' This revision petition is filed by the petitioners against the order dated 23-2-1986 of the learned District Judge, Malakand 'at Batkhela, whereby the judgment and the decree dated 24-11-1984 of the Senior Civil Judge, Malakand at Batkhela was reversed granting the relief of declaration and the perpetual injunction and the plaintiffs-respondents were non-suited.
2. The plaintiffs-petitioners instituted on 1-2-1979 the suit out of which this revision has arisen for declaration that they were owners-in-possession of the mountainous land fully described in the heading of the plaint and situate in the estate of village Kote, Tehsil Swat Ranezai. Another relief claimed was of perpetual injunction restraining the defendants-respondents from passing water pipes through the disputed land and installing the water pump therein. By way of consequential relief, a possessory decree by removing the pipes and the water pump was also added.
3. The plaintiffs-petitioners claimed in the plaint and later tried to substantiate it during the trial that the disputed land was their ancestral property while that lying contiguous. Thereto had been successfully pre-empted by the defendants-petitioners. The gravamen of the plaintiffs was that the defendants had not only illegally laid the pipeline through the disputed land but had also installed a water pump. Hence the suit for the reliefs noted above.
4. The defendants contested the suit in their joint written statement wherein beside controverting the plaintiffs' claim to the disputed land, few legal objections were also raised.
5. The pleadings of the parties gave rise to 11 issues but for the purpose of this petition only the following issues are relevant:--
(4) Whether the defendants are in adverse possession of the suit land for more than 100 years, if so, its effect?
(7) Whether the plaintiffs are owners and in possession of the suit land?
(8) Whether the defendants and one Ghulam Muhammad are the owners of the suit land and they are in possession of it?
(9) Whether the plaintiffs are entitled to the declaratory decree and permanent injunction as prayed for?
(10) Whether the plaintiffs are entitled to a decree for possession of the suit land by demolition of the water pump and water pipe etc.?
6. The learned trial Judge, after appraising the evidence, both ocular and the report of the local commissioner held on issues 7, 8 and 9 that plaintiffs have succeeded in establishing their claim to the disputed land while the defendants had not been able to substantiate their assertion. In consequence issues 9 and 10 were decided in favour of the plaintiffs while issues Nos.4 and 8 against the defendants. As a cumulative effect of these findings the suit was decreed. The defendants- respondents' appeal there against was accepted by the learned District Judge, Malakand on 23-2- 1986 and the trial Court's findings on the aforesaid crucial issues was reversed and the plaintiffs- petitioners were non-suited. Feeling dissatisfied they have now come up to this Court in revision.
7. Mr. Mazullah Barkandi, Advocate for the petitioners has challenged the fading's of the appellate Court on issues Nos.4, 7, 9 and 10. He contends that the learned appellate Court has illegally discarded the ocular evidence of real uncle of the defendant, namely, Haji Khial Muhammad and had placed implicit reliance on the evidence of Gul Khan (P.W.4) and thus the learned appellate Court has been the victim of misreading and non-reading of evidence and had thus committed illegality and material irregularity. The learned counsel had serious criticism to the observations of the learned appellate Court that "the burden of proof lay heavily on the plaintiffs who miserably failed to discharge the same" and "further that it is not established beyond reasonable doubts that the plaintiffs are exclusive owners of the suit land" and maintained that this concept of proof beyond reasonable doubt is alien to the civil disputes which succinctly falls within the realm, of the administration of criminal justice. According to the learned counsel only on this score the impugned judgment and decree was liable to be set aside. Reliance was placed on: "Ghulam Muhammad and another v. Muhammad Ashraf and 2 others" PLD 1981 SC (AJ&K) 118 on the difference of standard of prouf in criminal and civil cases. He has also relied upon "Ibrahim etc. v.
Yaqoob Khan etc." 1989 M LD 3302 for the proposition that the appellate Court had not examined the case in its true perspective and the evidence produced by the petitioners which had been relied upon by the trial Court and had been excluded from consideration on a mistaken assumption and thus the judgment of the appellate Court suffered from material irregularity and was liable to be interfered with in the revisional jurisdiction of this Court.
8. As against this, Haji Zahir Shah, Advocate, has submitted that the crucial question before the Courts below was whether the plaintiffs-petitioners have proved their rights over the disputed land and looking to the appreciation of evidence by the learned appellate Court it had become crystal clear that the plaintiffs have not been able to prove their case on the standard even laid down in Ghulam Muhammad's case cited by the learned counsel for the petitioners.
9. After hearing the learned counsel for the parties and going through the material evidence read before me I find that the reasoning of the learned appellate Court to discard the evidence of Haji Khial Muhammad (P.W.1) does not suffer from any legal infirmity. Haji Khial Muhammad (P.W.1) no A doubt is admittedly the uncle of the defendant who has deposed in favour of the plaintiffs.
