MUHAMMAD BASHIR JEHANGIRI, J.--The petitioners seek leave to appeal from the order of a learned Single Judge of High Court of Balochistan dated 4-8-1997 accepting the revision petition filed by the respondents under section 115 of the C.P.C.
2. In this revision petition before the High Court, the defendants felt aggrieved by the order dated 12-11-1995 of the learned Majlis-e-Shoora, Kalat Division, whereby the plaintiffs-respondents were non-suited by the learned Qazi, Kalat, but the appeal filed thereagainst was accepted by the learned Majlis-e-Shoora, Kalat, and the judgment and the decree non-suiting the petitioners- plaintiffs was set aside and their suit was decreed.
3. The revision proceedings arose out of the petitioners' suit against the defendants-respondents for a declaration of their title to and confirmation of their symbolic possession over the disputed land through their tenants. The case of the plaintiffs-petitioners set up in the plaint was that late great grandfather of the plaintiffs-petitioners (Khan Mahmood Khan Awal) gave to the predecessors-in-interest of the defendants-respondents, Mir Abdur Rahim Qambarani, the disputed lands in exchange for the latters' land situated in Kalat and Ziarat. In this behalf, reference was made to a document called'Sanad', evidencing the exchange and purportedly executed in the month of Zilhaj, Hijra, 1249. It was further urged that they remained in possession of the land either in person or through their tenants since its exchange. They also claimed to have installed; through their tenants, tubewell in the suit land. The pleadings of the parties led to the framing of the following issues:--
(i) Whether suit was within time?
(ii) Whether suit land with boundaries as shown in the plaint and comprising of Khasra Nos.178/179/180/181/197 and 199 was ancestral property of plaintiffs?
(iii) Whether suit lands were under cultivation of occupancy tenants and 1/6th shares of the produce was paid to plaintiffs as Malikana?
(iv) Whether occupancy tenants of plaintiffs had installed tubewell on the suit land?
(v) Whether defendants had secretly managed revenue entries (of ownership and cultivation) of suit land in their favour?
(vi) Whether plaintiffs were in possession of suit lands?
(vii) Whether plaintiffs' predecessor and Ruler of Kalat State Khan Mehmood Khan Awal had given suit lands to defendants' predecessor Mir Rehim Khan in exchange for latter's lands situated at Kalat and Ziarat?
(viii) Whether part of the suit land was in self-cultivation of defendants whereas remaining was under cultivation of defendants' tenants namely, Ghulam Muhammad, Shafi Muhammad and Shadi Khan, who were paying 'Malikana' to defendants?
(ix) Whether defendants' tenants had installed tubewell in the suit lands and there were fruit- bearing trees thereon?
(x) Whether proper court-fee was paid on the plaint?
4. Issue No,1, covering limitation and Issue No,10 regarding court-fee were decided in favour of the plaintiffs-petitioners, Issues Nos.8 and 9 were answered in the negative and operated against the defendants-respondents. Issue No,3 was also decided against the plaintiffs-petitioners. On Issue No,4 regarding installation of tubewell by the tenants of the plaintiffs-petitioners, it was found that Khasra Nos.197-199 were in possession of the plaintiffs through their tenants. The remaining Khasra numbers were found to be lying barren. Nonetheless the possession of these Khasra numbers was not held to be relatable to the owners on account of decision in criminal proceedings. On material Issue No,7, reliance was placed on 'Sanad' Exh.D-4 and testified to its correctness by defendants' witness Abdul Rashid. The plaintiffs' evidence on this issue was, however, discarded and this issue was found in favour of the defendants. As a cumulative effect of these findings the plaintiffs-petitioners, as stated earlier, were non-suited by the learned Qazi.
5. Feeling aggrieved from the judgment dated 28-5-1995 passed by the, trial Court, the plaintiffs/petitioners filed appeal under section 24 of Dastoorul-Amal Diwani, Kalat read with section 96 of the C.P.C. Before Majlis-e-Shoora, Kalat, The defendants/respondents filed cross- objections on 19-9-1995 against the decision on those issues which were decided against them, by the judgment' dated 12-11-1995 passed by the Majlis-e-Shoora, Kalat, whereby the judgment and decree of the learned Qazi non-suiting the plaintiffs/petitioners was reversed and their suit was decreed.
