' By this single judgment Writ Petition No,13056 of 2000 and Civil Revision No,1364 of 2000 shall be disposed of.
2. Through this Constitutional petition the petitioner seeks setting aside of the judgment dated 3-5- 2000 passed by the learned Additional District Judge, Kasur and the judgment dated 8-5-1994 passed by the learned Civil Judge, Kasur.
3. Briefly the facts as narrated in the writ petition are that on the death of one Mst. Sardaran Bibi daughter of Wali Muhammad. Mutation No,1469 dated 30-1-1988 was sanctioned in favour of Ghulam Rasool son of Majeed Muhammad respondent No,5 being a collateral of Wali Muhammad, deceased. The said mutation was challenged by the petitioner through a suit for declaration claiming to be nearer to Mst. Sardaran Bibi as respondent No,5 in whose. Favour the mutation was sanctioned is remote and having no title to the land in question and it was further stated that the said mutation is void, illegal, unlawful and liable to be set aside as being cousin of Mst. Sardaran, he is entitled to inherit her. The suit was contested by respondent No,5 who admitted the claim of the petitioner and gave a statement on 4-7-1992 in pursuance thereof the suit of the petitioner was decreed on 14-7-1992 and the Mutation No,1469, dated 30-1-1988 was set aside and the alleged Nawab Bibi, predecessor-in-interest of respondents Nos.1 to 4 filed an application under section 12(2), C.P.C. On 10-5-1993 before respondent No,7 and challenged the decree dated 14-7-1992 on the grounds that the same has been procured by fraud and misrepresentation and the petitioner and respondent No,5 contested the application under section 12(2), C.P.C. Filed by the predecessor-in-interest Of respondents Nos. 1 to 4 through the written reply in which it wag stated that predecessor-in-interest of respondents Nos.1 to 4 is not Nawab Bibi but her name is Mehtab Bibi who got the identity card changed in the name of Nawab Bibi. On merits it was stated that predecessor-in-interest of respondents Nos.1 to 4 is not sister of Mst. Sardaran Bibi and as such she was not entitled to claim any share out of her inheritance. It was further stated that the petitioner being cousin of Mst. Sardaran Bibi was entitled to inherit her and mutation sanctioned in favour of respondent No,5 was rightly set aside by the judgment and decree, dated 14-7-1992 and the learned Civil Judge after perusing the pleadings of the parties framed the following issues on 9-3- 1993:--
(1) Whether the petition is liable to be dismissed in view of preliminary objections Nos.1 and 2 of the reply? OPR
(2) Whether the decree of the Court dated 14-7-1992 was secured through fraud and misrepresentation? OPA
(3) Relief.
4. The petitioner appeared as R.W.1 and produced one Sardar Ali as R.W.Q.2 whereas the predecessor-in-interest respondents Nos.1 to 4 alleged Nawab Bibi appeared as A.W.1 and produced Muhammad Anwar A.W.2, Arif Ali A.W.3, and Ghulam Muhammad A.W.4 and tendered in evidence Exhs.P.1. To P.9.
5. The learned Civil Judge after perusing the evidence vide judgment and decree dated 8-5-1994 accepted the application and set aside the judgment and decree, dated 14-7-1992 passed in favour of the petitioner and the petitioner filed appeal before the District Judge, Kasur on 13-6-1994 which was treated as a revision and the same was dismissed by the learned Additional District Judge, Kasur on 3-5-2000 and the same order was assailed before the Court as the said order was illegal, unlawful, and without lawful authority.
6. The learned counsel for the writ petition submitted that the order, dated 3-5-2000 passed by the learned Additional District Judge, Kasur is patently bad in law and that the learned Additional District Judge, Kasur while deciding the revision on 3-5-2000 against the petitioner also heard Civil Appeal filed by Ghulam Rasool arising out of judgment and decree dated 8-5-1994 which was passed against him by the trial Court arising out of the suit filed by the predecessor-in-interest of respondents Nos, 1 to 4 alleged Nawab Bibi against the sale-deed dated 9-1-1979 and Mutation No,1252 dated 12-1-1985 claiming to be bogus, void and procured by producing some other lady.
Ghulam Rasool filed Civil Revision No,1364 of 2000 before this Court which has been admitted to regular hearing on 4-6-2000 and that the point in issue in Civil Revision and the present writ petition is whether predecessor-in-interest of respondents Nos.1 to 4 alleged Nawab Bibi is real sister of Mst. Sardaran Bibi or not and this writ petition has nexus with civil revision. And that the order dated 3-5-2000 passed by learned District Judge, Kasur is based on misreading and non- reading of the evidence and as such the said order has no legs to stand and that the perusal of the order, dated 3-5-2000 reveals that no evidence was referred or discussed in the impugned judgment, therefore, the judgment dated 3-5-2000 is no judgment in the eye of law and that the learned lower Appellate Court has wrongly set aside the judgment and decree, dated 14-7-1992 passed by the learned Civil Judge, Kasur in his favour as the petitioner being cousin of Mst.
Sardaran Bibi is only entitled to inherit her and predecessor-in-interest of respondents Nos.1 to 4 alleged Nawab Bibi is not the sister of Mst. Sardaran Bibi and as such is not entitled to claim any share and that the learned Additional District Judge while deciding the revision of the petitioner in para No,3 took judicial notice of the findings recorded by him in the suit titled Mst. Nawab Bibi v.
Ghulam Rasool, therefore, it is necessary that this writ petition may also be heard alongwith Civil Revision No,1364 of 2000.
