' MUHAMMAD YUNUS SURAKHVI. J.---This appeal, vide order of this Corn dated 8-2-2002, has been filed by treating the leave petition as a direct appeal agains, the judgment and decree passed by the High Court on 26-9-2001, whereby the appeal filed by the appellant herein was dismissed.
2. The necessary facts, giving rise to the present appeal, are that plaintiff-respondent, Safarish Ali Khan, filed a suit in the Court of District Judge Kotli stating therein that he entrusted an amount of Rs.80,000 to the defendant-appellant but he has refused to return the same to the plaintiff- respondent. He thus sought a decree for the recovery of the aforesaid amount. It was also prayed that the aforesaid amount is a charge an the moveable and immovable property of the defendant-appellant. On the other hand the defendant-appellant took the stand that the documents regarding the entrustment of Rs.80,000 were secured by the plaintiff-respondent under duress and undue pressure.
3. After necessary proceedings issues arising out of the pleadings of the parties were framed. Both the parties led their evidence in support of their respective claims. The trial Court after hearing the parties passed the decree of Rs.80,000 in favOur of plaintiff-respondent and as a consequential relief it was observed that the same being bar on the moveable and - immovable property of the defendant-appellant may be recovered from the said property of the appellant and he shall be restrained from transferring his owned and possessed land mentioned in the judgment and decree of the trial Court. The appeal filed against the judgment and decree of the trial Court was dismissed by the High Court vide its impugned judgment and decree dated 26-9-2001 which is the subject matter of present appeal.
4. Ch. Muhammad Sharif Tariq, the learned counsel for the appellant, vehemently argued that the trial Court has failed to appreciate the evidence in its true perspective, as such the judgment and decree are not maintainable. The learned counsel contended that when the defendant-appellant appeared as a witness he was not cross-examined by the plaintiff-respondent, therefore, his statement under law would be deemed to have been accepted. The learned counsel in support of his contentions placed reliance upon Mst. Noor Jehan Begum v. Syed Mujtaba All Naqvi 1991 SCM R 2300, Wasiullah Khan v Muhammad Ayub 1991 CLC Note 329 at p.252, and Sardar through Legal Heris v. Ghulam Haider 1991 CLC Note 252 at p.196, wherein it has been laid down that if the portion of statement of a witness has not been challenged in cross-examination, the same shall be deemed to have been admitted. The learned counsel also argued that the conclusion arrived at by the trial Court as well as the High Court is erroneous and is a result of misreading and non-reading of evidence.
5. On the other hand Ch. Muhammad Azam Khan, the learned counsel for the respondent, by controverting the arguments raised by the learned counsel for the appellant, submitted that the trial Court after due consideration of facts and law proceeded to pass a decree in favour of respondent and as such the same does not warrant any interference. The judgment and decree passed by the trial Court has been confirmed by the High Court, so a concurrent finding of fact arrived at by both the Courts cannot be interfered with by this Court. The learned counsel strenuously argued that the defendant-appellant cannot go out of his pleadings and set up a new case. He submitted that the claim of respondent was accepted by the defendant-appellant, therefore the decree was correctly recorded by the trial Court and confirmed by the High Court.
The learned counsel contended that the appellant's claim that the documents were got executed by him under duress and pressure of respondent is not -supported by any documentary as well as oral evidence. Therefore, the trial Court as well as the High Court have committed no illegality in passing the impugned judgment and decree.
6. We have given our due consideration to the arguments advanced by the learned counsel for the parties and perused the relevant record as well as the judgments recorded by the trial Court and the Appellate Court. The plaintiff-respondent in support of his claim produced Talib Hussain, petition-writer, Muhammad Sharif, Oath Commissioner, Muhammad Sharif son of Saida Khan, Muhammad Aziz, Muhammad Azeem, Karam Khan, Munshi Khan and also appeared himself as a witness in addition to the documentary evidence consisting of entrustment-deed Exh.'P.B.', the affidavit Exh. 'P.A.' and application Exh.'P.C.'. On the other hand the defendant-appellant brought on record the evidence of Muhammad Nawaz Shahpal Khan, Mango Khan, Muhammad Afsar, Muhammad Azeem and also appeared himself as a witness in addition to the production of documentary evidence Exh.'D.A.' . The trial Court after detailed discussion of the evidence arrived at the conclusion that the plaintiff-respondent has proved his case, as such it passed the decree prayed for in his favour. The judgment and decree passed by the trial Court was upheld by the High Court.
7. Normally this Court does not interfere in the proceeding where the evidence has been duly appreciated by the trial Court and the Appellate Court. Even if a different conclusion is possible by this Court, it cannot be a ground for setting aside the judgment recorded by the trial Court and the High Court which are passed on the questions of facts. In our considered view when the defendant-appellant took the stand that the documents produced by the plaintiff-respondent' in support of his claim were got executed by him under duress and by exerting pressure upon him, the onus of proof shifted on him to prove the same who failed to lead any tangible evidence supporting his claim. The documentary evidence placed on record by the plaintiff-respondent has not been disputed by the appellant. It has rightly been pointed out by the trial Court , that the execution of documents Exhs ' P. A . ' , ' P . B. ' and ' P.0 . ' stands proved and it was for the defendant- appellant to prove that any undue pressure was exerted on him in getting the documents executed.
8. So far as the principle laid down in the authorities cited by the learned counsel for the appellant is concerned, it is correct that if the statement of a witness is not challenged in -cross- examination, the same is considered to have been admitted by the opposite side but in the instant case the situation is not so, as has been pointed out by the learned counsel for the appellant. The statement of the appellant is not confidence inspiring nor trust-worthy. Therefore, there was no necessity of cross-examining the defendant-appellant on the point which already stood admitted by him. The evidence of other witnesses produced by the defendant-appellant has rightly been discarded by the trial Court as Muhammad Azeem, the witness for defendant-appellant, has been stated to be an interested witness. Similarly the document Exh.'D.A.', relied upon by the defendant- appellant, has also been correctly discarded by the trial Court as the same was not relied upon by the defendant-appellant in his written statement nor in his statement before the Court. It is also stated to have been written on a blank paper which has no evidentiary worth. The trial Court in its well reasoned and elaborate judgment discussed all the evidence produced from both the sides and reached at a correct decision by passing a judgment and decree in favour of the plaintiff- respondent. The same was rightly confirmed by the High Court.
' In the light of what has been stated above, finding no force in this appeal, the same stands dismissed with costs.