6. This time obviously the defendants/respondents felt aggrieved and filed a civil revision in the High Court. No revision was, however, filed regarding the dismissal of cross-objections. It was found by the learned Judge in Chambers of the High Court that the evidence had not been discussed by the Appellate Court and, therefore, he had himself re-appraised the entire evidence led by the parties and came to the conclusion that the learned Qazi had discussed the evidence "with diligent application of mind and no illegality or irregularity whatsoever has been committed", in passing the impugned judgment dated 4-8-1997. The learned Single Judge of the High Court on re-appraising the entire evidence, reached the conclusion that "the judgment passed by the learned Qazi is based on reasoning and the entire evidence has been discussed in its true perspective and in depth". The learned Single Judge of the High Court did not see any convincing reason or plausible justification to set aside the same . In consequence the civil revision was accepted and the impugned judgment and decree passed by the Majlis-eShoora on 12-11-1995 was set aside and that of the learned Qazi dated 28-5-1995 was restored.
7. Mr. Muhammad Aslam Chishti, Senior Advocate Supreme Court for the petitioners contended that the trial Court while dismissing the suit relied on report of Tehsildar and his decision rendered in a direct criminal complaint transmitted to the Assistant Commissioner, Kalat, and that the learned Single Judge had erred in approving such reliance on decisions in criminal cases for adjudication of civil disputes. It was next maintained that as a Court of Revision, the learned High Court was not justified in appraising the entire evidence and reversing decision of the Appellate Court when its own finding was that the Appellate Court had not examined in depth the evidence nor reasons were given in support of its findings and for such reasons, judgment was described as invalid. In this context, the learned counsel urged that the proper course for High Court was to have remanded the case to Majlis-e-Shoora for re-writing of judgment. The approach of the trial Court, according to Mr. Chishti which was approved by the High Court in discarding evidence of the plaintiffs/petitioners' material witnesses, namely, Gul Muhammad, Noor Muhammad and Nazar Muhammad principally for the reasons that they were either servants or tenants of plaintiffs was not legally sound. Mr. Chishti thus submitted that this could not be a reason for brushing aside their statements.
8. Mr. Salahuddin Mengal, learned Advocate Supreme Court appearing on behalf of the defendants/respondents has supported the judgment of the learned trial Court as well as of the High Court on strength of the reasoning which weighed with the. Court of learned Qazi duly approved by the learned High Court.
9. The learned trial Court as well as the learned Single Judge of the High Court have erred to place reliance on the decisions of the criminal Courts to lend support to the ocular evidence of the plaintiffs/petitioners. Nonetheless, this legal infirmity per se was not enough of a reason to nullify the conclusions reached by the learned Judge in Chambers of the High Court on the other ocular evidence which he had appraised carefully. The approach of the learned Single Judge of the High Court was, however, not such as to warrant interference with his findings which are otherwise not shown to be in violation of any provision of Qanun-e-Shahadat, Order 1984 (hereinafter called as the order). The appraisal of evidence undertaken by the High Court and inferences drawn by it are, therefore, legally sound and cannot .Be interfered with in our Constitutional jurisdiction.
10. The second contention of the learned counsel that the High Court in exercise of its revisional jurisdiction was not justified in appraising the entire evidence and reversing the decision of the Appellate Court is, however, untenable. It is settled law that the High Court can undertake re- appraisal of evidence if it finds that there was gross misreading of evidence by the trial Court or of the Appellate Court ignoring the material evidence. We have noticed that the Appellate Court has not at all appraised the evidence but simply set aside the findings of the trial Court, therefore, it was not all the more necessary for the learned Single Judge to have himself appraised the evidence in depth and drawn proper inference from that evidence which the learned Single Judge had appropriately done. Again, if the two learned Courts below are at variance then the learned High Court would be justified in re-appraising the evidence if the Appellate Court while recording the divergent views on the issues involved had not at all adverted to the evidence and had only reversed the findings without pointing out the relevant evidence on those issues. The second contention of the learned counsel appearing on behalf of the plaintiffs/petitioners thus also stands repelled.
11. We are, however, inclined to concede the proposition raised by the learned Senior Advocate Supreme Court that merely because the witnesses of a party were either servants or tenants of that party was not sufficient to discard their evidence.