Nonetheless mere deposition of an uncle of a party in favour of his Oval would not by itself be a ground to attach absolute evidentiary value to his testimony particularly when he has admitted to be on inimical terms with his defendant-nephew. In the second sentence of his cross-examination he had admitted that he had been bound down under section 107, Cr.P.C. With the defendants and that they have got a dispute over a house. Thus the cat is out of the bag and, therefore, the learned trial Judge was absolutely wrong to place implicit reliance on the evidence of such a highly interested witness. As against this the learned appellate Court has not only appraised the entire evidence in its proper perspective but had also taken into consideration other relevant matters which have been highlighted in the appellate judgment.
10. There is no cavil with the proposition that the rules of evidence for civil and criminal cases are, in general, identical but "some provisions in the Evidence Act are peculiar to the criminal cases and others are peculiar to the civil cases". The phraseology employed by the learned appellate Court in the judgment which has been played up before me that "it is not established beyond reasonable doubt that the plaintiffs are exclusive owners of the suit land" was not warranted but mere use of these words would not be sufficient to upset the finding of the learned appellate Court which is otherwise strictly in accordance with the standard of proof in civil cases. In civil cases all that is necessary is to insist upon is that the proof adduced in support of a fact is such that should make a prudent man to act upon the supposition that it exists and that is all. Whether an alleged fact is a fact in issue or a relevant fact, the Court can draw no inference from its existence till it believes it to exist; and it is obvious that the belief of the Court in the existence of a given fact ought to proceed upon grounds altogether independent of the relation of the fact to the object and nature of the proceedings in which its existence is to be determined. Munir in his treatise on the Evidence Act, 1872 (since repealed) has concluded that proof considered as the establishment of material facts in issue in each particular case by proper and legal means to the satisfaction of the Court is effected by--
(a) evidence or statements of witnesses, admissions or confessions of parties, and production of documents,
(b) presumption,
(c) judicial notice,
(d) inspection which has been defined as the substitution of the eye for the ear in the reception of evidence as in the case of observation of the demeanor of witnesses, local investigation, or in the inspection of the instruments used for the commission of a crime.
The extent to which any individual material of evidence aids in the establishment of the general truth is called its probative force. This force mus be sufficient to induce the Court either--
(i) to believe in the existence of the fact sought to be proved, or
(ii) to consider its existence so probable that a 'prudent man ought to act upon the supposition that it exists. The proof must rest on evidence. The Court must not base its conclusion on mere conjectures and surmises. It must take all facts into consideration. To attempt to isolate a particular fact from the surrounding circumstances and to discuss its logical inference is wholly out of place in judicial decisions."
11. Applying these principles to the facts of this case it is the last mentioned probative force which is relevant. Judged the entire evidence adduced by the parties on the touchstone alluded to in the last-mentioned paragraph I am of the considered opinion that the learned appellate Court has not been the victim of misreading or non-reading of the ocular as well as documentary evidence brought on the record. The learned trial Judge had not only taken notice of the entire relevant evidence but had also appreciated it in its true perspective. Learned District Judge has applied his mind to the real controversy particularly the admission of the star witness of the petitioners, namely, Mukaram Khan (P.W.3) that it was correct that Haji Abdul Waris and Zarin were the Jirga Members from Sherbada Khel tribe in the case in which the oath was given to the defendants Lal Said and Yar Gul Malak, that the suit was brought by them against the defendants and Abdul Hakim and Ghulam Muhammad had taken oath in that case. The taking of oath in the tribal areas is one of the admitted categories of proof which has now the legal sanction behind it under Article 163 of the Qanun-e-Shahadat, 1984. From the admission in the cross-examination of Mukaram Khan it transpires that Mtkkaram Khan and the defendants were earlier locked in litigation over the controversy of the land in dispute and that the defendants had taken the desired oath. All the four crucial issues are issues of fact. The learned appellate Court after applying its conscious mind to the relevant evidence has found these issues against the petitioners; that the learned appellate Court has given good reasons for believing/disbelieving the witnesses; and that the learned appellate Court has given sound and cogent reasons in support of the conclusion arrived at by it. I do not, therefore, see any reason to interfere in the appraisal of evidence made by the learned appellate Court strictly in accordance with the rules of evidence. The learned counsel for the petitioners has failed to point out any misreading or non-reading of the material evidence which might have affected the judgment of the learned appellate Court. For all these reasons no exception can be taken to the concurrent findings of the Courts below on issues Nos.4, 7, 9 and 10.
12. For what has been said above there being no merit the revision is dismissed with costs.