searching public eye.
15. ' Further, there is no reason for the close maternal-relations of the parties to depose in favour of Mst. Zarina and against Rawat Khan except compulsion of consience to speak truth. Both Mst.
16. Zarina and Rawat Khan were equi-distant to them. Why should one be preferred to the other, records gave no answer. Maternal-nephew and niece were equally dear to maternal-uncles and maternal-aunts. Even then, they deposed in favour of Mst. Zarina saying that she was daughter of Karam Khan from the womb of Mst. Sajida Bibi. This is nothing but the truth and, there is no good reason for not taking it as such. Having regard to the standard of proof for deciding of civil matters, preponderance of evidence favoured the conclusion that Mst. Zarina was daughter of Karam Khan and the learned Judge below was correct in holding that view. As for the contention about personal non-appearance of Mst. Zarina it ought not to tilt the scales in favour of the plaintiffs.
17. Ordinarily, where a party abstains from giving evidence in his own case about the facts in his personal knowledge, the presumption would be that c truth lay on the other side but the rule of drawing adverse presumption is neither absolute nor inflexible. Where enough evidence was led by a party to establish its case and there are no inherent improbabilities in it mere non-examination of the party as a witness in support of its case may not justifiably lead to an advise inference against it. Mst. Zarina was ill-advised to abstain from witness-box. Her counsel submitted that she belong to a tribe of pathans and was a pardahobserving lady. Such females avoid public gaze and do not appear in Courts. Even so, she could be examined by a Local Commissioner appointed for the purpose. But all that is now a matter of the past, and, it shall be of no purpose to comment on the omission because there is good evidence to find the relationship proved. Learned Judge below chose to rely on her evidence in preference to her adversaries. That course was open to him and no fault could be found with it. The conclusions in the impugned judgment are not infirm.
18. Accordingly. I would agree with the learned Judge below, uphold his conclusions, and dismiss the revision petition in limine.
19. ' Records be returned.