12. The order lays down two tests of competence of a witness; (i) capacity to understand and rationally answer the questions put to him and (ii) possession of qualifications prescribed by the Injunctions of Islam as laid down in the Holy Qur'an and Sunnah, but where such a witness is not forthcoming, the Court may take the evidence of a witness who may be. Available. Generally speaking the evidence of a person related to the party for whom he appears to prove a fact or is otherwise in peculiar relationship with that party, for instance, as is the case in hand, tenants or servants are not disqualified to testify as witnesses or their testimony as a general rule shall not be discarded. The provisions contained in Articles 3 to 17 of Chapter II of the Order were earlier the subject-matter of sections 118, 121 to 134 of Chapter IX of the Evidence Act, 1872. The provisions contained in sections 119 and 120 of the Evidence Act (ibid) have not been included in the Order.
The framers of the Order have introduced the concepts of Muslim Law of Evidence relating to witnesses in the very beginning of the Order ignoring the Scheme of the Evidence Act though in other respects the Order adopts the same Scheme and follows the Systematic Order in which the rules of evidence were arranged in the Act. In the Evidence Act, 1872, as well as in the Order, the rules of evidence have been grouped under three main parts, viz. (i) Relevancy of Facts; (ii) Mode of Proof and (iii) Production and Effect of Evidence. Ignoring all further details, namely, condition for a competent witness etc. Islamic Qanun-e-Shahadat lays down the following conditions for giving testimony by a witness:--
(1) Existence of a claim or complaint and the requisition of the testimony in it.
(2) Testimony is to be given before a Court.
(3) Witness has the personal knowledge of the facts to be stated except in cases where hearsay evidence is admissible, such as res gestae.
(4) Statement to be given by first uttering the word "Shahadat", e.g. Witness first of all to say that: I give Shahada that
(5) Witness remembers the incident or the facts to be deposed.
(6) Witness is able to identify the parties at the time of making the statement.
(7) Conformity of the statement with the claim.
(8) Statements of witnesses of the parties should be corroboratory of each other and not conflicting.
(9) In Hudood cases excepting Qazaf, the fact sought to be proved {{ URDU TEXT}} should not have occurred in the distant past. (Maliki, Shafi'i and Hanbali Jurists, however, hold the view to the contrary and do not consider it as condition for giving evidence).
13. In this context reference can be made to the case of State v. Farman Hussain PLD 1995 SC 1. In para. 5 of this case, Ajmal Mian, J., as His Lordship then was, observed as under:-- "In this regard, it may be pertinent to observe that section 118 of the Evidence Act, 1872 (now Article 3 of the Qanun-e-Shahadat, 1984 which contains certain additions) (hereinafter referred to as the Act) deals with the question as to who may testify. It provides that all persons shall be competent to testify unless the Court considers that they were prevented from understanding the questions put to them or from giving rational answers to those questions by tender years, extreme old age, disease, whether of body or mind or any other cause of the same kind. The explanation to the above section lays down that a lunatic is competent to testify unless he is prevented by his lunacy from understanding the questions put to him and giving rational answers to them. In other words, the above provision of the Act makes all persons competent to testify unless the Court considers it otherwise on account of above reasons which includes tender age. (Underlining is ours for providing emphasis).
14. From the conditions reproduced ante, there is nothing which implies discarding the evidence of either the servants or the tenants of a party in support of the claim put forward by their masters/landlords. Article 3 of the Order does not provide that in civil proceedings, the parties and their husbands and wives are not competent witnesses. By way of caution, however, we may refer to some of the rules stated in Hedaya, Volume 2, pp.360-361, that evidence is not admitted in favour of relations with the degree of paternity. Testimony in favour of a son or grandson, or in favour of father, or grandfather is not admissible because the Holy Prophet (p.b.u.h.) has so ordained. Besides, as there is a kind of community of benefits between these degrees of kindred it follows that their testimony in matter relative to each other is in some degree a testimony in favour of themselves and is, therefore, liable to suspicion. All said and done, in the ultimate analysis, it is the inherent worth of a witness which accords credibility or otherwise to his deposition and any such status such as a servant or a tenant is in no way a rule warranting to discard their deposition.
Much would, therefore, depend upon the facts and circumstances of each case to accord truthfulness or otherwise to the testimony of a witness rather than his status such as a servant or a tenant etc. (See. Commentary on Qanun-e-Shahadat Order (10 of 1984) by Justice (Retd.) Khalil- ur-Rehman Khan).
15. For these reasons no exception can be taken to the view that has prevailed with the learned Single Judge in the High Court of Balochistan in this matter. The petition is, therefore, dismissed and leave sought for declined.