7. The facts narrated in the revision petition are that the predecessor-in-interest of respondents, namely, Mst. Nawab Bibi filed suit for declaration challenging the sale-deed No,135 dated 9-1-1979 with respect to land measuring 19 Kanals, 11 Marlas situated in Mauza Lakhnaykay, Tehsil and District Kasur and Mutation No,1252 dated 12-1-1985 claiming to be bogus, void and procured by producing some other lady with the consequential relief that the petitioner be restrained from alienating the land and the suit was contested by the petitioners who took several preliminary objections like that suit was barred by time and that the land in question was sold on receipt of money and on merits it was stated that Mst. Nawab Bibi had not filed the suit but some other lady posing to be Nawab Bibi had filed the suit and the trial Court after perusing the pleadings of the parties framed the following issues:--
(1) Whether the suit is time-barred? OPP
(2) Whether the suit has not been instituted by competent person? OPD
(3) Whether the suit has not been properly valued for the purposes of court-fee and jurisdiction?
OPD
(4) Whether the plaintiff is estopped by her conduct and words to bring the present suit? OPD
(5) Whether the alleged registered sale-deed dated 9-1-1979 was neither executed by the plaintiff, nor any amount of consideration was received by the plaintiff? OPP
(6) Whether the alleged registered sale-deed dated 9-1-1979 and mutation dated 12-1-1985 both are the result of fraud and misrepresentation? OPP (6A) Whether the plaintiff of the present suit is not actual Nawab Bibi daughter of Mst. Gohri? OPD
(7) Relief.
8. The parties led pro and contra evidence and the trial Court after perusing the evidence oral as well as documentary vide judgment and decree dated 8-5-1994, decreed the suit of the respondents. The petitioner filed before the District Judge, Kasur on 2-6-1994 which came up for hearing before the learned Additional District Judge, Kasur who vide judgment and decree, dated 3-5-2000 dismissed the appeal by maintaining the judgment and decree of the trial Court.
9. The learned counsel for the petitioner submitted that the suit was instituted by Mst. Nawab Bibi who had died 13 years prior to the suit and that this fact has not been adverted to by both the Courts below it was one Mehtab Bibi who had filed the suit showing her as Nawab Bibi and that Muhammad Anwar, Advocate had appeared in the case as P.W.2 while Rule 157 of the Legal Practitioners and Bar Councils Act, 1976 which bars the appearance of the advocate as a witness.
10. On the other hand, the learned counsel for the respondent has submitted that in Civil Revision No,446 of 1999. His Lordship Mr. Justice Faqir Muhammad Khokhar, passed the order that the controversy of the prosecution and the counsel to appear as an advocate is to be decided by the Trial Court. There is no cavil with this decision.
11. I have given due consideration to the valuable arguments on both sides.
12. Rule 157 of The Legal Practitioners and Bar Councils Act; 1976 reads as under:-- "When an Advocate is a witness for his client except as to merely formal matters, such as the attestation or custody of an instrument and the like, he should leave the trial of the case to other Advocates. Except when essential to the ends of justice, an Advocate should avoid testifying in Court on behalf of his client."
13. In the case of Mst. Razia Begum v. Sardar Muhammad Ishaq, Advocate (1990 MLD 144), the Tribunal of Pakistan Bar Council where an Advocate had arranged and supervised the Nikah and associated with it, had appeared as a counsel in a case of Hudood Ordinance, the Honourable Tribunal reprimanded for the misconduct and burdened with costs of Rs,12,000 and the remand was ordered to be noted in the Rolls of the Advocates against the name of the respondent and the Bar, the Supreme Court and the parties were also informed accordingly.
14. In the matter of Khan Iftikhar Hussain Khan of Mamdot where an application was filed calling in question the propriety of Manzur Qadir, Barrister-at-Law, appearing and acting as counsel for the Province in that case on the allegations made against Mr. Manzur Qadir are as follows:--
(a) That before and during the hearing of earlier enquiries against Khawaja Abdur Rehim and Raja Hasan Akhtar, Mr. Manzur Qadir, did certain things and caused certain things to be done, otherwise than as counsel, which make him a most important witness in this case;
(b) that he is aware of material facts which make his evidence-necessary for just and proper decision of the case;
(c) that in the two earlier cases as well as in this case, Mr. Manzur Qadir acted as "the Principal Investigating Officer" and consequently is a necessary and material witness in this case;
(d) that if Mr. Manzur Qadir does not give evidence as a prosecution witness, the defendant will be obliged to call him as a defence witness; and
(e) that for these reasons, Mr. Manzur Qadir cannot act as counsel in the case, consistently with his position as an Officer of the Court and a member of the Bar, and he should, therefore, be directed to withdraw from the case."
' And it was observed:-- "It is thoroughly well-settled that, as a general rule, it is desirable that the same person should not be both Advocate and witness, and further that no person should act as an Advocate in a case if he has personal knowledge of the facts, or has a personal interest in the case, and we are fully satisfied that, notwithstanding anything contained in section 495, Criminal Procedure Code (which admittedly is not applicable in terms to the present proceedings) or to any principle derivable therefrom, an Advocate-General or Standing Counsel or any other officer specified in subsection
(1) of section 495, Criminal Procedure Code, would be disentitled, equally with any other Advocate of this Court, from appearing before us as counsel in a case if he were himself an important witness in that case, or had a personal interest therein."
15. In this view of the matter, there has occurred a gross procedural irregularity which can be rectified and the whole proceedings are illegal and nullity in the eye of law as such these are without lawful authority and as such the judgment of both the Courts below are set aside and the case is remanded to the learned trial Court to decide the whole case afresh strictly in accordance with law.
16. Parties are left to bear their own costs.